Counter-Terrorism and Security Bill

Baroness Ludford Excerpts

Tuesday 20th January 2015 Lords Chamber

[Lord Phillips of Sudbury (LD)]

My Lords, I strongly support Amendments 2, 3 and 4. The measures contained in the Bill are of fundamental importance, but they are extremely difficult to construct in a way which holds an appropriate balance between state security and individual liberty. The notion in the amendments that the outcome of what we are doing should be reviewed by the independent reviewer within two years and put to Parliament is eminently sound. My only query is whether or not the role of the independent reviewer in looking over the consequence of this part of the Bill might not be better addressed to the whole of it. There are other parts of the Bill whose outcomes are no less difficult and problematic to anticipate. I hope the Government will give a positive response to these amendments.

[Baroness Ludford (LD)]

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

[Baroness Buscombe (Con)]

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

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

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[Baroness Buscombe]

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

[Baroness Ludford]

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

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

What sort of degree of detail or scope was envisaged?

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

[Lord Ashton of Hyde (Con)]

My Lords, I am grateful to the noble Lord for tabling these amendments, which cover issues concerning the oversight and accountability of officers who exercise the powers in Part 1.

Amendments 3 and 55A would require the Independent Reviewer of Terrorism Legislation, David Anderson QC, to report annually on the exercise of powers contained in Part 1. I am grateful to the noble Lord for tabling this amendment because it allows us the opportunity to give due consideration and attention to a very important matter—that of ensuring that there are appropriate checks and balances and independent scrutiny of our counterterrorism powers, including those introduced in the Bill.

We have discussed at length the need for the measures contained in the Bill before us today, as the eight hours of debate in Second Reading amply demonstrated, but it is of course a cardinal principle that these important powers are subject to robust independent scrutiny. As most noble Lords have said, the recent report by the Joint Committee on Human Rights on the measures contained within this Bill included a recommendation that the remit of the Independent Reviewer of Terrorism Legislation be extended to cover those areas of our domestic counterterrorism laws which are currently not subject to independent review. I think this, among other things, is recognition of the excellent job which David Anderson QC has done in his current role and the high regard in which he is held. I wanted to take the opportunity to make that point. I hope that virtually all noble Lords who spoke will be reassured that the Government are giving careful consideration to the points raised by the Joint Committee and, indeed, to David Anderson’s last annual report, which covered similar ground.

Another part of this Bill, Part 7, deals with the vital matter of checks and balances by providing for the creation of a Privacy and Civil Liberties Board. I very much look forward to our consideration of that part of the Bill, which I know from the various contributions made at Second Reading and today will be of particular interest to a number of noble Lords. Clearly, there is more to be said about how the board will operate and how it will genuinely support and enhance the independent reviewer’s capacity. It is apparent that we cannot simply keep adding to the independent reviewer’s role. David Anderson has himself been clear that he is operating at the limit of his capacity, as my noble friend Lord Carlile mentioned, and that there is a need for reform of the independent reviewer role. I hope that our debate on Part 7 will allow us to explore these broader considerations.

However, we need to consider the whole question of oversight in the round. If I may say so, it seems a little premature to take this amendment in isolation ahead of the wider debate that I know we are going to have when we get to Part 7 of the Bill. So I ask the noble Lord to withdraw the amendment today in the knowledge that we will certainly consider the issue which it raises during our deliberations of the broader issues about how our oversight arrangements for the use of counterterrorism powers should be structured and resourced, which we will be having next week. I refer, too, to my earlier remarks that we are giving consideration to the JCHR report as well as to the last annual report from David Anderson.

Amendments 4, 41, 41A and 50A introduce a requirement to publish statistics on the use of the passport seizure and temporary exclusion powers on an annual basis and introduce an annual review of the arrangements made by the Secretary of State under Paragraph 14 of Schedule 1, which allows the Secretary of State to make arrangements he or she thinks appropriate in relation to persons whose travel documents have been retained for the retention period. The Government are committed to increasing the appropriate transparency of the work of our intelligence, security and law enforcement agencies, but it is essential that this is done without damaging national security or effective law enforcement and, above all, public safety.

The Government have committed to publishing an annual report on disruptive and investigative powers. The first report, covering the operation of these powers in 2014, will be published shortly. We intend to cover the use of the new passport seizure power in future annual reports. This approach is consistent with our approach to similar disruptive and investigative powers, such as the exercise of the royal prerogative to cancel or refuse to issue a British passport, which are included in the annual transparency report. We will also include the exercise of the temporary exclusion power in these reports.

For the reasons I have given, I therefore hope that your Lordships will feel reassured about the exercise of these powers and, accordingly, I would be grateful if the noble Lord would withdraw the amendment.

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[Baroness Ludford]

Just before my noble friend sits down, would he clarify whether I understood correctly that someone could be caught by sub-paragraph (10) if they had accidentally committed any of these activities of giving encouragement or offering assistance? Is this because of general principles of law or interpretation? Maybe I misheard him. Perhaps he could enlighten me.

[Lord Ashton of Hyde]

I did say that we believe that accidental or reckless encouragement should be captured when its consequence is to encourage,

“the commission, preparation or instigation of acts of terrorism”.

[Baroness Ludford]

Is there not rather a difference between accidental and reckless?

[Lord Ashton of Hyde]

I completely agree that there is a difference between those two words, but they are not mutually exclusive.

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[Baroness Hamwee]

I do not think that the noble Lord was present when I said that all our amendments today, and no doubt on subsequent days, will be probing ones. I think he was here when I said that many of our amendments—not just the ones that I and my noble friends have tabled—are about the workability of these provisions. I am sure that the Committee would like to understand what will happen at each stage.

I do not of course expect an immigration officer to come out with the kind of address that might be made to the Bench at a later point, but there is a very great difference between that and seizing the document under the provisions in Schedule 1. I dare say that the code of practice—and any additional guidance—will deal with this. I hope that it does, because I think it ought to. I am going to talk later, under a different amendment, about perceived discrimination, which I am sure the noble Lord will be as concerned about as I am. That is, in part, addressed when those who are exercising powers are as clear as they reasonably can be at any given stage about why they are doing so.

One set of amendments would change the 14-day period to seven days. The Joint Committee on Human Rights raised this point and drew comparisons with other provisions, such as those relating to property rights under the Anti-terrorism, Crime and Security Act, where an application must be made to a court to retain cash after 48 hours; equally, where a person is arrested under Section 41 of the Terrorism Act 2000 on reasonable suspicion of being a terrorist, a judicial warrant of further detention must be applied for within 48 hours of arrest. The JCHR recommended that seven days should be substituted for 14 days. I would have hoped that the committee did not make this point, but that would be adequate time to assemble the material that needs to be presented—and indeed to assemble the presentation—to the court, which in any event can extend the time.

The last of my amendments in this group, Amendment 28, amends Schedule 1(8). Under paragraph 8(4),

“the judicial authority must grant an extension if satisfied that the relevant persons have been acting diligently and expeditiously”.

My amendment would add a reference to “reasonable grounds”. In other words, it seeks to ensure that the judicial authority would apply the same test as under paragraph 2.

[Baroness Ludford]

My Lords, in relation to this group, without I hope stretching anyone’s patience, I will just repeat two questions that I asked at Second Reading, to which I do not think I got an answer. The first question, which may be very daft, is why it is not possible to use powers under Schedule 7 to the Terrorism Act to retain passports for up to seven days. Why can those not be used for outward travel? The Minister may not be able to instantly answer that. Secondly, how do you stop a rolling renewal? I gave the analogy of declaring the whole of Greater London a terrorism exclusion zone. How do you stop that just being renewed on a repetitive basis?

[Lord Pannick]

My Lords, in relation to the amendment of the noble Baroness, Lady Hamwee, concerned with the giving of reasons, and in relation to the concern of the noble Lord, Lord Harris, I suggest that the answer is the one given by the Joint Committee on Human Rights, from paragraphs 230 to 233. The obligation in the Bill should surely be that there is a duty to give the gist of the reasons. No one would suggest that all detailed reasons must be given, but if someone is told that their passport is being taken away they should be told the essence of the reasons why if this power is to be acceptable and not criticised as obviously unfair. It may be necessary to write in an exception. There may be security reasons why not even the gist can be given. It is fundamental that if you exercise a power of this sort you give the gist of the reasons for doing so.

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[Lord Harris of Haringey]

My Lords, I wish to comment on Amendments 42 and 43 in this group. I have to say that the grouping is slightly odd because it relates to a whole range of different issues. I assume that the purpose of the amendments of the noble Baroness, Lady Hamwee, is to ensure, first, that the way in which the action of removing someone’s passport is carried out is mindful of equalities issues and the background of the people concerned; and, secondly, that a proper record is kept of what is done, so that any subsequent look at how the powers had been applied can show that they had been applied proportionately. I have no objection to that; indeed, it goes to the essence of the point about this power and the subsequent powers—the extent to which they will be exercised in such a way as to achieve their purpose but avoid a situation in which they alienate a particular community by reinforcing the narrative that suggests that that community is being oppressed or whatever.

In that context, it would be helpful if the Minister could indicate how frequently it is anticipated that these powers will be used? Are we talking about six, 600, 6,000 or 60,000 times a year? It makes a significant difference because if every time people from a particular community try to leave the country they have to go through these procedures—and these documents are held for a period, whether for six, 12 or even two hours—that will produce resentment. If the powers are to be used in a much smaller number of cases, it may be that the proportionality will seem to be more reasonable. It would be useful if the Government, in asking for these necessary powers, were to confirm how frequently the powers would be used. I am sure they have considered that. Perhaps the Government can say, having thought through the information and intelligence that has been available for, say, the past six months, how many times they think they would have sought to use these powers.

[Baroness Ludford]

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

[Baroness Buscombe]

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

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

“under his or her control”.

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

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

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[Baroness Ludford]

My Lords, I thank the Minister for explaining these welcome amendments. Something is puzzling me and it may simply be my lack of understanding of the field. The test which the court has to determine in the case of prior permission, under Amendment 52, or in the review of urgent TEOs, under Amendment 44, is whether the decisions are “obviously flawed”. I am challenged to understand the position with an in-country statutory judicial review in Amendment 65, which I understand would follow the normal principles of judicial review, including necessity and proportionality. I know that the independent reviewer referred to a test of “obviously flawed” in a commentary that he made, but I do not understand the justification for the difference in the test in Amendments 44 and 52 compared to the statutory judicial review in Amendment 65. The phrase “obviously flawed” seems both a high and a somewhat problematic threshold: obvious to whom? I would have thought that the application of that test would create some difficulties. However, I may be on entirely the wrong track.

[Baroness Butler-Sloss]

My Lords, I want to ask a rather practical question. The whole of Clause 2, together with the amendments, appears to deal with someone over whom the Government assume there will be some degree of control. I take the example of someone who has gone to Syria and comes back through Syria to the airport in Istanbul. He then seeks to fly back to England and is made the subject of a temporary exclusion order. What is to happen to that person in Istanbul? What are the Government of Turkey to do with this person? If you stop them at an airport outside the United Kingdom, is there not a very real danger that they will just go back into Syria or into Iraq? What I have not understood about this temporary exclusion order is what will happen to these people who are not able to come back to this country.

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[Lord Bates]

On the point just raised by the noble Lord, Lord Hylton, we have been very mindful of the fact that we need to work, not in isolation but in partnership with other countries. The level of co-operation and working across Europe in particular with our European colleagues, not least because of the events in Paris, has increased dramatically. We want to learn what works best. To answer my noble friend’s point, these orders will not exclude somebody from the UK per se. Through them we are saying that if you have been abroad and we believe that there is evidence that you have been engaged in terrorist activities we are not simply going to allow you to drift in and out of this country with impunity. That would need to be managed and supervised. We want that to happen—it is the purpose of the temporary exclusion orders.

My noble friend Lady Ludford—it now seems like a little while ago—was the first to speak about this. She raised a point about the tests and the phrase “obviously flawed”. Here, we are seeking to introduce a permission-stage model and a statutory judicial review mechanism similar to those already in place for the TPIM and asset-freezing regimes, which will consider both the decision to impose the TEO in general terms and for the in-country elements. Having considered these suggestions, we tabled these amendments in line with the recommendation. It is, as was said, simply consistent with those other elements to which we are referring. I hope that that has been helpful.

[Baroness Ludford]

I apologise for prolonging this, but I forgot to ask my noble friend something earlier. I am trying to understand the architecture of all this. Under the new clause relating to prior permission of the court, in Amendment 52, proposed new subsection (9) says:

“Only the Secretary of State may appeal against a determination of the court under … this section”,

and the urgency provision. I wonder whether that is a bit unfair on the person. Why would the individual not have a comparable right of appeal? Is there a clear reason why that is the case?

[Lord Bates]

Again, I will write if necessary, but I think the answer is simply that in that example, it is the Secretary of State who has made her decision and then subjected that decision to scrutiny by the courts. The courts will obviously make their judgment, and therefore the appeal is in connection with that particular part of the process. The individual concerned with that has access, through different routes, to judicial review of the temporary exclusion order. On the point about the Secretary of State, the individual is not involved in that stage, but will have the chance to challenge the substance. We are basically talking about two not quite parallel but different parts of the process. Therefore, the rights of appeal apply to different entities or individuals, as appropriate to those elements.

With those comments, I commend the amendments standing in my name in this group and invite noble Lords to consider not pressing theirs.