Counterterrorism Review

Baroness Neville-Jones Excerpts

Wednesday 26th January 2011 Lords Chamber

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, with the leave of the House, I should like to repeat a Statement made earlier today in another place by my right honourable friend the Secretary of State for the Home Department.

“With permission, Mr Speaker, I should like to make a Statement on the outcome of the review of counterterrorism and security powers.

The review has taken place in the context of a threat from terrorism which is as serious as we have faced at any time. In dealing with that threat, it has been the consistent aim of this Government not only to protect the security of our citizens but also the freedoms of us all. We reviewed counterterrorism legislation because too much of it was excessive and unnecessary. At times it gave the impression of criminalising entire communities. Some measures, such as the extraordinary attempt to increase the period of pre-charge detention for terrorist suspects to 90 days, were rightly defeated in Parliament. Others, such as the most draconian aspects of control orders, were defeated in the courts. These measures undermined public confidence. So I am delighted that the Leader of the Opposition has made it clear that he will support me in preventing the excessive use of state power.

I make no apology for the time that this review has taken. It has rightly been deliberate and thorough to ensure that we safeguard both security and our freedoms. The review has taken account of all sides of the argument. It has received evidence from academic experts and civil society groups, from communities across the country and from the law enforcement and security agencies. I have, of course, consulted regularly with my right honourable friend the Secretary of State for Northern Ireland. The noble Lord, Lord Macdonald of River Glaven, has provided independent oversight of the process. He has had access to all relevant papers and has played an invaluable role in ensuring that all the evidence was given proper consideration. I should like to thank him for his contribution in ensuring that the recommendations of this review are not only fair but seen to be fair. I am laying the review, a summary of the public consultation, the equality impact assessment of these measures and Lord Macdonald’s report in the House.

On pre-charge detention, the Government announced to the House last week that we would not renew the current legislation on extended pre-charge detention. This means that the sunset clause inserted by the previous Government has now brought the maximum period of pre-charge detention down to 14 days. The review sets out the detailed considerations leading to this conclusion.

The police, prosecutors and the Government are clear that the normal maximum period of pre-charge detention should be 14 days. However, we recognise that in exceptional circumstances this might need to be temporarily increased to 28 days. We will therefore draw up draft primary legislation to be introduced for parliamentary consideration only in such circumstances. We will therefore publish a draft Bill and propose that this be subject to pre-legislative scrutiny. I should make clear to the House that until it is repealed by the Freedom Bill, Section 25 of the Terrorism Act 2006 will remain on the statute book allowing the Government to increase the maximum period to 28 days in an emergency, subject to Parliament’s agreement. There has therefore been no gap in our ability to seek Parliament’s consent to increase the period of pre-charge detention should the need arise.

On the use of Section 44 stop-and-search powers, I have concluded that the current provisions, which were found unlawful by the European Court of Human Rights, represented an unacceptable intrusion on an individual’s human rights and must be repealed. But the evidence, particularly in Northern Ireland, has demonstrated that where there is a credible threat of an imminent terrorist attack, the absence of such powers might create a gap in the ability of the police to protect the public.

We therefore propose to repeal Section 44 and to replace it with a tightly-defined power which would allow a senior police officer to make an authorisation of much more limited scope and duration for no-suspicion stop-and-search powers to prevent a terrorist attack where there is a specific threat. This targeted measure will also prevent the misuse of these powers against photographers, which I know was a significant concern with the previous regime.

On the regulation of investigatory powers, we will implement our commitment to prevent the use of these powers by local authorities unless for the purpose of preventing serious crime and unless authorised by a magistrate. In this context, surveillance—the most controversial power—will be authorised for offences which carry a custodial sentence of at least six months.

On the wider question of communications data—the who, when and where of a communication, but not the content—the Government intend to ensure that, as far as possible, it is only accessed through the revised Regulation of Investigatory Powers Act. We will bring forward specific legislation to this effect in a future communications data Bill.

This Government are committed to tackling the promotion of division, hatred and violence in our society. We must expose and confront the bigoted ideology of the extremists and prosecute and punish those who step outside the law. The review considered whether counterterrorism legislation should be amended to tackle groups which are not currently caught by the law but which still aim to spread their divisive and abhorrent messages. After careful consideration, we have concluded that it would be disproportionate to widen counterterrorism legislation to deal with these groups, however distasteful we find their views. To do so would have serious consequences for the basic principles of freedom of expression. We therefore propose to use existing legislation, as well as tackling them through our wider work to counter extremism and promote integration and participation in society.

On the deportation of foreign nationals suspected or known to have been involved in terrorist activity, the review found no evidence that this policy was inconsistent with the UK’s human rights obligations and found that it was legitimate and necessary to seek to extend the arrangements to more countries which would include independent verification. As the noble Lord, Lord Macdonald, says, the Government’s engagement with other countries on these issues is likely to have a positive effect on their human rights records.

Finally, on control orders the Government have concluded that, for the foreseeable future, there is likely to be a small number of people who pose a real threat to our security, but who cannot currently be successfully prosecuted or deported. I want to be clear that prosecution, conviction and imprisonment will always be our priority—the right place for a terrorist is in a prison cell. But where successful prosecution or deportation is not immediately possible, no responsible Government could allow these individuals to go freely about their terrorist activities.

We are also clear that the current control order regime is imperfect and has not been as effective as it should be. We therefore propose to repeal control orders. Instead, we will introduce a new package of measures which is better focused and has more targeted restrictions, supported by significantly increased resources for surveillance and other investigative tools. Restrictions that have an impact on an individual’s ability to lead a normal life should be the minimum necessary, should be proportionate and should be clearly justified. The legislation we will bring forward will make clearer what restrictions can and cannot be imposed. These will be similar to some of the existing powers used in the civil justice system; for example, to prevent sexual offences and domestic violence.

These terrorism prevention and investigation measures will have a two-year maximum time limit, which will clearly demonstrate that these are targeted, temporary measures and not to be used simply as a means of parking difficult cases indefinitely. The measures will have to meet the evidential test of reasonable belief that a person is, or has been, engaged in terrorism. This is higher than the test of reasonable suspicion under the current regime.

Curfews will be replaced by an overnight residence requirement. Forcible relocation will be ended and replaced with the power to order more tightly defined exclusions from particular areas, such as particular buildings or streets, but not entire boroughs. Individuals will have greater access to communications, including to a mobile phone and to a home computer with internet access, subject to certain conditions, such as providing passwords. They will have greater freedom to associate. They will be free to work and study, subject again to restrictions necessary to protect the public. We will add the crucial power to prevent foreign travel.

These measures will be imposed by the Home Secretary with prior permission from the High Court required except in the most urgent cases. The police will be under a strengthened legal duty to ensure that the person’s conduct is kept under continual review with a view to bringing a prosecution and they will be required to inform the Home Secretary about the ongoing prospects for prosecution.

I have asked the incoming independent reviewer of terrorism legislation, David Anderson QC, to pay particular attention to these issues in his first report on the new regime and to make recommendations that he considers appropriate to ensure the new regime is working as intended. I am also today laying a Written Ministerial Statement outlining the next steps in the work to find a practical way to allow the use of intercept as evidence in court. We will repeal the current provisions which permit control orders with restrictions so severe that they would require the United Kingdom to derogate from the European Convention on Human Rights. I cannot imagine circumstances in which the Government would seek to introduce such draconian measures. So the review I am announcing today will create a more focused and flexible regime. However, in exceptional circumstances, faced with a very serious terrorist threat which we cannot manage by any other means, additional measures may be necessary. We want to prepare for this possibility while ensuring that such powers are used only when absolutely necessary. So we will publish, but not introduce, legislation allowing more stringent measures, including curfews and further restrictions on communications, association and movement. These measures will require an even higher standard of proof to be met and would be introduced if in exceptional circumstances they were required to protect the public from the threat of terrorism. We will invite the Opposition to discuss this draft legislation with us on Privy Council terms. These powers would be enacted only with the agreement of both Houses of Parliament.

All of these measures will be accompanied by a significant increase in resources for the police and security and intelligence agencies to improve their surveillance and investigative capabilities. This will underpin the effectiveness of the regime and support the gathering of evidence admissible in court which could lead to a successful prosecution.

We will bring forward legislation to introduce the new regime in the coming weeks. We want to give Parliament the opportunity properly to scrutinise our proposals. I am sure the whole House would agree that in the past too many laws in this area were rushed through without the opportunity for adequate debate and consideration. So while Parliament considers that legislation, we will renew the current regime to the end of the year. Many of the other measures I have outlined will be brought forward in the forthcoming Protection of Freedom Bill.

I should like to finish by thanking the police and the security services for the tremendous work they do to keep our country safe. The measures I have outlined today will help them to continue to ensure our safety and security at the same time as we restore our civil liberties. They are in keeping with British values and our commitment to freedom, fairness and the rule of law. They will restore public confidence in counterterrorism legislation and it is my hope that they will form the basis of an enduring political consensus. I commend this Statement to the House”.

My Lords, that concludes the Statement.

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[Baroness Neville-Jones]

My Lords, I will take the noble Lord’s last point—that this is somehow delayed and confused—first. As I said the other day when we were talking about pre-charge detention, the review has undoubtedly taken us longer than we originally thought it would. That is because we have taken great care over it. We do not intend to present Parliament with a series of differing proposals, such as was presented to us by the Opposition when they were looking at the question of pre-charge detention, eventually falling back on something that they had certainly not proposed in the first instance. We have tried to do a thorough job so we are confident of the rightness of the proposals. It is right that a Government should consult inside in doing that. We know the consequences when Governments inside fail to consult each other. I make no apology for the time it has taken, or the care with which this review has been conducted.

The noble Lord raised a number of detailed points and I will try to answer them. I was asked whether we are confident of the powers remaining in relation to Northern Ireland. One of our main concerns was to ensure that this was not a GB policy, but a UK policy. On stop-and-search powers, we felt it particularly appropriate to take due account of the situation in Northern Ireland. The new power has been fashioned to enable us to maintain a high level of security throughout the United Kingdom, including Northern Ireland.

The question of legislation for pre-charge detention was raised. Noble Lords will not find us dilatory in bringing forward the legislation. There is a problem of being at fault whether you do or do not. We want to try to consult heavily on this legislation so that it has general acceptance. One of the things that we are most concerned to do with this review is to lay a stable and accepted basis for the legislation and the provisions that we have in law governing our approach to terrorism. We want to involve the House as much as possible. Noble Lords will find that we will not be slow in bringing forward the necessary measures. In the mean time, Section 25 is not a perfect way of doing things, but it is certainly there, it remains and it is the power that we will resort to if we need to. We will certainly get on with the legislation.

The question of the House being able to legislate applies also to the question of whether we might have to introduce control orders in extreme circumstances. It is notable that if there is a consensus Parliament can act extremely fast and both Houses can enact the necessary legislation within one day; that is why we want to try to establish one. I do not think that we will be faced with a situation where we are not able to take action if we need to in an extreme situation, which I imagine that all sides of the House would recognise as being so. Parliament will act to protect the people of this country.

On the three individuals who are still under control orders, I remind the House that the legislation does not cease to have effect until new legislation is passed. Clearly, for the rest of this year, broadly speaking, because we will renew for the end of the year until such time as the freedom Bill goes through, we will have the existing regime and review cases under that. As the House knows, each control order has to be reviewed on an annual basis.

On surveillance, the emphasis on the ability and the duty of the police to increase the likelihood of bringing a successful prosecution is an important feature of these new measures. We do not believe that they are merely a new brand of control order. If noble Lords take them in their total substance, they constitute a different regime with a different emphasis. Undoubtedly we need to continue to have legislation on the statute book that enables us to take measures to protect the public, but there is an important emphasis on two things. We need to balance that protection with the rights of those individuals, because it has been demonstrated through the courts that we need to respect those rights; and we must increase the chances of a successful prosecution. That was not the effect of the previous control order regime, which we intend to reform. These are not like regimes. I was asked whether there would be new money for the extra surveillance. I can confirm that there will be new money available during the CSR period.

I hope that I have dealt with the various points that were raised. No doubt other noble Lords will have points that they wish to make.

[Lord Lloyd of Berwick]

My Lords, I have two questions for the noble Baroness: one on control orders and one on 28 days, and that is all. I congratulate the coalition Government on getting rid of control orders at long last, if that is what they have done. We shall see how this works out. No one can say how much damage control orders have done to community relations over the past six years. Only one thing is clear; control orders have done great damage to our reputation as a country that values freedom and the rule of law.

Does the noble Baroness agree—I think she does from what she has said—that if credit is due to anyone in this whole unhappy affair, it is due not to us in Parliament, I am sorry to say, but to the judiciary? In particular, it is due to the judges sitting in the administrative court in keeping control orders within reasonable limits so far as they could and forcing the Government on so many occasions to think again.

On the 28 days, I opposed the increase from seven days to 14 days as long ago as 2003 when ACPO was asking for 14 days and got it. I opposed any increase in 2005 when ACPO asked for 28 days and got it. I opposed any increase in 2006 when it asked for, but happily did not get, 90 days. Has ACPO now accepted that it never needed 90 days or anything like it, despite the advice that it gave the Government at the time? Does ACPO accept that it was never, as it put it in 2007, “up against the buffers” with only 28 days? If so, how much faith can we put in the advice of ACPO in these affairs?

[Baroness Neville-Jones]

My Lords, one reason why the Government were determined to deal with control orders before they even came into office was precisely because of our perception that they were damaging to community relations. In the evidence and the responses to questionnaires and surveys, stop and search comes up quite as often as a source of grievance, if not more so, than control orders, but the Government accept that they were harmful. The Government respect the role of the judiciary, which is one reason why we are bringing this regime into line with what we believe is legally acceptable.

On the question of the number of days needed to bring a successful prosecution, I have not asked ACPO the specific question posed by the noble and learned Lord. However, like the rest of us, ACPO has learnt from experience about the time needed in practice to bring successful charges, and made it absolutely clear to the Home Secretary—as indeed have the intelligence and security services—that it is content with the proposals.

[Earl Attlee]

My Lords, I remind the House of the benefit of short questions so that my noble friend can answer as many noble Lords as she can.

[Baroness Hamwee]

My Lords, I am happy to give a general welcome to the Statement. In confirming that this is not a mere rebranding of control orders, will the noble Baroness point to requiring the permission of the High Court, which seems to take us into a completely different legal structure? I suspect that many of us will wish to explore the evidential test that she mentioned and whether we can move towards a criminal test beyond reasonable doubt. Will she and her officials continue to work actively on that? Secondly, does she agree that arrangements that enable a person subject to the measure to work or study are very significant indeed? That control was extremely offensive.

[Baroness Neville-Jones]

I am sure that the last point would be very widely accepted. It does not particularly facilitate observance of the law or good behaviour on the part of someone who is under a measure of this kind if they cannot occupy their time usefully. One of our objectives has been to bring the daily life of people who are under such restrictions as near to normality as it can be, while being compatible with the security of the rest of the community.

On the question of whether we are rebranding, I hope I made it quite clear to your Lordships that this is not a rebranding exercise. There are significant differences in the measures that we are putting into place. They have a purpose that includes the need to continue at all times to open up the maximum opportunity for actual prosecution. One of the chief complaints about the previous regime, in our view, was how it made that extraordinarily difficult.

As the noble Baroness will be aware, we have raised the test to reasonable belief. We want to work in co-operation with the High Court. One thing that has clearly been learnt through experience is that to get into a situation in which any measures that we put in place are subsequently demonstrated in the High Court or in a court to be unacceptable does not add to their credibility. We want to get into a situation in which there is a clear understanding. We believe that it is necessary for the Home Secretary to be able to act in emergencies without seeking prior agreement with the High Court because, as I am sure noble Lords can imagine, in practical circumstances there may be a great need to do something extremely fast.

[Lord Harris of Haringey]

My Lords—

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[Lord West of Spithead]

That is me. Thank you very much indeed. I congratulate the noble Baroness and the coalition on actually having a review, because that is needed. Indeed, we need to have one constantly. No one was ever happy with control orders; they needed to be looked at. I am also delighted that it has seen that they were necessary for the very small number of people who were a threat to this nation. To try and pretend that they are not now control orders is pushing things a little. I would be interested to know what these new restrictions will be called. My advice would be not to call them anything, or else they will become another shy that people will throw things at.

I am also very concerned about resource. A very limited resource is available, both in manpower and in money. We know that there are real problems with money across all areas of government and I am concerned about the full amount of resource that will be required. Also, if we go for these slightly lesser periods of people being in their homes and so on, we will go back to the period before I became a Minister when people actually absconded. Will the Minister reassure us that she is absolutely certain that that will not become a feature again, because clearly that is a real risk with this very tiny number of people?

I say to the noble and learned Lord, Lord Lloyd, that there is no doubt whatever that many other countries use other mechanisms to stop very dangerous people from being on their streets, some of which would be quite abhorrent in this country, so I do not think that we need to feel ashamed. I also thank the coalition for reassuring me; I began to feel that I might have been authoritarian and trying to have a police state. The people who were formerly Lib Dems certainly made me feel that. Now, I am delighted that the coalition clearly understands how important these security issues are and, as I say, I congratulate it on keeping measures in place for that tiny number of people who wish to do us harm.

[Baroness Neville-Jones]

I thank the noble Lord for the generosity of those sentiments. As I say, they are not going to be orders. I cannot emphasise too much that the total package really is different from the control order regime. These measures will be called terrorist prevention and investigation measures—note the insertion of “investigation”; it is part of their purpose.

The noble Lord is quite right to stress that resources need to be taken seriously. We do so, and, clearly, while control orders are still in place, it will be important that resources are made available such that one can increase the capacity and capability of those involved. I hope that the House will forgive me if I do not go into more detail, but we are mindful of the need to make a reality of the extra mitigations that we are putting in place.

[Lord Blair of Boughton]

My Lords—

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[Lord Howard of Lympne]

My Lords, I, too, congratulate my noble friend and, through her, the Home Secretary on striking the right balance in this very difficult area between the need to protect the public and the need to safeguard personal and individual liberty. May I ask about the emergency legislation to extend the period of pre-charge detention? Given what my noble friend has said about the Government’s ability to put that in place very quickly, do they intend this emergency power to be available not simply in a general period or emergency but for an individual suspect under detention, in respect of whom the police, and perhaps a magistrate or a judge, are convinced that a longer period of detention is necessary?

[Baroness Neville-Jones]

I thank my noble friend for his kind remarks, which I will pass on to the Home Secretary. On the question of emergency legislation, the intention is really to cover an emergency. I suppose that I can imagine—this is hypothetical territory—two broad categories, for instance, where the general threat level had risen even further. Those will be very dire circumstances in which we might be in a real emergency. There is also the possibility that one or a number of complex conspiracies come together and it is clear that a different approach is needed to the amount of time for, say, pre-charge detention. However, we stress that we believe that these kinds of measures, which at the moment are the norm, should be reserved for really exceptional circumstances.

[Lord Blair of Boughton]

My Lords—

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[Lord Blair of Boughton]

Thank you, my Lords. I need to declare an interest in that I was a former member of ACPO and of the police service in the metropolis. I thank the noble Baroness for the Statement. I merely carry on from the question raised by the noble Lord, Lord Howard, which is: how can Parliament legislate on the back of a police and Security Service operation? One reason why ACPO brought up the question of the length of detention in a period when we had no atrocity immediately before us was so that Parliament could debate it in an open atmosphere. I do not suggest that it cannot be done, but an enormous amount of thought has to be given to how both Houses of Parliament could decide that the situation had reached the point at which emergency legislation had to be brought in, particularly if it was not after an atrocity but merely because of a series of desperately significant operations going on. I do not understand how this House or the other place could debate that in the open.

[Baroness Neville-Jones]

The noble Lord raises a perfectly fair question. The choices that we have made are not easy. In fact, I suggest to the House that there is no ideal solution here. Why have we gone for this method? I remind the noble Lord that we are not just going to place something in the Library or, indeed, suddenly bring the matter to the House without having gone through an important part of the process—pre-legislative scrutiny with the House—so that some of the conditions that would be needed to build consensus so that we could act rapidly and in agreement in an emergency were actually understood between us and in place. That process will be important in building the underlying consensus on which legislation can be passed in an emergency of that kind.

[Lord Macdonald of River Glaven]

My Lords, I declare an interest as the independent overseer of the counterterrorism and security powers review. Would the Minister agree that the review has made good progress in meeting its objectives of recommendations that, if implemented, would roll back state power consistent with public safety, and that on stop and search, surveillance powers, pre-charge detention, the removal of relocation and curfews, and house arrest powers, important reforms are signalled?

Would she also acknowledge that more work needs to be done on the precise circumstances in which restrictions may be placed on those who are not charged, prosecuted or convicted of crime, and that some quite tough decisions will have to be made before legislation is brought before this House?

Finally, will she indicate whether the Government will consider the proposal in my report that any regime of restrictions should be much more closely linked to a continuing criminal investigation so that the primacy of prosecution is protected and that prosecution is the prime aim of public policy in this area?

[Baroness Neville-Jones]

I take this opportunity to reiterate my thanks to the noble Lord for his contribution, which is very significant to the work of the review. He makes some important points and has outlined more eloquently than I have the effect of reducing the measures in relation to individuals that constitute a new balance between public protection and the rights of the individual. We believe, however, as the noble Lord acknowledges himself, that it remains necessary that measures of this kind are available in the interest of public protection. He is right that there is more work to be done on some of the detail, and as we work through the legislation and subsequently its implementation, I am sure that more detail will come into effect.

On the question of the regime of restrictions and the need for a closer link to criminal investigation, the Government share the view that it is important to increase the possibility within this regime of bringing successful prosecution. We are mindful of that being the proper goal. As the Home Secretary said in her Statement, terrorists should be behind bars in a prison cell. At the same time we draw back from the notion that one would not be able to introduce a measure of this kind in the absence of a close link to and a realistic prospect of being able to introduce a prosecution. We do not wish, therefore, to claim that we can do that, given that it might not be an honest claim. What I can say on the part of the Government is that we will try very hard to ensure that the maximum possibility for bringing prosecution in any given instance is a clear objective.

[Lord Dubs]

My Lords, the Minister has twice referred to pre-legislative scrutiny. Will she confirm that all the measures she has mentioned today will be subject to full pre-legislative scrutiny?

Secondly, she mentioned intercept evidence. The previous Government were looking at it and her Government have been looking at it. When are some positive proposals likely to come forward, because if we can accept the use of intercept evidence, some of the other measures will not be necessary?

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[Baroness Neville-Jones]

On the noble Lord’s first point, that is certainly the case with the legislation relating to the possibility of having to revert to a longer period than 14 days. We are not going to introduce the legislation relating to control orders. We are, however, going to discuss it with the Opposition on Privy Council terms.

On the question of intercept as evidence, I am a proponent of being able to introduce intercept as evidence. Serious work is still going on on it. The issue is not entirely without complexity, but we take it seriously and we share the previous Government’s view that it will be highly desirable to be able to introduce intercept as evidence in such cases.