Terrorism Prevention and Investigation Measures Bill

Lord Carlile of Berriew Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Carlile of Berriew]

In answering the question asked by the noble and learned Lord, Lord Lloyd, perhaps my noble friend would be mindful of the power in the United States to impose executive witness detention, never mind executive suspect detention. He might also be mindful of the arbitrary powers used in a number of other countries, for example, Pakistan and Sri Lanka, to detain people without any proper legal process and of the power, for example, in France, to charge people with association de malfaiteurs, something we are probably all doing in this House this afternoon, and then hold them in custody for months and months, quietly releasing them without charge.

[Lord Howard of Lympne]

I hope that my noble friend in that intervention has not exhausted the number of examples of that kind that I am sure he is able to give to illuminate the House. The truth is, I suspect, that if one conducted an extensive examination of the way in which other countries have faced up to this dilemma, one would find that the measures contained in the Bill are less draconian than those that exist virtually anywhere else in the world.

As I said, I believe that the Government have struck the right balance, with one not insignificant exception. When I gave evidence to the Public Bill Committee, I said that in my personal view the Bill would be better if it contained the relocation provisions, and I do not resile from that view. I believe that the relocation provisions would make it easier for the Security Service to carry out its responsibilities and would enhance the protection of the public. On that single point, I agree with the noble Lord, Lord Hunt, but for the rest of it, I believe that the Government have struck the right balance and that the Bill should be supported.

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[Lord Macdonald of River Glaven]

If my noble friend does not mind my saying so, I am not sure that the example that he posits is one that I recollect from my period as DPP. Let us imagine the situation that would exist here: presumably the police or the Security Service would have in their possession something like an intercept that could not be used—for example, a suspect having a conversation with another individual about a plan to place a bomb on the Tube. With respect, that is not the end of an investigation; it is the beginning of one. The investigation that then takes place is into that individual, into the plan as described in the phone call, into the individual he has spoken to and into the associates of all.

The noble Lord will know from his time as Home Secretary that the sorts of powers and abilities that the law enforcement authorities in this country have, which we will not go into here, are considerable and significant. I do not recognise a situation in which a law enforcement investigation stops simply because the deeply incriminating material that you have until that time is the only material that you have and you do not anticipate discovering more.

[Lord Carlile of Berriew]

But my noble friend Lord Howard did not suggest that. Does not my noble friend Lord Macdonald, from his distinguished period of service as Director of Public Prosecutions, not recollect that cases were brought to him in which at that time there was no further prospect of a successful investigation? That is the question that my noble friend Lord Howard is asking. If that is the case, perhaps my noble friend Lord Macdonald would just tell us that the consequence of his view is that, if a TPIM exists after that time, it should cease.

[Lord Macdonald of River Glaven]

Of course one recognises that if an investigation, using all the powers available to the investigating authorities, has continued for a period of time and turned up nothing, under this scheme the TPIM will come to an end—but TPIMs are intended to be time-limited in any event. Under the terms of the Bill, TPIMs will come to an end after two years, so we are not talking about an open-ended system of restrictions. My point is that a system of restrictions applied to criminal investigations is not only more likely to be constitutional and develop broader public support than the system that is currently proposed, but such a system would have attached to it conditions that actively encourage and assist investigation.

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[Lord Carlile of Berriew]

My Lords, it is always interesting to follow the noble Lord, Lord Desai, in debate. He has not disappointed us; he has used his usual capacity to place a cat among the pigeons.

I should start by declaring an interest. Although I ceased to be the independent reviewer of terrorism legislation in February this year, I still hold two positions relating to security in Northern Ireland.

I, too, welcome my noble friend Lord Henley to his ministerial place. I look forward to working with him on this important Bill and other significant issues. I know that he will agree with everyone who has said that we shall all miss his predecessor, my noble friend Lady Browning. She will be a hard act to follow, and we wish her the fullest of health as soon as possible.

I approach this debate by reiterating the Burkean party conference mantra of the Deputy Prime Minister, Mr Clegg: we should do not what is merely easy; we should do what is right. That mantra has a particular resonance in relation to at least one aspect of this Bill: the question of relocation. I listened with interest to the noble Lord, Lord Reid, who was a distinguished Home Secretary, talking about representations from constituents. I can tell the House that in my nine and a quarter years as independent reviewer, I received but a handful of letters or e-mails from private citizens about control orders. They did not appear to raise particular public interest.

I believe that the Government were absolutely right as a new Government to carry out a review of counterterrorism law, practice and policy. I congratulate them on many of the conclusions reached in the counterterrorism review. The two-year limit on TPIMs is something for which I long argued in relation to control orders. Raising the standard of proof is the right thing to do. Indeed, if we look at all the judgments in the cases, they all reached the highest standard of proof which is now to be included. Giving people who are subject to these orders mobile phones and some form of electronic media is the correct recognition of their rights.

I listened to the comments of the noble Lord, Lord Pannick, and my noble friend Lord Goodhart with enormous respect. I think that my view is with the noble Lord, Lord Hunt: the nature of an order such as this is an executive act and the nature of review or appeal is a judicial act. If I may cite the example of deportation orders, there are at least two people in the House today who have made large numbers of deportation orders as an executive act and they have been robustly reviewed and appealed before the courts. That is a perfectly conventional and correct procedure.

I am a little worried by the fact that my party entered government with an almost visceral opposition to any specialty legislation in connection with terrorism if there was any suspicion of an adjustment of human rights assumptions and norms against the interests of any individuals that might affect their freedom of action. Of course, since entering government, Ministers have seen the evidence, and the result of that evidence is seen to a great extent in the Bill.

Nobody has yet mentioned the context in which this matter is being debated, and I remind the House of the threat level that was changed downwards by the Joint Terrorism Analysis Centre—JTAC, which is an independent body for this purpose—on 11 July this year. The threat level was changed on that day from severe to substantial. What does “substantial” mean? I do not believe this to be in dispute between any parties in this House. The threat level “substantial” means that a terrorist attack remains a strong possibility and may occur without warning. It means what it says. Further, the impending and very welcome Olympic and Paralympic Games mean that the threat level is most unlikely to be reduced until after those great festivals are over.

What does the threat mean to the public whom the Government have a first duty to represent and protect? It means that there is a strong possibility—remember those words—of a single or multiple suicide bombing attack occurring entirely unpredictably, with consequent death and injury on at least the scale of the events in London in July 2005. I remind your Lordships that in the 7/7 attacks, not only were 52 people murdered by terrorists, but more than 770 people were injured, some extremely seriously. Further, it is worrying that violent jihadist terrorism techniques have become more varied since 2005, including the technique—if that be the right word—of massacre by the use of automatic weapons, as in Mumbai on 26 November 2008 and as elsewhere more recently.

I have heard, and I think we have heard in this House, repeated suggestions that control orders breach the Human Rights Act 1998 and the European Convention on Human Rights. I invite the Minister to confirm that that issue has been litigated and that control orders have been held to be compliant with the European Convention on Human Rights. I ask the House to lay to rest what I regard as the canard of non-compliance. What we have in this Bill is close to control orders, with one material element removed: the power to order relocation of the individual in question.

I am a little puzzled by the title of the Bill and the emphasis on investigation. There is an implication that this is something new, and it has been perpetuated by my noble friend Lord Macdonald. It is not. Investigation and prosecution have always been the aim before a control order was issued and as it continued. I have attended on a number of occasions a committee called the control orders review group—CORG—which is a multidisciplinary committee that sits in the Home Office and considers every control order in detail, regularly, person by person, with the police officers and others dealing with that controlee present at the meeting. Investigation is continuous. A control order or a TPIM is a tool to be used when for the time being investigation and prosecution can go no further. I apprehend that my noble friend, during his distinguished period as DPP, will have been consulted about such cases and on that basis. The whole basis was that at that time investigation could not be brought to fruition. Of course, the CORG process means that at a further time it will be considered, and it is. The Crown Prosecution Service’s admirable terrorism group, created by my noble friend to a very high quality, does exactly that.

The noble Lord, Lord Freeman, spoke from his business perspective—I believe that he is, or was, chairman of one of the leading technology companies—about the technology that is now available. Of course we should welcome and use the technology. The Government have a responsibility that they do not always exercise—this applies not to any particular Government—to use the latest technology that will make fewer TPIMs or control orders necessary. However, technology is not necessarily the answer. Greater resources are welcome, but they are not necessarily the answer. We have been told that there will be higher levels of surveillance, but the reality is that you have to have somewhere to carry out surveillance from, and it is not always possible in relation to intelligence counterintuitive controlees.

I agree with the table issued this morning by Liberty confirming the high degree of similarity between control orders and TPIMs, and I welcome the similarities. My noble friend Lord Macdonald mentioned that there have been absconds. There have been, but perhaps he should have mentioned that there has been none in the past five years and that the techniques of securing that there are no absconds have improved dramatically, not least through the use of better technology.

With my experience from the beginning of control orders until early this year, I wonder why we are troubling to replace a functioning system with another that has almost entirely the same arms, body and legs, but I agree with my noble friend Lord Howard that, as I have already intimated, some of the changes are welcome. However, there is one leg missing from the Bill, and for now, in my view, it gives this legislation a distinct limp. It is the continuing power to order relocation, subject, of course, to the usual court procedures. On the evidence available, I am persuaded firmly—I choose my words carefully—to the view that it would be negligent to remove relocation from the main provisions. The noble Lord, Lord Harris of Haringey, and other noble Lords, have already referred to the open judgment given by Mr Justice Simon on 20 May 2011 in the case of CD and in other cases. In the CD case, a very detailed and succinct factual judgment was given by the learned judge. We have already been reminded that he said that the relocation obligation is a necessary and proportionate measure to protect the public from the real and immediate risk of a terrorist attack. I echo the words of the noble Lord, Lord Harris: who asked for that relocation provision? It was this Home Secretary. Why did she ask for it? Because she rightly judged it to be necessary. In what context did she ask for it? It was after the counterterrorism review, after my noble friend's independent scrutiny report and, presumably, after she had very carefully considered, on the advice of her extremely able officials, whether it was necessary and proportionate to do so. Why did she not say, “We’re not going to ask for relocation because we believe it is not necessary any more”? The answer is that she believed that it was necessary in that case, which is but one example of several cases where the conclusion was reached that relocation was not merely proportionate but necessary in accordance with the evidence given by Deputy Assistant Commissioner Osborne.

My conclusion from those cases is that the protection of the public will be diminished, I am afraid deliberately, by the removal of relocation from the main legislation. The current alternative proposed by the Government would allow relocation to be ordered in exceptional circumstances, subject to the enactment of a draft Bill. Generally, Parliament would be required to debate and vote on such measures before they came into force. It would therefore be required to determine whether the circumstances at the time merited such enhanced provisions. That is a clumsy proposal: it is the worst form of legislative disorder. It completely ignores the realities of operational activity against terrorism. The notion of meaningful parliamentary debate in such circumstances beggars belief and invites legal challenge. The Mad Hatter would await his invitation to any such debate with confidence that he would receive it.

I hope that relocation will not be needed at all in due course. I favour a sunset clause in the Bill that would include relocation. Relocation should continue as an element of TPIMs until the end of 2012, after the Olympic Games, and should then be repealed, subject only to affirmative resolutions of each House of Parliament. This would mean that there would be further consideration by Parliament in less than 15 months from now, following proper protection of the public in the intervening period. I hope that the Government will accept that that is a sensible course and will table amendments to that effect. If not, I am prepared to do so myself, because this is a very important lacuna in the provision.

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[Lord Lloyd of Berwick]

My Lords, some noble Lords will remember, as I certainly do, when control orders were first introduced as an emergency measure in March 2005 after an all-night sitting. It was an emergency measure because the suspects then being detained in Belmarsh prison were due to be released within a few days as a result of a decision of the House of Lords in December 2004. The powers granted to the Home Secretary in 2005 were considered to be so extraordinary at the time that the Conservative opposition and the Liberal Democrats insisted on a sunset clause, and they carried the day in that respect. Six years later, those powers are to become in effect a permanent part of our constitution.

I had hoped that when the coalition Government took over, there would be an end to control orders. The coalition agreement promised to reverse the substantial erosion of civil liberties that had taken place under the previous Government and there was to be an extensive review of anti-terrorism measures. These were all good signs. I have not seen the evidence submitted to the review by the security services or the police, but I have seen the rest of the evidence, and I can say that with one exception, all the evidence in relation to control orders was in favour of abolition. Yet, once again, the Government have drawn back.

We are getting rid of relocation, and I am glad of that. Perhaps I may say to the noble Lord, Lord Hunt, that of course relocation is the most effective measure available, but in my view it is also the most inhumane. So there are improvements in the Bill which I welcome. But the fundamental objection is the same as it has always been: British subjects have been placed under severe restrictions so well described by the noble Baroness, Lady Stern, for lengthy periods by order of the Home Secretary, who is a member of the Executive, without ever having been convicted of an offence or, until recently, even being told what they were supposed to have done. Such powers are common enough in police states and, as the noble Lord, Lord Carlile, explained, they may be acceptable in Pakistan and India, but I never expected to see those powers exercised in England, save in time of war when the life of the nation is at stake.

[Lord Carlile of Berriew]

My Lords, with great respect to the noble and learned Lord, I really do not think he should be allowed to get away with that. The implication of what he has just said in what I take to be a rhetorical flourish is that what happens in Pakistan, for example, or what has happened in Sri Lanka, is to be equated with what has happened here. Does he not think that our judges, of whom he was one of the most distinguished in this country, have played an extremely sound and controlling role over the exercise of this jurisdiction and have ensured that in fact and in law, it was ECHR compatible?

[Lord Lloyd of Berwick]

I am very glad to hear what the noble Lord has said and I am happy to withdraw any implication that I may have made against what is done in Pakistan and India. However, I never expected to see these powers exercised here. The Secretary of State defends them on the ground that there is no alternative, but there is an alternative. There is another solution and the problem is not almost insoluble, as the right reverend Prelate suggested. The solution lies in covert surveillance. To my knowledge, it is the solution that has been adopted in Germany, for example, and has not been found wanting. Indeed, I believe it to have been adopted in every other western country and it has proved to be successful; control orders have not been relied on. Why should covert surveillance not prove equally successful here?

It may be said that surveillance is more expensive than control orders, and I expect that that is the case. But at least we would have saved the £10 million the Government have spent so far on defending control orders in the courts. In any event, cost should surely not be a consideration when it is the freedom of British subjects which is in issue. It is not as though very large numbers are involved. So far as I know, there have not been more than 12 in any year, as few as eight recently, and not more than 48 in all. Surely we could have found the money, and could still find the money if further resources are going to be made available, to solve this undoubted problem in the way that other countries have solved it; namely, through covert surveillance.