Terrorism Prevention and Investigation Measures Bill

Lord Carlile of Berriew Excerpts

Wednesday 19th October 2011 Lords Chamber

My final point is to emphasise that we are calling on our fellow citizens, whether they be the Home Secretary or judges, to undertake as difficult a judging task as exists in the panoply of judging. I hope that the Government will concur with the amendments.

[Lord Carlile of Berriew]

My Lords, in this context, unlike my noble friends and other noble Lords who have spoken, I propose to speak in support of the Government and of the proposals in this part of the Bill. I hesitate to dice with a great historian on matters of history, but I say to the noble Lord, Lord Morgan, that he was a little selective in his expression of the historical context. First, in describing Regulation 18B, perhaps he should have told the House that it was of a completely different character. The way in which it was made meant that the victim or subject knew nothing at all of the reasons why the order was made. The so-called tribunal that heard Regulation 18B cases was completely lacking in transparency of any kind. The great dissenting judgment of that wonderful Welsh judge, Lord Atkin, in Liversidge v Anderson took decades to be accepted as the norm for judicial review. Although Churchill described Regulation 18B and its procedures as,

“in the highest degree odious”,

a phrase that has become celebrated, the fact remains that during Churchill’s prime ministership numerous people—indeed, hundreds of people—were imprisoned as a result of it, and he did not take steps to legislate in favour of that dissenting judgment. Indeed, it was long after he had ceased to be Prime Minister that that happened. I think that the lessons of history as described by the noble Lord are not terribly helpful.

One should also bear in mind that whether we are talking about control orders or the diluted version in TPIMs—admittedly only slightly diluted, apart from the matter that we are going to consider in the next group—they do not involve the incarceration of the individual. They involve some restrictions on the individual’s freedom which I understand most in this House regard as proportionate and reasonable given the requirements of national security.

My noble friend looks as though he wants to intervene, but then he always does. Does he want to?

[Lord Phillips of Sudbury]

He does. It seems to me that my noble friend’s historic account of Regulation 18B omits to mention that it was prevalent during wartime and that, as soon as that was over, it was repealed.

[Lord Carlile of Berriew]

Which was one of the reasons why it was so unjust, because a very large number of people were made the subject of Regulation 18B and almost none of them had any evidence of any kind whatever against them. When we are dealing with TPIMs or control orders, we have individuals against whom there is very robust intelligence. I do not think my noble friend has had the opportunity to read that intelligence, but had he done so he would undoubtedly be so satisfied, being a reasonable person.

[Lord Morgan]

I do not propose to review the noble Lord’s review of my version of history, but I think it worth pointing out that the ignorance of the evidence against them is precisely one of the problems in this case. The noble Lord rightly says that there is intercept evidence, but it is evidence denied to the person. I agree that the person is not incarcerated but he is seriously restricted.

[Lord Carlile of Berriew]

I do not know whether the noble Lord has studied the effect of the case of AF (No. 3), but if he were so to do, he would find that there is a requirement for the court. Successive Home Secretaries, close to whose department I have worked, have always been assiduous to ensure that there was sufficient material—particularly since AF (No. 3)—so that the individual concerned knew the case he had to meet, at least in gisting terms. I urge the noble Lord to read the Green Paper published today by the Ministry of Justice, Justice and Security, which deals in part with these matters.

I would like to move on to the substance of these amendments. The noble and learned Lord, Lord Lloyd of Berwick, called into his argument the requirement for a court to approve a derogating control order under the 2005 Act. In deploying that argument, surely we should remember that, first, there have been no derogating control orders under the 2005 Act; and secondly, had there been a derogating control order, it would have been so dramatic that we would have had to derogate from part of the European Convention on Human Rights. This would have required, in effect, a change to our constitution which plainly ought to be passed through the courts at the earliest possible phase. I am afraid that, with real respect, I reject that argument.

In dismissing deportation applications and deportation decisions that are made daily by Home Secretaries, the noble and learned Lord said that they are made against foreigners so it is less significant, but if he thinks back to the Belmarsh case that was decided at the end of 2004, he will recall that the Judicial Committee of this House, of which he was a most distinguished member at one time, held that discriminating in that way against foreigners was unlawful. Indeed, the so-called Belmarsh provisions were struck down because they were disproportionate and discriminated against foreigners by treating them differently from United Kingdom citizens.

[Lord Lloyd of Berwick]

My Lords—

[Lord Carlile of Berriew]

Perhaps I might finish this point before, predictably, the noble and learned Lord stands up. I do understand the distinction he is making. It seems to me, with great respect, somewhat casuistic.

[Lord Lloyd of Berwick]

Surely the noble Lord must accept and understand the difference between deporting a British subject and deporting an immigrant. It is obvious.

[Lord Carlile of Berriew]

What I understand is that a deportation decision can be made by the Home Secretary. The administrative court is considering these cases hour by hour, let alone day by day, often as matters of great urgency. It is considering cases in which people have been imprisoned. Sometimes, very young people are imprisoned in unpleasant circumstances in this country. I do not hear the noble and learned Lord saying that this is an act that should be the subject of approval by a judge. In any event, it would be a practical impossibility because the Upper Tribunal and the administrative court are swamped by more than 10,000 of these cases at present.

I also reflect on much simpler situations. It is suggested that taking a citizen’s freedom away is something that should be determined by a judge in every circumstance. But we even let police constables do it every day of the week. When a police constable arrests a citizen for something as “minor” as, for example, shoplifting, the person may be taken into custody on the fiat of a police constable. When people are charged with serious offences and not bailed, although they are brought before a judge quickly, as is envisaged in this Bill, they are taken off to such unpleasant places as Strangeways or Belmarsh and find themselves in custody until they are brought up fairly summarily before a judge. Although it goes without saying that judges in every instance are very careful in considering such cases, the care they take does not bear comparison with the care that High Court judges give to controlees in control order cases.

We have already mentioned deportation cases. Organisations are proscribed by the Secretary of State, taking the precious freedom of association and membership of groups away from citizens of this country and foreigners without discriminating between them. Decisions are made to invade people’s privacy in what may be an outrageous way by warrants to intercept their telephones as a result of administrative acts. They are not brought before a court. Certainly, retired judges are involved in these decisions but these are not transparent hearings with evidence and tribunals. The subject does not even know that it is happening. In addition, covert surveillance, which can be an appalling invasion of people’s privacy, is performed as an executive act.

It seems to me that there is some confusion here among my noble friends and other noble Lords in their analysis of the roles of different parts of the state apparatus in the conduct of state business. In my judgment, for what little it is worth, the act of making a TPIM or a control order has exactly the character of ministerial responsibility that successive Home Secretaries, some of whom are noted Members of your Lordships’ House, are able to carry out. What follows has exactly the character of judicial scrutiny which judges are extremely well able to carry out and are experienced in carrying out. It seems to me to be a clear part of our constitutional settlement and to fit within it very clearly.

The standard of proof is not an easy question and I do not pretend that there is a perfect answer to it. If one reads through the open judgments in control order cases, one sees that the reasoning of judges in those cases has been very strong. In almost every case, I would venture that in reality the judgment has been made on the balance of probabilities and I would not have a particular difficulty if that was the standard set.

However, there is a danger of underestimating the difference between reasonable grounds to suspect and reasonable grounds to believe. As a judge on the Judicial Committee of this House put it on one occasion: “Reasonable grounds to suspect means I suspect that it may be so, while reasonable grounds to believe means I believe that it is so”. It seems to me that the executive act of a Minister asking the question “Do I believe it to be so?” is a proper standard to set and can be scrutinised carefully by the courts. If the proof of the pudding is ever in the eating in court, that is what has happened with control orders.

So far as a one-year TPIM with a two-year limit is concerned, when I was the independent reviewer of terrorism legislation I always supported a two-year limit, and I still do. I see no reason why there should not be a one-year limit with an extension available. That seems to accord with the purpose of control orders or TPIMs. One can reasonably expect that during a one or two-year period, the potential of the individual concerned to be a terrorist is much reduced as a result of the order. However, I do have to say to noble Lords that there are cases where that has not been so, and there would have to be some exceptional provision so that those who, despite a TPIM, continue to be active in terrorism should be subject to a new order if the evidence is available at the end of a two-year period.

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Moved by

[Lord Carlile of Berriew]

6: Schedule 1, page 22, line 5, at end insert—
“Residence measureA1 (1) The Secretary of State may impose restrictions on the individual in relation to the residence in which the individual resides.
(2) The Secretary of State may, in particular, impose any of the following—
(a) a requirement to reside at a specified residence;(b) a requirement not to allow others to reside at that residence without the permission of the Secretary of State;(c) a requirement, applicable between such hours as are specified, to remain at the specified residence.(3) The specified residence—
(a) may be in any locality in the United Kingdom that appears to the Secretary of State to be appropriate;(b) may be a residence provided by or on behalf of the Secretary of State(4) If the specified residence is provided to the individual by or on behalf of the Secretary of State, the Secretary of State may require the individual to comply with any specified terms of occupancy of that residence (which may be specified by reference to a lease or other document).
(5) A requirement of the kind mentioned in sub-paragraph (2)(c) must include provision to enable the individual to apply for the permission of the Secretary of State to be away from the specified residence, for the whole or part of any applicable period, on one or more occasions.
(6) The Secretary of State may grant such permission subject to either or both of the following conditions—
(a) the condition that the individual remains overnight at other agreed premises between such hours as the Secretary of State may require;(b) the condition that the individual complies with such other restrictions in relation to the individual’s movements whilst away from the specified residence as may be so required.(7) “Agreed premises” are premises in the United Kingdom which are agreed by the Secretary of State and the individual.
(8) Sub-paragraph (6) is not to be read as limiting—
(a) the generality of sub-paragraph (7) of paragraph 14 (power to impose conditions when granting permission), or(b) the power to impose further conditions under that sub-paragraph in connection with permission granted by virtue of sub-paragraph (5) of this paragraph.(9) In sub-paragraph (7) “applicable period” means a period for which the individual is required to remain at the specified residence by virtue of a restriction imposed under this paragraph.”

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[Lord Carlile of Berriew]

My Lords, in tabling this amendment, I am grateful for the support of the noble Lord, Lord Hunt of Kings Heath, who has put his name to it. This group of amendments is about relocation, an issue we discussed at Second Reading. The first sentence of the executive summary of the Justice and Security Green Paper, published today by the Ministry of Justice, is:

“The first duty of government is to safeguard our national security. In delivering this duty, the Government produces and receives sensitive information”.

I do not want to repeat at great length the arguments on relocation presented at Second Reading. I simply want to reiterate that the sensitive information, the security that the Government have received, points to the need, for the time being at least, to continue as part of the main legislation the power to order relocation, used sparingly as it is and subject to the scrutiny of the courts.

I have drafted the amendment so as to keep the existing control order provisions for relocation until after the Olympic Games, choosing a date after 1 January 2013. At that point, it would be open—and I am completely open-minded about this—to the Government to come back to Parliament and to replace the relocation provisions with what is in the Bill, which would remove relocation subject to emergency legislation. All that would be required would be an affirmative resolution of both Houses. There would therefore be a debate in which the Government would pass to each House of Parliament the advice that they have received from the security services, including the sensitive information to which I referred earlier.

I can best make my argument for this group of amendments by asking the Minister a series of questions. First, is it correct that the National Security Council, which is made up of Ministers only, has been advised against the removal of relocation from the list of available powers? If the NSC was so advised, I suspect that the Minister will be driven to confirm that the removal of relocation is not as a result of a debate on the merits but as a result of political considerations founded on the manifestos of the two partners in the coalition. I am as enthusiastic about the coalition as most Liberal Democrats—well, nearly—but I am not enthusiastic about political considerations trumping national security, which is what I fear may have happened.

My second question is: have Her Majesty's Government received any advice from those who are currently operational in MI5, MI6, GCHQ or SO15, the counterterrorism command, that the relocation power has become an unnecessary component of national security for the time being? If they have, perhaps they will tell us what it is and whence it came, because my belief is that the advice will be eccentric and not in the mainstream.

My third question is: does any part of the informed security bodies—those with the information—support the removal of the relocation power before the Olympics and Paralympics, as opposed to after them? In other words, what consideration has been given to the pinch point that will be created by the Games? We should remember in this context that we are talking about the security not only of the Olympic Park and the other venues where Olympic and Paralympic events will take place. One effect of the Games on policing in this country will be that a large number of police officers will be removed from their normal duties up and down the country—dare I say to the Minister, in Cumbria for example? Those officers will find themselves in unfamiliar places in east London, protecting the Olympic Park. Perhaps not in Cumbria but in some of our bigger and more populous resorts during the summer, there will be an increased risk of terrorism events going undetected.

My fourth question, which is connected, is really a rhetorical question. Surely on the basis of the evidence the Government must accept that they would be fulfilling what the Green Paper describes as the first duty of government by retaining relocation until after the Olympics and Paralympics are over.

My fifth question relates to something that was raised at Second Reading: the case of CD and the judgment of Mr Justice Simon. When the CD case was heard earlier this year, did Her Majesty's Government consider it proportionate and in the interests of national security to request a relocation component in CD’s control order? If they did, I come to my final question: have they changed their mind about CD? If they have, why have they done so?

The decision in the case of CD was taken on the basis of arguments presented on behalf of the Government, with special counsel present, after the publication of the counterterrorism review that was independently and very capably scrutinised by my noble friend Lord Macdonald of River Glaven. If the Government had decided that relocation was no longer necessary, it is surprising that they bothered to make the argument against CD. One should, after all, contrast it with the decision made in relation to Section 44 stop and search, which remained on the statute book long after the Home Secretary made the welcome announcement that it was in effect no longer to be used. I am driven to the conclusion that there was a merits argument in the Home Office about both these issues and that the decision that was taken on the merits was that Section 44 should no longer be used because we did not need it, but the decision that was taken on the merits in relation to relocation and CD was that it should continue to be used because we do need it. All that leads me very reluctantly to the conclusion that the removal of relocation has far less to do with the Government’s first duty than with meeting some arguments that have been made before this Government were formed and in a political context, including a very powerful argument made in a Times article by my noble friend Lord Macdonald before he was a Member of this House.

What I would ask the Minister to do is merely to confirm at this stage, because we will return to this later, that the Government are considering this matter and are now considering it on its merits. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I rise to support the noble Lord, Lord Carlile, and have added my name to his amendment. I really hope that the Minister will give this earnest consideration. He will know that I am highly critical of the Bill that he brings before us. It is clear that the exclusion provisions within control orders have proved to be highly effective. The evidence given by the deputy assistant commissioner to the Public Bill Committee in the other place was quite persuasive on that point. The noble Lord, Lord Carlile, has already referred to the case that the Home Secretary herself brought forward and argued for the use of such provisions. It is clear that the Government know that they may need these provisions in the future. That is why we have the enhanced TPIMs draft Bill for use if it were ever to be required.

We have the quite extraordinary provision in this Bill that if the enhanced provisions were to be required, and were to be required in the period between the Dissolution of Parliament and the first Queen’s Speech in the next Parliament, the Home Secretary is to be empowered by this Bill to use those provisions. If ever there were an admission that the Government know in their heart that they may need those provisions and, indeed, have used them in their period of office, there is the evidence.

We then come to the second issue that the noble Lord, Lord Carlile, has alluded to. It is whether it is right or sensible to remove those relocation provisions at the current time. We have the Olympics, and we also have the issue that, in lieu of the exclusion provisions, additional surveillance will have to be undertaken by the police at additional cost, with additional resources and using more people. The noble Lord will know that in the Public Bill Committee in the other place the deputy assistant commissioner expressed some concerns about the length of time that will be required by the police to put those measures into place.

The amendment moved by the noble Lord, Lord Carlile, quite brilliantly in my view, gets the Government off the hook for the period between the end of the Olympics and the beginning of 2013. It also says to the Government that, if at that time or beyond it they reach a conclusion that they do not need the exclusion provisions, they can simply bring an order before Parliament. No doubt Parliament would assent to that order, as it does assent to government orders. However, if the Government at that time are not so assured, they already have the provisions on the statute book with the benefit of them having gone through Parliament and being effectively scrutinised rather than using the very unsatisfactory approach of having an emergency Bill in the stocks ready for use.

I hope that the noble Lord, Lord Henley, might be sympathetic to the amendment in the name of the noble Lord, Lord Carlile. It is meant to be a constructive response to current circumstances. I certainly think that it warrants due consideration.

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[Lord Pannick]

I am coming to that, but let us at the outset recognise the impact of a relocation measure. If one is going to adopt a measure or power of this sort, one needs to recognise the striking impact that it has on the spouse and the children. A measure that amounts to internal exile of a person needs a compelling justification.

[Lord Carlile of Berriew]

I know that the noble Lord eats legal authorities for breakfast, probably literally sometimes. I would just like him to give his comments on the cogent judgment and reasoning of Mr Justice Simon in CD, the case to which I referred, in which the judge took the matters the noble Lord has just mentioned into account and reached a considered conclusion. Does he say that the judge reached the wrong conclusion, giving undue proportion to some of the factors he was weighing?

[Lord Pannick]

Of course, the learned judge was considering the exercise of the powers that are contained under the control order regime. The Committee and the House have to consider what is a fair balance—this is the test that the Minister rightly has repeatedly propounded—between national security and the liberty of the individual.

[Lord Carlile of Berriew]

I promise not to intervene on the noble Lord’s speech again but he is ducking the question. Does he not accept that Mr Justice Simon in that case, having weighed up the facts, came to the conclusion that the safety of the state and of the public was better protected by relocation and that it was proportionate to the interests of CD? If so, should we not keep the situation as it was then?

[Lord Pannick]

The noble Lord can intervene as many times as he likes. I welcome his interventions. My answer to his point is twofold. We can always add more and more intrusive measures and protect ourselves more effectively from the perspective of national security. The question is: what is a fair balance? I am assuming that the Government, not just concerned about a particular individual case but looking at these issues as a whole, have concluded that relocation would undermine the fair balance because of its particularly intrusive nature and that the combination of the measures contained in the TPIM and the surveillance measures that can always be imposed on an individual who is not relocated will effectively protect the public. It is true that there is a financial cost, which is the point made by the noble Lord, Lord Hunt. Does the noble Lord wish to add to that?

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[Lord Henley]

My Lords, one is always very careful when one speaks on these matters with a Treasury Minister sitting at one’s side. However, I can give an assurance to my noble friend that we have agreed extra resources for the Security Service over the next four-year period.

[Lord Carlile of Berriew]

My Lords, I am grateful to the Minister for his careful answer to this short debate. I regret that he has not answered any of my six questions and I invite him to write to me with answers to each of those quite specific questions. I regard the emergency legislation model provided in the Bill as a deeply dysfunctional form of legislation. It will be very difficult to bring into force, involving parliamentary debates that are almost impossible to construct in a way that is neither in contempt of court nor breaks the sub judice rule.

I of course welcome surveillance, whether over a short or long period, being enhanced by the provision of extra personnel and additional technical facilities. However, I say to the Minister, to my noble friend Lady Hamwee and to the House that it is much more easily said than done operationally. Many of the individuals against whom this kind of surveillance is deployed are very intuitive about surveillance provisions and often live in places where it is virtually impossible for the police to deploy the full range of surveillance facilities. That is one of the reasons why relocation has been a useful and proportionate measure.

However, at this stage it would not be right to press the matter to a Division—I have the perhaps over-optimistic feeling that common sense at some stage will prevail—and therefore I beg leave to withdraw the amendment, with the purpose of returning to this matter at a later stage.

Amendment 6 withdrawn.

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[Lord Carlile of Berriew]

I speak in support of the amendment moved by the noble Lord, Lord Pannick. As the lawyers here who are familiar with disclosure issues involving national security will be aware, there are a number of areas in which there has been a great deal of satellite litigation in cases on the issue of disclosure. I suggest to the Minister that a sound principle could be established here.

I suspect that the noble Lord, Lord Pannick, might agree that it is a principle that could be extended to resolve some of the other issues on disclosure that have arisen in cases such as Norwich Pharmacal, Carnduff v Rock—another civil case—the Tariq case and, of course, that of Binyam Mohamed, in which different issues about the level of disclosure that should be permitted have arisen in different contexts. One of those issues relates to the control principle: the control that a foreign intelligence agency exerts over intelligence material available in the United Kingdom. I hope that the noble Lord, Lord Pannick, agrees that reducing all those principles to statutory form would be of great assistance and would provide something that gets us lawyers out of work but increases certainty—that is, legal certainty.

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[Baroness Hamwee]

The issue is that to this individual, being in prison is more acceptable than being in his place of residence under a control order, with the restrictions imposed by the system. I am sure that the noble Lord has heard, from people who had been under control orders that were quashed, the impact they had on them and their families. The interference with anything that any of us would recognise as a normal life has been literally intolerable. That is the point I make to the Committee. I beg to move.

[Lord Carlile of Berriew]

My Lords, I applaud and support the sentiment behind my noble friend's amendment, but I suggest that it is not only unnecessary but would replace a considerable amount of flexibility with something rather less. On the case history that she has just recounted, I say that nobody has been arrested and charged with breach of a control order for failing to turn up at a police station once, an hour late. In every case, there has been an immense degree of tolerance before anyone has been charged. It is only after a very serious breach, or persistent and repeated breaches, that people are charged.

Nor do I recognise the credibility of the account my noble friend was given. When I was the independent reviewer of terrorism legislation, on a relatively small number of occasions—but several—I was able to visit controlees in their own homes, alone, one to one. On some occasions I visited them in homes to which they had been relocated. The notion of a state-appointed psychiatrist, however independent, turning up unsolicited at their home would have been no more comforting than One Day in the Life of Ivan Denisovich. It is a pretty bad idea.

I ask the Minister to confirm that the following occurs and will occur. First, where there is any suspicion or indication of the poor mental health of the controlee or of any member of his or her family, medical facilities will be put in place, including, if necessary, psychiatrists and psychologists, to deal with the problem; and that such facilities will be flexible and will be provided at the cost of the Home Office. Secondly, will the Minister confirm that the Control Order Review Group has met regularly ever since control orders were brought in, that it includes various people involved in scrutinising and observing the person concerned, and that it has always discussed such issues where they have arisen? Will he further confirm that under TPIMs, some kind of review group—I hope it will not be called TPIMsORG —will continue to meet and carry out that function? There is no evidence whatever that controlees have been treated improperly in the way that my noble friend set out.

On one occasion I suggested to the Home Office that there were some difficulties from time to time in giving controlees a single point of contact—perhaps a local police officer—who was aware of the situation and whom they could telephone if they had a problem. I believe that that has been put right, that they do all have someone to contact, and that sympathetic consideration is given to all difficulties of the kind that my noble friend has in mind.

[Lord Henley]

My Lords, my noble friend has been consistent over the years in her concern about the impact of control order obligations on individuals and on their health, in particular on their mental health. My first point is that TPIM notices are intentionally more limited in nature than those that can be imposed under control orders. We will no longer have lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment. Therefore, whatever the result, one would hope that the effect on individuals would be less than under control orders.

Despite the limitations that should significantly reduce the impact on individuals subject to TPIMs, I appreciate that my noble friend remains concerned about these issues. I agree with my noble friend Lord Carlile that the amendment does not achieve what it sets out to do. The noble Lord put a series of questions to me about the current position and about what will be the position. He asked whether medical facilities would be provided by the Home Office for those with poor mental health. He then asked about the Control Order Review Group, and about whether something would follow it. He could not quite bring himself to work out the acronym, but no doubt something can be put in place that will have a similar role. I am sure that my noble friend asked those questions in a rhetorical manner and that he knows the answer certainly to the first two questions. Such things will be provided by the Home Office: CORG exists; and we will certainly consider something suitable to replace it in due course.

Although I cannot accept my noble friend’s amendments, I say that the Bill, together with the relevant control order case law and the duty of the Secretary of State to act within convention rights, already ensures that the Secretary of State will give the appropriate consideration to the impact of the measures on the individual and on their family, including the impact on their mental health, both before imposing a TPIM notice and during the year or however long it remains in force. With that, I hope that my noble friend will withdraw her amendment.