Terrorism Prevention and Investigation Measures Bill

Lord Faulks Excerpts

Tuesday 15th November 2011 Lords Chamber

[Baroness Hamwee]

My Lords, the noble Lord, Lord Newton of Braintree, warned the Minister that those directly behind him were not unanimously supportive of the Government’s position. I have previously warned the Minister that those at a bit of an angle to him are, similarly, not wholly with him.

I wish I had used the example given by the noble Baroness, Lady Hayman, when I recently brought some young cousins into the Chamber and attempted to explain the separation of powers. That is exactly what this is about. Recently the Government have sometimes responded to judgments of the courts as though the courts sought to usurp policy-making powers. They are not the first Government to do so. That very response demonstrates the importance of the role of the courts, and the need to demonstrate our integrity as a country for the reasons that the noble Lord, Lord Condon, has just explained.

[Lord Faulks]

My Lords, I have enormous respect for the noble and learned Lord, Lord Lloyd of Berwick, for his experience and the consistency of his approach to this issue. I also acknowledge how delicate the situation is, how important the liberty of the individual is and that any powers of this nature ought to be hedged by a great many safeguards. However, a decision of this nature is one that falls to the Home Secretary to take. So far, the judges who have these powers have exercised the right to scrutinise thoroughly in a way that we cannot feel is short of what might be desired. I respectfully submit that it is a power that should belong to the Home Secretary, who makes these decisions, no doubt with great anxiety and the consciousness that any decision that she makes will be looked at very carefully.

A judge will have an opportunity to look at a particular case on an ad hoc basis. However, we should not underestimate the strategic role of the Home Secretary to see an act or potential act of terrorism, or a terrorist, in the wider scope. Notwithstanding all the powerful speeches that have been made, I respectfully submit that this is a question that belongs to the Home Secretary and her alone.

[Lord Rosser]

My Lords, we do not feel moved to change our stance on the procedure that is associated with control orders. Therefore, we have a fundamental difference of view with those who have tabled the amendments that we are discussing and, indeed, with all noble Lords bar one who have so far spoken in this debate. The security of our citizens—protecting them from the risk of terrorism of the exceptional kind that we have seen and been under threat from in recent years—is the responsibility of an elected Government through the Home Secretary. It should be a matter for the Home Secretary, who is accountable to Parliament and the electorate, and not the courts, to make an executive decision on whether a TPIM and its associated conditions are needed if she or he reasonably believes, based on the intelligence available, that an individual is involved in terrorist activity that places the security of our citizens at risk. For that reason, we are not able to support these amendments.

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[Lord Pannick]

I support the Government in their decision not to include the relocation power in the Bill. The speech of the noble Lord, Lord Hunt of Kings Heath, was notable for what he did not say about relocation powers. He did not mention the central feature of such a power, which makes it particularly intrusive and particularly damaging to the life of the individual who is the subject of it as well as to the lives of all members of their family. That is why such a measure should surely only be available if the Government conclude that it is truly necessary to protect national security. My understanding is that they do not, as the Minister made clear in Committee. I support them in that.

[Lord Faulks]

I agree with what the noble Lord, Lord Pannick, said. I understand the reasons behind this change, yet I have some sympathy for what the noble Lord, Lord Hunt of Kings Heath, said. It is reasonable to ask for reassurance about what will be a massive event with security implications. I am sure that the Minister will answer that query. I wonder if there is also an issue in relation to the transition from control orders to TPIMs at the end of this year, as the 28-day transitional period will fall over Christmas and new year. I would be grateful if the Minister would provide some reassurance that the police will be able to manage this transition.

[Lord Judd]

I am grateful to the noble Lord, Lord Pannick. Of course, he is right. That is not the first time he has been right: nor, I imagine, will it be the last. I make one plea to my noble friend. I am concerned that, if the official position of the Opposition and the party which I support—and of which I am a member—is that it is not necessary, as was demonstrated on the last amendment, for action to originate with the courts and judges, this will extend still further the powers that will flow from an executive decision by the Secretary of State. To have such far-reaching powers—whether they are needed at all is a separate issue—without the action having originated in the courts becomes even more disturbing. I hope that my noble friend and his colleagues, in considering future policy over a longer period, will give this serious consideration.

The noble Lord, Lord Phillips, in the debate on the previous amendment, made what for me was the most powerful argument: that is, what are we trying to do? We are trying to promote the security and well-being of the British people. If we are going to do that we must have the maximum possible support for what is being done in all the communities that matter in this context. If that is to be the case, and if people are not to be prone to manipulation by extremists in the midst of their concern and anxiety, it is desperately important to demonstrate that when extensive powers are brought to bear, they have the authority of the courts and are part of the whole tradition of the administration of justice and the rule of law as we have understood it in this country.

Let us make no mistake. The objectives of the extremists are to undermine and destroy our commitment to the rule of law as we have understood it and to destroy the credibility of our claims about the rule of law. We must be careful that we do not play into the hands of the manipulative extremists and put the vulnerable and the impressionable under still more pressure to join their ranks.

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[Lord Judd]

My Lords, personally, I have the unease that in all that we have done with these special arrangements there is a danger that historically we will have proved inadvertently—maybe—to have given a victory to the extremists and terrorists, because we have abandoned in this area of the administration of justice the principles that we hold dear and believe to be fundamental to our whole system of society and law.

It is absolutely essential that the Executive have to demonstrate all the time why such a risk must be taken and why it is necessary to have these exceptional measures. For that reason, the responsibility is always with the Executive to justify what is being done and therefore to review the process at least once a year is the very least that we can settle for.

[Lord Faulks]

My Lords, consistency has become something and since I opposed this amendment on the last occasion I intend to be consistent in opposing it on this occasion.

Of course, the arguments are extremely beguiling in favour of an annual review. Any provision which threatens the liberty of the subject demands anxious consideration at every level. But there is a difference between what happened in 2005 and what we are confronted with today. I am sure that those who brought in those provisions—those exceptional and extraordinary measures—hoped that they would not be necessary for more than a short period. Unfortunately, that has not proved to be the case. This Bill is the result of a careful and thorough review of counterterrorism and of mature reflection by a number of people that, sadly, powers of this nature need to remain. There have been important modifications to these powers, including the higher threshold for the Secretary of State before deciding that there should be such provisions and the removal of the relocation measures. There has been a degree of sensitivity over how potentially extreme the provisions are, but the legislation has been the result of a mature consideration and has been scrutinised in a thoroughly orthodox way through both Houses of Parliament. It has not been the result of an accelerated procedure.

I respectfully suggest, although entirely appreciating the arguments that such provisions need regular review, this has had a thoroughgoing review. It can be reviewed again after the end of this Parliament, and I respectfully ask the House to consider rejecting the amendment.

[Baroness Hamwee]

My Lords, the noble and learned Lord, Lord Lloyd of Berwick, expressed a certain weariness when he spoke on this issue in Committee. I do not think that he used the words “ritualistic” or “formulaic” but that may have been what he had in mind when he referred to the way some of the control order debates seemed to be going. I share that concern, but it leads me to say that we should make sure that renewal of this provision is not ritualistic or formulaic. We should take care to avoid that. However, it is not an argument for saying that we should not undertake that renewal.

We will, I am sure, be told by the Minister that we can debate the issue at any time that any of us succeeds in putting down a debate, and that the Government could repeal TPIMs at any time. Neither of those claims is an answer to the points that have been made. I urge the Government, if they lose the Division that is about to come, to turn it into a virtue and explain annually why it is that any renewal is required. The term “trust” was used quite a lot at an earlier stage in this Bill. Trust does need to be renewed, as well as everything else, to take both your Lordships’ and the country with them. The Government should regard this as an opportunity, not something that should be pictured in any way as a defeat.