Counter-Terrorism and Security Bill

Baroness Buscombe Excerpts

Tuesday 20th January 2015 Lords Chamber

[Baroness Ludford (LD)]

My Lords, on Amendment 2, can the noble Lord opposite explain whether there is any particular reason for choosing two years for the sunset clause, after which time, subject to an affirmative resolution, there would be a permanent continuation? What is the logic behind that two-year split? Why is there not, in a sense, a rolling sunset clause every two years? If there is a rationale to it, perhaps the noble Lord can explain the reason for that two-year review and then no more, as it were, apart from the normal rules that apply to primary legislation.

[Baroness Buscombe (Con)]

My Lords, I, too, would like to understand from the shadow Minister opposite why a period of two years has been chosen. What is the logic? In seeking to explain Amendment 2, he appears to have concluded that there is a strong chance that this measure may not be necessary at the end of a two-year period. I wish that he was right on that—even if he had a hunch that it could be right—but all the commentators that one has been listening to, some more expert than others, have explained to us, as have the Government, that we will probably face great difficulty in the area of counterterrorism for a number of years. In that case, I suggest that a two-year period is far too short, indeed unreasonable, given that an affirmative resolution of both Houses takes time and energy away from the job in hand.

On Amendment 3, I made clear at Second Reading that I support the independent reviewer having the opportunity to review this legislation in the fullness of time. However, I think that producing an annual report is far too onerous and unnecessary. I do not support these amendments.

[Lord Carlile of Berriew (LD)]

My Lords, I do not understand the two-year period contained in these amendments. The issue which we are dealing with and which is covered in this clause is, unfortunately, going to last for more than two years. Does the Minister agree that having a two-year sunset clause—even if there were to be a sunset clause at all—would send out a completely incorrect message to those who are minded to go abroad and participate in jihad? We have to show some enduring determination over this issue.

My second concern is that these amendments are too prescriptive for the work of the Independent Reviewer of Terrorism Legislation. Can the Minister confirm that the independent reviewer is able to look at all provisions relating to counterterrorism legislation? Surely it is right that the independent reviewer should be able to focus on those issues which are revealed during the course of a given year as causing concern and report on those, rather than being required to report on too many specific issues? We heard at Second Reading that the current independent reviewer is doing something like 180 days per year. When I started as independent reviewer in 2001, just after 9/11, I was doing 40 days per year. By the time I finished, in early 2011, I was doing 140 days per year. Prioritising the independent reviewer’s work should surely be left to that person.

My final point is this. A great deal of respect has rightly been paid to the current independent reviewer. If the independent reviewer highlights a provision that is not working, surely that is at least as powerful as any sunset clause ever could be?

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[Lord West of Spithead]

I think that has to be done by the end of this year—which I believe is too short.

[Baroness Buscombe]

Can the Minister also tell us now, or at a later stage, whether sunset clauses were imposed by the then Labour Government in the anti-terrorism Acts of 2000 and 2001 and, if so, what the terms were?

[Lord Bates]

My Lords, we have had a very good, short debate on this, with a lot of contributions that in many ways highlight the difficulties that there are in this area when it comes to reaching any common ground as to what the position should be. I am grateful for the two amendments which have been introduced calling for a sunset clause on Chapters 1 and 2, and will outline the Government’s position on this. As was touched on before, it cannot of course be about whether this is a matter of principle, because clearly it is something that the Government have looked at in respect of other chapters of the Bill.

I will give the Committee the reasons why we have come to the position that we have on these particular amendments. The problem that we are seeking to address with these powers is not of a short-term nature—a point very well made by the noble Lord, Lord Carlile. We do not know how long it is going to be there for or how the threat that we are facing might mutate into different fields and theatres. From that point of view, we felt that having a set date and time on which those powers fall would send the wrong signal. I will come back to the reasons for that. Terrorism-related travel is a serious and ongoing issue, and we can expect the threat posed by British citizens returning from fighting alongside terrorist groups abroad to be present for many years to come. It is important that our law enforcement agencies are equipped to protect the British public from individuals who pose a risk.

Amendment 2 seeks to introduce a sunset clause to the temporary passport provisions. It would ensure that the power would be repealed in two years’ time, unless both Houses pass a resolution that it should continue. The precautions we have established should ensure that the temporary passport seizure power will be used in a fair, reasonable and lawful manner. They are aimed at striking the right balance between our civil liberties—which the right reverend Prelate was absolutely right to focus on—and our right to safety and security, which a number of noble Lords, including my noble friend Lady Buscombe, referred to. The House of Commons considered these factors very carefully, as your Lordships have, and it came to an overwhelming view that it did not feel that a sunset clause was necessary in relation to Chapter 1.

Amendment 55 would introduce a sunset provision to the temporary exclusion power in Chapter 2 of Part 1. Your Lordships will be aware that the Government have tabled amendments to introduce strong judicial oversight of the use of this power. The courts will have a number of opportunities to review whether each temporary exclusion order is imposed appropriately and to ensure that the power is used proportionately against individuals suspected of terrorism. In the light of these strong safeguards on the use of both the temporary passport seizure power and the temporary exclusion power, the Government do not think that it is necessary to bring the power to an end after two years. Indeed, introducing sunset clauses to these powers in two years might, as my noble friend Lord Carlile said, inadvertently send the wrong message to would-be jihadist travellers by suggesting that we lack the intent to deal with the threat that they pose to us.

There are two points here. I reflect on the views and the great experience that my noble friend Lady Warsi has in this area through her excellent work in office. She led for the Government on this, and therefore I listened very carefully to what she said about civil liberties, but there are two sides to this. There is of course the side that deals with the ability of people to travel, and the disruption of travel, which effectively is what we are talking about here. Measures are available under the royal prerogative, under which a passport is not seized but can actually be cancelled, and there is no sunset clause and no basis of appeal for these measures. Under the Terrorism Act 2000, too, there are powers to disrupt and deal with passports. Again, they are not subject to a sunset clause.

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[Lord Carlile of Berriew]

My Lords, I spoke earlier and will not repeat what I said. Listening to this debate, I agree entirely with what was just said by the noble Lord, Lord Pannick, and my noble friend Lady Hamwee. It is essential that the independent reviewer has the flexibility to report on any issue that relates to counterterrorism legislation in the order in which he deems it appropriate, subject of course to commissions being given by the Government, or possibly by Select Committees or others, from time to time.

[Baroness Buscombe]

My Lords, I will add to what my noble friend Lord Carlile said. Speaking as a member of the Joint Committee on Human Rights, it is certainly my understanding that we kept this aspect of our report purposely broad to ensure flexibility and to leave it to the experience and expertise of the independent reviewer in supporting a role for them in reviewing this and all other counterterrorism legislation, ensuring that he or she should not be pinned down by prescription, in either content or time limits.

[Baroness Ludford]

My Lords, I agree with my noble friends and the noble Lord, Lord Pannick, on the need for both broad scope and flexibility in powers for the independent reviewer. On Amendment 4, can the noble Lord, Lord Rosser, say whether there is any further detail on the requirement that:

“The Secretary of State shall publish figures on the usages of powers”?

What sort of degree of detail or scope was envisaged?

On Amendments 41 and 41A, it may just be that I am a little befuddled, coming back from much less complicated EU legislation to more complicated domestic legislation. However, as I read those amendments, they seem to refer only to a review of the arrangements for food and accommodation, because they are specifically inserted after paragraph 14 of Schedule 1. I am not sure that that refers to a review of the whole powers under Clause 1 and Schedule 1 because it seems to be rather specific about just the powers in paragraph 14. Indeed, the term “arrangements” seems to refer only to the arrangements appropriate for the person, which, according to the draft code of conduct, relate to food and accommodation, and so on. It may be that I am completely on the wrong track here; if so, I will be most grateful for the noble Lord’s clarification.

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[Baroness Ludford]

My Lords, I, too, will speak to Amendments 42 and 43, which I strongly support and to which my name is also attached. The draft code of practice refers to the need for an objective basis for the constable’s state of mind and how such information must be specific to the personal conduct of the person and not formed on the basis of assumptions about attitudes, beliefs or behaviour of persons belonging to particular groups. Training in equalities would want specifically to address the danger of stereotyping or behavioural assumptions. There has been a great deal of concern in the last decade and a half about what might sometimes be called racial, ethnic or religious profiling. One of the things that distinguishes this country from, for instance, France is that we believe—and this also relates to the need to record statistics on the use of the powers—that it is a useful exercise to record statistics which include, as indeed does our census, a voluntary question on ethnic identity and religious practice because it helps inform social, economic and, in this case, legal lessons to be learnt. It is not helpful, as is sometimes done in other countries, to pretend that we are colour and identity blind, because that actually means that we are blind in terms of the policy conclusions drawn. The need for training to avoid discriminatory behaviour and stereotypical assumptions and to record how the constables and other qualified officers behave and perform their duties is a useful addition to the Bill.

[Baroness Buscombe]

My Lords, listening to this debate and a debate on the previous amendments, some of which I was listening to on my screen elsewhere, I say we must not lose sight of just what an incredibly difficult task our intelligence services and police face in relation to counterterrorism. As I said at Second Reading, we do not know all that the intelligence services know. We must not tie their hands too much and be too prescriptive. I suggest that these powers are not being sought lightly. We have to be really careful when we debate “how many hours” and “as soon as possible” in Committee to step back now and again to remind ourselves why we are here and what we are debating.

With specific reference to these amendments, I have some sympathy with my noble friend Lady Hamwee in relation to “possession” or,

“under his or her control”.

That sounds more all-encompassing; perhaps that comes from my legal background as well. It would be good to hear the Minister’s view on this.

In relation to Amendment 11, “evidence”, “as soon as possible” and “12 hours” have been mentioned. We need to give the security services the freedom—if that is the right word—to be able to do their job and need to trust them to some considerable degree to do the right job. I worry about the reference to statistics and so on in relation to later amendments in this group. Of course we must be concerned about discrimination but at the same time how can we know—and how can my noble friend the Minister, with respect, stand here today and say—how many times we think these measures will be sought or used? We are in an incredibly difficult place at the moment on a global level. We have to do all we can to protect our citizens and collaborate with others across international boundaries to ensure to the best of our ability that we can counter terrorism. In that case, we should not ask for statistics at this stage. I understand where and why statistics look good and that we can look back and say that this made sense or that did not, or that it looks as if we have overused this or that power. Let us give the freedom necessary for the security services to do the job properly or to the best of their ability in the most difficult circumstances, remembering also that the circumstances have changed considerably since our last counterterrorism Bill. We are now in a situation where the speed to be able to act is absolutely of the essence, given that so much of this relates to information and evidence coming from possibly multiple sources and often digitally, in which case with enormous speed. We are asking our security services to act in response to that speed and the speed with which the perpetrators, those who we are seeking to prevent from carrying out terrorist acts, are able to act against us.

[Baroness Warsi]

My Lords, my noble friend Lady Buscombe makes some incredibly important points, many of which I agree with. Like her I pay tribute to the huge work done by our intelligence services, which are overseen by a very thorough oversight process. Noble Lords will be aware that not all services are perfect and mistakes can be made and it is therefore important that all our services, including our intelligence services, work within parameters.

The lawyer in me always says when I look at legislation, “What is the mischief we are trying to fix?”. When we pass legislation it is important that we bear that in mind. While I accept that these are difficult times and it is important to make sure that we are protected, it is also important that we ensure that we do not make the challenges we face worse. Huge progress has been made under this Government with the reform to stop-and-search powers. There has been progress in the right direction with many communities that felt alienated by the use of such powers and felt that their co-operation with, for example, the police would have been so much better had the powers not been exercised in a way that led to profiling and discrimination. We are all aware of arrests made under terrorism legislation that did not lead to charge and charges that did not lead to convictions. The numbers were so overwhelming at one moment that it appeared the powers were being in used in a way that was doing more harm than good. In those circumstances it is important for us to ensure—not just because discrimination is wrong and we should fight it—that in exercising these powers we do not discriminate and make the problem worse. In those circumstances I support many of the comments made by my noble friend Lady Hamwee and the noble Lord, Lord Harris.