Counter-Terrorism and Security Bill

Baroness Ludford Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, I too am grateful for the consideration that the Government have given to this matter and, in particular, to the powers of the independent reviewer. I am also grateful to the Minister for the frankness of his speech and for the way he has reported the reactions of the independent reviewer, which are obviously not an absolutely wholehearted welcome. I think it is excellent that the powers have been extended in the way that they have been.

I have an open mind on the amendment of the noble Baronesses, Lady Hamwee, Lady O’Loan and Lady Ludford. I think that it would be good if the independent reviewer had the power—not the sole responsibility—to look at any provision of immigration and nationality law to the extent that it is used for counterterrorism purposes. That is clearly within his remit. The Minister himself said that it might very well be that Mr Anderson will be asked to be the person to report on the operation of the closed procedures in Part 2 of the Justice and Security Act. Therefore, I am rather sympathetic to those amendments and I do not think it would be very difficult for the Government to accept them.

However, I am sympathetic to the Government’s wish not to have too much duplication in this area. As a member of the Intelligence and Security Committee, which also roams over this area, I would like to say that we, too, have no problem with Mr Anderson. His co-operation with us is very good. We have no difficulty with the fact that we are looking at things which he is also looking at.

On his reservation about access to secret material, I am afraid that this intensifies my concerns about the very existence of the Privacy and Civil Liberties Board. I think it is an improvement that Mr Anderson is to be consulted on and will have influence over the appointment of the members of the board and that it is there to support him. He has asked that he should have a written assurance that he should have access to all the secret material that he wants. I am sure that the Government would not have the slightest difficulty in giving Mr Anderson that assurance. But it complicates his relationship with the board, because, as the noble Lord has just said, the Government might well have reservations about that very secret material—the freedom to have the most secret material there is extended to the members of the board. I think that may be unnecessary. Clearly it would be difficult for Mr Anderson if he has access to material and the board has not.

All this leaves me with doubts about the utility of the board. I am glad that it is there to support Mr Anderson. I know that he needs more support. In responding to this, can the Minister say whether it is intended that the secretariat of the board should be the extra support that Mr Anderson needs? I do think that he needs extra support, but I would like to see the support there without the existence of the board, the utility of which I greatly doubt.

[Baroness Ludford (LD)]

My Lords, very briefly, given the hour, I think we can all agree that the independent reviewer is not only a formidable lawyer but a master of modern communication with his blogs and tweets.

I welcome the broad support for Amendment 16A given by the noble Lord, Lord Butler. I want to press the Minister a little on some of his replies: first, on the potential clash with the Independent Chief Inspector of Borders and Immigration. I have just tried to flick through his last annual report but I do not think that he touches on anything to do with national security or powers linked to counterterrorism. As the noble Lord, Lord Butler, has just said, there is a way of dovetailing to make sure that there is no clash. What Amendment 16A proposes is very much to the extent that immigration and nationality law is used for counterterrorism purposes, which is not broadly the focus of the borders and immigration inspector.

Then there was a reference to a one-off review of Section 66, on deprivation of citizenship. However, a one-off review is not the same thing as continuous review and monitoring, so that is really apples and pears.

I join the noble Lord, Lord Butler, in wondering about the Secretary of State at some point, possibly several years hence, appointing an overseer of Part 2 of the Justice and Security Act. The Minister said that that person could be the independent reviewer. Why wait? Why risk setting up two separate posts, which would be inefficient and potentially add some costs? Why not short-circuit the exercise by deciding now to give that function to the independent reviewer? As my noble friend Lady Hamwee said, the case-by-case judicial oversight of the court is not what is meant here by the independent reviewer’s role in having that overview of the way that Part 2 of the Justice and Security Act, on closed material proceedings, has been employed in a whole string of cases. It is rather different. I would press the Minister to give a little more justification as to why Amendment 16A is not feasible.

Lastly, I may not have heard the Minister correctly—it may, again, be the lateness of the hour—but I am not sure that he gave an in-principle explanation of why it is not possible to have a statutory basis for the access to secret material. Of course, I accept what he and the independent reviewer have said—that in practice there has not been a problem and that if the Government tried to be obstructive, we would all know about it pretty soon. However, I do not think that he explained what the policy, or legal or other difficulty, is.

[Baroness Smith of Basildon]

My Lords, as we glide through the final hour of the day, it is appropriate that we also glide through the final amendment. I congratulate the Government on the fact that the consultation on the Privacy and Civil Liberties Board ended on 30 January and we have new amendments to debate on 4 February. That is quite an achievement.

I am grateful to the Minister, as we are significantly better placed than we were when the Government first announced this back in July, when the noble Lord, Lord Taylor, and I were debating the DRIPA legislation. This was announced with no detail, although the detail then emerged that this was going to replace the independent reviewer. The Government wisely listened to those who said that this was a dreadful idea and could not see the logic behind it—but we then moved into an area where there was a lack of clarity and confusion. The Minister will be aware that we put down significant amendments in Committee on this, and I greatly welcome the amendments today.

I am also grateful to the Minister for meeting me to discuss this issue. He knows it was of enormous concern to us. Although I share some of the reservations of the noble Lord, Lord Butler, we are in a much better place. From what we are seeing here and from what the independent reviewer, David Anderson, is saying, he will find a way to make the board work effectively and be useful to him. The noble Lord made the point about him asking for a junior counsel or barrister to work with him. It seems to me that he has the opportunity here, if the board is acting under his direction and control, for somebody who is on the board to fulfil that role for him. I would not envisage a secretariat of the board—I am not sure how much of a secretariat the board will need—but certainly a board acting under his direction and control will provide an opportunity for him.

The other issue that we raised in our amendments was that the remit of the board should deal specifically with the impact of counterterrorist legislation on communities. I know that the independent reviewer already sees that as part of his role, but it is not explicitly in the amendments before us today. I do not think it necessarily matters, as long as it is made clear that he continues to see that as he does at the moment.