Terrorism Prevention and Investigation Measures Bill

Baroness Hayman Excerpts

Tuesday 15th November 2011 Lords Chamber

[Lord Goodhart]

My Lords, I have supported the statements of the noble and learned Lord, Lord Lloyd of Berwick, at Second Reading and in Committee. I will take the same position yet again on Report.

I agree that terrorism is a great threat to the United Kingdom and that steps must be taken to prevent it. I agree that those steps may include civil penalties that restrict the activities of those who are probably involved in terrorism. But there are conditions that should be applied to those requirements and included in this Bill. The most important of those conditions is that the rule of law must be applied and observed. A fundamental rule of the rule of law is that penalties must be imposed only by people who are independent—either judges or, in the case of serious criminal proceedings, by a jury. In particular, the prosecutor should not also be the judge. Under this Bill, that is exactly what happens. The Secretary of State is both the prosecutor and the judge. That is doubly objectionable, not only because the Secretary of State imposes the penalty but because the defendant cannot give his own story in defence of the prosecution being brought against him.

It is true that under Clause 6 the court must give permission to the Secretary of State to impose measures that she has decided to apply. But as is stated by Clause 6(6), the court is applying a judicial review, which is not the same thing as a trial of the evidence. This means that the court cannot, in effect, question evidence supplied by the Secretary of State; it must refuse permission to impose the measures that the Secretary of State proposes, if, as is said in Clause 6(3),

“relevant decisions of the Secretary of State are obviously flawed”.

But what on earth does that mean? To whom must the flaw be obvious? I question the whole concept of something being obviously flawed, when more than one person may well be applied to in deciding whether the flaw is obvious or not. As I said, to whom must the flaw be obvious? Can counsel for a defendant argue that the flaws are obvious? I think probably not but one does not know. The fact is that the court has only a limited power over the imposition proposed by the Secretary of State. It is pretty clear that the court has no power to examine the facts of the case as presented by the Secretary of State.

This simply does not satisfy the rule of law. The rule of law is not wholly inflexible. We accept that, in certain circumstances, it is necessary in the interest of the nation to exclude relevant evidence from the presence of the defendant. But there is no justification for denying the court the right to consider the adequacy of that evidence. If it deals with this matter simply by a review process, that cannot happen.

I refer again to the report of the Joint Committee on Human Rights, published on 19 October. Paragraph 1.6 of the report, which I quoted in Committee on that date, states that,

“the well-established principle is that executive restrictions on liberty are such a radical departure from our common law tradition that they always require prior judicial authorisation after proper legal process. It is for the Government to justify this Bill’s departure from that fundamental principle”.

That is a statement with which I entirely agree and which I think those who were responsible for drafting this Bill should have taken into account. It does nothing to prevent procedures being taken up against the person who is understood to be involved in terrorism. It does not make the matter seriously more difficult for the Government. I do not think it does at all. The Secretary of State will clearly have come to a view that this person is liable to be prosecuted and made the subject of an order. I believe it is really a matter for the Secretary of State not to impose the measure herself but to present the evidence that she has to the member of the court who is in charge of this. It is for the member, or the members of the court, to take this up.

I will add one reason which might actually encourage the Government to accept the amendments. Having the judgment made by the court on the basis of an application by the Secretary of State—if the judgment is actually made by the court in all respects—would make the situation simpler or cheaper. In particular, since the court would not need to give itself permission to make the order which it wishes to make, the need for a directions hearing under Clause 8 would simply disappear. It would not only be a more justified and proper treatment of the evidence, it would also make it a simpler system for the Government.

[Baroness Hayman]

My Lords, I have added my name to these amendments and, given the speeches of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart, I can be relatively brief. I certainly will not challenge them in terms of legal expertise, having ended my legal career with a first degree in 1969, but I feel strongly on this issue because of my own experience as a parliamentarian. I had the honour to be a member of the Privy Council committee chaired by the noble Lord, Lord Newton of Braintree, who I am glad to see in his place, which reviewed the provisions of the Anti-terrorism, Crime and Security Act 2001, particularly Part 4 of that Act, which was considered by us and by many others to be unsatisfactory. The Government paid little heed to the results of that committee’s deliberations until the courts made them do so. We ended up with the 2005 Act, in which I played some part on the duration of control orders, an issue to which we will return, mutatis mutandis, later in today’s Report stage.

I came out of that experience, particularly the experience of the Privy Council review committee, with two clear views. One was that there was a problem that needed to be addressed and that there was some justification for going beyond the normal criminal legal procedures in terms of the threat of terrorism. Some of that was in terms of creating new offences—we saw the offence of “acts preparatory to terrorism” that came out of that review, which I believe has been helpful—but even that was not enough and there was the need, as I think the noble Lord, Lord Goodhart, has just said, for measures that were extraordinary. I do not need convincing on that score.

The other thing that became clear to me was that we should, as legislators, try to make those extraordinary measures deviate as little as humanly possible from the fundamental principles that we normally apply, through the criminal justice system and the whole of our legal processes, to the deprivation of liberty and to constraints upon movement and actions—the fundamental human rights of those living within our country, particularly our citizens. I look at the provisions of the Bill, which I believe are an improvement on control orders—limited but an improvement—and ask myself whether we are deviating as little as humanly possible.

I believe there would be a great improvement, without a balanced increase in risk to security, if we transferred that initial decision on the imposition of such measures from the Secretary of State—the Home Secretary—to the courts. That is the fundamental and simple reason why I support these measures. I was emboldened to do so partly because of the comments made by the chairman of the Privy Council committee, the noble Lord, Lord Newton of Braintree, as I always pay great respect to those who have been my chairs on committees. Perhaps we will hear from him later. However, I remember that, when we were discussing the 2005 Act and talking about analogous issues and the role of the judiciary, one of my colleagues who was not in sympathy with the position that I was taking turned on me and asked, “What’s so special about the judges?”, to which I replied, “They’re not the politicians”. That fundamentally remains my position today, and it is why I added my name and give my support to this group of amendments.

[Lord Newton of Braintree]

My Lords, on this occasion I have not actually been tempted. I had hoped to come in anyway, although I was a little late getting here, and I apologise for that. I would like to say to the noble Baroness, Lady Hayman, that I much appreciate the remarks she has just made. I well remember the experience we had together and the hugely valuable contribution that she made to that committee. I can also say that I share her views on absolutely everything that she has said, so I will not speak at great length. I agree also with what I have heard since I came into the Chamber. The Minister ought to know—if he was in any doubt—that there was not complete unanimity on this point on the Benches immediately behind him, even though the voices so far have come from elsewhere.

The arguments adduced on the previous occasion in Committee to which the noble Baroness has referred were, frankly, unbelievably thin. I do not blame the Minister for that—I suspect that they are inherently thin, and unless they are a lot thicker this evening then I will find myself in some difficulty, and he needs to know that.

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[Lord Henley]

It is still a matter of national security. That is why we believe that it is for the Home Secretary to make the appropriate decision and for that to be reviewed by the courts. The noble and learned Lord mentioned the 2010 Act, with which he did not agree and which he opposed. I mentioned that but I also mentioned the Counter-Terrorism Act 2008 and the financial restrictions under that. That is another example. I accept that the other matters concern immigration decisions but they are important. I also mentioned the fact that the Home Secretary has the power to proscribe organisations which she believes are involved in terrorism. Again, that matter can be reviewed by the courts, as can the one we are discussing. Therefore, it is irrelevant whether the earlier matters concerned only immigration, as the noble and learned Lord put it. These matters go beyond that. They involve national security. I will give way to the noble Baroness in a minute when I have finished this point. Therefore, I think it is right that my right honourable friend the Home Secretary should be involved in those decisions.

[Baroness Hayman]

I am grateful to the Minister for giving way. Until I listened to the speech of the noble and learned Lord, Lord Lloyd of Berwick, I had not been aware of the argument put forward by the noble Lord, Lord Sassoon, as regards the executive nature of the terrorist freezing orders to be made, that there was a distinction and that these were justifiable because they dealt with financial matters, not individual liberties. Will he comment on that argument?

[Lord Henley]

The noble Baroness is right to mention what my noble friend Lord Sassoon said on that occasion. He drew a distinction between financial matters—that is, property—and individual liberties. However, both are matters that affect one’s human rights. Despite the noble Baroness’s socialist background —I am sorry if I make her laugh—I presume she would accept that the rights to property are matters which involve one’s human rights, just as the rights to liberty do. My noble friend Lord Sassoon drew the distinction that both of them are matters relating to one’s human rights.

[Baroness Hayman]

I would not wish the noble Lord, Lord Sassoon, to be tarred with the brush of having a socialist background because he seemed to distinguish between the two sorts of intrusions on individual liberty.

[Lord Henley]

There is obviously a distinction but both involve one’s human rights. That is the importance. The noble Baroness may have noticed that when my noble friend Lord Sassoon noticed on the television that the noble and learned Lord was making these points, he came in to have a quick word with me to make clear what he had discussed, and I will try to convey those feelings to the House. I hope that I have understood what my noble friend whispered to me on the Front Bench, and I hope that the noble Baroness will accept it.

As we also made clear, we believe that it is not just the view of the Executive that is crucial in these matters. That is why I quoted earlier the view expressed by the courts. It is consistent with the view expressed by the Court of Appeal in the case of MB, which the noble and learned Lord also referred to, in which the court said that,

“the Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect”.

In the same judgment the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and by the European Court of Human Rights.

As I said at the beginning of my speech—in asking, as it were, for something approaching an Occam’s razor to be put to this argument—it is just getting it down to the simple question: which do you think is the appropriate body to make this decision?

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[Lord Pannick]

My Lords, your Lordships have come to the final amendment on Report. Amendment 53 in my name and in the names of the noble Baroness, Lady Hayman, and the noble Lord, Lord Hunt of Kings Heath, would require an annual review of this legislation in Parliament as is currently the case with control orders.

Our debates at Second Reading, in Committee and today on Report have confirmed that the Bill addresses a fundamentally difficult problem for a free society, which is afflicted by the scourge of terrorism. The Bill, regrettably but necessarily, confers powers on the state to impose substantial restrictions and detriments on persons suspected of involvement in terrorism but against whom no proceedings are brought in the criminal courts. These orders will be imposed by the Secretary of State as an administrative matter, given that your Lordships rejected the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick. On any view, these are exceptional measures in a free society.

It is vital that the continuing need for such exceptional measures be examined every year. This will serve three important purposes. First, it will impose a discipline on Government. Civil servants and Ministers will need every year to consider the continuing case for the provisions and they will need to defend them in Parliament. Secondly, this will provide a means by which the continuing need for the measures can be explained to the public every year, and in particular to those sections of the community that are doubtful as to the need for the measures and their fairness. Thirdly, of course, it will give us—Parliament—an opportunity to express our view every year as to whether the measures continue to be justified. Both your Lordships’ Constitution Committee, of which I am a member, and the Joint Committee on Human Rights have supported the amendment. Indeed, your Lordships’ Constitution Committee in its Report questioned whether it is constitutionally appropriate not to have annual reviews of what it described as a scheme of “extraordinary executive powers”.

In Committee on 1 November—I refer to Hansard cols. 1131-1132—the Minister made three main points. First, he said the Bill contains adequate protection because it provides for a sunset clause after five years. However, 2016 is a long way away, and annual reviews are needed for all the reasons I have given. Secondly, the Minister said the Bill is the product of detailed scrutiny and has struck the right balance in its substantive provisions. The point is that the Bill contains exceptional measures, the need for which will depend on the nature and extent of the threat posed at any particular time. However confident noble Lords may be that the contents of this Bill strike the right balance, this is a context where annual scrutiny is essential. Thirdly, the Minister emphasised that the Secretary of State has power under Clause 21(2) to repeal the powers. However, that is no substitute for an annual obligation on Ministers to come before Parliament so that we can debate, and Ministers can explain to us and to the wider public, whether these wholly exceptional measures are still needed. I beg to move.

[Baroness Hayman]

My Lords, the noble Lord, Lord Pannick, has spoken with his usual clarity and force and that means I can be very brief. It was the issue of time limiting the provisions of the Prevention of Terrorism Act 2005 that six years ago brought me into conflict with my then own—and then government—Front Bench. I am delighted that the noble Lord, Lord Hunt of Kings Heath, has put his name to the amendment. I have to say, however, that like the noble Lord, Lord Newton, I was disappointed at his attitude on Amendment 1. He invoked the principle of consistency. I think he ought to be careful about that when we review this particular amendment, given that the Labour position then on time limiting was consistently to oppose any form of time limiting on the 2005 Act until two thumping defeats in this House and some fairly vigorous ping-pong.

[Lord Hunt of Kings Heath]

I am most grateful to my noble—and, dare I say, socialist—friend for raising that. The point I raised on our debate on the first amendment was consistency with the legislation, which we took through and which we were operating.

[Baroness Hayman]

My Lords, I have always felt that consistency was a dangerous principle for politicians to invoke. I make a serious point here. Of course there is a virtue in consistency, but there is also a Galbraithian view on thoughtless and mindless consistency. I have always felt that the overwhelming obligation for politicians was to be willing and able to justify their inconsistencies as well as to have underlying consistency of principle. However, this is all by way of an aside and I hope the House will at least feel that I am consistent in my view.

As the noble Lord, Lord Pannick, has said, when we are departing from the normal procedures and principles of the criminal law—and there are reports of various committees, both Joint Committees and committees of your Lordships House about the exceptional nature of the provisions in the Bill—there is an obligation upon us as parliamentarians to keep that under review, and always be willing to reassess what we have done and how we have done it.

In the words of the noble Lord, Lord Faulks, in our debate in Committee—I hope that I am not paraphrasing him—we have got it basically right in the Bill and there is no point in having an annual squabble about it. However, I do not see this as an annual squabble. I see it much more as the noble Lord, Lord Pannick, did, as the opportunity to reassess both the need and the efficacy of what we have put in place. These are difficult balances to strike. We do not get them right and perfect every time. There is a discipline imposed by Ministers having to justify each year the continuation of provisions that all of us recognise as important and exceptional and departing from principles that are equally fundamental to how we conduct ourselves as a society.

I feel very strongly that it is not an overwhelming burden to put on Ministers to ask them to have the respect for Parliament and the recognition of the departure from the norm that the measures in this Bill contain once a year, to reassess and bring before Parliament a renewal order that asks whether we have got it as good as we can get it. Therefore, I hope that the House will support the amendment tonight.

[Lord Mackay of Clashfern]

My Lords, I would like warmly to support this amendment. It is absolutely clear that this procedure is a very special one, outside the ordinary system of courts of law and the like. It is justified on the basis of need by those familiar with the terrorist threat that our nation faces. In the nature of things, that threat must vary, and it must be right that this Parliament should have an opportunity annually to review such special procedures as these. However satisfied we may be—and, obviously, different people will be satisfied to different levels whether the balance is right—it is an altogether exceptional procedure.

The noble Lord, Lord Judd, said earlier that justice must be seen to be done. This is not a procedure in which that is going to happen; in the nature of the procedure, it does not have that characteristic. Therefore, it is highly important that we have a provision that enables us to review each year whether or not this type of procedure is still necessary and efficacious. I agree with everything that the noble Baroness, Lady Hayman, said about this. I found valuable her exposition of how politicians should be consistent, and if they happen to be inconsistent they should have an explanation for it—not just that they have changed sides.