Counter-Terrorism and Security Bill

Baroness Kennedy of Shaws Excerpts

Monday 26th January 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, Amendment 75 is not a probing amendment. This is for real. Perhaps the most challenging feature of Part 2 of this Bill is the reintroduction of internal relocation orders into the TPIM regime, which many of us would regard as a regrettable necessity. Amendment 75 concerns what should be the appropriate level of judicial oversight in these cases and would, I believe, go some way to take the sting out of the highly toxic question of internal relocation.

The amendment is designed to give effect to one of the independent reviewer’s 10 recommendations made in his March 2014 report into TPIMs—recommendation 3. Put simply, although I fear I shall have to explain the amendment a little more fully in a moment because, on its face, it is less than crystal clear in its effect, the position is this. Under the present TPIM regime, one of the four conditions that has to be satisfied before a TPIM order can be made—it is called Condition A—is that the Secretary of State “reasonably believes” that the person concerned,

“is, or has been, involved in terrorism-related activity”.

That is the particular condition which is referred to in Section 3(1) of the 2011 Act, which in turn is what Clause 16(1) of this Bill relates to.

At present, if a TPIM order is made, the courts can review it or hear an appeal ultimately against it only on a limited basis. The court is expressly required by the statute to apply the principles of judicial review. In other words, the court decides only whether the Secretary of State was acting reasonably or perversely in reaching her belief. The court does not have the jurisdiction to reach its own conclusion. This would continue to be so if Clause 16(1) is enacted in its present form.

Personally, as I made plain in what I regret was my rather overlong speech at Second Reading, I can see no true distinction between the Secretary of State reasonably believing something and her being satisfied of it on a balance of probabilities. But the more important point for present purposes is this: even if there is a difference, the decision as to the person’s involvement in terrorism under Clause 16(1) as it stands, subject only to the limited scrutiny of judicial review, is one solely for the Secretary of State and not for the courts. Like the independent reviewer, David Anderson, I believe that the decision should be for the courts, especially—I emphasise “especially”—in those cases where the Secretary of State is to deploy that most disruptive of measures, now to be made available to her, internal involuntary relocation—“internal exile” as it has been called. Indeed, that was the term used at Second Reading by the right reverend Prelate the Bishop of Durham.

Make no mistake, these orders—because we used to have them in control order cases—are deeply resented, not least, of course, by the persons’ families, who can be very severely and very harshly affected. They contribute worryingly to what some civil liberty and minority groups call the “folklore of injustice”. At Second Reading , the noble Baroness, Lady Kennedy of The Shaws, called it the “folklore of oppression”. It was, said David Anderson, perhaps unsurprisingly, only “with a heavy heart” that he came to the recommendation that this measure should be reintroduced as now is provided for by Clause 12 of this Bill.

My amendment is tailored simply to apply to those TPIM orders that require relocation. It provides that in these particularly troubling cases it will be for the court to reach the final, substantive decision, on the balance of probabilities, as to whether the person being internally exiled is, or has been, involved in terrorism-related activity.

I should make it plain that there is nothing particularly novel or radical about this proposal. The Prevention of Terrorism Act 2005 introduced control orders in place of the original discredited Belmarsh regime of the internment of foreign suspects without charge and without trial on an indefinite basis. The 2005 Act, by Section 4(7)(a), provided in terms that the court could confirm a derogating control order only if,

“it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity”.

That is precisely the position which, I suggest, should be achieved here.

As Mr Anderson pointed out at paragraph 6.16 of his 2014 report, the Government had already accepted in relation to the earlier proposed ETPIMs legislation—the enhanced TPIMs scheme, which in the event never came into being—that at the High Court review of such enhanced orders the Home Secretary should be required to prove the suspect’s involvement in terrorism on the balance of probabilities—again, just as I suggest should be the position here.

The Joint Committee on Human Rights, at paragraph 4.14 of its report on the Bill just this month, welcomed the introduction of the balance of probabilities test, but added that,

“in order for this change to make a real practical difference, we recommend that the TPIM Act be amended to require the court also to consider whether the balance of probabilities standard was satisfied, in place of the current, lighter-touch judicial review standard. Such an amendment would give effect to the unimplemented part of the Independent Reviewer’s recommendation”.

Mr Anderson himself, at paragraph 6.17 of his 2014 report, having doubted whether his proposed change—from the Secretary of State reasonably believing the suspect’s involvement in terrorism to the court being satisfied of this on the balance of probabilities—would have made a difference in any of the earlier TPIM cases, importantly added:

“It would however help reinforce the legitimacy of TPIMs, by enabling the Government to say (as it cannot at present) that a TPIM notice may only be upheld if it is proved to the satisfaction of the High Court that the subject has been involved in terrorism”.

My proposed amendment, as I have explained, is in fact rather more limited than Mr Anderson’s recommendation. Rather than applying to all TPIM orders in future, it would apply only when internal relocation is one of the measures ordered. There is of course no such phrase as “internal relocation” or “involuntary relocation” in the Bill—it is not used in Clause 12 or indeed in paragraph 1 of Schedule 1 to the 2011 Act, which Clause 12 amends. Therefore my amendment, I hope accurately, has had to spell out the particular circumstances which constitute the internal relocation and where it would apply.

I hope that the House will support this amendment and indeed that the Minister may himself come to see its merits. It would, I suggest, send out an important message that we in this House recognise the very real problems that result from internal relocation orders and are concerned to balance the need for them, as best we may, by strengthening the safeguards against their inappropriate use. The court should be given this additional responsibility in its oversight role. The independent reviewer’s recommendation ought not lightly to be rejected. The fact is that I have yet to hear or read of any cogent, coherent basis for rejecting it. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have spoken about internal exile, as I choose to call it, on a number of occasions in this House. I am persuaded by the independent reviewer that, because of the threat faced by this country at this time, there may be the rare occasion when one would want to disrupt the connections and associations in a particular place of someone subject to a TPIM order. It should be used on the rarest of occasions, and the standards that the courts should look to in making the decision should be high.

I support what the noble and learned Lord, Lord Brown, has said. We should see this idea as a huge departure from what we would consider normal. For people to be taken away from their families and the place that they know and sent to live somewhere else in the country is a very hard thing. We have to recognise that sometimes it will disrupt good associations as well as negative ones, so that they are no longer with their mother or father, or with some of the people who are voices of sanity as distinct from siren voices. It surely makes sense to say that this is such an exceptional step that there should be this additional safeguard, which has been proposed by one of our most senior retired judges.