Terrorism Prevention and Investigation Measures Bill

Lord Harris of Haringey Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Harris of Haringey]

My Lords, I declare an interest as a member of the Metropolitan Police Authority, with particular responsibility for overseeing the Met’s work on security and counterterrorism.

Earlier this week, I went to a meeting with Carie Lamack. Her mother was killed on American Airlines flight 11, which crashed into the World Trade Center 10 years ago. She went on to co-found Families of September 11 and, later, the Global Survivors Network, which brings together survivors of terrorist attacks across the world and their family members. Her testimony is an international reminder about why the fight to combat terrorism is so important. Families are destroyed, individuals are left bereft and the effects last a lifetime.

I am sure that no one in your Lordships' House wants to see repeated the suffering of those terribly injured in the London transport attacks or the grief felt by those bereaved. That is why it is the paramount duty of Governments to protect the security of their citizens, to protect those citizens' right to life and to protect all of us against terrorism.

The problem that government faces is simple to state but not easy to resolve. In essence, it is this: what does the Home Secretary do about those individuals who pose a serious risk to the lives of British citizens but against whom there is insufficient evidence to bring them before a court charged with a terrorist offence? The evidence may not be admissible in British courts or it may rely on material gathered by UK intelligence agencies that would compromise the safety and security of others if it were publicly disclosed, or it is derived from intelligence from overseas agencies provided on the basis that it must not be disclosed. Yet a responsible Home Secretary cannot ignore that those individuals pose a significant risk, cannot turn a blind eye to the threat that is there and cannot fail to take some action to protect the rest of us. To do nothing would be a dereliction of that responsibility to protect the public. Control orders were an attempt to provide us with that protection in the very small number of cases where no other action is possible, and it is a power that has been rarely used, despite the dire warnings that were issued when it was first proposed.

This Bill, however, is nothing more than a shoddy compromise which weakens our security, yet does nothing to satisfy those with concerns about civil liberties. Despite what the noble Lord, Lord Howard, has just said, I think that it is a compromise that demonstrates the weakness of the Government as they try to square the circle between the two wings of the coalition, epitomised by a Liberal Democrat Deputy Prime Minister and a Conservative Home Secretary—trying to reconcile the irreconcilable. The current control order regime is not, of course, satisfactory—it is already a compromise. No one has ever seriously tried to pretend that it was satisfactory. However, it was an honest attempt by the previous Government to reach that compromise—to balance the free and liberal tradition of this country with the need for security.

The present Government were formed with an explicit commitment to replace the control order regime. It was a commitment made in the coalition agreement and the Deputy Prime Minister was voluble in his promises about what this would mean, telling us that it would “give people’s freedom back”. However, let us be quite clear. The Bill does not do anything like enough to satisfy those who have reservations about the previous control order regime and its implications for the civil liberties of those subject to that regime. Shami Chakrabarti, the director of Liberty, has said that control orders have simply been rebranded, albeit in a slightly “lower-fat” form, or, as Liberty’s briefing puts it,

“the TPIM regime essentially mirrors the control order system in all of its most offensive elements”.

Indeed, I suspect that the Bill must be something of an embarrassment for those Liberal Democrats who spent so long in this House criticising the previous Government for introducing and using control orders. There is silence today from the noble Lord, Lord Thomas of Gresford, who in 2005, when the control order legislation was going through your Lordships’ House, said on behalf of the Liberal Democrats that control orders would constitute,

“a blatant abuse of what we have known as the proper processes of justice”.—[Official Report, 1/3/05; col. 131.]

There is silence today, too, from the noble Lord, Lord Dholakia, who also spoke out unequivocally from the Liberal Democrat Front Bench. He said:

“The first and fundamental issue, which is central to all the arguments advanced in this debate, is who should be responsible for the decision to make control orders. On these Benches, it is clear that the proposals made in the Bill are not acceptable”.—[Official Report, 1/3/05; col. 206.]

Those issues remain central to the proposed legislation and what we have is the silence of the Lib Dem lambs. I should say that I absolve from the accusation of silence the noble Lord, Lord Goodhart, whom we will be hearing from in a moment. In 2005 he was equally trenchant but I have faith that he at least will be consistent when he speaks.

So this Bill does not satisfy—it cannot satisfy—those who feel that the current arrangements are disproportionate, draconian and destructive of our liberties. But, none the less, the Bill does water down the control order regime. It raises the threshold, from reasonable suspicion of involvement in terrorism to reasonable belief that the individual is or has been involved, before action can be taken. It limits what conditions can be placed on those individuals and, crucially, it removes the power to relocate individuals away from those localities where they may mix and conspire with others.

For those of us who believe that sometimes Governments must take unpalatable measures to protect us, those are crucial changes. They leave us all vulnerable. Let no one pretend that the threat has gone away. The recent arrests of seven individuals—now charged—in Birmingham as the Liberal Democrats gathered there for their conference are a reminder that we must continue to be vigilant against that threat.

The Home Secretary has had to acknowledge how critical all of this is. Within days of taking office and within days of the coalition agreement being signed, she was presented with information that persuaded her—a rational and responsible individual—that despite the coalition rhetoric about control orders and the need for them to be abolished, she should personally approve the imposition on a number of people of precisely the same orders as the Government are now abolishing.

Only in February, after the Government had announced their proposals, the Home Secretary agreed a control order on a British-Nigerian terror suspect who apparently, according to MI5, is a leading figure in a close group of Islamic extremists in north London. He was banned from living in London under the terms of that control order. In May, according to the Guardian, the High Court dismissed an appeal by the man, saying that his removal to an undisclosed address “in a Midlands city” was necessary to protect the public from the “immediate and real” risk of a terrorist-related attack. So, in February, it was necessary to place restrictions on that individual as to where he could live—effectively relocating him from north London to the Midlands, something which would not be possible under this Bill.

If this Bill becomes law, that individual will be free to move back to London in the new year, just weeks before the Olympics, to renew the associations that only a few months ago were deemed by that rational and responsible Home Secretary to be so dangerous that a control order was needed along with the relocation of that individual. I ask the Minister: what will have changed between the time when the Home Secretary approved that order and the time when the individual concerned is to be allowed to move back to London?

[Lord Phillips of Sudbury]

I am grateful to the noble Lord for giving way, but I must ask him the same question as I asked the noble Lord, Lord Hunt. Paragraph 3 of Schedule 1 states:

“The Secretary of State may impose restrictions on the individual entering … a specified area”.

The Minister can prevent someone entering London —so what is the noble Lord on about?

[Lord Harris of Haringey]

I am of course delighted to try to defend the Bill on behalf of the Minister, although I suspect that the Minister will do a very good job of that in a moment. However, my interpretation of the provision is that it is about very specific locations and particular areas—for example the Olympic park, or whatever else it might be. It is not clear that it will permit the prevention of that individual living in the city that had previously been his home. That is the point that needs to be made.

[Lord Howard of Lympne]

Is not the point that there is an enormous gap between preventing someone entering a particular area, which is what the schedule permits, and requiring them to live in a particular area where the Security Service can maintain constant surveillance of them? That is the difference between the two, is it not?

[Lord Harris of Haringey]

My Lords, as ever I am grateful to the noble Lord, Lord Howard, for his helpful intervention. My point is simple. This was a power that previous Home Secretaries and the current Home Secretary found necessary. It is one that the security services and police said was necessary. However, we are now told that the fresh air of the West Midlands conurbation and its bucolic atmosphere have so changed this individual’s personality that he now poses much less of a threat. That is frankly implausible. The reality is that this power was necessary. The present Home Secretary, knowing of the proposal that she would bring before Parliament, chose to exercise the power. The power remains necessary.

[Baroness Hamwee]

Would the noble Lord like to say anything about the development of technology? He may be overlooking the fact that individuals who are subject to these measures will almost undoubtedly be tagged. I do not know much about it, but I am sure that the technology is developing as we speak, and that it is possible to know where people who are tagged are going, and whether they are going where they should not be going. Surely that needs to be taken into account.

[Lord Harris of Haringey]

As I understand it, people who are subject to control orders are in many instances already tagged. Tagging is a useful technique. Tags can be removed, though the best tags are supposed to tell you if they have been—and I am sure that only the best tags will be purchased for this purpose. However, the problem is the risk of association. If somebody lives in a particular area and it is deemed that the danger of association is there, a tag will not tell you who comes to see that individual. Nor will it tell you where they go in their immediate vicinity, which could be precisely where those associations take place. The point of relocation is to minimise the risk of those associations, or to enable them to be monitored.

Just eight months ago, the rational and responsible Home Secretary, on the information presented to her, felt that the individual concerned was so dangerous that not only did he need to be subject to a control order but he should be relocated miles away from his previous environment. She made the judgment knowing that the Bill would remove that option and tie her hands in future. The rational and responsible Home Secretary made that judgment knowing that however much of a danger the person was thought to be, such an outcome would be taken away. The Minister needs to tell us why the judgment that the Home Secretary made then will no longer apply to this individual when the Bill becomes law.

Perhaps we should not expect the Minister to go through such contortions to provide an explanation. Perhaps all he needs to do is concede that the Home Secretary made that judgment in the interests of our nation's security but that this shabby, tawdry compromise of a Bill would prevent her making the same judgment in future. This compromise is not just between the two wings of an uneasy and unhappy coalition, but a compromise with the nation's security.

--- Later in debate ---

[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.

[Lord Harris of Haringey]

My Lords, I am grateful to the noble and learned Lord for giving way. As someone who has tried to understand the civil liberties arguments about this, perhaps I will be forgiven for asking him to explain to the House why the level of intrusive covert surveillance that would be necessary to provide the reassurance we all seek is somehow a less severe intrusion into someone’s civil liberties than control orders, TPIMs or whatever it might be, where the ground rules are set, explicit and subject to judicial review?

[Lord Lloyd of Berwick]

I would have thought that the answer to that question is obvious: under a surveillance regime, a person can live a perfectly ordinary life; under a control order, he cannot. That is the difference.

I have opposed control orders since they were first introduced in 2005 and every year since, and I would certainly oppose them now if I could. But I realise that I would get nowhere. The Official Opposition, which I had hoped might at least still be open to persuasion on this, has said that not only do they support the Bill, but they also actually regard it as being too weak.