Terrorism Prevention and Investigation Measures Bill
Baroness Hamwee Excerpts(13 years ago)
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Lord Lloyd of Berwick
My Lords, I find myself unable to support the argument that has been put forward by the noble Lord, Lord Hunt. Indeed, it seems to be very much a repetition, on a rather smaller scale, of an argument that we heard over and over again on Report, all based on the views of one particular senior police officer. I for my part am completely satisfied with the view that has been taken by the Government. My general view is that the sooner we get rid of the old legislation, the better.
I have one other problem, which I do not know whether the Minister will be able to answer. It turns on paragraph 2 of Schedule 8 combined with paragraph 7 of Schedule 8. As I understand it, paragraph 2 provides that the old law will continue to apply to those who are currently under control orders. Paragraph 8 says that that will be so even though the 2005 Act would have expired, quite apart from this Bill repealing it. Is that the position? If so, when do the new provisions begin to apply to those who are currently under control orders? Every controlee will ask himself, “Have I been affected by this Bill or not?”. In particular, he will ask himself when the two-year period under Clause 5 starts in his case. It seems that the control order will continue to apply, but it cannot be kept in place indefinitely under the provisions of an Act that we have repealed.
Baroness Hamwee
My Lords, like the noble and learned Lord, I have made it clear that the sooner control orders end the better. Will the Minister confirm that the extension to 42 days is not a matter of giving the police another two weeks to get their arrangements in order but because it became clear that the period of commencement would be within the Christmas and new year holiday period, which was not wholly convenient? Forty-two days would take the period into the new year as a matter of convenience. That is what I understood to be the explanation when we heard about this last week.
Lord Henley
My Lords, I shall start with the points made by the noble Lord, Lord Hunt of Kings Heath. As always, my first advice to him would be not to believe everything that he reads in the papers. Having said that, I am grateful to him for raising the point. It is very important and it gives me the opportunity to explain why we are doing this. I set out what is behind Amendment 4 when I dealt with that.
My noble friend Lady Hamwee asked whether we were extending the detention period to 42 days just because the police asked for it or because the police asked for it because it was over Christmas and new year. I can assure her that that was the point that the police made to us: things will be slightly harder if this happens then than they would be if it happened on some other occasion.
The police service has worked very closely with both the Security Service and the Home Office throughout the legislative process to ensure that all the plans and preparations that are being made are tailored to the Bill in the appropriate manner and to ensure that everything is as it should be. The Metropolitan Police has also confirmed to the Home Secretary that it has put in place arrangements to manage that transition from control orders to TPIMs. Indeed, the Home Secretary received detailed briefing as recently as Monday from the Metropolitan Police on the transitional plans that had been drawn up. The Home Secretary is fully aware of what is going on. As I made clear on Report, we recently received advice from the Metropolitan Police that, in reviewing its plans as they were being developed, the extension of that period over Christmas and new year from 28 days to 42 days would be required to ensure that the necessary arrangements could be put in place. It is simply a safeguard to ensure that smooth transition.
In relation to paragraph 2 of Schedule 8, the noble and learned Lord, Lord Lloyd, asked whether the controlees themselves would ask questions about how they were being affected. I would prefer to write to the noble and learned Lord, if I may, to make sure that I get that absolutely right.
I end by giving an absolute assurance to the noble and learned Lord, the noble Lord, Lord Hunt of Kings Heath, and the entire House that all we are doing is absolutely necessary. Whatever happens, we will not put the security of the country at risk. We have taken advice from the police and the security services on this matter. It was suggested that we should make this extension from 28 days to 42 days. That is what we are doing.
Terrorism Prevention and Investigation Measures Bill
Baroness Hamwee Excerpts(13 years ago)
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Lord Condon
My Lords, I, too, support the amendment proposed by the noble and learned Lord, Lord Lloyd, on the grounds that have already been spoken of, but also on the very pragmatic grounds that, every time we as a country step beyond the normal bounds of the rule of law, or contemplate extra-judicial measures, or contemplate allowing the Executive to have powers in this area, we risk alienating young men and women who may be wavering around, or contemplating being drawn into, terrorism. We create war stories and martyrdom. Even though these are small in number, they can be used to recruit vulnerable young people into supporting or contemplating terrorism.
History tells us that every time Governments—here or abroad—have contemplated extra-judicial executive powers, in the long term those powers have tended to work against us. I understand the reasons why Governments want to maintain public confidence by being and appearing to be very tough on terrorism, and the pragmatism of police forces and intelligence services which want the widest battery of powers to be available to them immediately as they contemplate their response to terrorism. However, I fear that this power and others that I have previously spoken against in your Lordships’ House could be counterproductive in the long-term fight against terrorism. That is why I support the amendment that we are considering today.
Baroness Hamwee
My Lords, the noble Lord, Lord Newton of Braintree, warned the Minister that those directly behind him were not unanimously supportive of the Government’s position. I have previously warned the Minister that those at a bit of an angle to him are, similarly, not wholly with him.
I wish I had used the example given by the noble Baroness, Lady Hayman, when I recently brought some young cousins into the Chamber and attempted to explain the separation of powers. That is exactly what this is about. Recently the Government have sometimes responded to judgments of the courts as though the courts sought to usurp policy-making powers. They are not the first Government to do so. That very response demonstrates the importance of the role of the courts, and the need to demonstrate our integrity as a country for the reasons that the noble Lord, Lord Condon, has just explained.
Lord Faulks
My Lords, I have enormous respect for the noble and learned Lord, Lord Lloyd of Berwick, for his experience and the consistency of his approach to this issue. I also acknowledge how delicate the situation is, how important the liberty of the individual is and that any powers of this nature ought to be hedged by a great many safeguards. However, a decision of this nature is one that falls to the Home Secretary to take. So far, the judges who have these powers have exercised the right to scrutinise thoroughly in a way that we cannot feel is short of what might be desired. I respectfully submit that it is a power that should belong to the Home Secretary, who makes these decisions, no doubt with great anxiety and the consciousness that any decision that she makes will be looked at very carefully.
A judge will have an opportunity to look at a particular case on an ad hoc basis. However, we should not underestimate the strategic role of the Home Secretary to see an act or potential act of terrorism, or a terrorist, in the wider scope. Notwithstanding all the powerful speeches that have been made, I respectfully submit that this is a question that belongs to the Home Secretary and her alone.
Lord Harris of Haringey
I am sure that it is helpful to the noble Lord, Lord Henley, to have the noble and learned Lord, Lord Lloyd, putting his arguments in advance. That may well be the argument on which the noble Lord, Lord Henley, will rely.
That brings me to my next point: can the Minister assure us that all of those extra surveillance arrangements will in fact be fully available, including the technical measures, by the end of this calendar year? Can he assure us that all of those arrangements are in place, and will be in place, and where there are technical measures, whether they have been adequately tested? The last thing any of us in this House would want to see is a situation in which new measures turned out not to be fully functioning when the need was greatest.
This is an amendment about prudence. I think it was relevant that the noble Lord, Lord Faulks, raised the point about the transition period. Again, I would be interested to hear the Minister’s response. It seems to me that the Minister has to satisfy the House today that not passing this amendment is a prudent, sensible and proportionate course of action. Those of us who are concerned about the security that will be available during the Olympics want to be satisfied that every necessary measure is available. Let us remember, this is not a mandatory obligation on the Secretary of State. Amendment 5 proposes that the Secretary of State “may impose restrictions”. It would only kick in under the very small number of instances where the Home Secretary was convinced, on the basis of information received, that this was something that was appropriate and proportionate to do. It would not be used on a blanket basis, and the number of instances in which relocation has been used under the existing control order regime is, as I understand it, extremely small.
I turn to Amendment 44A and the report on border controls to prevent terrorism. While I am not quite sure I understand the logic of the grouping which puts this with the other amendments, I none the less think it is extremely important. We have to recognise that, irrespective of the discussions there have been in the last week or so, there are issues about the security of our borders. This is nothing to do with whether the UK Border Agency has or has not been doing its job properly; has or has not exceeded the instructions of the Home Secretary; has or has not relaxed controls over and beyond that. It is about whether or not the controls could ever work. Therefore I think this report would be extremely valuable.
Could the Minister tell us what work is being done about people who arrive in this country by train through the Channel Tunnel, but whose destination may not have involved them having to go through passport control in either Paris or Brussels? To what extent are the Government considering what is going to happen at the point at which Lille, I think it is, is connected to a greater number of major train lines within the continent of Europe? What steps are in place to ensure that our borders are secure under those circumstances?
Can the Minister also satisfy us—and this has been the subject of debate in the last few days—what steps are in place to ensure that people who arrive in this country by coach are also adequately screened and whether the arrangements in place are able to cope with the volumes involved? Finally, for those who arrive by ferry, are arrangements in place to manage the numbers involved, and manage them properly?
Baroness Hamwee
My Lords, on the amendment on relocation the noble Lord, Lord Hunt, said that it does not detract from the essential point of this Bill. I think it does because the change to the measures which can be imposed is the essence of this Bill. Relocation is an extensive measure and can be particularly damaging—the noble Lord, Lord Newton, referred to this. I would add to his examples not just that of taking children out of their school and replanting them somewhere quite different but that of separating the individual who is the subject of the measure from his family, which has happened with relocation in a number of instances. I do not need to explain the impact of that.
Reference has been made to the evidence given to the Public Bill Committee in the Commons on behalf of the Metropolitan Police. I read that evidence as the sort of thing that any good copper would say in seeking to defend the police's position and ensure that as much money as possible was allocated to the activity, making quite understandable caveats about limits. Before the noble and learned Lord, Lord Lloyd of Berwick, mentioned it my reaction, too, to what happened earlier this year was that—as I think the Minister’s predecessor but one told the House on an earlier occasion—the extra surveillance measures were not then in force but would be, so the situation is changing.
I have always found a difficulty with pointing to the Olympic and Paralympic Games as a kind of watershed, not because I do not acknowledge that they could be a high-profile occasion for any terrorist to use but because we either are or are not equipped for dealing with terrorism. I cannot quite get my own head around whether, disregarding what the Americans may have said yesterday—they have always said that in relation to the Games—the Games are so very much more of a danger point. Indeed, is there not a danger for us in focusing on them as the critical time? It would be very damaging to the reputation of the Games and of this country if there was an attack earlier or later than that because we appeared to have relaxed our guard. I just find a difficulty in that.
Amendment 44A is exactly the opportunistic sort of amendment which I would entirely have expected the Opposition to table. Any Opposition would do so, but if the situation is as serious as they point out, then I, for one, do not want to wait a year. However, I am not sure whether this is in any way the right amendment. I would like to see an evaluation of the pilot that we have heard has been carried out, not to wait a year for that, but we are told that more dodgy people were picked up as a result of the pilot and it is important that we understand how that worked. This amendment, however, appears to go wider than the measures under this Bill because it does not use the term “measures”, which is defined in the Bill. I wonder whether the amendment is even within the scope of the Bill but leaving that technical thing aside, this is about immigration and controlees. The subjects of TPIMs are or will be British citizens, so although it raises important points I do not think those points are wholly relevant to this Bill. The subject is important but it is important to get it right, not to have it as a political football.
Baroness Hamwee
My Lords, I have Amendment 14 which is an amendment to the Minister’s Amendment 13. I am grateful for his confirmation that the wording that I have proposed is not necessary. I did not think that it was. I was relying on the word “and” at the end of the new paragraph (a), but I am glad to have that on the record.
Will it be open to an officer to direct reporting times? That presumably will be the case if the Secretary of State does not give a notice covering the matter. Will it always be the Secretary of State who gives that notice? The Minister will recall my concern that reporting should be required at a time which in general terms is reasonable and would particularly allow for the individual to carry out a course of study or to undertake work. As I probably said on the last occasion, one could not quite envisage applying for a job and saying to a prospective employer, “I am sorry, I am going to have to take two and half hours off three times a week in order to report in to a rather inconveniently located police station”. That was the reason for my amendment and if he can give any further assurances I will welcome them.
I welcome his amendment generally, because I think that it is helpful, and I also welcome Amendment 47. I did not have the technical considerations in my mind when I tabled this amendment at Committee stage. It was a much broader matter, but whatever the reason I am glad to see the paragraph going.
Can I ask the Minister a little more about Amendment 8? In the letter that he sent to your Lordships following the last stage giving the thinking behind all these amendments, which was very helpful, he said that in providing that an individual must stay within the premises,
“This is therefore a clarifying amendment. This is important for monitoring, enforcement and disruption purposes”.
Can I ask what is meant by “disruption” in this context? I would have expected that surveillance would be adequate to cover an individual being in the back garden. Presumably surveillance is going to be done largely through technology rather than through a pair of binoculars. Is there not electronic surveillance? Is it a matter of disrupting communications? If he is able to add a little flesh to that I would welcome it.
I am grateful to the Minister for his comments on my Amendment 14, which I will not seek to move when the time comes.
Lord Henley
My Lords, I hope that I can deal with my noble friend’s points. I am grateful to her for her comments. She asked whether it would be open to the police officer to direct reporting times. The point behind my amendments was that the Secretary of State would deal with such times. That would be in the order. Further directions may be given by the police in relation to someone coming to the police station but the times would be a matter for the Secretary of State.
As regards Amendment 8, we need to be able to disrupt any potential terrorist activities. For that reason one would not wish the individual to be able to leave the house and enter the garden at certain times as it might allow communication to take place on which it is not so easy to keep an eye. That was the reasoning behind government Amendment 8. I hope I have explained that clearly. If I have not, I will write to my noble friend in due course.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving Amendment 9, I wish to speak also to Amendments 10, 11, 12, 20, 40, 42, 43 and 44. All these amendments, which stand in my name and that of the noble Baroness, Lady Stern, follow on from debates held in Committee. None challenges what I think is fashionably called the architecture of the Bill. All seek to ensure that within the framework of the Bill, and without harming the effectiveness of measures, TPIMs have regard to their impact on the individual, who has not been charged, let alone found guilty of any offence—in other words, under our legal system, he is innocent—and on his family.
I have spoken previously about the need to recognise the individual person at the centre of any proposed measure. This is a matter of human responsibility. The restrictions imposed through control orders have been very considerable and in some cases very damaging. I acknowledge and welcome the Government’s efforts to reduce the restrictions and to write legislation in a different way, spelling out the limits of restrictions, but there is still potential for a lot of damage. I suspect that, to an extent, this may depend on how a particular measure is applied. I welcome the assurances that the Minister gave at the previous stage but wish to pursue a number of matters a little further.
I mentioned the individual but, of course—the noble Lord, Lord Newton of Braintree, mentioned this—it is also a question of the individual’s family. It is difficult to imagine the impact of such a measure on children, wives—I have heard of at least one wife who has attempted suicide more than once—and the community in the widest sense. This aspect is in my mind directed also at the effectiveness of TPIMs in avoiding taking measures that may tip the individual, his more extended family, friends, acquaintances and associates into the very sort of action which the Bill seeks to prevent. There are restrictions on association and communication and I worry that they could have that effect.
Lord Henley
My Lords, I am grateful to my noble friend and the noble Baroness, Lady Stern, for speaking to this fairly varied group of amendments. My noble friend said that she had grouped them together because the Whips were very keen on that process. I think that the Government are often keen on grouping things together because that can speed up debate, particularly when the amendments are essentially probing.
The noble Baroness is quite rightly seeking some reassurances and statements from the Government on what certain things mean. I shall work through the amendments in the order that they are tabled and shall try to satisfy my noble friend and the noble Baroness, Lady Stern, about what is meant and shall try to deal with their concerns.
I start with Amendment 9. My noble friend asked for clarification on what is meant by an “area of a specified description”. I confirm that allowing the Secretary of State—the Home Secretary—to impose restrictions in relation to both places and areas of a specified description is necessary to avoid unhelpful uncertainty about whether somewhere is most accurately defined as a place or an area. For example, it may be clear that airports qualify as places of a specified description, but it may be less clear that all the areas surrounding an airport, such as car parks, drop-off points or other areas connected to or adjacent to an airport, are captured. In conjunction with the rest of paragraph 3, the provision therefore gives the Secretary of State the required powers to restrict individuals entering places or areas where this is necessary for reasons of national security. Again, I can assure my noble friend that the scope of that area will not be what she described as a huge geographical area.
Turning to Amendment 10, I am happy to confirm that the power for a constable to give directions, as provided by the movement directions measure in Schedule 1, extends only to directions in relation to measures imposed under this Bill. This is because of the effect of Clause 30(1) and Clause 2. The result of these provisions is that the reference to “specified measures” in the movement directions measure is a reference to the terrorism prevention and investigation measures imposed under this Bill and specified in the TPIM notice.
In relation to Amendment 11, I can confirm that, for the purposes of the financial services measures in Schedule 1, “financial services” means any service of a financial nature. This includes banking and other financial services, but is not limited to them. Where paragraph 5 provides that the restriction on the possession of cash does not extend to cash held by a person providing financial services, it therefore includes financial services provided by members of other professions such as the noble Baroness herself, lawyers or estate agents. That would involve them holding money on behalf of an individual.
Amendment 12 would mean that the Secretary of State could not restrict the individual’s ability to associate or communicate with “specified descriptions of persons”. This provision is necessary because, in appropriate cases, it may be necessary, for example, to prevent the individual communicating, without prior permission, with persons living outside the United Kingdom. In such a case, it is not practicable or possible to specify all the named individuals to whom this applies. In the case of this particular example, I can reassure my noble friend that this would not prevent the individual seeking permission to speak to particular individuals, such as family members, who are abroad. The effect of the provision would be that the individual would need to provide further details about individuals with whom he wished to communicate in order to allow the Secretary of State to make an informed decision about whether to permit the communication.
In relation to Amendment 20—an amendment to Condition D in Clause 3—I can confirm that, as currently drafted, the legislation will require the Secretary of State to consider issues of proportionality as part of the consideration of the necessity of individual measures to be imposed under a TPIM notice. I can therefore assure my noble friend that the additional words that she suggests are not necessary in order to achieve the desired effect.
I turn now to Amendment 40. The noble Baroness’s amendment would add two new subsections to Clause 11. That clause currently simply requires the Secretary of State to keep under review whether Condition C—the necessity for measures—and Condition D—the necessity for specific measures—continue to be met. Amendment 40 would put on a statutory footing the requirement for a review group of officials to consider cases on a quarterly basis and to report to the Secretary of State. This review function is undertaken in the control order context by the Control Order Review Group. I can confirm that a TPIM review group will be established for the new regime to perform this function on a quarterly basis.
I turn finally to Amendments 42, 43 and 44. They build on proposals that my noble friend put forward in Committee. When debating my noble friend’s previous set of amendments in this area, I made the point that the measures that can be imposed under TPIM notices are intentionally more limited in nature than those that can be imposed under control orders, with lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment no longer allowed. I also made clear that the Bill as drafted—together with the relevant control order case law and the duty of the Secretary of State to act compatibly with convention rights—already ensures that the Secretary of State will give careful consideration to the impact of the measures on individuals and their families, including the impact on their mental health, before imposing the TPIM notice and while it remains in force. There will be, as of course it is right that there should be, careful and ongoing consideration of the impact of the measures on the individuals subject to them and on their families, including any impact on their mental health. This will be thoroughly considered as part of the regular reviews that will take place under Clause 11.
There is an extensive framework of judicial oversight and full appeal rights in relation to the TPIM notice, the measures specified in it and their impact. The individual will have the opportunity to make their own representations on these matters, including submitting assessments prepared by any person they wish. If a measure is considered to have a disproportionate impact, it will be revoked by the Secretary of State, and if it is determined by the courts to have such an impact, the courts will be able to quash it or direct its revocation or variation. We should also remind ourselves that the overriding purpose of the Bill is to protect the public from a serious and sustained risk of terrorism. It is therefore right that the Government should weigh their responsibility to protect the public heavily when considering the proportionality of their decisions.
The Home Secretary can be faced with difficult decisions when considering what restrictions are necessary and where to strike the balance of proportionality between the rights of the individual and the rights of the wider public to be protected from that person. The High Court has specifically accepted that an individual’s mental health does not automatically trump the national security case against him and the right of the public to be protected from the risk of terrorism. This serves to underline the difficult balancing act that will have to be conducted by the Home Secretary in each and every case.
The Home Secretary’s decisions are necessarily informed by sensitive information about individuals’ involvement in terrorism-related activity and the threat they pose to the public. It is this information that tips the other side of the scales and against which the impact of the measures must be weighed in order to arrive at a reasonable and balanced decision that accords sufficient weight to the need to protect the public. This information would not be available to the commission proposed by these amendments, but it will be fully taken into account by the courts and the Home Secretary when reviewing the ongoing necessity and the impact of the measures.
It therefore seems that the amendments put forward by my noble friend do not provide exactly the right balance. The approach I have outlined of careful ongoing review and rigorous judicial oversight strikes the right balance between protection of the rights of the individual and protection of the public from a risk of terrorism. It will ensure that the measures imposed are both necessary and proportionate. I hope the explanations of the earlier amendments and reassurances on the last three will be sufficient for my noble friend and the noble Baroness, Lady Stern. I hope my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, before the Minister sits down, can he say whether the Government propose to publish the terms of reference of the TPIM review group? He may not be able to answer that.
Baroness Hamwee
My Lords, I certainly do not intend to press any of these amendments and I am grateful to the Minister for his explanations. I will comment on three of them. I am interested that a solicitor holding his client’s money might be providing financial services but am happy to accept that interpretation. On the first of the amendments, I take the Minister’s point about needing to use the correct terms, but I hope that every measure will be absolutely clear about the area as well as the place which is included—not, for instance, an “area around” or the “environs of” Heathrow Airport. If necessary, it would be proper for a map to be produced so that the individual as well as everybody else can be absolutely certain about what area is designated for this purpose. On the proposal for an independent commission, I am not seeking to challenge the architecture of the Bill and I am well aware of the court’s ruling that national security is not to be trumped. However, I hope that the Government and the new review group will take into account the points I have made, and the noble Baroness, Lady Stern, has made so powerfully, about, among other things, the need for an independent take on what is going on and to involve in the assessments people of experience and, where appropriate, non-members of the review group with that relevant experience. Having said that, and having thanked the Minister, I beg leave to withdraw Amendment 9.
Lord Newton of Braintree
My Lords, having stuck my neck out first one way and then the other in the earlier part of our proceedings, I had decided to keep my head down on this one. I want to say to my noble and learned friend, given the views I expressed in the House earlier in the day, that he has made me feel better. It may be respectable to keep my head down, so I shall continue to keep it down.
Baroness Hamwee
My Lords, that was a very obvious keeping-down of the head, done in a rather energetic fashion.
I would like to raise a point which I raised—obviously rather ineffectively—at the last stage, and that is to ask why the Government make a different provision for the generality of the Bill than for the temporary power provided in Clause 26? Under that power, the Secretary of State can impose enhanced measures on individuals whom she,
“is satisfied, on the balance of probabilities, are, or have been, involved in terrorism-related activity”.
It does not seem to me that the answer to that question can be that the situation is different. The urgency of the situation—with Parliament not sitting and, as I understand it, a heightened state of security—relates to the ability of the Secretary of State to make an order. However, the balance of probabilities relates to the individual, not to the overall situation.
I am glad to see the noble and learned Lord, Lord Lloyd, nodding. I too feel better now, as it is obviously not a completely stupid question. I do not see where the distinction comes, as we would still be considering individuals. It may be that the noble and learned Lord, Lord Mackay, has answered the question for the Minister, I do not know.
Lord Faulks
My Lords, consistency has become something and since I opposed this amendment on the last occasion I intend to be consistent in opposing it on this occasion.
Of course, the arguments are extremely beguiling in favour of an annual review. Any provision which threatens the liberty of the subject demands anxious consideration at every level. But there is a difference between what happened in 2005 and what we are confronted with today. I am sure that those who brought in those provisions—those exceptional and extraordinary measures—hoped that they would not be necessary for more than a short period. Unfortunately, that has not proved to be the case. This Bill is the result of a careful and thorough review of counterterrorism and of mature reflection by a number of people that, sadly, powers of this nature need to remain. There have been important modifications to these powers, including the higher threshold for the Secretary of State before deciding that there should be such provisions and the removal of the relocation measures. There has been a degree of sensitivity over how potentially extreme the provisions are, but the legislation has been the result of a mature consideration and has been scrutinised in a thoroughly orthodox way through both Houses of Parliament. It has not been the result of an accelerated procedure.
I respectfully suggest, although entirely appreciating the arguments that such provisions need regular review, this has had a thoroughgoing review. It can be reviewed again after the end of this Parliament, and I respectfully ask the House to consider rejecting the amendment.
Baroness Hamwee
My Lords, the noble and learned Lord, Lord Lloyd of Berwick, expressed a certain weariness when he spoke on this issue in Committee. I do not think that he used the words “ritualistic” or “formulaic” but that may have been what he had in mind when he referred to the way some of the control order debates seemed to be going. I share that concern, but it leads me to say that we should make sure that renewal of this provision is not ritualistic or formulaic. We should take care to avoid that. However, it is not an argument for saying that we should not undertake that renewal.
We will, I am sure, be told by the Minister that we can debate the issue at any time that any of us succeeds in putting down a debate, and that the Government could repeal TPIMs at any time. Neither of those claims is an answer to the points that have been made. I urge the Government, if they lose the Division that is about to come, to turn it into a virtue and explain annually why it is that any renewal is required. The term “trust” was used quite a lot at an earlier stage in this Bill. Trust does need to be renewed, as well as everything else, to take both your Lordships’ and the country with them. The Government should regard this as an opportunity, not something that should be pictured in any way as a defeat.
Lord Rosser
My Lords, I will be brief. Our own Joint Committee on Human Rights said that the TPIMs remain,
“an extraordinary departure from ordinary principles of criminal due process”.
It went on to recommend that the Bill should also,
“require annual renewal, and so ensure there is an annual opportunity for Parliament to scrutinise and debate the continued necessity for such exceptional measures and the way in which they are working in practice”.
Your Lordships’ Constitution Committee, as the noble Lord, Lord Pannick, said, also questioned whether it was constitutionally appropriate for the extraordinary executive powers involved in TPIMs to remain in being for a lengthy period of time. Whatever one’s views on the need for TPIMs, these are considerable and exceptional measures, and it is surely right and appropriate that Parliament should—as happens currently with control orders—continue to have the opportunity and the duty to decide each year whether the situation remains such that the measures in this Bill and the associated powers should continue in being or instead be allowed to expire.
The fact that debates on the Bill are taking place now does not affect the necessity and appropriateness of proper consideration each year by Parliament of whether the circumstances remain such that these powers, and the way in which they are used and operated, are still needed for a further period of time. It remains to be seen whether the Minister’s position has changed on this issue, but if the noble Lord, Lord Pannick, decides in the light of the Minister’s reply to test the opinion of the House, we should support his amendment.
Protection of Freedoms Bill
Baroness Hamwee Excerpts(13 years ago)
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Baroness Hamwee
My Lords, the Minister’s careful exposition of the Bill has been most helpful. I welcome the Bill with enthusiasm—such enthusiasm that I look forward to successor Bills taking civil liberties even further forward. It is a pleasure to be repealing legislation, particularly restrictive legislation, even if it takes 200 pages to do so. I do not regard this as a standard criminal justice Bill of the sort that we have become used to in recent years. I depart from the noble Baroness, Lady Royall, on that, but no doubt we will discuss it. However, I would also say that repeal should be a matter for Parliament, not for Ministers.
In our complex society technology seems to be matched by the technicalities of legislation, but the underlying concepts are simple: fundamental human freedoms, historic civil liberties and a state which has become authoritarian—certainly too authoritarian. We have all become accustomed to the demand, “Your ID, please”; we are too used to having to prove who we are. I heard—I think it was on the radio a few days ago—of an 80 year-old who was refused a purchase in an off-licence because she could not prove that she was not a teenager.
The worst thing is not knowing what is known about you. This is about the relationship between the consumer and Tesco—which is almost nil in my case, but one could say any other retailer—or between an IT user and a search engine operator, or, of course, between the citizen and the state. The obtaining and retention of information changes the relationship between citizens and the state.
I am not applying this comparison wholesale or in its entirety; however, thinking about today’s debate, one characteristic of fascist regimes seems to have been an obsessive collection and retention of information. There was certainly one regime of which that was characteristic, anyway; I am not sure whether the Italians were too chaotic to have been able to achieve it.
We talk a lot about policing by consent, and I have been wondering what that means in the year 2011. We should also ask ourselves what is the extent of consent of the citizen to observation, surveillance, the keeping of records and the sharing and use of information. That is not easy because what I may think should be applied to you and to everyone generally—that means everyone else—is not the same as what I think should be applied to me. Ask anyone who has been involved in local government: we all know of the demands for blanket CCTV coverage in order to catch the owners of dogs that foul the streets.
The existence of more than 4 million surveillance cameras makes me wonder whether their very proliferation reduces their deterrent value because they are so commonplace. They are not uniformly applied. There are three times as many automatic number-plate recognition cameras in two predominantly Muslim suburbs of Birmingham as there are in the city centre.
We have more mobile phones than we have people. We rely on them. We have a very high expectation of technology. I have a friend who, in her worst moments of tussling with her computer, calls it “the devil’s work”.
I remember the shock when people realised what information about their movements in London was stored on the Oyster card—so-called, we were told at the time of its introduction, because of the pearl inside the oyster. It is not just a single pearl; it is a whole jewellery box, if that is your view of it.
Our private lives are trespassed upon without our realising it. It is important, and I wish that I had thought of this, to draw the distinction between the right to privacy and respect for privacy. We should remember, too, that there are social pressures to share information. Your own inclusion of information on a social networking site can make you quite vulnerable.
Guidelines and codes of practice can be only as good as their operators. We saw what happened with Section 44 stops and searches. No doubt we will use the words “balance” and “proportionality” a great deal in our debates. We will range from the administrative convenience of using biometric information about children in schools and, I would say, the inevitable pressure on parents to consent to their use, to how appropriately—another good word, but sometimes a weasel word—to protect the rights of landowners from those who see a space and park on it.
At this stage of the Bill I am trying to look at broad principles, not least because a speech on the detail would take me far too long. Another principle is the law of unintended consequences, and the noble Baroness, Lady Royall, has referred to the impact of the extension of freedom of information to university research. I mention it specifically because my noble friend Lady Brinton, who cannot be here today, had wanted to do so. The problem is that even if a subject is still being investigated, is not yet patented, published or peer-reviewed or is part of a commercial and confidential contract with a partner outside the institution, it will still be caught. The Scots, under the guidance of my noble and learned friend Lord Wallace of Tankerness, when he was part of the Scottish Government—ahead of the rest of us, as so often—got this sorted, and so should we.
So we are looking at balance, proportionality and a good dollop of common sense, but the safeguards must not be illusory. I welcome the involvement of the judiciary in many of the matters covered by the Bill. We may have debates about what is appropriate as an executive decision and what should be a judicial decision, but we may need to explore the criteria for decisions that we require our magistrates and our more senior judges to take. I am not talking just about the exercise of powers of entry but, for instance, about the extension of the retention of DNA. What will be the basis for the judicial decision? For instance, what would be the standard of proof for something that was not actually a trial?
I have referred to safeguards and codes of practice. If there is more than a single regime, as there is with CCTV, we will need a lot of clarity and co-ordination between the regimes.
I do not know what the collective noun is for commissioners but we certainly need clarity and joining up about the respective responsibilities of existing and proposed commissioners, looking at it not least from the point of view of the public and trying to avoid confusion in the public mind. Let us also be sure that the independence of commissioners is real, not rhetorical.
I will try to restrain myself from seeking to add to the Bill, not least because I see this as the start of a process of a strand of legislation, but I will indulge myself by mentioning just one issue on which I have heard the current Information Commissioner talk: the need for a more effective response to blagging—that is, the unlawful accessing of personal information by trickery. If a private investigator blags information he can treat it as a business expense, so, far from there being a deterrent penalty, the taxpayer is actually subsidising the activity.
The Bill will be referred to as a Christmas tree Bill and it remains to be seen what baubles will be hung on it. I suspect that the Minister will be very cautious about getting out a piece of mistletoe and—I am searching for a verb—connecting with anyone.
The line of argument with which we are all familiar is, “If you’ve nothing to hide, you’ve nothing to fear”. I have nothing to hide—at any rate, nothing more than the usual embarrassments that we all have—but I fear the invasion of your Lordships’ privacy. This is about the sort of society that we want and how far, if at all, we should condition our rights. I welcome the Bill.
UK Border Agency
Baroness Hamwee Excerpts(13 years ago)
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Baroness Hamwee
My Lords, perhaps the Minister will share with the House the extent of the pilot. Is there a link between that and the suggestions that we heard today in the media that staff were deployed in the wrong places? To give us some context, does he have information about the number of number of staff in the border agency workforce, the number who have already left and how many of them were on the front line? Finally, I wonder whether he might consider that the last two paragraphs of the Statement, which refer to “those responsible” being “punished” because they “put at risk … security”, may be a little premature in view of the investigations that are still to take place.
Lord Henley
My Lords, I again make it clear that these are only allegations at this stage. The individuals have only been suspended—two of them only on a precautionary basis. We will have to wait for the results of the independent inquiry. As to staff levels, I do not accept there has been a misdirection of staff in these matters. It is very important we use staff in the best manner possible. We all know that we have to reduce the size of the United Kingdom Border Agency. Over the spending review period it will have to lose some 5,000 or so posts. That is the nature of things when we have to deal with the cuts that we are faced with—and we know why we are faced with them.
We will make sure, as far as possible, that the staff are used in the best possible way. That was one reason behind a pilot of this sort. The initial report from the pilot seemed to indicate that it was doing rather well in terms of the increased numbers of people whom it was catching. Obviously we will have to wait for the result of John Vine’s inquiry.
Terrorism Prevention and Investigation Measures Bill
Baroness Hamwee Excerpts(13 years ago)
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Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 55, 56, 59 and 63. I would add to that list if it gave noble Lords the opportunity to leave the Chamber before I get to the substantive part of my amendments. All of these amendments take us to the clauses in the Bill dealing with what are called enhanced terrorism prevention and investigation measures—that is, measures which the Secretary of State can introduce during a period between Parliaments when she,
“is satisfied, on the balance of probabilities”,
that individuals,
“have been, involved in terrorism-related activity”.
My amendments are particularly directed to the extent of those powers.
Clause 26(9) provides:
“A temporary enhanced TPIM order may make appropriate provision (including appropriate variations from the provision contained in the relevant provisions of this Act) in consequence of, or in connection with, the creation … of the enhanced TPIM power”.
As my noble friend the Minister is aware, my Amendment 54 is particularly directed to understanding what is meant by “appropriate provision”. What are the limits of appropriate provision in this context? Does it mean anything in this legislation? That does not seem logical to me because it is there anyway. Does it mean simply up to the boundaries of what is acceptable under the Human Rights Act? What does it mean? I appreciate that as well as the enhanced measure there is an enhanced standard of proof, “the balance of probabilities”, for introducing these provisions. I would have read this as a provision on how the measures would be applied—measures including residence, geographical area, association and communication—but the reference to variation from provisions,
“contained in the relevant provisions of this Act”,
makes me doubt that that can be the correct reading, so what is “appropriate provision” in this context?
On quite similar lines, Amendment 56 would amend Clause 26(11), which provides that,
“a temporary enhanced TPIM order includes … provision amending any enactment”.
That seems a very considerable power and I hope that the Minister can help your Lordships to understand what the Government have in mind. It is hard to think which measures are not in the Bill, apart from imprisonment in a conventional prison without trial or deportation which, while we are past the days of Botany Bay and cannot deport UK citizens, was something else that came to mind. I am pretty stuck as to what that subsection means.
Amendment 55 is not very elegant. It would, no doubt, have been easier if I had added some commas to it. However, it concerns what is elsewhere in the Bill relating,
“to standard TPIMs notices … orders”,
which are,
“the subject of standard TPIMs notices”,
and “measures”, which is the defined term meaning the measures that can be taken under a standard TPIMs notice. I want to be sure that the various procedures which apply to all of those apply to enhanced TPIMs. I think that is the case but I would like to have assurance on that.
Amendment 63, to which Amendment 59 is consequential, is about commencement and is of course a probing amendment. I am not suggesting postponing the arrangement—at any rate, not at this stage of the Bill—but asking the Minister whether he can give further information to the Committee about the timetable for dealing with the draft legislation for the separate enhanced TPIMs Bill. I know that he said at our last sitting that we will come to pre-legislative scrutiny of that in due course, essentially, although I do not recall which phrase he used. It would be more satisfactory to know what timetable we are working to, so that we all have a context for this Bill. I beg to move.
The Minister of State, Home Office (Lord Henley)
My Lords, I thank the noble Baroness, Lady Hamwee, for bringing forward these amendments, which are all essentially probing amendments. I commend her for so doing, as this is what the House does very well. I hope I can respond to and answer most of the points she has made in her four amendments—in fact, there are five, but they are in four batches.
If I start with Amendment 54, which is about the meaning of “appropriate”, I must first describe what subsection (9) does. It provides that a temporary enhanced TPIM order,
“may make appropriate provision (including appropriate variations from the provision contained in the relevant provisions of this Act) in consequence of, or in connection with, the creation, in accordance with this section, of the enhanced TPIM power”.
We believe that subsection (9) is essential to the clause. It allows the Secretary of State to make the consequent provisions to make sure that the enhanced TPIM regime functions properly, and it allows for equivalent provision to be made, to occur in paragraph 7 of Schedule 2 to the draft enhanced TPIM Bill.
This specifies that the operation of Schedule 6 to the TPIM Bill, which relates to the retention of DNA, is modified in order to accommodate the ETPIM regime. In particular, it takes account of the fact that the same individual may, at a different time, be subject to both an enhanced TPIM notice and the standard TPIM notice. I hope that my noble friend will accept that.
Amendment 55 would insert a new clause after subsection (10). The provisions of Clauses 26 and 27 already ensure that the order will apply the provisions of the Bill to the enhanced TPIM regime to the extent that it is appropriate. This includes all the nuts and bolts of the TPIM regime; for example the role of the court, and the way in which the TPIM notices are varied or revoked. The provisions that are not applied to the order are those which are not yet relevant. For example, an enhanced TPIM notice may not be extended for a year under the order, as the order, unlike the enhanced TPIM Bill, only lasts for 90 days and cannot be renewed.
Amendment 56 would delete the provision allowing the Secretary of State to amend any enactment under the order-making power. The noble Baroness stated that the amendment was not quite as elegant as it ought to be. She may have raised a point that we will certainly consider. At this stage, we want to see whether that provision is necessary; we will come back to the noble Baroness, have discussions with her, and possibly bring forward an amendment on Report.
Amendments 59 and 63, which are to be taken together, relate to commencement. I think the noble Baroness was really asking not so much about commencement but rather consideration of the draft legislation of the enhanced Bill. Obviously, it must be for the usual channels to decide what is appropriate, which committees are available, and so on. However, I am sure that with discussions between the usual channels—between the Government, the Opposition and others—we will come to the right solution as to how the enhanced TPIM Bill should be considered by this House and another place, or perhaps both together, while bearing in mind the resources available to both Houses. Different noble Lords will have different views on this, to which we will listen in due course, as will the usual channels, as always. I hope those explanations are sufficient for the noble Baroness but if they are not we can discuss them further. However, with that, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I thank the Minister for all of that. With regard to his reply on my first amendment, I shall have to take his word for it. That is my failure of concentration, not his failure of explanation. It is certainly a reply that deserves to be read in Hansard as it was quite technical.
On Clauses 26 and 27 applying to the extent that is appropriate and what is not appropriate, the Minister seemed to give examples rather than a complete reply. I am sure that his brief includes examples for him to give, which is fair enough, but it would be helpful to understand the extent of the point. May I ask him to let me have a complete answer in writing after Committee stage? These clauses are quite difficult to follow. I think I said on the previous day in Committee that a flow chart would be helpful in some cases. Given the powers that the Secretary of State would be granted, it would be appropriate to have as extensive an understanding of what is meant as possible.
Lord Henley
My Lords, whether I can provide a flow chart is one thing but I certainly promise to write to my noble friend so that we can sort these things out between now and Report. At this stage I will just give a commitment to write to her but that commitment does not necessarily extend to providing a flow chart.
Baroness Hamwee
My Lords, I do not think I was asking for a flow chart but I share the Minister’s wish to get this sorted out before Report. These issues do not lend themselves terribly easily to debate across the Floor of the Chamber. As regards the enhanced Bill, I hear what the Minister has to say. I thought it was worth continuing to ask the question. I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, the noble Lord, Lord Hunt, says that relocation has been very useful in disrupting terrorism activity. The problem I have is that I do not know and I do not know whether he knows. He may well believe that that is the case, but I am not sure that any of us really knows. That has been a difficulty throughout the debate on the Bill.
I have a couple of points on the drafting of Amendment 61. It seems to me that it slightly muddles accountability. Is it not for the Home Secretary to take the decision on the resources and to take responsibility for what resources are applied, rather than it being an arrangement with the terrorism co-ordinator who, I take it, is the co-ordinator within the Metropolitan Police? I am slightly concerned that the amendment dilutes the responsibility of the Secretary of State. The terrorism co-ordinator of course has a role in this. We have all heard senior police officers say that they will do what they can within the resources provided to them, and they are very cautious about saying that they have enough resources.
My second point is to ask whether it is possible to identify precisely the right resources and deploy them. That could well be something of a moving feast; the resources required will vary from time to time. I of course understand the concerns that lie behind the noble Lord’s amendment, but I am not sure whether it is a practical way of satisfying us all and, indeed, the public.
Lord Pannick
My Lords, I am assuming that the Government are satisfied that the available resources are sufficient to maintain security in this country. If that is not the case, it would be very troubling indeed.
Terrorism Prevention and Investigation Measures Bill
Baroness Hamwee Excerpts(13 years, 1 month ago)
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Lord Newton of Braintree
My Lords, having vigorously indicated to the noble Lord that I wanted him to speak before me, I am left rather regretting it because I now find myself caught in the crossfire between Members on the Liberal Democrat Benches and Members on the Cross Benches. I have the deepest regard for both groups. I ought to say, if no one has said it before, that the noble Lord, Lord Carlile, deserves a huge vote of thanks from all of us for the work he has performed over many years in the role to which he has just referred. If I arrive at what is possibly a slightly different conclusion that is closer to that of my former constituent and noble friend Lord Phillips of Sudbury, it will not be for want of admiration of the noble Lord, Lord Carlile.
My starting point is that 40 or 50 years ago, give or take Regulation 18B, no one in this Chamber would have thought that anything like the successive regimes we have had since the 2001 Act were desirable. They have been imposed on us by a change in the world that we have not been able to control and which we have had to cope with in the interests of our citizens. But it has led us into things that we would not have wished to do in other circumstances. If anyone wonders why I have an interest in this, as well as in too many other things going on in the House at the moment, it is that those with longish memories will know that the choice fell on me to chair the Privy Counsellor Review Committee of the Anti-terrorism, Crime and Security Act 2001 which contained the provisions under which people were basically locked up in Belmarsh without being found guilty of anything, and the key was being thrown away. The all-party committee found that deeply unsatisfactory. I notice that the noble Baroness, Lady Hayman, who was a member of that committee, is in her place. We said that something had to be done about it. The then Home Secretary went out of his way to rubbish our report as quickly as he could and nothing happened until the courts threw out the relevant part and said that it just could not stand.
We then got to the control orders under the 2005 Act, which in my view were an improvement. I share the view which has been expressed that these new proposals are an improvement on those orders—perhaps marginal, but somewhat better. So we are moving in the right direction and I would not want it to be thought that I was hostile to the Bill or to its fundamental aim and purpose. However, I do think—here I come to the position of my noble friend Lord Phillips, the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick—that this kind of thing is much better done as a court order rather than an executive act unless there are very strong reasons to the contrary. The noble Lord, Lord Carlile, adumbrated to great debating effect a list of things that are done as executive orders, and I do not want to debate all those with him, but the mere fact that we have done a lot of things by executive orders does not mean that it is desirable. If you do not have to do it, I do not think that you should. As far as I can see, the case has not been made that this should be an executive order rather than a court order. I therefore come down in sympathy with the general purpose of the amendments in this group.
Baroness Hamwee
My Lords, some of us are even closer to the crossfire.
I start with a question which perhaps picks up where my noble friend Lord Carlile left off. It concerns the time limit on the measures. I had intended to ask it later under some amendments which I have down, but I shall ask it now. I found it quite hard to follow the Bill at the points where it begins to refer to revival, revocation, expiry, and so on. I needed a flow chart to understand just what was available in terms of imposition of measures. Are there any circumstances in which an individual can be subject to a TPIM or a series of TPIMs lasting more than two years, and, if there is one episode of new terrorism-related activity, which is defined, how long in all can a series of TPIMs last?
I should make it clear that I very much support the amendments proposed by the noble and learned Lord, Lord Lloyd of Berwick, and supported by others. I also support the amendments of the noble Lord, Lord Pannick. On his Amendments 42 and 43, he quoted the conclusion today of the Joint Committee on Human Rights on the issue of a full merits review. It is perhaps worth reading into the record as part of this debate the comments that the committee made in leading up to that conclusion. It said that the Government in replying to its previous report had argued that,
“there is no reason to doubt that courts will continue to apply intense scrutiny in TPIMs cases, as they have in control order cases, and that ‘continued reliance on case law’ is the best way to deliver that intense scrutiny”.
That became part of the conclusion. It seems to me that that does not amount to an argument for the principles of judicial review and that intense scrutiny is not excluded by the approach which the noble Lord, Lord Pannick, has advocated and which I support. I have checked the Government’s response to the previous report by the JCHR. Nothing significant has been left out of the paragraph that I have just quoted.
On the “balance of probabilities”, I added my name to the amendment of the noble Lord, Lord Pannick. Can the Minister explain why under Clause 26, which introduces “enhanced” TPIMs, there is a higher standard of proof than for standard TPIMs? The same applies to the Draft Enhanced Terrorism Prevention and Investigation Measures Bill which is to have pre-legislative scrutiny. The memorandum from the Home Office to the JCHR regarding the draft Bill with the enhanced TPIMs, which, in particular, would provide for relocation, said that the higher test is because of the more stringent measures allowed by the draft Bill. Clearly it would apply the same argument to Clause 26. So called standard TPIMs are fairly stringent but, even apart from that, I do not follow the logic. The standard of proof as to the facts which permit a step to be taken is a different matter from the steps which are available. I regard those as closely related but logically separate issues. I am lost as to why the higher standard of proof, which, as my noble friend Lord Carlile has encouraged the House to think, would not be a risk to the Government in this context, cannot be applied.
Lord Macdonald of River Glaven
My Lords, I support the amendments. I can do so relatively briefly because I can quite easily and simply adopt many of the arguments that have been made.
Terrorism is the gravest and most dangerous kind of crime and TPIMs are a properly grave response to that threat. A consideration of what the imposition of a TPIM represents gives some clue as to what the correct process should be. The imposition of a TPIM represents a public finding that an individual is involved in acts of terrorism. Of course, the individual’s name is not publicised, but surely his friends and his wider community are aware of it. It is a grave step and a grave potential stigmatising of an individual with an association with the gravest kind of crime. It is in those circumstances that one is driven to the conclusion that, if a TPIM is to be imposed, it should be imposed not by a member of the Executive but rather by a court. It is in those circumstances that I support the amendments to that effect.
I have not yet heard an argument why it is better for these measures to be imposed by a member of the Executive. I have heard arguments from my noble and learned friend, whose advocacy I have heard many times in courts up and down the land and which never ceases to impress me, as to why it is not necessarily constitutionally inappropriate but not as to why it is positively better than the alternative. The argument that has been made by a number of my noble friends and other noble Lords is that, given what a TPIM represents and the gravity of the measure, if it can be done by a court it should be done by a court unless there is a very good reason why it should not. I have heard no such reason.
The same applies to the burden of proof. I agree entirely with the noble Lord, Lord Pannick: the balance of probabilities is a test which is tailor made, perfectly made, for the process which the court needs to go through in this situation. It is not the criminal standard of proof because these are, in essence, civil penalties, but a civil standard of proof which, as he said, is flexible, realistic, well understood by the judiciary and does justice in civil cases up and down the land, including in other civil preventive measures.
Again, I do not understand what the argument against this is. If it is that it should be easier to impose a TPIM—that we cannot trust a judge to come to a safe conclusion about whether something is more likely than not—that is a false argument. It is, if you like, a somewhat cowardly argument. We can trust the judges to apply a balance of probabilities test in TPIMs in a way that is both just and entirely capable of protecting the public.
Lord Faulks
What I endeavoured to say was that the balance of probabilities would be appropriate were the courts to be taking that initial decision in place of the Secretary of State, which I understand to be the burden of the amendment put forward by the noble and learned Lord, whereas I understand that the suggestion made by the noble Lord, Lord Pannick, is that the initial stage and the decision to be taken by the Secretary of State should be on the balance of probabilities, and there I suggest that the current test is more suitable.
Baroness Hamwee
Does the noble Lord have any comments on the provisions in Clause 26, which provide for the Secretary of State to take a decision based on the balance of probabilities in the position where the more stringent measures might be applied?
Lord Faulks
I have no immediate answer to that, but at this juncture I would suggest that the initial decision-making process is far better on that basis because that is the most important stage: whether or not you decide that it is appropriate to impose, or seek to impose, a TPIM—with the approval of the court, it must be said.
Lord Pannick
We will hear from the Minister in relation to that in a moment. I am satisfied that a sensible and fair way of dealing with what is a very difficult issue, because of the primacy of national security and the particularly intrusive nature of a relocation power, is for the Government to satisfy themselves, as I assume they have done, that relocation powers are not needed. However, given the importance of this power, they recognise that it is sensible to have reserve powers available which, God forbid they are ever needed, can be brought into force. I support the Government on this.
Baroness Hamwee
My Lords, I, too, support the Government and I am very much with the noble Lord, Lord Pannick. If my noble friend Lord Carlile succeeds in getting answers to his questions about evidence, I shall consider that there is a huge amount of favouritism going on. That is exactly the sort of thing that we have all asked for on many occasions, but inevitably we are not satisfied because we know that advice to the Government is advice to the Government, and we cannot read their heart as we are being asked to do.
I do not quite understand the distinction between politics and security. For all the reasons we have talked about and will continue to talk about, it is a much more nuanced and complicated—there is probably a geometric term for it that I do not know—picture than a simple polarisation as regards the impact of particular measures. Of course surveillance is going to be costly, but another balance that one must come to is where one puts one’s efforts and spends one’s money.
Lord Macdonald of River Glaven
My Lords, I, too, support the Government on this issue. It does not surprise me at all that if the Government presently have a power, they will seek to use it, and it does not surprise me at all that if the security services presently have a power, they will seek to retain it. But the question is, as the noble Lord, Lord Pannick, said: what is a fair balance? Noble Lords will know that the counterterrorism review considered these issues very anxiously and received a great deal of evidence. It came to the conclusion that public safety could be protected in the absence of the power of relocation but in the presence of additional surveillance, for which funding was indicated, and with the sort of measures that have now been brought forward in the TPIM Bill. That was the considered conclusion of the review and appears to be the conclusion of the Government. I must say, having scrutinised the evidence which was supplied to the counterterrorism review, it was also my conclusion. I therefore support the Government on this question.
Baroness Hamwee
My Lords, I think I heard the Minister refer—I hope I did—to plans for resources for the security services over a period which is longer than to the end of next year. If that is so, I welcome it. At the end of his speech he referred to the next four years. I welcome this because it would not be proper for this Chamber—most noble Lords not being privy to security information—to take a view as to what is required for up to the end of next year and it being something different beyond that. I am not trying to give my noble friend ammunition in favour of his argument but simply to put my concern that we should not be looking at the matter through that lens.
Lord Henley
My Lords, one is always very careful when one speaks on these matters with a Treasury Minister sitting at one’s side. However, I can give an assurance to my noble friend that we have agreed extra resources for the Security Service over the next four-year period.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 10 to 15. These are all amendments to the first schedule to the Bill which deals with measures—in other words, how the measures are administered. I am not seeking, and will not at any stage seek during the debate, to argue against the Government’s responsibility to protect their citizens, which is necessarily complex, nor indeed to disrupt activity—“disrupt” is the term the Minister used. However, I do argue that there may be different ways and means.
I wish to bring the Committee back to the issue of how one deals with the individual at the centre of all this and his or her family; to the possibility of tipping people, including in the wider community because these matters get known about, over into the very activity that we are seeking to prevent; and to the person that we will have at the end of the year or two years. I am well aware that my drafting if often more suited to a contract than a piece of legislation but I cannot help it. I was a solicitor in practice for even longer than I have been in the House. It may be that the answer to a number of my amendments is that the Human Rights Act deals with them but I will take a short time to raise the specific issues in the House.
Amendment 9 deals with the hours that an individual is required to be at his residence, suggesting that an overnight requirement should be for such reasonable hours as are specified. We know that a period of 16 hours is compliant with human rights but a requirement to be at homes for 16 hours—effectively, an early evening curfew—does not sit easily with the desirability of allowing the individual to work or study. An early evening curfew would, for instance, preclude working in the restaurant trade. Indeed, having to be at home for 16 hours would probably make it impossible to carry out any sort of normal work. Some people work from nine to five but we forget that they have to get there by nine and leave after five. That is more than the eight hours which is 24 minus 16. That is my first amendment.
Amendment 10 is on the question of location. The Secretary of State can require the individual to reside at a locality with which they have “a connection”. My amendment suggests changing that to “a substantial connection”. “A connection” could be a very slight one. Maybe “significant connection” would be better. That would be a slightly lower test than a substantial one. To take a deliberately absurd example, I would like to avoid sending an urban person off to the Yorkshire Dales, however beautiful, because Mrs Smith who used to work in his local shop has retired there. That would be a connection but not a very sensible one in this context.
Amendment 11 is on the terms of occupancy of a specified residence. Paragraph 1 in the schedule allows the Secretary of State to,
“require the individual to comply with any specified terms of occupancy of that residence”.
At first, I wondered whether this should be a third party’s terms of residence but the residence may be one provided by the Secretary of State. Pointing to a lease or tenancy agreement would be a more satisfactory way of doing that. That is alluded to but only as one of a number of possibilities. I assume that “specified” means specified by the Secretary of the State. Again, the Secretary of State might be tempted to go beyond the bounds of what one would naturally expect through this paragraph, but be permitted to do so.
Amendment 12 takes us to travel documents. As I have said, the documents—in particular the document referred to in paragraph 2(3)(d)—should be returned to the individual at his reasonable request. I am not proposing that a passport that has been surrendered should be handed back but, reading this, it occurred to me that a Freedom Pass, which allows an individual over a certain age to travel by bus for free throughout England, would fall within this category. Is it right to tell that individual that they cannot have their freedom pass which would allow them to get to, say, their niece’s wedding? Perhaps that is a bad example because attending a family wedding may raise other issues but I am not sure that this deals with that detailed sort of situation. I would like to see something put in place to permit for individual and very detailed requirements.
Lord Henley
I hope I can give my noble friend the appropriate assurances. I will just touch on the individual amendments one by one, before coming to the generality.
My noble friend’s first concern was whether the requirement to remain overnight at a specified residence for specified hours would be exercised in a way that is consistent with the ability to work. We have made it perfectly clear that the new provisions are intended to be compatible with work and study, provided these do not affect public safety. We are certainly clear that an overnight residence measure will allow an individual to work, since the hours involved will not equate to the lengthy curfew that was possible. The specified hours will also be able to take account of work commitments where appropriate, and that could include early morning or early evening shift patterns. The necessity and proportionality of each measure, including each overnight residence requirement, will be determined according to the circumstances of each individual case. The occupancy rules that may be imposed in instances where the Secretary of State provides an individual with accommodation will in essence be those that would normally apply to an individual in private rented accommodation; in other words, a standard letting agreement.
The noble Baroness has a whole list of amendments. She wants to be sure that the connection with the area an individual is sent to is substantial. I can give her that assurance from the Dispatch Box. I do not think the word is necessary but obviously we would not send, as in the example she gave, a person to the Yorkshire Dales merely because they had once visited one individual there. Yes, it has to be substantial. Wherever she uses the word “reasonable”, again, we would want to ensure that “reasonable” was understood to be part of the Secretary of State’s decision.
The noble Baroness touched on the police reporting requirement. It is always the case that, where such a requirement is in place, the Secretary of State will have to act reasonably in terms of the times and manner associated with the requirement to attend a police station. Changes can be made to take account of a new job or other changes in that individual’s lifestyle. Amendment 12 touches on the idea of being able to return travel documents to the individual; for example, something like a Freedom Pass. Obviously asking for the surrender of a passport might be very necessary and obviously we would want to keep that, but I can see occasions where it might be reasonable to allow the return of something of the order of a Freedom Pass. If I am wrong in that matter, I will write to the noble Baroness.
I understand the noble Baroness’s general concerns about the lack of the use of the word “reasonable”, but I can give the assurance that it is fundamental to administrative law that the Secretary of State, or any other public body, behaves reasonably when taking decisions in any capacity. That will certainly apply to the Home Secretary in exercising her powers under this Bill, as much as it does to any other Minister or public authority taking decisions in an entirely different context. Indeed, it is a requirement under Section 6 of the Human Rights Act that public authorities—that obviously includes the Home Secretary—act compatibly with convention rights. So there is the additional requirement that any interferences with individuals’ convention rights are not only reasonable but proportionate. If the Secretary of State fails to act reasonably and proportionately in imposing measures under a TPIM notice, obviously her decisions can be challenged and potentially overturned in the courts.
Noble Lords will be aware that Clause 3 of the Bill provides that each of the measures imposed by the Secretary of State must be reasonably considered by her to be necessary to prevent or restrict the individual’s involvement in terrorism-related activity. Clause 9, which we will return to in due course, provides that the court must review that decision, among others, by the Secretary of State and that the court may quash or give directions in relation to any measures imposed where it is not satisfied with the Secretary of State’s decision-making, including where she has acted unreasonably or disproportionately. Therefore, my noble friend’s amendments are unnecessary as their effect will be achieved without it being necessary to amend the Bill, and I hope she will feel able to withdraw them.
Baroness Hamwee
My Lords, I will certainly do so. I am very grateful to the Minister. Perhaps he is able to comment on two particular matters. First—and I am sorry, this is almost like trying to prove a negative—can he say how substantial or significant a connection there needs to be in requiring somebody to live at a particular residence? This may be something that you recognise when you see it so I may be asking him a question that cannot be answered in the abstract. I was obviously grateful for his response to my rather extreme example. I do not know whether it is possible to answer what is required.
Secondly, on reporting, I am sure that the Secretary of State would be reasonable; I am much less sure that officers on the ground at particular police stations will be quite as reasonable. Is the Minister able to help the Committee as to the role of the Secretary of State and the comparative role of those officers and whether, though the Secretary of State’s intentions are entirely reasonable—I use the word again—it may be possible on the ground locally for them to be distorted and life made close to impossible for the individual because an officer in a particular police station decides on what is actually an unreasonable time, for their convenience? Of course I take the point about being able to challenge through the courts but there is a limit to how many challenges there can be. This is the sort of thing that we should be able to sort out, if not to everybody’s satisfaction, then by at least answering their points, without having to go down that sort of route.
Lord Henley
The noble Baroness probably answered her own question, at least the first one, on what would be substantial. It is similar to the fact that we have put in “overnight” but have not defined what “overnight” is. We all know what “overnight” means; what we are saying is that we do not want that 16-hour curfew, we want people to be able to have a job, should that be necessary, but we need not be specific. This is where the reasonableness of the Secretary of State’s decision comes in. Similarly with the connection: obviously that connection is not just going to be that you have been on a day trip to Blackpool or went to the party conference there many years ago.
Lord Henley
We had better not comment on Blackpool. I suspect the noble Baroness probably understands what I am getting at and I hope the House will.
Secondly, regarding how the police act, the requirements will be set out in the TPIM notice and in that the Secretary of State obviously will have acted reasonably and set out what are reasonable requirements. It is then a matter for the police to make sure, if there is a reporting requirement, that they interpret that in the proper manner. Obviously if they do not, they will be in breach of whatever appropriate duty of care they have. Therefore, I hope that they will take notice of what that order says. I hope with that the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I do not expect a response from the Minister, but I will use this last opportunity to encourage the Secretary of State, in imposing reporting restrictions, to make the sort of considerations that I have referred to entirely clear rather than just leaving them to be implied. If the Secretary of State can make that sort of thing express rather than implied, it could be a very sensible move. However, having said that, I beg leave to withdraw the amendment.
Baroness Hamwee
“(b) conduct which is intended to encourage or assist conduct falling within paragraph (a);(c) conduct which is intended to assist individuals known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) or (b) evade lawful surveillance, investigation, or arrest.”
Baroness Hamwee
My Lords, my noble friend Lord Goodhart has put his name to Amendment 23, partly through his connection with Justice, which he will no doubt mention—the organisation Justice; I am not suggesting that other noble Lords do not have a connection with justice—and because of the intrinsic value of the amendment, which is one that Justice has suggested should be raised.
This amendment would delete a large part of the definition of terrorism-related activity, which came from the 2005 Act, and replace it with the words in my amendment. The current definition is broad and includes the facilitation of,
“the commission, preparation or instigation of acts of terrorism”.
That could embrace, for instance, innocent activities such as selling an ordinary household chemical that, unknown to the seller, is intended for use in bomb-making, or even perhaps acting as a legal representative for a terror suspect. The suggested amendment would restrict the definition to,
“the commission, preparation or instigation of acts of terrorism”,
“conduct … intended to encourage or assist”,
such acts and conduct intended to help,
“individuals … evade … surveillance, investigation, or arrest”.
The extent of the definition of terrorism-related activity has concerned people for some time. Of course, it has to be to defined adequately and appropriately, but I wonder whether we should not now be looking again at a tighter definition, which would not involve risk—that obviously has to be assessed—but that would not be so extensive that it could go well beyond what would be appropriate. I beg to move.
Lord Goodhart
My Lords, my name is put to this amendment and while I do not have a great deal to add to it, there is a certain difficulty here about how the existing text of Clause 4 is drafted. Clause 4(1) (b) states:
“conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so”.
In other words, the provision covers somebody who has facilitated the commission, preparation or instigation of such acts but has not intended to do so. That is the possibility. It is perfectly possible, for instance, that someone in a shop may sell something that is, on the face of it and so far as that person knows, entirely harmless. Yet in fact it has a particular use to the person who is buying it. In Clause 4, this is conduct that facilitates the commission of an act of terrorism but that is never intended to do so.
It would be inappropriate to go ahead without some further amendment and the provision in Amendment 23 is perfectly appropriate for this purpose. It deals with,
“conduct which is intended to encourage or assist conduct falling within paragraph (a)”,
or,
“conduct which is intended to assist individuals known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) or (b)”.
That provision seems to cover the effect of Clause 4 a good deal more accurately than its present formation does. It seems to me that it is necessary to change the drafting of Clause 4 and that Amendment 23 is an appropriate way of doing it. It may be that another one can be thought of that is even better.
Lord Henley
My Lords, Clause 4, as my noble friends have stated, provides the definition of the phrase,
“Involvement in terrorism-related activity”,
which comes from the 2005 Act. It obviously ought to be read in conjunction with Clause 30, the interpretation clause, which also refers us back, if noble Lords will bear with me, to the Terrorism Act 2000. The starting point of our response to my noble friend’s amendment is that it is unnecessary. The definition of terrorism-related activity included in the Bill is, as I said, identical to the one in the 2005 Act. We consider that to be the appropriate definition and we see no need to change it. It is settled, it has not proved problematic or objectionable and the courts have not, for once, disagreed with the assessment of successive Secretaries of State that individuals whose activity falls under it are committed terrorists.
Moreover, the Government’s approach to this clause is underpinned by other requirements in the Bill. Not only must the Secretary of State consider that the statutory test for the imposition of a TPIM notice is met, including,
“Condition A … that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity”,
but the court must review the Secretary of State's decision. As I said, that scrutiny will be rigorous and, as a result of relevant case law, it makes a finding of fact on the limb of the test relating to involvement in terrorism-related activity. It also gives “intense scrutiny” to the necessity of the notice and individual obligations.
I have looked very carefully at the amendment as set out by my noble friends. I have even produced a copy that I could share with the House, if it was necessary, showing how the clause would look after their amendment had been produced. However, I really do not think that on this occasion it is necessary. It would probably be safer and better to stick with the well-tried words that we have from the 2005 Act, with which the courts themselves have not had any problems, as I said. From the look on the face of the noble and learned Lord, Lord Lloyd, when I first mentioned that point, I certainly noticed a degree of agreement with me. If the courts are happy, I suspect we should leave well alone. I hope, therefore, that my noble friends will feel able to withdraw this amendment.
Baroness Hamwee
My Lords, my concern stems from the possible prospect of a less benign Home Secretary, who may misuse the clause. He—let us say he—might believe that an individual has been involved in terrorism-related activity because he, to use the example that we have given, has sold household chemicals that are to be used for something bad. I suspect that the courts have never had to face the position that I am putting forward and so have not been troubled by it. As ever, one tries to anticipate how legislation might be misused or abused, rather than used in what we would all regard as a proper fashion. However, I hear what my noble friend has said and beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving Amendment 24 I shall speak also to Amendments 28, 30 and 31 to 35 in my name. Amendment 24 would amend Clause 5(3), which provides that a TPIM notice,
“may be extended … only if conditions A, C and D are met”.
I am not sure whether my amendment is one of drafting or principle. It certainly does not go to the major principle of the structure of the periods or their limits. However, as Clause 5(3) is drawn, the conditions are to be met and that would allow for an extension of the notice. My amendment concerns when those conditions are met, saying that they should be met,
“at the date from which”—
the notice “is extended”. It is not likely that the Secretary of State would decide in the second week of a notice that it should, in effect, be a two-year notice. However, again, looking to a less sensible or benign Secretary of State, that should not be possible. That is why I have tabled this amendment.
My other amendments all deal with the term “obviously flawed”, although I realise that I have missed at least one instance of it somewhere in the Bill. As my noble friend Lord Goodhart said in speaking to the first group of amendments, what “obviously flawed” means is far from obvious. My amendments, which would take out “obviously”, probe the meaning of the term. The context, in every case, would in effect be an ex parte application. Does “obviously flawed” mean prima facie? When these questions were asked during the Public Bill Committee stage in the Commons, the Minister said:
“An appropriate test at the permission stage acts as a check on the Secretary of State’s exercise of his or her powers. At that stage, it is clearly not appropriate for the court to make the final determination … because it is … an ex parte process”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 30/6/11; col. 212.]
I understand that but I am still not entirely clear about the term as distinct from the context; they may be inseparable. The Minister’s answer was that it reduced the hurdle that the Secretary of State must meet. I hope that the Minister will today give us some further sense of where in the hierarchy this comes.
Lord Hunt of Kings Heath
My Lords, before the noble Baroness agonises over whether she puts this to the vote, the final point made by the noble Baroness, Lady Stowell of Beeston, about the Secretary of State’s responsibilities is well taken. I congratulate her on what is probably her first appearance at the Dispatch Box, certainly in this Committee stage.
Baroness Hamwee
No, not as ever, sometimes we are shoulder to shoulder. However, I congratulate the noble Baroness and I am grateful for her reply. It will deserve reading. I take her point about the term being used in control order legislation but I have written down,
“much the same as prima facie”.
I, for one, would not like to tangle with her over whether there is any significance in the term “much the same”. If anybody reading Hansard who is better qualified than me thinks that one should take issue with,
“much the same as prima facie”,
I will come back to it on Report. As I say, I will read the noble Baroness’s response. I am grateful to her for the detail. I beg leave to withdraw the amendment.
Baroness Hamwee
“(1A) The application of subsection (1) extends to—
(a) a proposed extension under section 5,(b) a proposed variation under section 12(c), and(c) a proposed revival under section 13,of a TPIM notice.”
Baroness Hamwee
My Lords, Amendment 26 is grouped with Amendments 45 and 46, which also stand in my name. We touched on this matter when I asked the Minister a question about the length of TPIMs earlier this afternoon. I thank him for his response. Nevertheless, in case there is anything more to come out on this, I will speak to these amendments.
Amendment 26 to Clause 6 would provide that Clause 6(1), which makes the rest of the clause apply, extends to extensions, variations and revivals of a TPIM notice. As I said earlier, I had difficulty in following the procedures for the different decisions which are open to the Secretary of State. Therefore, I thought it best not to be too proud about my drafting as I do not have a professional reputation to be concerned about to the extent that other noble Lords who are very well established in their fields do. That is why I tabled that amendment.
Amendments 45 and 46, which seek to amend Clause 13, may already have been answered to an extent in the previous debate. Amendment 45 would provide that condition E—that is, the involvement of the court—would apply on revival of a TPIM. I am encouraged to think that a stopping or pausing of a TPIM might be possible—that is implied by the possibility of reviving one—but that this measure would apply after a TPIM had expired or been revoked. I hope to be told that this is provided elsewhere in the Bill. If it is not, it should apply. If a TPIM notice has expired or been revoked—no doubt, for good reason—all the conditions should then be tested again. I beg to move.
Lord Henley
My Lords, we seem to be moving at quite a speed. My noble friend need not worry too much about her drafting. We have all drafted amendments in the past that we knew were defective in many ways but they are often a useful way of getting the Government to the Dispatch Box to explain what is going on. It is worth going into detail on this issue.
I will deal first with the substantive amendment that the noble Baroness has proposed to Clause 6—to which Amendment 45 is consequential. As drafted, the Bill requires the Secretary of State to seek prior court permission to impose a TPIM notice, other than where the urgency procedure set out in Schedule 2 is relied on. This provides an important safeguard in relation to the initial imposition of TPIM notices by the Secretary of State. However, as my noble friend has identified, there is no subsequent requirement for the Secretary of State to seek the court’s prior permission before making any other decision in respect of the TPIM notice. Her amendment would require the Secretary of State to seek prior permission before making three particular decisions. The first is to extend a notice into a second year under Clause 5. The second is to vary the specified measures, on the grounds that this is necessary for preventing or restricting involvement in terrorism-related activity under Clause 12—that is, where the variation is not a reduction in the measures or one made with the consent of the individual. The third is a proposed revival of a TPIM notice under Clause 13. The Bill does not require court permission to take any of these decisions. However, it provides a right of appeal against the exercise of each of these powers.
Baroness Hamwee
My Lords, again I must read what has been said, but I believe that I am satisfied and will remain so. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
I absolutely support what the noble Lord, Lord Pannick, said. My amendments to both his amendments were partly in response to an earlier draft, which I think he changed before tabling them. However, the point remains the same: to tease out whether the words “if possible” are objective or subjective to the individual. I am not sure what “if possible” means in the context. I would certainly not want anything that the noble Lord has included to detract from the thrust of his important amendments and argument. I beg to move.
Baroness Kennedy of The Shaws
My Lords, I support the amendments in the name of the noble Lord, Lord Pannick. I disclose that I act from time to time in what have been control order cases and may be called on to act in future such cases. I reinforce the importance of having disclosure of the essence of the case. The reason for that is that from time to time I have seen that, when disclosure of the essence of the case takes place, it is possible to show that the inferences drawn from certain behaviour are not appropriate.
I give an example. The case involved a student living in a house with other students. We are always concerned that association can be an unfair way to judge someone. An assumption was made and disclosed in the essence of the case against him that a conspiratorial meeting took place at a particular time. It was possible for us to show that he must have been in his room using his computer because, during the period of the meeting, he was in direct contact with the department with which he was studying at university, drawing down the homework that he was required to do. Not only was the university able to confirm that but his computer, which was seized, showed that the timing coincided with when some others were involved in the meeting, when he was in his room studying. Just that allowed someone to show that an inference being drawn was incorrect.
Given that we are putting together a system which is in many ways a source of concern with regard to liberty, it is really important that opportunities are there for people to show that their actions are not the ones that the state is imagining. We must, in drawing up new proposals—some of which I am not completely happy with—draw on the decisions made by judges under the control order regime.
Lord Henley
My Lords, the noble Lord, Lord Pannick, asked two questions: first, do we accept that the AF principle applies to TPIMs as well as to control orders? I can give him that assurance. It is set out in our Explanatory Notes that we believe that previous court judgments will be binding on TPIMs, as they were on control orders. I do not have the ability to cite cases as authoritatively as my noble friend Lord Carlile or the noble Lord, Lord Pannick, both of whom obviously eat them for breakfast, but my understanding is that they will continue to bind us.
The second question is: do we think that it is necessary to get it on the face of the Bill? I hope that I can explain to the noble Lord why I do not think that that is necessary. We share the desire of all noble Lords to ensure that TPIM proceedings are compatible with Article 6 and we believe that the provisions currently contained in the Bill achieve that. As we explained in our response to the Joint Committee on Human Rights in its 19 July report—I think that today’s was its third report on this issue—the right to a fair trial of individuals subject to a TPIM notice is already fully protected by the provisions contained in the TPIM Bill and the application of existing case law, as appropriate, by the courts.
Paragraph 5 of Schedule 4 to the Bill reflects the read down of the Prevention of Terrorism Act 2005, effected by the 2007 judgment of the Law Lords in MB. As the noble Lord will be aware, the Law Lords read into that legislation, which obliged the courts to ensure the withholding of material from the individual where disclosure would be contrary to public interest, the words,
“except where to do so would be incompatible with the right of the controlled person to a fair trial”.
That has been reflected in the provision in paragraph 5 of Schedule 4 to the TPIM Bill, which provides that nothing in the rule-making power relating to closed proceedings or the rules of court made under it is to be read as requiring the court to act in a manner inconsistent with Article 6. The Law Lords in AF (No.3) confirmed the read down specified in MB and laid down what was required by Article 6 in the context of the stringent control orders before them. There is therefore already provision in the Bill which ensures that TPIM proceedings will be conducted compatibly with the individual’s Article 6 rights and, indeed, the Human Rights Act achieves the same effect.
That is all that I want to say at this stage to the noble Lord’s amendment. I appreciate that technically we are debating the amendment to the amendment tabled by my noble friend Lady Hamwee. It might be more appropriate for the noble Lord, Lord Pannick, to comment on that. I hope that he will accept my explanation on why we do not think it is necessary to include his amendment. I hope that the assurances that I have given from the Dispatch Box will be sufficient. I hope that my noble friend and then the noble Lord will withdraw their amendments.
Baroness Hamwee
Baroness Hamwee
My Lords, I beg to move Amendment 47, and will speak also to Amendments 48 and 51.
Amendment 47 concerns paragraph 1 of Schedule 3, which deals with appeals against convictions for breaches of measures. My amendment is to enable me to ask the Minister why appeals are limited in this way. A breach of a measure may turn into a criminal offence, but that is a separate matter from the measure itself. If an individual is convicted of that breach, there are consequences for the future, as there are with every criminal offence.
The Minister may say that the measure itself will have consequences. Of course it will. That is executive action without a criminal standard of proof, and so on, as we have discussed. The consequences will be social consequences, in a wider sense. If there is a conviction for a breach, that has other consequences, because of the record of the individual. Therefore, Amendment 47 is to ask the Government to explain the thinking behind that paragraph.
Amendment 48 would take out subsections (1) and (2) to Clause 18. These are about appeals against the measure, and again the amendment is to enable me to ask questions. Clause 18(1) says that there may be an appeal only on a question of law. I would be grateful if the Minister could help the Committee on how one distinguishes between fact and law in this context. How does this apply not just to the decision that there should be a TPIM order but to the detail of the measure? Is proportionality, which we have been talking about quite a lot, a matter of law? I hope to be told that it is.
My final amendment in the group is Amendment 51, which relates to Clause 19. Clause 19 provides for the Secretary of State to make three-monthly reports to Parliament, which is welcome. Clause 19(2)(a) provides that this includes and extends to the powers of a Secretary of State “to impose measures”. I am suggesting that we should add wording that makes it clear that this covers not just the fact that a TPIM order has been imposed but the detail of the measures within that TPIM order. I appreciate that it would not be proper to put every detail into the public domain. However, I do think it would be proper for the Secretary of State to spell out the sort of thing that she is doing, so that we may understand—better than we can if we are simply told that measures are being applied—just what the impact of those measures may be. I beg to move.
Lord Henley
I hope I can answer the noble Baroness’s three points on these three separate amendments, which we are taking together. I shall start with Amendment 47, which deals with Schedule 3. As the noble Baroness is aware, Schedule 3 provides that an individual who has been convicted of the offence contained in Clause 23 of the Bill—contravening, without reasonable excuse, a measure imposed under a terrorism prevention and investigation measures notice—has a right of appeal against that conviction if the notice or relevant measure is subsequently quashed, and if they could not have been convicted had the quashing occurred before they were prosecuted. Schedule 3 provides that the court must allow such appeals. This is obviously not a provision that we expect to be used on a frequent basis. However, its clear purpose is to provide an important safeguard, and to ensure that the person will be able to get a conviction overturned for contravening a measure that the court has subsequently quashed.
It is therefore important that the schedule be agreed to. I know that the noble Baroness is only suggesting removing paragraph 1, but that is the operative provision of the schedule, and without it the remainder of the provisions in the schedule are neutered. I hope she therefore accepts my explanation and can withdraw that particular amendment.
Amendment 48 deals with subsections (1) and (2) of Clause 18 and is really a question about why we are considering having appeals only on a point of law. We believe that the limitation is appropriate, because in cases such as this it is the court of first instance that is the appropriate fact-finding body. It is this court that has developed a particular expertise and body of knowledge in this area of national security, among a small and experienced body of judges who hear these cases. This makes it the right court to review all the material upon which the Secretary of State relies to make her decisions and make findings on that basis.
With regard to the appeal on a point of law, the noble Baroness asked us whether we thought proportionality would be a point of law. Dare I say it—I might have to be corrected—but I think she is probably correct, and it probably would be. If I am wrong, I will correct that in due course. I will certainly write to her and copy that letter to other noble Lords who have taken an interest in these matters.
Finally, I turn to Amendment 51, which deals with Clause 19. Clause 19, as the noble Baroness is well aware, places a duty on the Secretary of State to report to Parliament on a quarterly basis on the exercise of her powers under this Bill. These are specifically the powers to impose measures on a person by TPIM notice, extend a TPIM notice, vary the measures specified in a TPIM notice, and revoke or revive a TPIM notice.
Amendment 51 would amend Clause 19(2)(a) to add “and the measures imposed” at the end of the subsection. The relevant provision would thus state that the requirement was for the Secretary of State to report on her powers to impose measures on an individual via a TPIM notice under Section 2, and the measures imposed. As noble Lords will appreciate, the details of the operation of the system and the particular cases will necessarily be sensitive and could not be disclosed publicly. However, taken together, the list of matters on which the Secretary of State must report ensures that key information about the operation of the system will be in the public domain, and will be debated regularly. Crucially, this will include information about the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed.
We understand that there is interest in as much information as possible being made available about the operation of the system and about the cases of those individuals subject to the measures. That has certainly been the case in relation to control orders and it is likely to continue in relation to TPIMs. Having that information available will help to ensure that any debate about the powers is as informed as possible.
Lord Henley
The ingenuity of the noble Lord and others will find ways in which this House, which seems to have a more liberal approach in these matters, can debate these quarterly reports. There are Questions, Questions for Short Debate and all range of things, but it is not necessarily for the Government to offer those. As regards the debate next week, I look forward to it.
I hope that that deals with the points made by my noble friend. If not, perhaps we can discuss it further in due course, but I hope that today she will feel able to withdraw her amendments.
Baroness Hamwee
My Lords, I am grateful for the reassurance on my Amendment 49, which takes a stand on a question of law in this context, and I hope that the Minister and I are correct. On Amendment 51, I accept the sensitivity of the detail, which I acknowledged in introducing the amendment. However, I remain concerned that the type and extent of the measures being imposed are reported on. The clause is welcome and I want to make it work well for Parliament and others in the transparency for which we are all aiming. I might therefore like to take the opportunity to discuss with the Minister how one can meet the point without going over the top, which I am not trying to do. I beg leave to withdraw the amendment.
Baroness Hamwee
“Impact of measures
(1) Within 28 days after the imposition or variation of any measures, an assessment shall be made of the likely impact of the measures—
(a) on the individual on whom they are imposed, and(b) on the immediate family of the individual.(2) The assessment shall include an evaluation of the impact on mental health.
(3) Further assessments shall be made not less frequently than every three months and at the expiry, repeal or revocation of the measures, and thereafter during such period and at such intervals (but not more frequently than every six months) as the individual may request.
(4) The assessment shall be made by an independent person appointed by the Secretary of State who shall be appropriately qualified in conjunction with such persons as the individual may nominate and who shall be entitled to make separate reports.
(5) The costs of assessments made under this section shall be met by the Secretary of State.”
Baroness Hamwee
I shall speak also to Amendment 53. This would be a new clause dealing with a matter that I regard as of the utmost seriousness. It is addressed in particular to mental health issues.
The proposed new clause is by no means an opposition to mechanisms for addressing protection of the public and the prevention of terrorism. It is a separate issue about how measures are applied in practice and about the impact of those measures. I have mentioned the matter already today but it is important to repeat it as the context for the provision. It concerns in particular tipping the individual, his family and members of his community into the precise action that we are seeking to avoid; to avoid tipping an individual into breach of the restrictions on him, which is a criminal offence and may turn into a criminal someone who is not a criminal and has no criminal record; and to avoid our failure to recognise that at the centre of all this is a human being.
The moment my new clause was published I saw a drafting error, but I will speak to it as I intended it to be. It would provide for an assessment to be made on the likely impact—my drafting error is that I failed to refer to the actual impact—of the imposition of measures, or the variation of them on the individual and his immediate family every three months, when measures expire or are repealed or revoked, and thereafter at intervals which the individual may request. The assessment I talk of would include an evaluation of the impact on mental health. It should be made by an independent person appointed by the Secretary of State but not only by that person. I suggest that of course the person should be appropriately qualified, but shall work in conjunction with the nominees of the individual who can make separate reports. That is an important point because it is all too easy and obvious that independent experts appointed by the Secretary of State, as has happened with control orders, are perceived as agents of the Secretary of State being there to gather evidence and information.
I have proposed the new clause for the reasons I have already given and because one needs to increase the opportunity for transparency around this whole area. I have said that the costs should be met by the Secretary of State because I thought that someone might ask about that. It seems to me that the numbers of cases we are talking about are small and this would be entirely proper given that the measures applied are potentially so very stringent. Amendment 53 would bring these assessments within the remit of the independent reviewer.
The experience of control orders has been not only that in some cases they are very damaging but that the controlee is essentially broken. I want quickly to share with the Committee the story I heard earlier this week of a controlee who had failed to report to the police on time. I asked how late he had been and was told that it was one hour. His control order of course required him to report at a particular time and having failed to be there on time he was charged with a breach of his order. He found himself in Pentonville. The shocking part of the story is not just that: it is that the individual will not apply for bail. For him, being in Pentonville is preferable to being under a control order. That is what the state has done to some individuals. If that is what we are going to do to them in order to protect the rest of society, we should know what the impact is.
Lord Hunt of Kings Heath
I do not quite understand the noble Baroness. Presumably this person was in breach of the control order by not attending on time. I do not understand the issue.
Baroness Hamwee
The issue is that to this individual, being in prison is more acceptable than being in his place of residence under a control order, with the restrictions imposed by the system. I am sure that the noble Lord has heard, from people who had been under control orders that were quashed, the impact they had on them and their families. The interference with anything that any of us would recognise as a normal life has been literally intolerable. That is the point I make to the Committee. I beg to move.
Lord Carlile of Berriew
My Lords, I applaud and support the sentiment behind my noble friend's amendment, but I suggest that it is not only unnecessary but would replace a considerable amount of flexibility with something rather less. On the case history that she has just recounted, I say that nobody has been arrested and charged with breach of a control order for failing to turn up at a police station once, an hour late. In every case, there has been an immense degree of tolerance before anyone has been charged. It is only after a very serious breach, or persistent and repeated breaches, that people are charged.
Nor do I recognise the credibility of the account my noble friend was given. When I was the independent reviewer of terrorism legislation, on a relatively small number of occasions—but several—I was able to visit controlees in their own homes, alone, one to one. On some occasions I visited them in homes to which they had been relocated. The notion of a state-appointed psychiatrist, however independent, turning up unsolicited at their home would have been no more comforting than One Day in the Life of Ivan Denisovich. It is a pretty bad idea.
I ask the Minister to confirm that the following occurs and will occur. First, where there is any suspicion or indication of the poor mental health of the controlee or of any member of his or her family, medical facilities will be put in place, including, if necessary, psychiatrists and psychologists, to deal with the problem; and that such facilities will be flexible and will be provided at the cost of the Home Office. Secondly, will the Minister confirm that the Control Order Review Group has met regularly ever since control orders were brought in, that it includes various people involved in scrutinising and observing the person concerned, and that it has always discussed such issues where they have arisen? Will he further confirm that under TPIMs, some kind of review group—I hope it will not be called TPIMsORG —will continue to meet and carry out that function? There is no evidence whatever that controlees have been treated improperly in the way that my noble friend set out.
On one occasion I suggested to the Home Office that there were some difficulties from time to time in giving controlees a single point of contact—perhaps a local police officer—who was aware of the situation and whom they could telephone if they had a problem. I believe that that has been put right, that they do all have someone to contact, and that sympathetic consideration is given to all difficulties of the kind that my noble friend has in mind.
Lord Henley
My Lords, my noble friend has been consistent over the years in her concern about the impact of control order obligations on individuals and on their health, in particular on their mental health. My first point is that TPIM notices are intentionally more limited in nature than those that can be imposed under control orders. We will no longer have lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment. Therefore, whatever the result, one would hope that the effect on individuals would be less than under control orders.
Despite the limitations that should significantly reduce the impact on individuals subject to TPIMs, I appreciate that my noble friend remains concerned about these issues. I agree with my noble friend Lord Carlile that the amendment does not achieve what it sets out to do. The noble Lord put a series of questions to me about the current position and about what will be the position. He asked whether medical facilities would be provided by the Home Office for those with poor mental health. He then asked about the Control Order Review Group, and about whether something would follow it. He could not quite bring himself to work out the acronym, but no doubt something can be put in place that will have a similar role. I am sure that my noble friend asked those questions in a rhetorical manner and that he knows the answer certainly to the first two questions. Such things will be provided by the Home Office: CORG exists; and we will certainly consider something suitable to replace it in due course.
Although I cannot accept my noble friend’s amendments, I say that the Bill, together with the relevant control order case law and the duty of the Secretary of State to act within convention rights, already ensures that the Secretary of State will give the appropriate consideration to the impact of the measures on the individual and on their family, including the impact on their mental health, both before imposing a TPIM notice and during the year or however long it remains in force. With that, I hope that my noble friend will withdraw her amendment.
Baroness Hamwee
My Lords, I ought to take two minutes to withdraw the amendment—that might be obscure to anybody reading this—in order to take us to the agreed time of 8 pm. Of course I understand and accept that the measures proposed by the Bill are less severe than control orders. That is the point of the Bill. Not all of them are, because there is the possibility of enhanced TPIMs. I take the point, but it does not quite cover the ground.
I understand the point made by my noble friend Lord Carlile about a series of breaches. I talked earlier—I am not sure whether he was in his place—about the need not just for the Secretary of State to be reasonable about reporting requirements, but for police officers on the ground to be reasonable.
Of course, our experiences and what we hear are not the same, and I could never have the particular experience that he has had, but I hear of the danger of people who are under such orders becoming so despairing that they almost do not care if they breach.
The real thrust of this amendment is the importance of the involvement of professionals who are of the individual’s nomination, not just those who are provided by the Home Secretary. If I say “by the state” it may sound like One Day in the Life of Ivan Denisovich but I say “the state” quite deliberately because that is how it is perceived in this situation. My amendment suggests the formation of something akin to a case conference with the considerable involvement of an individual or organisation of the person’s choosing because of the interpretation or perception, which I suppose is inevitable in this situation, that anybody who is provided by the state is not going to be neutral, far less on the individual’s side. Having said that, I beg leave to withdraw the amendment.
Visas: Domestic Workers
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Baroness Hamwee
To ask Her Majesty’s Government, in bringing forward proposals to end the Domestic Workers visa, what consideration they have given to the protection of the rights of domestic workers.
The Minister of State, Home Office (Lord Henley)
My Lords, the rights of overseas domestic workers in private households are discussed in the Government’s consultation document, Employment related settlement: Tier 5 and overseas domestic workers. The consultation sets out a number of proposals for reform, which include making protections more appropriate should the route be retained. We are currently considering the responses that have been received.
Baroness Hamwee
My Lords, the Minister will understand that the portability of the current visa, which means a worker can change employer as long as he or she remains in domestic work, is fundamental to safeguarding the rights of that employee and to safeguard against bonded labour. He will appreciate that I refer to rights such as to be paid at least the national minimum wage, not to be forced to work excessive hours and so on. There are some horrific stories. On Anti-Slavery Day—and every day should be regarded as Anti-Slavery Day—will the Government take into account the need to be very mindful of the rights of all who work in our country?
Lord Henley
My Lords, my noble friend is right to raise this issue on Anti-Slavery Day, but she is also right to say that we should take account of these matters on every day of the week and obviously we will. Settlement has almost become automatic for those who wish to stay in the United Kingdom under these arrangements, and the consultation is about being more selective about those who wish to stay permanently while also, as my noble friend puts it, making sure their rights are safeguarded.
Terrorism Prevention and Investigation Measures Bill
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Baroness Hamwee
My Lords, I, too, thank the Minister for his introduction and welcome him to his position. If I were to say that I wished that my noble friend Lady Browning was here, I would not want him to take that the wrong way, but I use this opportunity to pass on the House’s good wishes to her.
I very much welcome the repeal of the 2005 Act. I hope that by the time this Bill leaves the House I shall be more enthusiastic about the whole of it, but I am already enthusiastic about Clause 1.
No one could envy a Home Secretary faced not just with specific decisions under that Act and this Bill, if enacted, but also with wider policy. I am very conscious of who is sitting immediately in front of me—the noble Lord, Lord Howard of Lympne—in saying this. Control orders always seemed offensive to me because of the impact on the individual and because of the inherent risk that, in using an order, or measure, to restrain a potential terrorist, the effect might be to drive that individual, or perhaps others who knew him and who knew about the restraint because they had been in the same community—however you define that—towards the very actions that one sought to avoid. That is quite the opposite of the intended effect.
I do not challenge the assessment of the risk of the threat of terrorism and am of course in no position to do so. As I have often said, there is no answer to, “If you knew what I know”. But it is necessary to take risks in order to manage risks. It is really not possible for the public, which is almost all of us, to know how executive decision-making operates in this area. We have in this Bill the proposed safeguard of a role for the court to determine whether the Secretary of State’s decisions are “obviously flawed”, to use the term in the Bill. That will be impossible to assess without access to the evidence, which is why the judicial role is so important. These cases are pretty likely to reach the court sooner or later, so why not start them there? However, I take a point made, I think, by Liberty, that the judges’ role must remain separate from that of the Executive, as there is a danger in a judge making a political decision.
In Committee, we will explore where the appropriate fit is within the judicial system. I know that my noble friends Lord Goodhart and Lord Phillips will address that matter. As has been said, the views of my noble friend Lord Macdonald are well known. I do not know whether he will use any of the amendments drafted by the Joint Committee on Human Rights on the basis of those views. I must say that it is pretty jammy to find that a Select Committee has drafted your amendments for you.
We will be debating later today the Terrorism Act 2000 (Remedial) Order. The Joint Committee made a number of points to the Secretary of State, one of which was that prior judicial authorisation of the power to stop and search, the subject of the remedial order, should be applied when stop and search was used without reasonable suspicion. The Secretary of State’s answer was that the Government rejected that view because it would not be appropriate or helpful,
“to blur the lines between the executive and the judiciary in this way”.
I disagree.
TPIMs will continue the use of the special advocate system. The idea of a lawyer representing a client but being unable to take instructions from that client, because there is nothing on which to take instructions, is not something that I have been able to get my head around. Neither the individual nor his lawyers would have more than the gist of the case, if one can call it a case, against him. Believe me, my practice as a solicitor persuaded me after quite a short time that one needs to be able to test the material and test evidence to destruction with your own client in order to be able to represent him.
The whole regime of special advocates will, I believe, be the subject of a Green Paper, and I use this opportunity to ask the Minister whether he could give the House any information as to when we might see it. Under the Bill, the hurdle for the Secretary of State is slightly higher than reasonable suspicion, but reasonable belief is not so very high a hurdle. We have already had mention of the draft enhanced TPIMs Bill, and we have seen the recently added Clauses 26 and 27. On the draft Bill, perhaps the Minister can tell us the arrangements for the pre-legislative scrutiny that we are promised and which will distinguish that Bill from other emergency legislation that we have seen. But under both of those, the Secretary of State would have to be satisfied on a balance of probabilities that the individual is, or has been, involved in terrorism-related activity. That is, of course, a lower standard than the criminal standard of beyond reasonable doubt. As I understand it, the enhanced TPIMs will be brought into effect depending on circumstances at the time, not on the risk related to the individual. There seems to me no reason why the balance of probabilities should not apply to standard TPIMs as well as to enhanced ones. That seems to be the logic of the way the enhanced TPIMs would come into effect. So we have executive action on a low evidence threshold and something close to executive legislation, since the Bill includes the power for the Secretary of State to repeal, extend or revive by order the legislation.
The title of the Bill is significant. We need to look at the provisions through the lens of prevention and investigation. I have heard—it may be that I read it as comments during the Public Bill Committee debate in the Commons—that control orders and TPIMs can be compared with ASBOs, but we are not dealing with a sanction or penalty here. It is also difficult to see how there can be an investigation since the objective of the Bill is to prevent offences. It is certainly difficult to see how there can be evidence of new activity for a TPIM after the first one.
The Bill raises issues around many aspects and stages of the process. I was left standing by arguments made by other noble Lords on the distinction between appeal, judicial review and the application of the principles of judicial review when we dealt with terrorist asset-freezing legislation some months ago. That legislation also threw up issues around the last of the major areas that I wish to raise today: how one deals with an individual and those around that individual—close and extended family and friends. This is an individual who has not been charged with, let alone convicted of, an offence; someone who may have terrorism in mind, but who is also a human being. Put at its lowest, and as a simple matter of protecting society, it does not seem to me to be good tactics to treat someone in such a way that we drive or tip them into the very actions that we seek to avoid. There are, of course, reputational issues for our country, too, but there is a basic moral code—common humanity—that must remain in play.
Several noble Lords attended a meeting yesterday when I asked someone who had been under a control order, which had been quashed, about the impact of particular measures. I did so wondering whether something similar to the licences that the Treasury is able to grant in the asset-freezing regime might be applied here, both general—for instance, spending on basic living costs—and case by case. The answer that the gentleman gave me was that it was the prevention from taking part in ordinary, mundane activities that was the most destructive thing. He was banned from meeting—or associating with, in the jargon—his oldest friend. Of course, both the family life of the individual and the life of his family are affected. How can they not be?
I have been thinking about the need for access to a doctor of that individual’s own choice. It is difficult to believe that control orders and these proposed measures could have no effect on mental health. Those in the know say that all the individuals under control orders whom they have encountered have been significantly damaged. It is simply not adequate to say, “Go to the local GP”.
The Minister may say that the measures will be humane and proportionate, and that that is implicit in the revised arrangement. We will want to explore that in Committee. I suspect that much will depend on how the measures are applied by the Home Secretary and others. For instance, the time of day when someone under a control order is required to report to a police station can make the difference between whether or not they are able to work or study. By the end of this process, I would like to be assured that we have made the legislation as good as it can be in what is, I acknowledge, a very difficult situation.
If we forget that there is a human being at the centre of all this, we will overlook the normal reactions to restrictions. There is the risk of driving a person into breach of a measure and thus criminalising someone who was not a criminal before. If we dehumanise someone in our own minds—the human being who is still there at the end of the process—and forget that he will have profound needs, then, whether or not there is more or less of a threat, we will not have done well. These are difficult issues. I find it quite difficult even to find the language to discuss them, but discuss them we must.
Finally, I have some rather more discrete questions to the Minister. In evidence to the Public Bill Committee in the Commons, the Metropolitan Police said that it had put in a business plan regarding the resources that it would require for surveillance. Can the Minister give me any news as to whether the Metropolitan Police has been satisfied with the response to that? Can he give the House any information about the number of prosecutions for terrorism that there have been of those under control orders? Inevitably, I also have to ask him about any news of dealing with intercept evidence.
My noble friends bring different experiences—some high profile, some lower profile but very key—and I hope that they and I, and the House as a whole, can help make this legislation intellectually coherent and satisfactorily based in the rule of law. As our own Constitution Committee has said, it has only an indirect relationship with the criminal justice system. It should be HR-compliant and obviously so—not just assessed as technically compliant, but something with which we, in our hearts as well as our minds, can live.
Lord Harris of Haringey
My Lords, as ever I am grateful to the noble Lord, Lord Howard, for his helpful intervention. My point is simple. This was a power that previous Home Secretaries and the current Home Secretary found necessary. It is one that the security services and police said was necessary. However, we are now told that the fresh air of the West Midlands conurbation and its bucolic atmosphere have so changed this individual’s personality that he now poses much less of a threat. That is frankly implausible. The reality is that this power was necessary. The present Home Secretary, knowing of the proposal that she would bring before Parliament, chose to exercise the power. The power remains necessary.
Baroness Hamwee
Would the noble Lord like to say anything about the development of technology? He may be overlooking the fact that individuals who are subject to these measures will almost undoubtedly be tagged. I do not know much about it, but I am sure that the technology is developing as we speak, and that it is possible to know where people who are tagged are going, and whether they are going where they should not be going. Surely that needs to be taken into account.
Lord Harris of Haringey
As I understand it, people who are subject to control orders are in many instances already tagged. Tagging is a useful technique. Tags can be removed, though the best tags are supposed to tell you if they have been—and I am sure that only the best tags will be purchased for this purpose. However, the problem is the risk of association. If somebody lives in a particular area and it is deemed that the danger of association is there, a tag will not tell you who comes to see that individual. Nor will it tell you where they go in their immediate vicinity, which could be precisely where those associations take place. The point of relocation is to minimise the risk of those associations, or to enable them to be monitored.
Just eight months ago, the rational and responsible Home Secretary, on the information presented to her, felt that the individual concerned was so dangerous that not only did he need to be subject to a control order but he should be relocated miles away from his previous environment. She made the judgment knowing that the Bill would remove that option and tie her hands in future. The rational and responsible Home Secretary made that judgment knowing that however much of a danger the person was thought to be, such an outcome would be taken away. The Minister needs to tell us why the judgment that the Home Secretary made then will no longer apply to this individual when the Bill becomes law.
Perhaps we should not expect the Minister to go through such contortions to provide an explanation. Perhaps all he needs to do is concede that the Home Secretary made that judgment in the interests of our nation's security but that this shabby, tawdry compromise of a Bill would prevent her making the same judgment in future. This compromise is not just between the two wings of an uneasy and unhappy coalition, but a compromise with the nation's security.
Terrorism Act 2000 (Remedial) Order 2011
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The Minister of State, Home Office (Lord Henley)
My Lords, this order is made under the Human Rights Act 1998 and replaces the stop-and-search powers found in Sections 44 to 47 of the Terrorism Act 2000, often referred to as the Section 44 powers. These powers allowed police constables to stop and search individuals at a time and in a place authorised by a chief officer and search for articles which could be used in connection with terrorism, whether or not the police suspected the presence of such articles. The European Court of Human Rights found that the powers were not in accordance with the law. That ruling became final on 28 June 2010 and the Home Secretary made a Statement in another place on 8 July, stating that the use of the powers without reasonable suspicion would be suspended pending a review. The powers were subsequently reviewed as part of the Government’s wider review of counterterrorism powers. As a result, the Home Secretary announced that Section 44 would be repealed and replaced with a significantly circumscribed power. The Government have brought forward these proposed changes in the Protection of Freedoms Bill. However, the review also recommended that consideration should be given to whether the new powers should be made available more quickly than the Bill will allow. The remedial order before us is the result. The order has been made under the urgency procedure in Schedule 2 to the Human Rights Act 1998. The order will lapse on the passage of the similar powers currently under consideration in the Protection of Freedoms Bill in another place.
It is apparent from the European court’s ruling that there is an incompatibility to address. It is also the Government’s view, on the basis of operational advice, that given the very serious circumstances in which the new powers might be used, it was necessary to make them available using the emergency procedure which allowed the change in the law to take effect immediately. It is a fairer and more focused power with significantly stronger safeguards. It provides the police with what they need while ensuring that there are robust safeguards to prevent misuse.
The new powers inserted as new Section 47A into the Terrorism Act 2000 require that an officer reasonably suspects that an act of terrorism will take place and considers that the powers are necessary to prevent such an act. This is a significantly higher threshold than in the old Section 44 power. Furthermore, an authorisation under new Section 47A can cover only a geographical area and a period of time necessary to address the threat. The maximum period of authorisation has been reduced from 28 days to 14 days. The purpose of the stop and search has also been tightened so that the use of the powers is more closely aligned with the particular threat. In addition to these changes, there is a robust statutory code of practice. This sets out the detailed requirements for the authorisation and exercise of the powers, prohibits the continuous renewal of authorisations and requires effective monitoring and community engagement.
This order provides police with the tools they need to address a serious terrorist threat but represents a clean break from the years of misuse of the disproportionate and discredited Section 44 powers. I commend the order to the House.
Baroness Hamwee
My Lords, it has taken a little time for this order to reach us—although it is within the 120 days—and I wonder why that is so. It would have been good to have considered it rather earlier after the order came into effect. However, it means that we have had two helpful reports from the Joint Committee on Human Rights and I have also found helpful briefing that we received within the past two or three days from the Equality and Human Rights Commission.
As the Minister said, this is a curtain-raiser for the Protection of Freedoms Bill. I declare an interest which, when I mentioned it on a previous occasion, I discovered I shared with a surprisingly large number of Members of this House—I was stopped and searched under Section 44 by, in fact, the MoD rather than the Metropolitan Police. I was driving past the Ministry of Defence at the time. That was a random stop and search, although I have to say that I thought, and still think, it is very likely that they needed a middle-aged white woman to tick that box. Actually, they bagged two Peers because I was giving a lift to another, and they found a report from the Committee on Standards in Public Life in my boot—so there was nothing much to trouble them in all this. I was more interested than offended.
I support the order but share some of the concerns expressed by the JCHR. It used the term “unease”—I thought that that was a good one—about the Government’s assertion of necessity without being prepared to provide concrete evidence in support of alleged need. I am using shorthand, but the numbers in the House have reduced and those who are here will know what I am talking about. I am also concerned about what seems to be some confusion between “reasonable suspicion” and “reasonable belief”. The JCHR could not have known that we would debate this matter on the same day as TPIMs, but it made that connection. The JCHR made the point that “reasonable” does not appear regarding the authorising officer’s consideration of necessity for and proportionality of authorisation. When we come to the Bill, which will be amendable, perhaps we can look at the precise terms of the new Section 47.
I take the point that has also been made that placing elements of the code of practice into the legislation—the elements that restrict the use of the powers—would be desirable. It would mean greater clarity, enable breaches to be challenged and make checks on the use of the powers legally binding. There is also the point that we may need to consider further the relationship between these powers and the right to peaceful protest.
Of course I welcome the code and I note—particularly given my personal history—that the selection of individuals and vehicles at random must be within the parameters set out within the authorisation. Can the Minister give a reaction on behalf of the Government to the recommendation made by the independent reviewer of terrorism in his report of last July, at paragraph 8.39, on the revision of the code of practice to introduce full and proper guidance on the exercise of the officer’s discretion to stop and search? It is a longer paragraph than that but I am sure that the Minister will be familiar with it. The JCHR recommended prior judicial authorisation of the power to stop and search without reasonable suspicion. The Minister will not be surprised, as I said in the previous debate, that I am with the committee on that. However, I support the order.
Lord Carlile of Berriew
My Lords, on this occasion I feel able to support the Government’s proposals unequivocally and without demur. During my time as independent reviewer of terrorism legislation I saw—and I mean saw with my own eyes—Section 44 being overused, misused and occasionally abused. It produced very few, if any, results in terms of counterterrorism intelligence or information, and its passing is not mourned.
The problem was that there was no requirement for reasonable suspicion and it was treated as a random power to stop and search. I had not heard before this evening that my noble friend Lady Hamwee had been stopped and searched. I recall the noble Lord, Lord West, revealing that he had been stopped and searched, and he told me colourfully of the incident.
The passing of Section 44, and the Government’s speedy action in preventing its use, has been welcome, but there was always a gap to be filled as a result. There are going to be events—the Olympic Games are an obvious example but there may be many others—in which there will be reasonably robust intelligence that gives rise to a reasonable suspicion that a terrorism act will take place. It is important to allow the police to protect the public at such events by giving them a power to stop and search. It is not a random power and it is not expressed in this order as a random power. I agree with my noble friend that it is desirable that police officers who find this kind of power quite difficult to exercise, particularly if they have come from a different part of the country to carry out crowd control duty, should have as much guidance and as good briefings as possible before they are placed on duty with this power in their hands.
I have some experience of the reviewing of the authorisations which, as the Minister reminded us, used to be for 28 days under Section 44 in geographical areas. During my time as independent reviewer a new look was taken at these authorisations, and greater demands were rightly placed on chief officers to ensure that the authorisations were not simply pro formas but that reasons were given. I hope that the same sort of discipline will apply to authorisations following approval of this order.
I know that the civil servants in the Office for Security and Counter-Terrorism who scrutinise the applications now have a great deal of experience, which they apply very well in that scrutiny. I therefore believe that as a result of this order we have replaced Section 44 with something that is better, necessary and properly limited in scope.
Police Federation
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Baroness Browning
My Lords, the nature of those proposals are such that, in order to give a definitive answer to the noble Lord, I will have to write to him. I will want to take careful advice as to what opportunities were given for discussion or written consultation. The noble Lord is shaking his head. I think that he would prefer a definitive answer in writing than for me to wing something at the Dispatch Box.
Baroness Hamwee
The topic of pensions for the police must obviously be on the mind of the Police Federation as well as on all our minds. Does the Minister have any news on tackling that issue? But thinking about retirement on a more personal basis and satisfaction for people who want to extend their working lives, is there anything that she can say about the retirement age of police officers and about making use of their experience and the investment that has been made in them for the good of the forces and of society, not losing them at a relatively early age?
Baroness Browning
I can tell my noble friend that public service pension schemes are consulting formally on the proposal, for example, to increase employee contribution rates. The consultation for the police pension scheme is happening within the Police Negotiating Board. The Home Secretary wrote to the Police Negotiating Board on 29 July and has asked for views on its proposal by the end of September.