Terrorism Prevention and Investigation Measures Bill

Lord Bishop of Oxford Excerpts

Wednesday 5th October 2011 Lords Chamber

[The Lord Bishop of Oxford]

My Lords, the Church of England is sometimes accused of being unclear or indecisive in its public pronouncements, so it is worth noting that on 14 February 2008 the General Synod voted by 235 votes to two for a motion that expressed its grave concern that the proposal to extend the maximum period of pre-charge detention of terrorist suspects from 28 to 42 days would “unacceptably disturb the balance” between individual liberty and national security. The motion went on to call on the Government to review the restrictions and obligations imposed on individuals under the Prevention of Terrorism Act 2005 and the use of undisclosed material in control order proceedings. I therefore welcome the order that will shortly be placed before your Lordships and the fact that the Government have produced the Bill as a result of their review of the control order system.

We are all indebted to the noble Lord, Lord Macdonald, for the review of counterterrorism and security powers. As Director of Public Prosecutions in 2008, his clarity and level-headedness were a great help to many of us who were non-experts as we tried to sort the wheat from the chaff over 42 days. Those qualities have also informed his conduct in the review.

It is increasingly clear from the debates that have followed the report of the Newton committee and the Lords judgments on detaining foreign nationals under the Special Immigration Appeals Commission that control orders were an attempt to solve a very difficult, if not insoluble, problem; that is, what to do about people who are suspected of terrorist activity but can be neither deported nor prosecuted. Therefore, I sympathise with successive Governments as they have struggled with this issue, which is rather like trying to square a circle. In these circumstances, it is very difficult to find a way forward that satisfies both the needs of national security and public safety and the rights of individuals under the rule of law.

The central objection to control orders was that they restricted the liberty of suspects without due process of law. However, it is hard to see how the prediction of the future behaviour of terrorist suspects could ever be subject to legal action in the way that past conduct could be. The judgment that the liberty of individuals needs to be restricted because there is well founded intelligence that they pose a threat to national security is essentially an executive decision. How far that can be subject to any normal effective judicial review is a difficult issue.

On the other side, if there is a system of restrictions, it needs to be as limited as possible and subject to legal safeguards that are as robust as they can be made. This, I take it, is the Government’s intention in the Bill. It is all very well to dismiss TPIMs as “control orders light” but, unless they have found a viable alternative to dealing with the problem, light is better than heavy, provided that the measures are likely to achieve their objectives.

I welcome the clarity of the conditions on the imposition of measures set out in Clause 3, although I leave it to the lawyers to argue whether reasonable belief is a higher threshold than reasonable suspicion of terrorism-related activity. The defined list of powers is preferable to the non-exhaustive list of obligations in the 2005 Act. It is good that the possibility of imposing derogating orders has gone, along with the requirement for relocation, although I understand the points well made by noble Lords earlier. I also welcome the two-year limit for TPIM notices. Taken together, these provisions go a long way to alleviating many of the most objectionable features of the control order regime.

The other outstanding issue is the nature of the judicial process adopted. The use of closed hearings, non-disclosure of evidence to suspects and the employment of special advocates all raise serious issues about the right to a fair trial, which is guaranteed under Article 6 of the European convention. I am reassured that the Home Office has taken note of the House of Lords decision in the case of AF by suggesting in its European Convention on Human Rights memorandum that suspects will,

“be given sufficient information about the allegations against them to enable them to give effective instructions in relation to those allegations”.

Whether and how far this will be feasible remains to be seen.

Finally, it is important that the Bill links prevention and investigation. Under the old regime, there was a worry that control orders were being used as a substitute for investigation and prosecution. Now it is clear that the two can be carried on in tandem, and that underlines the fact that prosecution and conviction is the preferred option and that TPIMs are very much a second-best resort for a small number of suspects. Although in an ideal world I would prefer not to have any such measures, I accept that in the circumstances we now face they are both necessary and proportionate, and I am content to support the Bill.