Counter-Terrorism and Security Bill

Lord Butler of Brockwell Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I will not follow my noble friend Lady Hamwee and the noble Baroness, Lady O’Loan, on Amendment 16A but will turn to Amendments 18 and 19 in this group.

The Minister may recall that in Committee I asked what the Privacy and Civil Liberties Oversight Board was for and I think that Amendment 19, particularly in paragraph (b), is a rather elegant solution to the question I posed in that, obviously, the board will be chaired by the independent reviewer and he can decide in which direction he wishes to take the board and to what degree it should cover the ground that he feels to be necessary. I welcome Amendments 18 and 19 and thank the Government for thinking again on these issues.

There is only one outstanding issue—the degree to which the board would have access to sensitive material. That will have to await another day when, no doubt, the independent reviewer will be able to transfer to the Minister concerned at the appropriate time the degree to which he feels the board requires access and is inhibited by the fact that it does not see the same papers as he will see. The board would clearly be much more efficient if it was cleared for security purposes to the same degree as the independent reviewer.

The issue in Committee was whether the board was for oversight or support. That question has been soundly answered. Clearly the board is there to support the independent reviewer and I am grateful to the Minister for making that clear.

[Lord Butler of Brockwell (CB)]

My Lords, I too am grateful for the consideration that the Government have given to this matter and, in particular, to the powers of the independent reviewer. I am also grateful to the Minister for the frankness of his speech and for the way he has reported the reactions of the independent reviewer, which are obviously not an absolutely wholehearted welcome. I think it is excellent that the powers have been extended in the way that they have been.

I have an open mind on the amendment of the noble Baronesses, Lady Hamwee, Lady O’Loan and Lady Ludford. I think that it would be good if the independent reviewer had the power—not the sole responsibility—to look at any provision of immigration and nationality law to the extent that it is used for counterterrorism purposes. That is clearly within his remit. The Minister himself said that it might very well be that Mr Anderson will be asked to be the person to report on the operation of the closed procedures in Part 2 of the Justice and Security Act. Therefore, I am rather sympathetic to those amendments and I do not think it would be very difficult for the Government to accept them.

However, I am sympathetic to the Government’s wish not to have too much duplication in this area. As a member of the Intelligence and Security Committee, which also roams over this area, I would like to say that we, too, have no problem with Mr Anderson. His co-operation with us is very good. We have no difficulty with the fact that we are looking at things which he is also looking at.

On his reservation about access to secret material, I am afraid that this intensifies my concerns about the very existence of the Privacy and Civil Liberties Board. I think it is an improvement that Mr Anderson is to be consulted on and will have influence over the appointment of the members of the board and that it is there to support him. He has asked that he should have a written assurance that he should have access to all the secret material that he wants. I am sure that the Government would not have the slightest difficulty in giving Mr Anderson that assurance. But it complicates his relationship with the board, because, as the noble Lord has just said, the Government might well have reservations about that very secret material—the freedom to have the most secret material there is extended to the members of the board. I think that may be unnecessary. Clearly it would be difficult for Mr Anderson if he has access to material and the board has not.

All this leaves me with doubts about the utility of the board. I am glad that it is there to support Mr Anderson. I know that he needs more support. In responding to this, can the Minister say whether it is intended that the secretariat of the board should be the extra support that Mr Anderson needs? I do think that he needs extra support, but I would like to see the support there without the existence of the board, the utility of which I greatly doubt.

[Baroness Ludford (LD)]

My Lords, very briefly, given the hour, I think we can all agree that the independent reviewer is not only a formidable lawyer but a master of modern communication with his blogs and tweets.

I welcome the broad support for Amendment 16A given by the noble Lord, Lord Butler. I want to press the Minister a little on some of his replies: first, on the potential clash with the Independent Chief Inspector of Borders and Immigration. I have just tried to flick through his last annual report but I do not think that he touches on anything to do with national security or powers linked to counterterrorism. As the noble Lord, Lord Butler, has just said, there is a way of dovetailing to make sure that there is no clash. What Amendment 16A proposes is very much to the extent that immigration and nationality law is used for counterterrorism purposes, which is not broadly the focus of the borders and immigration inspector.

Then there was a reference to a one-off review of Section 66, on deprivation of citizenship. However, a one-off review is not the same thing as continuous review and monitoring, so that is really apples and pears.

I join the noble Lord, Lord Butler, in wondering about the Secretary of State at some point, possibly several years hence, appointing an overseer of Part 2 of the Justice and Security Act. The Minister said that that person could be the independent reviewer. Why wait? Why risk setting up two separate posts, which would be inefficient and potentially add some costs? Why not short-circuit the exercise by deciding now to give that function to the independent reviewer? As my noble friend Lady Hamwee said, the case-by-case judicial oversight of the court is not what is meant here by the independent reviewer’s role in having that overview of the way that Part 2 of the Justice and Security Act, on closed material proceedings, has been employed in a whole string of cases. It is rather different. I would press the Minister to give a little more justification as to why Amendment 16A is not feasible.

Lastly, I may not have heard the Minister correctly—it may, again, be the lateness of the hour—but I am not sure that he gave an in-principle explanation of why it is not possible to have a statutory basis for the access to secret material. Of course, I accept what he and the independent reviewer have said—that in practice there has not been a problem and that if the Government tried to be obstructive, we would all know about it pretty soon. However, I do not think that he explained what the policy, or legal or other difficulty, is.

--- Later in debate ---

One area that I was considering was the policies and guidance relative to counterterrorism, particularly in relation to intelligence-sharing policy and guidance. That might be an area that he will want to look at in the future, because that indeed directly impacts on counterterrorism. I understand the points being made; it probably gives some flexibility. I also understand the issue about resources, but flexibility is probably going to be essential because laws do not exist in a vacuum. I entirely agree that we do not want to find that we are duplicating roles and overlapping the work and operation of other commissioners or the independent reviewer of borders and immigration legislation. There will be areas where the Government will need to have some flexibility for the independent reviewer to ensure that he effectively reviews counterterrorism legislation without missing some important information that impacts on that. I congratulate the Government; this is a significantly better amendment than what was before us when it was first announced at various stages, and it has our full support.

[Lord Butler of Brockwell]

The way the noble Baroness talked about the relationship between the independent reviewer and the board underlines the importance of the point made by the noble Lord, Lord Thomas, about clarifying whether the board is to be supportive or consultative. She talked as if the board was going to be part of the support staff for the reviewer, which would be excellent—but in that case, it is rather funny to call it a board. Why not just call it his staff?

[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.