Counter-Terrorism and Security Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, this is a complex Bill, not least because it amends and interacts with a number of other difficult statutes in the field and presupposes a full understanding of them. Although I have done quite a lot of reading in this area, I confess at once that I have not as yet formed any clear and final view on some—perhaps most—of the many difficult issues that it raises. Today, I propose to confine myself to one or two general, perhaps rather bland remarks and then focus more particularly on Part 2, which deals with changes to the TPIMs scheme.

My preliminary comments are these. Like my noble and learned friend Lord Lloyd of Berwick, although not for as long as him, I have been concerned with the legal aspects of national security over many years, first as Treasury counsel acting in such cases for the Government. Indeed, my very last case at the Bar was in 1984, the de-unionisation on security grounds of GCHQ. The noble Lord, Lord Armstrong of Ilminster, who I am delighted will be speaking in this debate, was our chief witness. Then, overlapping with many—perhaps too many—long years on the Bench, I was, also successively from the mid-1980s chairman of two tribunals which investigated complaints into our various intelligence agencies. Then for six years up to 2006 I was the Intelligence Services Commissioner with, effectively, retrospective judicial oversight into the operation of the various intelligence agencies, most particularly compliance with the requirements of the Regulation of Investigatory Powers Act 2000, which was introduced to secure Article 8 privacy rights conferred by the Human Rights Act. In those days, I was able to give only a month a year to that task. As I understand it, my successors as both the Intelligence Services Commissioner and the Interception of Communications Commissioner have to deal with that on an almost full-time basis.

Over all the years that I have had those various forms of contact with the agencies, I have formed a clear view that they consist—save for the tiniest minority, who are speedily weeded out—of the highest quality men and women, dedicated and disciplined public servants, generally of considerable intelligence and great integrity. Many have come from academe, banking or skilled professions specifically because they wanted to make what they regarded—and which I certainly regard—as the greater contribution to national life that comes from working in those agencies, often at substantially lower salaries than they could have expected in the private sector, and always on the understanding that their particular value would never be recognised publicly. I say never; happily there are in the House this afternoon two exceptions to that non-recognition, both of whom are to speak in this debate, and we look forward to hearing them. The noble Baroness, Lady Manningham-Buller, is to speak later and very shortly we shall welcome enormously the maiden speech from the noble Lord, Lord Evans of Weardale. We shall listen with particular attentiveness to what they have to say.

Of course it does not follow from the undoubted excellence of our intelligence officers that we in Parliament should uncritically grant them ever wider powers. Far from it, but it certainly follows that I, for my part—like the noble and learned Lord, Lord Goldsmith—am readily inclined to listen to their views and to treat with particular respect any arguments and evidence that they advance as to the existence of gaps in the capabilities of the agencies that need to be filled. I would also value their judgment on—for example—the damage caused by people such as Mr Snowden.

In the light of last week’s ghastly events in Paris, it may be thought that the need for this Bill in all its various aspects is more obvious than ever, but there is perhaps a risk on that account that we may be inclined to give it a fairer wind than it—or certain parts of it—strictly merit. I am quite sure that on reflection all Members of this House agree that holding the difficult balance appropriately between freedom on the one hand and security on the other remains just as important as it always has.

So much for preliminary comments—perhaps they were rather tiresomely platitudinous; there it is. I come to the second part of this Bill, which deals with TPIMs. I begin by briefly reminding the House of the gradual evolution of this system of control over those we suspect of terror-related activities but do not have the evidence to actually put through court for prosecution. After 9/11 we began, as we can all too easily remember, with the Belmarsh detention scheme, which in retrospect can be seen as a really shocking form of open-ended preventive detention of foreign suspects. It was ultimately struck down in a seminal judgment of the Appeal Committee of this House, chaired by the late and much respected Lord Bingham of Cornhill, in the famous case of A. Of course, shortly after that this House rightly determined that that scheme should be given its quietus. It was immediately then replaced—and there was, one recalls, a heady night of toing and froing between the Houses—by the control order regime under the Prevention of Terrorism Act 2005, which lasted for six years until its repeal by the TPIM Act in 2011. Control orders were of course highly contentious and much litigated. I myself heard a number of appeals against various aspects of such orders, both in the Appeal Committee of this House and then, after October 2009 when we were banished across the square, in the Supreme Court.

The TPIM Act represents, if you like, stage 3 of this evolving picture, and introduced major changes from the altogether more draconian control order regime which it replaced. It is no longer possible to make TPIMs on an indefinite basis—they are now limited to two years; curfews, which were originally permissible up to 16 or perhaps even 18 hours under TPIMs, are now down to 10 hours; there is now the right to a computer and a mobile phone; the test for imposing these orders was sharpened and raised: “reasonable suspicion” has given way to “reasonable belief”. Most importantly for present purposes, there is no scope under TPIMs for relocation, for what the right reverend Prelate the Bishop of Durham called—as it has been called by others—“internal exile” and the many problems associated with all that. The courts long ago acknowledged that—we discussed it at length in 2010 in our Supreme Court judgments in the Home Secretary v AP.

Clause 12 would amend the TPIM Act to reintroduce the possibility of relocation. As has already been remarked by the noble Lord, Lord Paddick, the independent reviewer, Mr Anderson QC—truly a most estimable and able man—recommended that himself, although, as he put it in his evidence to the Joint Committee on Human Rights on 26 November last, he did so,

“with a heavy heart, but none the less with decisiveness”.

Despite the fearsome disruption to family life and the resentment it causes and the disaffection of the families—which again, the right reverend Prelate spoke of—I, too, support it. Frankly, it is the only effective way to prevent people meeting up with their associates and from absconding. However, it must be recognised that it is a hugely invasive, disruptive power; infinitely more so, for example, than telephone tapping, data recording, or any of the several other such powers available or proposed to be available to the agencies. Those powers merely—I use that word advisedly and rather in the same sense as the noble and learned Lord, Lord Goldsmith, would—interfere with people’s right to privacy, which is a valuable right, but nothing like the right that is removed by relocation.

That consideration takes one—or at any rate takes me—to Clause 16(1), which provides that:

“In section 3 of the Terrorism Prevention and Investigation Measures Act 2011 … in subsection (1), for ‘reasonably believes’ substitute ‘is satisfied, on the balance of probabilities,’”.

The result of that is that in the TPIM Act itself, which provides by Section 2(1) that:

“The Secretary of State may by … a ‘TPIM notice’ … impose specified terrorism prevention and investigation measures on an individual if conditions A to E in section 3 are met”,

the relevant condition A, which is in Section 3(1), is,

“that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity (the ‘relevant activity’)”.

That would become, “that the Secretary of State is satisfied, on the balance of probabilities”, that the person concerned has been involved in terrorism-related activity.

In his evidence both to the Joint Committee on Human Rights, and later, on 3 December, to the House of Commons Home Affairs Committee, Mr Anderson explained that Clause 16 did not give full effect to one of the recommendations he made to the Government about TPIMs. His third recommendation was essentially that the Home Secretary would have to persuade a court on the balance of probabilities that the person in question was or had been involved in terrorism. As now proposed by Clause 16(1), the question will be merely whether the Home Secretary herself is satisfied on the balance of probabilities. Frankly, as a matter of language and logic, I find it difficult to see that there is any material distinction whatever between the present position of the Home Secretary reasonably believing something, and—as now proposed—of her being satisfied of something on the balance of probabilities.

There is, of course, a real difference between reasonably suspecting something—which was the old test for imposing control orders—and reasonably believing something, which is the existing TPIM test. As I said in another criminal context in some earlier reported case, “to suspect something to be so is by no means to believe it to be so; it is to believe only that it may be so.” I am sure everybody here readily sees the logic of that. Belief necessarily denotes that the person thinks the fact in question has been established. I therefore question whether Clause 16(1) as it stands in practice does what it purports to do; namely. to raise the standard of proof required in these cases. I note that there was a Court of Appeal case in 2012 when, in the course of some lengthy judgments, somebody was able to suggest that they found some distinction between the two, but I confess it eludes me. Either way, Mr Anderson’s original recommendation for the court to be satisfied on the balance of probabilities was the correct one, certainly with regard to any future TPIM which is to deploy this new power of ordering relocation, significantly the most burdensome and invasive of the obligations which it will now be possible to impose. I strongly urge the Minister to re-examine this question, and to ask himself whether—after all—Mr Anderson’s recommendation should not be properly accepted rather than fudged and diluted to the point of negligibility in the existing draft. That may have been actually what the noble Marquess, Lord Lothian, was referring to in that early intervention he made during the Minister’s speech, although it was understood—and understandably understood—to be an intervention relating to Part 1 of the Bill.

That is my main present concern with Part 2. I welcome the other proposed changes to the existing TPIM regime, subject always to some persuasive contrary argument that may later emerge from others. Before I sit down I should mention that there are plainly problems with other provisions, most notably both provisions in Part 1. We will see what the Government propose hereafter by way of allowing judicial control of these proposed new powers. Today I merely reserve my position on all these other matters. But overall I am optimistic that we can reshape this Bill to improve national security without significantly compromising our civil liberties. I would certainly give it a Second Reading.