Crime and Courts Bill [HL]

Debate between Lord Reid of Cardowan and Lord Soley

Monday 25th March 2013 Lords Chamber

[Lord Soley]

My Lords, as a member of the Delegated Powers and Regulatory Reform Committee, I confirm that the Minister is right that we said that the super-affirmative procedure had been used before in similar cases and, in principle, could be used. However, that is not a key question. The key question has already been put and I do not wish to elaborate on it too much. Is it appropriate to use that procedure or would it in fact be better for quality-of-legislation purposes to have new legislation in the situation described in the proposed new clause? I tend to the view that if you are going to make a decision of that type, then new legislation would be better.

I asked myself whether it might become urgent to do that and whether we would then need urgent legislation, given that it deals with terrorism. I find it difficult to see the circumstances in which that might happen, but if it did then both Houses are quite capable of urgent legislation. However, that does not seem to be on the agenda. The real question is whether we would get the legislation right. In those circumstances, particularly given the nature of the cross-party consensus that one is usually able to build when you are looking for ways of dealing with terrorism, I would be surprised if it were not possible for a new Bill to be dealt with relatively expeditiously. The scrutiny given in both Houses, particularly this one, might be better than using the super-affirmative procedure, which I agree is an accepted practice, as we discussed at some length in the Delegated Powers and Regulatory Reform Committee, but whether it is best practice is a different question.

[Lord Reid of Cardowan]

My Lords, I approached this issue with an open mind and attempted to ask myself what benefits might be gained from doing this particular thing in this particular fashion. I do not think that I have ever been accused of being soft on terrorism. I genuinely believe that the first obligation of a Government is to protect their citizens. I therefore sought to discover, in asking myself and in listening to others, what might be the huge advantage and efficacy, first, of transferring from the Metropolitan Police to the NCA and, secondly, of doing it in this fashion. I am afraid that I failed to persuade myself that there is such a case.

Unlike my noble friend Lord Harris and the noble Lord, Lord Condon, I have no particular interest in the Metropolitan Police, although obviously I have an interest as a former Home Secretary. However, the points that they made about the nature of the fight against terrorism were very well made. This is not just a mechanistic operational question. It covers far more than investigations and intelligence. It covers community relations, counter-radicalisation, relationships in the community, and so on. I fully accept that there is a degree of resistance, sometimes unspoken, from police services throughout the country as the Met has the lead on this. However, I think that it has discharged that responsibility very well indeed. In the absence of any problem to be solved, we have to ask why a solution of this nature has been proffered.

My second point concerns the emerging nature of the National Crime Agency. Every time I read about the NCA, which has not yet been formally established, as my noble friend Lord Harris pointed out, it seems to have inflated its own powers and scope. I am not quite sure who now controls the fight against illegal immigration as the UK Border Agency has been split off into a different agency and there is a second agency that comes under the Home Office. I understand that there are thoughts about the NCA having responsibility for controlling our borders as well and now counterterrorism is being envisaged. My third point is that we cannot start this from scratch. The fight against terrorism relies on a reservoir of experience, a culture, an operational expertise, knowledge within the system and so on.

My final point is about the nature of doing this. If it was absolutely essential to transfer such powers immediately, in a very short period or without obstacle or difficulty, I could see the Government’s case, but I have not yet been able to envisage such circumstances. Indeed, if I envisage sudden emergencies arising, I would have thought that that was precisely the time you do not want to change the agency handling them. You would want to carry out such a profound change in such an important area over a period of time with a great deal of thought being given to the transition. If that is the case, why are we looking for some immediate expedient to transfer it with the minimum of parliamentary scrutiny?

Having approached this with an open mind, I have found what I have heard so far entirely unpersuasive. I have listened to everything that has been said but I do not think that adding parliamentary scrutiny to a questionable transfer would in any way impede the fight against terrorism. In fact, it would assist it.

Justice and Security Bill [HL]

Debate between Lord Reid of Cardowan and Lord Soley

Monday 23rd July 2012 Lords Chamber

[Lord Reid of Cardowan]

My Lords, I first apologise that I missed the first few speeches because I was unavoidably detained, but I have listened to quite a few of the speeches over the period and I have tried to read as much as possible of these debates when I have missed them. I have been impressed by the commentary on legal matters, matters of process and by the justice side of what the noble Lord, Lord Pannick, referred to earlier—the balance of justice and security—but I am afraid that I have searched in vain for anyone outside of the Front Bench doing anything in detail to analyse the security context. In other words, we cannot possibly judge whether these are appropriate measures in general unless we judge them in the circumstances of today. As the noble Lord just said, the situation with a coalition Government means that we are living in different times from previously, but the situation of living with the threat that we have today means that we are also living in different times from previously.

I have read with great interest the legal commentaries. I have found them outstanding in their quality and certainly outstanding in their quantity. I always defer to noble Lords with expertise in the human rights area and in the legal area on matters of law and advice on human rights, but I hope that noble Lords will forgive me if I do not defer on deciding on matters of security. I would have been horrified when I was Home Secretary had it been suggested to me that the overall strategic position on security and defence, for which the noble Lord, Lord King, and I had responsibility, was better served by having a lawyer decide rather than an accountable politician. Therefore, although this may be a minority speech, it is one worth bearing in mind for those who are speaking to these amendments today, not least on closed material procedures but not exclusively on them.

My starting point is to ask why these proposals are coming forward in the form that they are today. I am not a lawyer. I am a historian and therefore the two important questions to me are “Why is something happening?” and “Why is it happening when it is happening?”. Of course, there can be motivations ascribed. I have heard it said that this is merely mission creep. I have heard that it is the malevolence of the intelligence services: it is their guilt and wish to cover up future proceedings. But there may be a simpler answer: that circumstances have changed, and in particular that the nature of the threat has changed.

I say that on an evening when, unpopular as it may be to certain elements of the press, the chemical weapons and weapons of mass destruction debate seems to have been put back on our front pages. It is now widely recognised that they are sitting just across from Iraq. People are naturally very worried about what would happen if they fell into the hands of some of the terrorist groups at present operating in Syria. That is an example of the nature of the modern threat.

Noble Lords will know that there are two essential elements of threat: intention and capability. After 9/11, there can be no doubt that there are people in the world who have an unconstrained intent to commit unconstrained mass murder, including in this country. Whereas 60 years ago there were states with that intention, they lacked the capability. The scientific and technological basis on which they might operate their intent was limited to CO₂ from the fumes of cars or vans or to Zyklon B canisters. That is not the case today. Chemical, biological and radiological weapons are also capable of extending unconstrained massacre of human beings. That is what has been in the minds of those charged with the security of the country since 9/11—unconstrained intent and unconstrained capability.

The second feature of that, which brings me to the amendments today and the Bill before us, is that there is now a seamless threat. This is not a threat in one country. It is not a threat that appears only in two countries. I did not deal with one threat that was in fewer than two or three countries, and in one it involved people in 29 different countries. If you have a seamless threat, you have to have a seamless response.

We are no longer, if we ever were, an island fortress, not just with cyber but with some of the potential threats that face the citizens of this country, whom the Front Bench are charged with protecting. If we are to have a seamless response, above all it requires absolute trust between those agencies and those Governments who are working together. That trust and dependence are now far greater than 30 or 40 years ago. Therefore, the breach of that trust, inadvertently or otherwise, through institutions or processes, legal or other operations, becomes a huge hole in the creation of a holistic security policy.

I am not suggesting today that any of the ideas that have been put forward or the amendments are necessarily wrong, and I am certainly not suggesting that they are badly motivated. They are not malevolent; they spring from a natural inclination to oversee government, particularly when government exercise powers that are abnormal. Sometimes, they will be based on first principles and sometimes you will ask where the logic to this is, as the noble Lord, Lord Butler, asked earlier. To that particular question I will tell him that there is no logic. It is a political decision taken for political reasons. It is the result of political discussions. It has been decided to concede in order to gain what is left. I do not expect the Minister to say that, but it is obvious to all of us.

At the end of the day, political decisions have to be made. All I want to do today is put in the minds of everyone who speaks, from every background, the experience in making decisions such as this of those of us who have had the privilege—and burden, in some ways—of being charged with the security of the country. It is not because we are Cromwellian in character; it is not because we have a blind spot for mission creep; it is not because Ministers on the Front Bench will not question the agencies—it is quite proper that they do so. It is because the first premise on which they should base the balance of justice and security is an understanding of the security element, as well as the details of the justice element and the justice process.

[Lord Soley]

My Lords, I think my noble friend misunderstands a key point of what we are saying. I agree almost absolutely with everything that he has said—and, indeed, we have discussed this on many occasions before. However, I want to bring the purpose here to his attention. The government document from the Ministry of Justice said that these powers are wanted so that changes can be made more quickly than by amending primary legislation. I know that Parliament and parliamentary control is important to him. However, if he had been Home Secretary, what would he have decided if I had come to him and said, “Look, you need to change this legislation. Ask for an affirmative order, which will take a month or two; try to amend it, which will take a couple of months; or have a quick Bill going through both Houses”? If he would have decided the latter, he is on my side.

[Lord Reid of Cardowan]

The noble Lord knows that I always listened and, for the most part, conceded when he made representations on these matters. I have no problem with what he suggested earlier. I was careful not to attack or to try to criticise any particular amendment. The great omission is not the quality or substance of the amendments put forward, but the fact that we have been debating this in a vacuum.

The noble Lord, Lord Pannick, said that there has to be a balance between justice and security. I completely accept that. It is never an easy balance. There have been times in our history where the security situation has been such that we have had to take abnormal measures to constrain or expedite the justice element of that. I accept that it is much more difficult to perceive that today because we do not have a war. However, there is undoubtedly a conflict of sorts, which is a threat to the people of this country. What if—and I hope to God it is an “if”—something happens which could have been prevented by the exchange of intelligence of which we were not in receipt because we had not maintained trust? I do not just mean the trust of the United States but of all our allies. The great tragedy that was avoided in August 2006 involved intelligence sharing not just between the United States and ourselves but on a much wider basis. Two and a half thousand British citizens were at risk in that single event.

All I ask is that noble Lords and colleagues bear that in mind, so that we do not approach this purely from the position of legalism or legal principles. These principles are extremely important; certainly, do not abandon oversight. However, recognise that lying behind the proposals brought by the Government is a motivation which I at least—having been there and seen it with one or two other noble Lords who are here today—judge more benevolently than some of the critics of the Government.