Counter-Terrorism and Security Bill

Lord Goldsmith Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, this debate would be important whenever it was taking place. However, the unspeakable barbarity of what took place in Paris last week gives this added impetus. Noble Lords who have spoken and will speak today do so from great experience. I count at least two former Security Ministers—maybe there are more—police officers and, I think, two former heads of one of our security services. We look forward very much to hearing what the noble Lord, Lord Evans of Weardale, will say in his maiden speech.

My experience includes being in government at the time of 9/11 and having to work with others—including my noble friend Lord Rooker, who sits next to me—on how to deal with that threat, and what needs there were for legislation. The noble and learned Lord, Lord Lloyd of Berwick, has already referred—disparagingly, it has to be said, but I understand why—to some of the legislation that we passed. Having mentioned his name, I pay tribute to the commitment that he has shown to this question. I have not always agreed with him. I am not sure that I agree with him on all that he has said today. He has, however, always asked important questions, and I am as alarmed as many other noble Lords to have heard the noble and learned Lord talk about this perhaps being his swansong. I hope that that is not the case; if it is, we will all regret it but treasure what he has said today.

In the time that I spent on legislation, I was involved in supervising the prosecution of terrorists and looking at the Prevent strategy, to which the noble Lord, Lord Jopling, referred. I learnt five things from that. The first was that these are such difficult questions. There is nothing absolute about any of them except, I hope, our abhorrence of terrorism. They raise extremely difficult issues, which need to be considered carefully.

Secondly, we have to listen very carefully to the advice from the police and security services. I was concerned and unhappy, during an earlier debate, about whether the advice that we were getting from the police about the desirability of detaining terrorist suspects for extended periods was justified. If anything, that 90-day debate may have given the security services and the police a particular inhibition about putting forward recommendations and advice on terrorism legislation. That may be healthy but we need to listen very carefully to what they say, because they know what is taking place on the ground in a way that is difficult for us to know.

Thirdly, we have to test what they say by reference to evidence, to logic and to whether it can be shown that what is proposed is proportionate and necessary in all the circumstances. Fourthly, one of the things that we as parliamentarians need to do is not just scrutinise evidence and what is put forward, but consider what the safeguards are to protect us and the things that we care about. Fifthly, it is so easy for politicians to use these circumstances for political purposes. Like my noble friend Lady Smith, I was alarmed to hear the remarks today about snoopers’ charters. I worry that these are references to something in the light of the coming election and a need to see a differentiation between the junior and senior partners in the coalition. I hope that that is wrong and that it will not affect the debate in this House today in any way. I also hope that the debate in the country is not affected by that.

What about the substantive points? I want to make three. First, there is the question of process and fast tracking. I declare an interest as a member of your Lordships’ Constitution Committee. We produced a quick report—it had to be quick because the Bill came to us quickly from the Commons—that picked up on the fast-tracking question to which the noble and learned Lord, Lord Lloyd of Berwick, referred. I draw the attention of noble Lords to two significant points in what we said. One is that we welcomed the fact that the Explanatory Notes set out detailed reasons for fast tracking, if that is what it is—there is still some confusion on whether the Government think they are fast tracking this but it is plainly going through a fast process. However, we also respectfully encouraged this House to consider carefully whether the reasons put forward by the Government for the fast tracking of each element of the Bill offered sufficient justification.

It is important to look at each element of the Bill. It is relatively easy to see that with people potentially returning from theatres of operation, battlefields or terrorist operations in the Middle East, we need to do something now about whether they can return and under what conditions, but less easy to see why the proposed changes in relation to data retention have to be dealt with at this point, given that we touched on this in the previous legislation. At that stage, it was said that because it was being fast tracked, it was not possible to deal with the substance. Each element needs to be looked at. I, and no doubt others, will carefully consider what the Government and the Minister have to say about those elements as we go through.

The second substantive point is on the question of temporary exclusion orders. This seems to be the most controversial element in the Bill. The noble Baroness, Lady Hamwee, may be right that this sort of order has not been used since the medieval ages when our kings used to banish people—it was then, I think, for political reasons rather than for protection from terrorism. However, it is a very large power to ban somebody from his home country. The arguments put forward have persuaded the independent reviewer. In my judgment I can see the force of the arguments, but that is why it is so critically important to consider the safeguards in relation to them.

Reference to judicial intervention has already been made and I should like to spend a moment or two on the reasons why it matters. First, I understand that the Government accept that the only judicial safeguard under the Bill as it stands would be judicial review of the decision of the Secretary of State to exclude somebody. Judicial review is hugely important. It is a very valuable tool, and important for the protection of all our liberties, but it is an imperfect tool. In this context, it is particularly imperfect. Judicial review is not generally a reconsideration of the evidence de novo. It is not an original decision; it is not even an appeal. It looks at whether there are defects in the decision-making process: was some irrelevant consideration taken into account or some relevant consideration not taken into account? It is very difficult to deal with in this sort of area. However, it is not a review of the merits of the decision, so it is a limited consideration.

The second problem, inevitable in the circumstances we are talking about, is that that judicial review would have to be brought from overseas. As I understand it—I am sure that the Minister will deal with this—the individual affected by an exclusion order would not be allowed back into the country to make the application. So the difficulties would be compounded by the applicant coming from overseas, wherever that might be, and finding legal assistance to ensure that the application was made.

Thirdly, there is a surprising contrast with the TPIM regime, where there is a judicial intervention which does not exist under the Bill as put forward. That needs to be justified, given that the order excluding someone from this country is every bit as serious, if not more so, than some of the measures that could happen under TPIM.

Fourthly, I wonder whether this is not in the interests of the Government or of the Minister. The concern for any Minister in dealing with a potential exclusion order is that they are told by the police or by the security services that someone is a potential risk. What happens if that person turns into an actual risk and the Minister has not excluded them? It is the day after a terrorist attack that fingers are pointed—inevitably and perhaps rightly so. The Minister is therefore put under great pressure and temptation to look at the evidence in a benevolent way. That would not be what a court did in those circumstances; it would need to look dispassionately and independently, as our judges are trained to do.

I understand why the Executive might be nervous about leaving these decisions to judges, but they would be wrong to be so. Our judges can be trusted to make these decisions. It was, therefore, good to hear what the Minister repeated about the Government’s intention but we shall see the reality when the Government put forward their proposals. I know that there are lots of different gradients of judicial intervention and supervision; we want to see what the Government propose.

My final substantive point is on data retention; I have already touched on it. I am not one of those people who are so concerned about privacy as not to see that where there are advantages to the security services, it must be overridden. I would love to see a situation in which all our privacy was guaranteed, just as I would love to see a situation in which we did not have to take our shoes off—or have all the other security measures—when we travel by air. Those have necessarily been caused by what the terrorists have done. There must be safeguards. People must be satisfied that information will not be misused but, at the end of the day, if the security services and the police are of the view that they need this material—and I know why they think they do—then that is a power which we need to give them.