Counter-Terrorism and Security Bill

Baroness Kennedy of Shaws Excerpts

Tuesday 13th January 2015 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I share the horror that has been expressed in this House about the events that took place last week in Paris. They followed on the real revulsion that we all shared about the barbaric killings by ISIL in northern Iraq. Those were the precursors of this Bill. It would be all too easy to write a blank cheque to Government to do whatever it takes to counter terrorism when we have just had these experiences. However, we should be deeply aware of the risks associated with erosions of civil liberties because once we create paradigm shifts inside the law, the reality is that they are very hard to reverse.

I have seen this over laws that were introduced at the time of the Irish troubles in the 1970s when I started doing work in terrorism cases. You actually find that the changes that are introduced inevitably leach into the system as a whole. We see that more recently with the secret courts, which were introduced as an isolated and extreme measure. We have now seen institutional creep and that “exceptional” process is moving into other parts of the system. Our commitment to open justice is thereby being eroded. We must be clear that emergency legislation can never be vacuum-packed. It permeates attitudes and standards—and, I am afraid, rarely to the good.

The Bill was introduced to deal with the threat of radicalised young people leaving the United Kingdom for places such as northern Iraq, Syria or Somalia, participating in terrorism abroad and then returning to this country highly trained to wreak further harm. Those were the concerns that motivated this legislation, and the ones that we can all understand. The Joint Committee on Human Rights, on which I serve, accepted that preventive steps should be taken to stem the flow of travel to join those insurgencies. There was also a very real recognition by the Joint Committee that we have to use the law in these cases. We all felt particular horror at the idea of young women going off to make themselves available to this jihadist struggle by becoming jihadist wives. One wonders whether they are finding it quite as idealistic and romantic as they imagined it would be when they started out.

The prevention of travel is supported by the parents and families of young people. However, it must be pinned down with real safeguards and not operate on the hunches of officers at ports, with the risk of misuse being great and the risk of mistaken use being considerable. We on the committee therefore accepted that there was a need to look at that and that there were gaps in what was legally available to the authorities.

We were also sympathetic to the idea of managed return. We have to find ways to enable the return of those who bite off more than they anticipated—the people who go to those places, see “The horror! The horror!”, to quote Conrad, become sickened by what they see, and who must want to return to the sanity of their lives in this country. Therefore opportunities to bring those people back and find ways to bring them back into our communities should be found.

What is often not understood by many people is that, unlike in previous generations or in previous times, people who are currently in Iraq are in communication with their families—that is the nature of modern media—so their families are able to phone them and say, “Please, come home”. They are able to contact them by e-mail. Their e-mails may be being intercepted, but they certainly communicate quite frankly, and some of them do not realise the extent to which the things they say might be a source of evidence against them on their return.

We should therefore be thinking about different categories of people. There are those who are undoubtedly committing horrible crimes over there. We have a responsibility as a nation to prosecute them should they come within our jurisdiction. If we have the opportunity to do so, they should be put through the legal processes, prosecuted, found guilty and imprisoned as our nationals for committing crimes aboard. That should be one of our priorities. We have to ask ourselves whether we will enable that by the introduction of the system we are currently looking at.

We also have to try to prevent people coming back who might commit further crimes. They may very deliberately come back, claiming that they just want to come home, but have ulterior motives. It will be important that the authorities are able to examine those possibilities, so we have to look at procedures that could be created to help us to deal with all that. We need to revisit a number of elements in the Bill but all the time we have to have two important things at the back of our minds. The first is the importance of avoiding the erosion of civil liberties and doing things that are not proportionate to the need. The second thing we have to think about is whether, if we risk miscarriages of justice or the misuse of some of the new powers that are given, we will end up alienating large numbers of law-abiding, decent Muslims in our communities, who are important to us in trying to find solutions to the problems we currently face. Collective punishments are what people feel, and if people feel or perceive injustice, it leads to very negative consequences. We have to have that high in our minds as the Bill goes through the House.

I want to consider the issue of removal of passports when people are leaving the country and there is reason to believe that they may be going to places where they are going to engage in terrorism in one form or another. Is the seizure of a passport from someone suspected of travelling to become involved in terrorism proportionate? We would say yes, but it depends on the safeguards that surround the exercise of the power. The Joint Committee on which I sit noted that while Schedule 1 provides for a judicial role to govern this power, it is not, for example, as strong as the safeguards that are provided in the judicial oversight of warrants of further detention, when someone is detained on reasonable suspicion of being a terrorist. It seems sensible to have parallel provisions. There is no provision, for example, for gisting: giving people an entitlement to having the gist of what the reasons are for removing their passport and not allowing them to travel.

The Bill provides for judicial consideration only after 14 days, at which point the judge is under a duty to extend the period of retention of the passport to 30 days. That is on the basis that he has to be satisfied that the investigation has been conducted diligently and expeditiously. Is it really good enough that he just thinks they are moving fast enough or that they are being hard-working enough? Should we not be expecting more to be in the judge’s mind? It also provides for a closed material procedure at the hearing—the secret process that I have mentioned before—and yet there is no provision for the excluded party to be represented by a special advocate. Warrants of further retention should be just the same as warrants of further detention. The Joint Committee on Human Rights recommended that application for the extension of retention should be within seven days, not 14 days, and the judge should be able to issue a warrant only if satisfied that not only was the investigation being pursued diligently and expeditiously but also that there were reasonable grounds to suspect that the person intended on leaving the country to become involved in terrorism or related activities. The person should be informed of the reason for the exercise of the power against them. It should be done at the earliest opportunity and not once they have got a lawyer further down the line and during a process of disclosure later on. That gisting should be referred to on the face of the Bill as it is so fundamental to due process.

If you have secret hearings, there has to be a provision for special advocates. I urge the Minister to look at that. There should also be legal aid and compensation should be available in serious cases where it becomes clear that there has been some misuse of the powers; for example, where the opportunity for someone to go to their grandmother’s funeral or to a family event has been completely destroyed and cannot be revisited ever again.

The most serious power is the temporary exclusion order. As your Lordships know, the Joint Committee on Human Rights has made it very clear that it considers that this is an inappropriate power. We should be thinking about managed return, which is an important thing for the Government to be engaged with. Denmark is doing very successfully and there are many things that we can learn. However, I heard a number of Members of this House being dismissive of the idea of a notification of return to the UK being expected from anybody who wants to return. I go back to the fact that most of the young people in question are in touch with their families from time to time. Those families are trying to persuade them to come back so they could very easily give the authorities notification that they want to come back. Therefore, you could go through the process of having an order made of notification that they want to come back and then the procedures in the Bill could be adapted to fit a notification order. That would replace what is there already without very much surgery to the Bill. It would avoid us getting involved with all the difficulties described by the noble Baroness, Lady Berridge, and others regarding our relations with other countries.

It is not enough just to talk to Turkey. People will not come back on the same routes; they might come back in many different ways, through other countries. We will find ourselves becoming very much the outlier with other countries if we are the people who depart from international law in the protections provided by having a passport. That seems to me a very sensible option, and to dismiss it out of hand is a failure of government. The Government have clung to the temporary exclusion order because, initially, they wanted to take people’s passports away from them. They then realised that that was not on because of our international obligations. So now these temporary exclusion orders are being proposed when in fact they do not have to go that far in any circumstances. The notification of return orders could be substituted and I would urge that this be done.

I also ask the House to consider the cost of having people over there, interrogating people who come to ports, and having to arrange with the authorities there for housing people on a temporary basis if they want to manage their return. We should consider the implications of all that financially—and we are saying that the reason we are doing it is that we cannot afford supervision or surveillance. That seems a very strange consideration of the financial problems that we might have.

I again urge the introduction of a judicial role in all this. The independent reviewer again expressed his concerns about the temporary exclusion order and said that judicial scrutiny using judicial review was pretty unlikely if someone was abroad. So we want to encourage people to look at the whole business of the judicial role prior to the making of the temporary exclusion order or, indeed, the notification of return order. There should also be a renewal requirement to enable Parliament to consider whether there is a case for continuing these powers once they have been reviewed by the independent reviewer and he has assessed how they have been conducted. I have great reservations about all this because of what it does in relation to our international commitments. We really are making a big mistake, and I do not think that people who have said with great coolness that we need these powers have thought through the implications for our international relations and the standards that we are trying to set around the world.

On TPIMs, I have always resisted the idea of relocation, because I have seen it up close and seen the effect on families. I saw a young mother giving birth to her second baby while her first child was still unable to walk; they were being moved out of London to Leicester, to live on the 18th floor of a multi-storey block, where they had no family and where she had no support systems at all, with none of her sisters living there, or her mother. We have to have real consideration for what this does to families, and we have to remember the impact on what is described as the folklore of oppression as it is seen by the Muslim communities. This is not a sensible route to go down. I know that the independent reviewer said that he had a heavy heart in thinking that it was necessary sometimes. I hope that it is used with great limitations, if it is used at all. I always thought that it was one of those things only ever used by totalitarian regimes—sending people to Siberia or Pinochet sending people to the remoter parts of Chile. I really regret that we are even thinking about doing it here.

Finally, I want to talk about universities. I am the head of an Oxford college and I know that, across Oxford, there is real concern about the introduction of this power. Others have spoken to it, so I am not going to repeat what they have said, but academic freedom is very important. The idea that an academic will feel in some way obliged to report on a student whom she feels is asking questions or expressing views that seem inflammatory is a really worrying thing for academic freedom. It would destroy the trust that is so important between the student and the academic, which is where learning is at its best—the point where people are experimenting and thinking the unthinkable. That is where you beat it down with good argument. The idea that we should not have freedom of expression in our universities and that we will have people reporting each other, or that when we go to speak at a university we will have to declare and send ahead the notes of our speeches, is really not workable. I ask the Government to think again and at least to remove universities from the list. I actually think that the whole Prevent project should be looked at again.

A real issue is undoubtedly presenting itself to us as a society, but I say to all of us, “Beware”, because we can give away the most important things if we are not careful—the things that we are most proud of.