Terrorism Act 2000

Lord Brett Excerpts

Thursday 8th July 2010 Lords Chamber

[Lord Brett]

My Lords, I am grateful to the noble Baroness for repeating the Statement made earlier in the other place by the Home Secretary. An issue was raised in the other place—about which the Home Secretary said she had no knowledge and would investigate—on the mystery of there being two written Oral Statements circulated in advance. One, obviously, was supplied by the Home Secretary immediately prior to her Statement. However, an earlier draft—circulated by whom I know not—came into my possession and the possession of other Members, presumably, of your Lordships’ House and the other place. When compared with the draft, the Oral Statement made contained 23 amendments. All 23 amendments were deletions— significantly so in relation to Northern Ireland—and therefore the Statement is either a masterpiece of editing and brevity or it is truncated. As I said, the right honourable lady the Home Secretary said that she would investigate the situation and report. It would be very useful if that explanation could be provided to Members of this House as well as of the other place.

In a sad way, it has been a memorable week. Yesterday was the fifth anniversary of 7/7 and it reminded us all of the threat that the country faces and the tremendous work of the security services and the police in protecting our citizens from harm. Tributes have been rightly paid to the dedicated work of both the security services and the police. I am sure it is everyone’s intention, including that of the coalition Government, that we should not do anything deliberately that would diminish their ability.

One part of the Statement surprises me—that is the statement that had the Home Secretary been the Home Secretary at the time of the original judgment in the European Court, she would not have sought to appeal it. The court judgment was based on the way in which Section 44 powers were used by the Metropolitan Police some years ago. The Met has now reviewed the situation and there has been a tightening up of the procedures in the intervening period. More significantly, the Home Secretary will be aware that the UK courts, including the House of Lords, had rejected arguments that the Quinton and Gillan case represented a breach of Article 8. In particular, the Law Lords were doubtful whether an ordinary superficial search of a person could be said to show a lack of respect for private life. Even if Article 8 did apply, they said the procedure was used in accordance with the law and that it was impossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism. The Home Secretary will also be aware of a report from the Home Affairs Select Committee in 2005 which found that there was no substance in the allegation that there was targeting of particular communities.

Against all those judgments of British law—by which some members of the coalition, when in opposition, put greater store than any European judgment—it seems rather surprising that had the Government been the Government at the time they would not have proceeded to appeal. However, it seems sensible in the present circumstances and in the light of the judgment to change the test for authorisations from “expedient” to “necessary” and to use the test of “reasonable suspicion”.

We have concerns about the intention to restrict Section 44 powers to the searching of vehicles. I know that it is an interim proposal and I have heard the Home Secretary explain why she wanted to make a Statement as quickly as possible to the House. She said that since last Wednesday she had consulted, but it was not clear to me who had been consulted and what strength had been given to the advice. I therefore seek clarity on a number of questions.

What is the view of ACPO—the practitioners—in this matter? What is the view of the Metropolitan Police Commissioner on this new change? What is the view of the Police Service of Northern Ireland? What is the view of the noble Lord, Lord Carlile, who has given great service in the role that he has played? Why do the Home Secretary and the Government believe that it is necessary to go this far in responding to the European Court’s judgment? Are we saying that nothing less will suffice? Will she publish for consultation the list of options that will be considered in the review mentioned by the noble Baroness so that we can see what alternatives might be subject to debate? Concerns have been expressed over time about the use of stop and search. We are aware of those, which is why a considerable tightening-up has taken place.

As the Home Secretary rightly said, we are always talking about the balance between security and human and civil rights. However, it seems to this side of the House that there is a prospect of the police and the security services being asked to protect us over the coming years with fewer officers, diminished resources and now potentially restricted powers. The coalition agreement was clear on some of these issues but, in all honesty, it is not the coalition agreement that will keep us safe; it will be the security services and the police. Although I think that it is right that Parliament should be paramount and that politicians should make the judgment, politicians also have a considerable responsibility to listen to those who, day to day, take the risks and deal with the many problems that we have in this area. I have asked these questions so that we have clarity on consultation. I will be interested to hear the noble Baroness’s response.

[Baroness Neville-Jones]

My Lords, I thank the noble Lord for his response. His first point was about what happened with the draft. As I understand it, this was one of those things that happen in government. The earlier draft, which the Home Secretary had not seen and had not approved, somehow escaped into the parliamentary Chamber, but it was not her view of what she needed to say. The Statement that I read is what the Home Secretary thinks is the correct position.

I entirely share the noble Lord’s sentiments about the tribute that we should pay to the police for the work that they do. That was particularly apt yesterday, which marked an occasion in our national life when we saw the effectiveness of the police, the resilience of the emergency services and, indeed, the bravery, courage and common sense of ordinary people. In essence, that is what will, in the end, get us through this period of international threat to us.

The noble Lord picked up the sentence in the Statement relating to our view that we would not have appealed the judgment had we been in office. He rightly said that the domestic court had previously rejected some of the arguments. However, it is fair to say that, in opposition, both parties of the coalition had been extremely critical not only of the excessive use to which the Metropolitan Police had put these powers but also—this is the second point, which the noble Lord did not mention—of the fact that the powers were drafted too widely. In our view, this law is defective. That does not mean to say that there is not legitimate need and that there may not be circumstances in which a power of this type will be needed. That is one of the issues that we will take up in the review.

The Home Secretary made it quite clear that this is interim guidance for an interim situation. The police cannot be left in legal limbo, which is why it is necessary for us to take these measures now. We have done so in consultation with the police. Their main concern was to ensure that they were operating legally, because not to be doing so would clearly leave them in considerable difficulty—indeed, in legal peril. They needed clarity and guidance, which is what they have been given. We will continue our discussions with them about the powers that may be necessary.

As for the views of others, the noble Lord, Lord Carlile, has told me that he agrees with the measures that have been taken. He takes the view that the position that has been arrived at is in substance desirable. We will look at whether that is the case and at whether there are contingencies in which it will be necessary to have some other reserve power, although we have not come to any judgment on that.

The noble Lord asked whether we will consult during the review process. Consultation will be built in to the review process. We do not intend that it should be only an internal governmental activity.

The final point was about the need to ensure that the security services and the police have the resources to keep us safe. Of course that is right. I hope that there is nothing between the two sides of the House on the question of taking national security seriously. However, we have to recognise that there is a difficult financial and public expenditure situation, from which the police cannot be entirely immune. None the less, I have confidence that the police take their priorities seriously and we in the Government will certainly act with due care in relation to public expenditure choices that directly affect national security.

[Lord Brett]

My Lords, it seems to me that much is placed on this being interim and on the review. Will the noble Baroness indicate the timescale? For how long will these interim measures be in force? When can we expect the consultation to be complete? When can we expect our security forces to have a clear understanding from Ministers of what is required for the future?

[Baroness Neville-Jones]

I do not think that the police have any doubt about their position. That position will continue for as long as we are not, in parliamentary terms, able or willing to put in place any other legislative provision. As I say, that will be a matter of consideration in government and consultation. There are a number of related issues in the whole area of counterterrorism and it does not make a great deal of sense to take decisions on one in isolation from considering the impact on others. A wider group of powers need to be considered together. Our aim is to ensure that as much of this package as possible is in the freedom Bill. Therefore, we are talking about a timescale in which the legislation will certainly begin its passage this year.