Counter-Terrorism and Security Bill

Lord Ashton of Hyde Excerpts

Wednesday 4th February 2015 Lords Chamber

Moved by

[Lord Ashton of Hyde]

16: Before Clause 42, insert the following new Clause—
“Reviews of operation of Part 1 etc
(1) The person appointed under section 36(1) of the Terrorism Act 2006 (“the independent reviewer”) is also responsible for reviewing the operation of the provisions listed in subsection (2).
(2) The provisions are—
(a) Part 1 of the Anti-Terrorism, Crime and Security Act 2001;(b) Part 2 of that Act as it applies in cases where a use or threat of the action referred to in section 4(2) of that Act would constitute terrorism;(c) the Counter-Terrorism Act 2008;(d) Part 1 of this Act.(3) In each calendar year the independent reviewer must, by 31 January, inform the Secretary of State and the Treasury what (if any) reviews under this section the reviewer intends to carry out in that year.
Those reviews must be completed during that year or as soon as reasonably practicable after the end of it.(4) The independent reviewer must send to the Secretary of State a report on the outcome of each review as soon as reasonably practicable after the review is completed.
(5) On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.
(6) The expenses and allowances that may be paid under section 36(6) of the Terrorism Act 2006 include expenses and allowances in respect of functions under this section.
(7) In this section “terrorism” has the same meaning as in the Terrorism Act 2000 (see section 1(1) to (4) of that Act).”

[Lord Ashton of Hyde (Con)]

My Lords, I am pleased to have the opportunity to return to Part 7 of the Bill today, and particularly matters relating to the Privacy and Civil Liberties Board, which I know is a topic which has generated much interest and thoughtful debate among your Lordships at earlier stages of this Bill.

Your Lordships’ House is in no doubt of the importance of the office of the Independent Reviewer of Terrorism Legislation. David Anderson QC, the current incumbent, who has occupied this role since February 2011, and who my right honourable friend the Home Secretary holds in the highest regard, already does an excellent job reviewing key pieces of UK counterterrorism statutes. His recommendations help us to ensure that our counterterrorism legislation is fair, effective and proportionate, and that it strikes an appropriate balance in the face of the very real and serious threat we face from terrorism, which has been acknowledged across all sides of the House.

This office, which has existed in various forms over 35 years, has traditionally been occupied by individuals of judgment, independence and legal expertise. A number of previous incumbents are esteemed Members of this House and have contributed to vital public debate about our counterterrorism powers. It is with this in mind that the Government have given very careful consideration to the weight of views expressed by this House, the other place and David Anderson himself during the debate on this Bill, and it is why, in part, I am bringing forward Amendments 16 to 21 for your Lordships to consider today. These amendments make important changes to the role of the independent reviewer and, separately, are intended more clearly to define his relationship with the proposed Privacy and Civil Liberties Board already provided for in the Bill.

Of the six amendments proposed by the Government, the first—Amendment 16—recognises that unsatisfactory gaps have developed over time in respect of the independent oversight of key pieces of counterterrorism legislation which in turn make it more challenging for the independent reviewer, and indeed the Government, to provide full assurance to the public that all of our counterterrorism powers operate as intended.

Amendment 16 therefore inserts a new clause which will extend the remit of the Independent Reviewer of Terrorism Legislation to include other counterterrorism legislation to ensure that those Acts are the subject of independent scrutiny and, in turn, that the Privacy and Civil Liberties Board, to which I will turn later, can support him in reviewing the operation of these laws.

In practice, that will mean that in addition to those Acts currently subject to review—the Terrorism Act 2000, Part 1 of the Terrorism Act 2006, the Terrorist Asset-Freezing etc. Act 2010 and the Terrorism Prevention and Investigation Measures Act 2011—the independent reviewer will also be able to review Part 1 of the Anti-terrorism, Crime and Security Act 2001, and Part 2 of that Act in so far as the power is used in cases relating to terrorism; the Counter-Terrorism Act 2008; and Part 1 of this Bill, containing the new temporary passport seizure and temporary exclusion order powers, when enacted.

It is right and proper, however, that we do not risk the important role of the independent reviewer becoming diluted by expanding its remit to a much wider and less well defined list of statutes. This change to the independent reviewer’s remit will be limited to true counterterrorism provisions and will ensure that its scope does not stray into other areas which might properly fall—or at the very least stray—within the remit of other independent oversight bodies.

I will deal with the other government amendments in a moment but, before doing so, I would like to touch on Amendment 16A, tabled by my noble friend Lady Hamwee. This amendment would extend the independent reviewer’s remit further still by adding to it the statutory responsibility to review Part 2 of the Justice and Security Act, covering closed material procedures, and the power of the Secretary of State to deprive citizenship, in certain circumstances, under Section 66 of the Immigration Act 2014.

I recognise that my noble friend has a long-standing interest in those specific issues, and I appreciate that she has tabled the amendment intending to ensure that important areas of the law have sufficient oversight. However, I hope that I can reassure her that, in the Government’s view, that change is unnecessary.

The closed material provisions contained within Part 2 of the Justice and Security Act 2013 are already by their very nature subject to robust oversight. Each application for a closed material procedure is scrutinised in detail by a judge. The judge then keeps that application under review as necessary throughout the proceedings, to ensure that there is no detriment or unfairness to any party. The Ministry of Justice also publishes annual statistics on the overall use of closed material procedures.

In addition to that judicial oversight inherent in any individual use of CMP provisions, Parliament has already provided for review of the power as a whole. Section 13 of the 2013 Act requires that the Secretary of State must—I repeat “must”—appoint a person to review the operation of Sections 6 to 11 of the Act, the closed material procedure provisions, at the five-year mark from commencement.

I hope that your Lordships will appreciate that bringing the provisions within scope of the review by the independent reviewer could result in unnecessary duplication and may unnecessarily encroach into the territory of the appropriate reviewer, to be appointed by the Secretary of State in future.

Similarly, Parliament has already provided that the use of immigration powers is overseen by the Independent Chief Inspector of Borders and Immigration. The Immigration Act 2014 contains the power to deprive an individual of British citizenship where their conduct is seriously prejudicial to the United Kingdom. Section 66 of the Act provides that within one year of that provision’s commencement, which is July this year, the Secretary of State must—and again the word is “must”—appoint a person to review its operation. That person’s report will be laid before Parliament. That person could be David Anderson, as we have previously said, but we also need to be mindful of the many competing demands on his time. The important point here is that the provision already exists in statute, and we think that it would be inappropriate to seek to duplicate it in this legislation.

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[Baroness Smith of Basildon]

I think that there is probably an element of face-saving in calling it a board. The amendment makes clear that it would act under the,

“direction and control of the Independent Reviewer”.

So he can make of the board—or whatever you want to call it—what he will. That is an opportunity for him, and I am sure that he will not be slow to take it.

[Lord Ashton of Hyde]

My Lords, I thank all noble Lords who have spoken. They were broadly in support—although I fear that we may not be able to persuade the noble Lord, Lord Butler, that this is a good idea. However, I will come to what the independent reviewer thinks of it later.

One thing that is important to say right at the beginning will answer, to a certain extent, the points made by my noble friend Lord Thomas, the noble Lord, Lord Butler, and some other noble Lords as well, about the information that the board itself will be able to see. We think that it is important that any individuals appointed to the board are provided with an appropriate level of security clearance; so the independent reviewer is cleared to see classified information—and, if necessary, the same will apply to members of the board. Of course, the independent reviewer has a great deal of influence on who is appointed to the board. The Home Secretary will work on his recommendation, although of course it is ultimately the Home Secretary’s decision. I think that covers most of the points made by my noble friend Lord Thomas. I am grateful for his support on that.

The noble Baroness, Lady Smith, mentioned what she said at Third Reading about communities—sorry, I meant what she said in Committee. Third Reading is on Monday; we go from week to week in no time at all. The present reviewer sees that issue. On the point about the board working under his direction and control, I do not see any reason why that should change. He will be able to use the benefits of the members of the board to continue with those areas that he wants to focus on. One reason we have removed the annual necessity for reviews, with the exception of the Terrorism Act, is that the independent reviewer will now be able to conduct thematic reviews instead of just purely linking them to individual bits of legislation. Again, I take the point about the relationships that he has built up over the years—including with foreign countries. As to him being chairman of the board and using board members as support, I do not see any reason why that should change, either.

There was talk about whether the secretariat would supply support and whether the members of the board will be there to provide advice or work for him. I think that both are the case. They will work under his direction and control, and he will also be able to appoint people who have particular skills in different areas that he can draw on. For example, he might be able to appoint someone who is—this was nearer to his original idea—a junior barrister who is appropriately security cleared. However, I take the point that one might not describe that in common parlance as a board, but the name is what we have. Several noble Lords talked about the label on the tin representing what is inside. On that subject, privacy and civil liberties are obviously important in connection with terrorism legislation. If you open the tin which is so labelled and see inside, “Chaired by and under the direction and control of the Independent Reviewer of Terrorism Legislation”, you would get a pretty good idea of what the board is about.

Moving on to my noble friends Lady Hamwee and Lady Ludford, I fear we will not be able to go as far as they want. We extended the remit of the independent reviewer and think that it is right to draw limits on that. I agree that a one-off review is not the same as a review by the Independent Reviewer of Terrorism Legislation. Equally, judicial oversight is not the same, but it is oversight and reassurance for each individual case on those closed material proceedings. It has value. At the moment, we have drawn the line where we have, for the reasons I said: mainly because of overlap and duplication. We think that the way we have done it at the moment concentrates on those—

[Baroness O'Loan]

How can there be duplication if the Government were to include Part 2 of the Act and appoint the independent reviewer to review it? There is nobody currently reviewing that legislation and there will not be for five years, so how can that be duplication? It will not avoid duplication but simply prevent review.

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[Lord Ashton of Hyde]

The review that the noble Baroness referred to was what Parliament laid down in the Act. That was what Parliament required as the oversight for that Act. We will have to stay with the extended remit as we have put it. At the moment, I am afraid that I cannot make any guarantees that we will extend it to the Acts that my noble friend Lady Hamwee asked for.

Finally, on the Privacy and Civil Liberties Board, whether or not it is what the independent reviewer wanted, he may be making the best of a bad job, but he has stated that,

“if skilled and practical people are appointed to the Board, content to work under the Reviewer’s direction, the capacity for independent review will be improved … the Government has listened to what I have been saying, and put forward changes which should significantly improve the ability of the Independent Reviewer to do an effective job”.

I am therefore confident that the changes we are proposing will further enhance his ability to provide robust oversight of the full range of counterterrorism legislation on the statute book, including this Bill, once enacted. I again ask my noble friend to withdraw her amendment.

[Baroness Hamwee]

My Lords, it is late, but it has been a worthwhile discussion and I am glad to have had support, although maybe slightly qualified support in some cases, for the principle of my amendment to Amendment 16. I say to the noble Baroness, Lady O’Loan, that if her name had been the lead name on the amendment, we would probably have reached it at about 5.15 pm, because that is the way it always goes.

The noble Baroness, Lady Smith of Basildon, used the terms “extent” and “impact”. I do not think that there is really anything between us on the substance, but she reminded me of the amendment that I tabled at a previous stage, referring to any other law relating to counterterrorism and national security legislation, and then adding something about considering whether such legislation contains appropriate safeguards, is proportionate and necessary.

I think that the Minister made my point for me, because in describing the changes to the timetable that the independent reviewer must observe, he said that now he would have more opportunity to make thematic reviews. That is precisely why I would like to see the provisions in the amendment included in the Bill. I can see that that is not going to happen, but this will not be the last time that the point is made. I beg leave to withdraw the amendment.

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Moved by

[Lord Ashton of Hyde]

17: Before Clause 42, insert the following new Clause—
“Reviews of operation of other terrorism legislation
(1) In section 36 of the Terrorism Act 2006 (review of terrorism legislation)—
(a) in subsection (2), for “carry out a review of those provisions and,” substitute “carry out—(a) a review of the provisions of the Terrorism Act 2000, and(b) a review of the provisions of Part 1 of this Act,and,”;(b) in subsection (4), for “subsection (2)” substitute “subsection (2)(a)”;(c) after subsection (4B) insert—“(4C) In each calendar year the person appointed under subsection (1) must, by 31 January, inform the Secretary of State what (if any) reviews under subsection (2)(b) the person intends to carry out in that year.
Those reviews must be completed during that year or as soon as reasonably practicable after the end of it.”(2) In section 31 of the Terrorist Asset-Freezing etc. Act 2010 (independent review of operation of Part 1 of that Act), for subsection (2) substitute—
“(2) In each calendar year the person appointed under subsection (1) must, by 31 January, inform the Treasury what (if any) reviews under this section the person intends to carry out in that year.
Those reviews must be completed during that year or as soon as reasonably practicable after the end of it.”(3) In section 20 of the Terrorism Prevention and Investigation Measures Act 2011 (reviews of the operation of that Act)—
(a) for subsections (2) and (3) substitute—“(2) In each calendar year the independent reviewer must, by 31 January, inform the Secretary of State what (if any) reviews under this section the reviewer intends to carry out in that year.
Those reviews must be completed during that year or as soon as reasonably practicable after the end of it.”;(b) omit subsections (7) to (9).”

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Moved by

[Lord Ashton of Hyde]

18: Clause 42, page 27, line 31, leave out paragraph (b)

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Moved by

[Lord Ashton of Hyde]

20: Clause 45, page 29, line 22, at end insert—
“( ) A reference to a calendar year in the following subsections does not include a year before 2016—
(a) subsection (3) of section (Reviews of operation of Part 1 etc);(b) subsection (4C) of section 36 of the Terrorism Act 2006 (inserted by section (Reviews of operation of other terrorism legislation)(1) above); (c) subsection (2) of section 31 of the Terrorist Asset-Freezing etc. Act 2010 (substituted by section (Reviews of operation of other terrorism legislation)(2) above);(d) subsection (2) of section 20 of the Terrorism Prevention and Investigation Measures Act 2011 (substituted by section (Reviews of operation of other terrorism legislation)(3) above).”

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Moved by

[Lord Ashton of Hyde]

21: Clause 48, page 30, line 13, leave out “section” and insert “sections (Reviews of operation of Part 1 etc) to”