Terrorism Prevention and Investigation Measures Bill

Lord Faulks Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Faulks]

My Lords, this Government, like the previous Government, have a duty to respond to the threat of terrorism in a way that strikes a balance between individual freedom and the security of those potentially affected by acts of terrorism. This is and was no easy task. Control orders, introduced by the previous Government, were controversial, as were the various increases in pre-trial detention. However, the threat, principally from al-Qaeda, remains, and it calls now, as then, for extraordinary measures. On pre-trial detention, there is an acceptance that the previous Government probably went too far. However, I do not doubt for a moment the genuineness of their approach to pre-trial detention and the question of control orders, nor that they were reflecting concerns of the public and what they required the Government to do.

It is perhaps a little too easy to seem principled—even heroic—in deploying civil liberties as a trump card in this debate. Although I do not have the debating miles on the clock of some noble Lords, I have followed the debate from outside Parliament, and I never found in the rhetoric the comparisons with internment in the Second World War, control orders under the apartheid regime in South Africa or the regimes in Zimbabwe and Burma at all helpful.

However, as with pre-trial detention, modifications to the control order regime were needed. In bringing forward the Bill, the Government have made some important changes. Is the Bill simply control orders lite? The Secretary of State must now reasonably believe that the individual is or has been involved in terrorism-related activity and reasonably consider that the relevant measures are necessary. That is an important additional requirement. With great respect to my noble friend Lady Hamwee, it is a pretty high hurdle.

The menu of measures contained in Schedule 1 is varied and can be nuanced according to the particular situation where there is someone over whom the measures are appropriately directed. They exclude relocation measures, which previously existed. It is a fine judgment whether that is an appropriate exclusion, but there are sufficient measures to exercise the necessary degree of control without that. As I understand it, the Government were concerned, in so far as it was possible, to allow those who are the target of the measures to lead as normal a life as possible in the area with which they are familiar. Similarly, retaining the means of communication is important to allow them a modicum of a normal life.

Those and other changes may not alter fundamentally what the Secretary of State can do, but they are by no means trivial amendments. It is, of course, of paramount importance that safeguards are provided in a Bill of this sort. The primary one is the effective supervision of TPIMs by the courts. The High Court will consider whether to give the Home Secretary permission to impose a TPIM notice and will later review whether the notice and measures were in fact necessary. Is there any reason to think that the courts will not be rigorous in their approach to TPIMs? I think not. The existing case law about control orders shows how carefully the courts scrutinise measures of this sort. I agree with the noble Lord, Lord Hunt of Kings Heath, that that is the role of the judges, as opposed to the role of the Home Secretary.

In the other place, Hazel Blears said on 7 June 2011, citing a judge with whom she had spoken,

“whenever there’s a decision to be made between liberty and security, I … always err on the side of liberty”.—[Official Report, Commons, 7/6/11; col. 97.]

That was an observation of one judge, but my experience of the judiciary is wholly consistent with that observation.

The closed hearings which have to take place to maintain security are certainly unattractive at first sight. The use of special advocates who cannot communicate to their client the whole of the case raises the spectre of the target of one of these orders simply not knowing about the evidence against them. But those who act as special advocates are highly respected and principled lawyers who can be relied on to test the evidence with skill and care on their client's behalf.

The system is clearly far from perfect, but I think we can be satisfied with the courts, as they have shown hitherto in the considerable amount of litigation that has flowed from the predecessor measure, entitled control orders, whether under the auspices of Article 6 of the European convention or according to well established principles of English law.

Why do we need TPIMs at all? I wonder whether there is much dispute in your Lordships' House about the terrorist threat, but the situation is made worse by our inability to deport terrorists or potential terrorists because of the European Convention on Human Rights. Those who face torture or the threat of torture in their country are one thing—Article 3 provides them with protection—but the creative interpretation of Article 8 by the court in Strasbourg and thus in our courts has meant that it is all too easy for someone to resist deportation by raising arguments that they have established links here in a way which the courts have interpreted as their so-called right to family life. I say nothing about terrorists' liking or otherwise for cats.

Inevitably, this will be a compromise. The contribution of Liberty to the debate is something that one always looks at with great interest. I do not always agree with that organisation's observations, but it makes a highly valuable contribution to the debate. I was, however, disappointed with its conclusion and the one-sidedness of the report prepared for the Second Reading, which offered the view that TPIMs,

“will only perpetuate a regime which is unfair and puts us all at risk”.

That seems to me to ignore the risk at which the legislation is directed: the risk from terrorism. The Government have responded by bringing forward the legislation, which represents a compromise. As my noble friend Lord Howard said, of course it is the product of compromise and, no doubt, of intense discussion, with different views within parties and within the coalition. Where matters of security and terrorism are concerned, one hopes that there can be a degree of consensus in your Lordships' House. I am sure that during these debates, some useful amendments may be proposed. I am particularly conscious of the fact that there should be no two-stage process: someone subject to TPIMs who is then to be prosecuted. The Bill does something to preserve the imperative of bringing those people to the courts if at all possible by the duty to consult with the police. Amendments and improvements there may be but I suggest to your Lordships that this represents a good compromise.

I welcome the noble Lord, Lord Henley, to his post and wish him good fortune in steering this Bill, which reflects a considered compromise. It has the benefit of some learnt experience and I suggest that it represents a balance between the protection of the realm and the liberty of the individual.