Terrorism Prevention and Investigation Measures Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, first, I thank the Minister for his careful explanation of the Bill. I would very much like to welcome him to his new portfolio and well deserved promotion, and I look forward to working with him. I echo his tribute to the noble Baroness, Lady Browning, for her stewardship of the Home Office brief. I very much enjoyed debating the—perhaps I may say—unlamented police Bill as it went through your Lordships’ House. She was a very good debater and listener who will be very much missed from the Front Bench.

The security of this country is of paramount importance and the Official Opposition would always wish, wherever possible, to support Her Majesty’s Government in their counterterrorism policies. The introduction of control orders was controversial because they can impose intrusive restrictions on individuals who in most cases will not have been convicted of a terrorism offence on the basis of closed material. We would always prefer to prosecute terrorist offences through the courts. Control orders are not desirable but I believe that they were necessary to deal with a discrete number of individuals who for one reason or another could not be prosecuted but posed a terrorist threat. The decision to introduce control orders has been vindicated through the way that the public has been protected from the risk of terrorism, but also as evidenced by the vigorous judicial process undertaken in relation to control orders.

The parties opposite, when in opposition, made a great deal of their concerns over control orders. In government, I suspect that the Home Secretary has come up against reality, but still feels obliged to introduce this Bill. It is a flawed Bill, it is a fudged Bill. It seems to owe as much to the needs of the coalition as it does to national security. Just as we see a faultline running between the two governing parties on European human rights legislation, so we see a faultline in the legislation in our debate today. On the one hand, we have the Bill, which the Government say—and the Minister repeated it this afternoon—provides greater safeguards for the civil rights of suspected terrorists. But we also have another Bill—the draft emergency Bill, which the Home Secretary will carry around in a back pocket for the inevitable moment when this Bill is found wanting. The problem with a faultline is that there can often be a gap. I hope that national security will not fall into it.

At the heart of my concern is the fear that the Home Secretary’s powers to deal with the most difficult cases are being weakened. Nowhere is that more evident than in the central issue of relocation without consent. Relocation powers have proved to be extremely useful in disrupting terrorist activity and have been regularly described by the police as one of the most effective powers that they have. How many of the control orders in force have relocation as part of them? In evidence to the Public Bill Committee in another place, Deputy Assistant Commissioner Stuart Osborne said:

“The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 5.]

The Home Secretary clearly thinks so. In May of this year, just five months ago, the Home Secretary argued in the case of CD that he needed to be removed from Greater London to protect the public from a terrorist attack. The judge in that case said:

“I have concluded that the relocation obligation is a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist attack.”

In July of this year, the Home Secretary said in the case of BM that relocation outside London was “fundamental” to preventing terrorist activity. In that case, BM admitted that he was committed to terrorism. The Home Secretary believes that those powers, which were needed three and five months ago, are not needed now. What has really changed in that period?

Ministers claim that they will put more surveillance in place but again, the senior representative of the Metropolitan Police, in evidence to the Public Bill Committee, said this:

“To get the resources we anticipate we need will take more than a year in terms of being able to get people trained and to get the right equipment”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 9.]

It is simply not credible that the security environment has changed so substantially in the past three or five months that the powers needed then are not needed now. Are the Government really saying to this House—in Olympic year, of all years—that the powers are needed less in the coming year than they were last year, when the Home Secretary felt that she needed to use them five times?

Of course, Ministers have already conceded that additional powers may be needed, so they have published draft emergency legislation, as the noble Lord, Lord Henley, remarked at the end of his speech. That will give the Home Secretary powers to impose what have come to be known as enhanced TPIM notices which make it possible to impose stringent restrictions on individuals, including relocation without consent. We have the rather extraordinary position of the Government saying, “We do not like control orders so we are getting rid of them, but until we do that we are going to go to the courts and argue vigorously for their use, and we will keep emergency legislation just in case this Bill turns out to be inadequate”. The Government want to go further: from a position of apparent opposition to control orders, remarkably, this Bill now contains in Clause 26 a provision that allows the Home Secretary to impose the enhanced TPIM notices which should be the subject of the emergency legislation during the period between the dissolution of Parliament and the first Queen’s Speech of the new Parliament. I suggest that if extraordinary provision such as that is needed, the Home Secretary needs it now and it should be in this Bill.

[Lord Phillips of Sudbury]

My Lords, on the noble Lord’s point about the absence of a relocation direction, does not the power to exclude a person subject to a TPIM notice from any area as specified provide a great deal of the protection that he wants? That is set out in paragraph 3 of Schedule 1.

[Lord Hunt of Kings Heath]

Why, then, my Lords, do the Government need a draft emergency Bill? It is because they consider that there may be circumstances in which the current Bill does not meet the security threat. My argument is that if the Government have to contemplate bringing in emergency legislation, it would be better to actually legislate for those provisions and allow Parliament its proper scrutiny rather than, at the time of an emergency or enhanced threat, seek to rush legislation through.

[Lord Goodhart]

Does the noble Lord accept that this deals with a particular problem, which is what is to be done during the period when Parliament does not exist? Surely special arrangements have to be made for dealing with that particular period of time.

[Lord Hunt of Kings Heath]

Then why on earth not put it into the Bill and allow the House to scrutinise and debate it thoroughly?

[Lord Goodhart]

This is something that is supposed to arise during the period when Parliament is dissolved. That is the problem. There is an interval of time, a month or perhaps six weeks, when no Parliament is in existence to deal with these notices. This is a perfectly legitimate provision meant to deal with that situation.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord is a very good debater, particularly when he is defending a really impossible situation. The point is this. We have the Government saying, “Here is our Bill. We are so confident that it will meet the circumstances that we are also preparing an emergency Bill. However, we are not going to let Parliament have full scrutiny of that emergency Bill because we are not going to bring it before Parliament, but just in case we do need it because a threat has arisen during the period of the dissolution of Parliament and the first Queen’s Speech following a general election, we are going to provide in this Bill for the Home Secretary to be able to use it simply by executive diktat”.

We see here the confusion at the heart of the Government’s policy. The reality is that, in opposition, the parties opposite did not like control orders. They have come to power, had the advice and now realise that they need them but are stuck. They have produced the Bill as a way of proving that they are getting rid of control orders but they know that they will need the full panoply of the control regime so are going to have this emergency legislation as well.

A number of Select Committees have commented on the dangers of emergency legislation. First, it is bad constitutional practice. Secondly, the amount of information that will be given to Parliament in respect of an individual case will inevitably be very limited but might have an impact if those cases ever came to court. So this is not the right way to go.

There are of course a number of other features in the Bill and I will not detain the House. No doubt, we will come to the “alternative construct” of the noble Lord, Lord Macdonald, which has been heavily debated by the Joint Committee on Human Rights. We will have a great debate on that. I would be interested in the Minister’s response to the Joint Committee on what are called the Lord Macdonald amendments, in particular on whether the judiciary has been consulted and whether there is deemed to be a risk of replacing Executive decisions—where, ultimately, the Executive is accountable to Parliament—with judicial decisions. The general view of the judiciary on whether it wishes to be drawn into such decisions would be highly relevant.

I have just one other point. Control orders legislation was heavily criticised but it had to be renewed annually by Parliament. As a result of the changes made in the other place, this legislation will only come to be renewed once every five years. This matter is important. It enables extensive Executive powers to be used. Parliament ought to be able to come to a judgment on this on an annual basis.

I hope that the Minister will be prepared to listen to these arguments. Ultimately, this is a bad Bill producing a very fudged situation. I really sympathise with those in the security and police forces who will have to operate in such a difficult and uncertain environment. I hope that the scrutiny that this House will give to the Bill will bring from the Government a willingness to listen, consider and accept constructive amendments. The Bill needs an awful lot of work.

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[Lord Howard of Lympne]

My Lords, I congratulate the Minister on his promotion. As I am sure he has already found out, the Home Office poses challenges of an entirely different order from those of other departments. I wish him well in his responsibilities. I join in the tributes paid to my noble friend Lady Browning, who performed her ministerial duties in this House, as she did in the other place, with very great distinction.

It is common ground in all parts of the Chamber that the best thing to do in respect of those who are suspected of involvement in terrorist activity is to prosecute them. We would all like that to happen. I welcome the fact that the Government are going some way towards making the process of prosecution easier by introducing post-charge questioning, which is something which I have advocated for some time. My noble friend Lady Hamwee mentioned at the end of her remarks the possibility of introducing intercept material as evidence in terrorist cases. Later in the debate the House will have the great benefit of hearing the wisdom of the noble and learned Lord, Lord Lloyd of Berwick. Although I am not privy to what he is going to say, and I anticipate it at my peril, I should be astonished if he did not make at least some passing reference to the desirability of introducing intercept material as evidence.

I have the dubious privilege of being a member of the advisory committee of privy counsellors charged with overseeing the work being carried out by Home Office officials in an attempt to achieve that objective. I was appointed to that committee by the previous Administration and reappointed by the present Administration. I joined the committee with a strong predisposition to making that evidence admissible. I had read the speeches of the noble and learned Lord, Lord Lloyd of Berwick, been impressed by them and largely agreed with them. I was extremely keen to see that the law was changed to make this possible. It may still be the case that that goal can be achieved, but I must tell the House that the difficulties in the way of achieving that objective are enormously greater than those that I had appreciated before I joined the advisory committee. Although I hope that we will be able to overcome those difficulties, I cannot pretend that I have enormous confidence that we will be able to do so. Therefore, the question the House has to consider, and the question which gives rise to the Bill, is: what do a Government and a society do in respect of people suspected of being involved in terrorist activity on the basis of material which is not admissible evidence in a court of law? I do not imagine that many people would suggest that that material can be ignored and that that society can be left at risk from those whom that material identifies as posing that risk.

Of course, this is not a dilemma which is particular or special to our country; other countries face it as well. The President of the United States campaigned three years ago on a promise to close Guantanamo Bay within a year. Those who are detained in Guantanamo Bay are there because they cannot be prosecuted under the ordinary laws of the United States of America. Three years later, Guantanamo Bay has not been closed, not, I am quite certain, because of any lack of good faith on the part of President Obama, or because of any lack of desire on his part to make good his campaign promise, but because of the very real difficulties of the dilemma that I have identified, which, indeed, was posed aptly and eloquently by the right reverend Prelate the Bishop of Oxford.

Therefore, what every Government have to do in the face of that dilemma is to strike a balance between the need to protect the public from the risk that these people pose while at the same time minimising the extent to which there is any interference with the individual liberty of those who have not been prosecuted and convicted in a court of law, which is the course of action that we would all desire, were it possible. To that question of striking the balance, there is no single absolutely correct answer. It is a question of judgment, and that judgment is always the outcome of discussion, debate and argument.

That is why I was not as impressed as perhaps he would have liked me to be by the suggestion by the noble Lord, Lord Hunt of Kings Heath, that the Bill is in some way to be regarded as less than ideal because it is the product of the coalition Government. The truth is that there will be in any Government—whether they be a single-party Government or a coalition—arguments, debates and discussions between different members of that Government as to where the balance should be struck. I was obviously not privy to the debates and discussions around the Cabinet table that led to the production of this Bill, but I would be very surprised if there were arguments simply between the Conservative members of the coalition on one side and the Liberal Democrat members on the other. I would suspect that there was a difference of view on both sides. That is the way in which our Government work, it is the way in which they should work and decisions emerge as a result of those debates, discussions and arguments. Those decisions are frequently compromises between the different positions, and they are none the worse for that. So there is no merit in the point that the Bill should in any way be criticised because it is the outcome of the debates, discussions and arguments that took place within the coalition.

[Lord Hunt of Kings Heath]

My Lords, I cannot resist. The point that I am making is that, as a result of the clear divisions, we have come up with a flawed process of a Bill with emergency legislation as a potential back-up because I am sure that there is an understanding among some members of the Government, and certainly in the security and police forces, that the Bill as it stands may not be sufficient. It is extraordinary legislation that gives the Home Secretary power, during a certain period, to use the enhanced provisions. The problem is the product of those discussions.

[Lord Howard of Lympne]

The noble Lord is, of course, perfectly entitled to criticise particular provisions in the Bill. What I am saying is that those provisions should be dealt with on their merits. It really should be no part of the argument that the Bill in its present form should be regarded as inferior or unsatisfactory because it is the outcome of the processes that took place within the coalition. As to the emergency provisions to which the noble Lord referred, an emergency gives rise to special needs and special circumstances, and it does not seem entirely unreasonable that the Bill should provide for those circumstances in the way in which it does.

I believe that on balance, and with one important reservation that may give some comfort to the noble Lord, the Government have got the Bill right and have struck the right balance between the various competing needs that have to be considered.

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[Lord Macdonald of River Glaven]

Of course one recognises that if an investigation, using all the powers available to the investigating authorities, has continued for a period of time and turned up nothing, under this scheme the TPIM will come to an end—but TPIMs are intended to be time-limited in any event. Under the terms of the Bill, TPIMs will come to an end after two years, so we are not talking about an open-ended system of restrictions. My point is that a system of restrictions applied to criminal investigations is not only more likely to be constitutional and develop broader public support than the system that is currently proposed, but such a system would have attached to it conditions that actively encourage and assist investigation.

[Lord Hunt of Kings Heath]

The noble Lord talked about broader public support, but what evidence does he have of major public concern about the use of control orders? Is there not in fact a great deal of public confidence in them because they protect our security?

[Lord Macdonald of River Glaven]

If the noble Lord does not mind my saying so, that is a somewhat complacent view. There is wide public concern. Obviously there are different views around the country and in different communities, but it would be complacent for the noble Lord to come to the conclusion that there is and has been no broader public concern about control orders.

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[Lord Pannick]

I am very grateful. If the noble Lord accepts—I hope he does—that the public view on these issues is not determinative, although plainly it is important, we will not differ much, save that I suspect that in some sections of the community there is particularly grave concern about control orders. My concern is that that may well be undermining the extent to which those communities are prepared to co-operate with the police and the prosecution authorities in bringing forward evidence that is vital to secure the conviction of terrorists and information that can be used to implement the administrative process. That is my concern, and it is why I share the view of the noble Lord, Lord Macdonald, that we must not be complacent about these matters.

The noble Lord, Lord Henley, said in opening the debate that it is necessary to have the TPIM regime in those cases where prosecution is not possible. The noble Lord, Lord Howard of Lympne, eloquently supported that approach. I, of course, understand the force of that point, but we must surely accept that it is nevertheless difficult to reconcile this approach with the rule of law. It is an exception to the rule of law. Because it is an exception—perhaps a justifiable exception—it is vital that we ensure that the detailed implementing provisions in the Bill satisfy the test which the noble Lord, Lord Henley, stated at the end of his speech, and which I was very pleased to hear from him. As I understood him, the test is that the provisions must go no further than is absolutely necessary. I commend that test to the House as the right one to adopt in testing the provisions of the Bill. That is the first concern.

The second rule of law concern is that the Bill allows for the sanctions—that is what they are—to be imposed by a Minister and not by a court, albeit that the court has a reviewing role. If a TPIM procedure is appropriate outside the criminal process—I understand why it is—the rule of law surely requires that Ministers do not themselves make the initial decision on such matters as who a person may associate with and where they may stay overnight with the court confined, as it is under Clause 6(3), to determining whether the initial decision of the Minister is “obviously flawed”. Surely the role of the Minister should be to make an application to an independent judge. It should be for the Minister to produce the relevant evidence, perhaps in closed session with a special advocate, for the judge to assess. It should be for the court to decide whether the order should be made. In urgent cases, the court could no doubt apply a threshold test. We need to consider this seriously in Committee.

[Lord Hunt of Kings Heath]

My Lords, in relation to the point the noble Lord has just made, has he ascertained the view of the senior judiciary about whether they would wish to be drawn into making such decisions? There is a balance here as to whether it is more appropriate for the Home Secretary to make those initial decisions, subject to judicial scrutiny, because ultimately the Home Secretary is responsible for security issues and is accountable to Parliament. Does the noble Lord not think—and I think he is following the argument of the noble Lord, Lord Macdonald, on this—that there is a danger of moving responsibility from the Home Secretary to the courts? I wonder whether the judiciary would want to accept that responsibility.

[Lord Pannick]

The factual answer to the noble Lord’s question is no. Of course I have not asked the Lord Chief Justice about this matter, but under the Bill, it is, in any event, the responsibility of the judge at the reviewing stage to decide whether the TPIM should be maintained. The Government accept in the Explanatory Notes that that should be akin to an appeal procedure, not just a judicial review test. The judges will have that responsibility at the end of the process. It seems to me that they should have that responsibility from the outset of this process. I would say to the noble Lord and to the judges, with genuine respect, that it really is not for judges to determine what responsibility they should have in relation to this fine balance between the public interest and civil liberties. It is surely for Parliament to decide how the balance should be struck and for us to decide whether it is best struck by the courts having the role that I suggest.

There is a third respect in which the Bill offends against the rule of law. It allows for sanctions to be imposed without any proof of wrongdoing, even proof to the civil standard of the balance of probabilities. A TPIM notice may be issued by the Secretary of State where she,

“reasonably believes that the individual is, or has been, involved in terrorism-related activity”.

When he winds up, will the Minister please explain why these sanctions should be imposed on a person if the Secretary of State is unable even to show that it is more likely than not that the wrongdoing has been committed or will be committed by the individual concerned? If the security services, with all their resources, and even with the use of evidence that could not be disclosed in a criminal court, cannot satisfy the judge on the balance of probabilities that the individual is involved in terrorist-related activities, there is surely no justification for taking these legal measures against that person. Of course, surveillance measures may well be appropriate against such persons, but that is not what we are discussing in this Bill.

There is a fourth respect in which the Bill departs from the rule of law: it allows for sanctions to be imposed although the individual has no right to see the material on which the allegation is based. In the AF case in 2009, which has already been mentioned, the Appellate Committee considered how the principle of fairness under the rule of law should apply in the context of control orders. I declare an interest: I represented AF in the Appellate Committee. The Law Lords decided that a control order is invalid unless sufficient of the case against the individual is disclosed to him personally to enable him, if he can, to give instructions to his lawyers to answer the allegations against him, and if the Home Secretary is not prepared to disclose that much, the control order cannot be maintained.

The TPIM, like the control order, involves severe restrictions on the personal liberty of the individual. Therefore, it seems to me that a TPIM will inevitably be unlawful unless the AF principle—you must disclose as much as enables the person to have a proper opportunity to answer the allegations—is satisfied. Does the Minister accept that? If so, does he agree that the Bill should be clarified by stating that point clearly?

I make one final point. Like the noble Lords, Lord Hunt of Kings Heath and Lord Dubs, I think that it is appropriate, given all the matters that I have mentioned, the sensitivity of the issue and the extent to which matters will develop from year to year, that this House and the other place have the opportunity to consider these important matters every year, not only at the expiry of another five years.

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[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.

[Lord Hunt of Kings Heath]

I do not support the Bill at all. I think that it is a complete nonsense. What is emerging is an inadequate piece of legislation, something which the Government themselves acknowledge because they are also publishing draft emergency legislation. We have a bizarre situation where twice this year the Home Secretary has argued that control orders are needed. We have yet to get an answer from the Government about how circumstances have changed in the past five months to suggest that the control orders which were used and needed five months ago will, under this Bill, no longer be available. I do not like this Bill at all.

[Lord Lloyd of Berwick]

That is the point that the noble Lord has already made on many occasions during the course of the debate. I fully accept that he opposes the Bill because he would make it stronger. I oppose the Bill because I think that it is already too strong, so obviously I have no hope there.

I will use my remaining minutes to say how the Bill could be improved. That is not difficult to do. The Bill currently provides for an order to be made by the Home Secretary but only after permission by the court and subject to review by the court as soon as is practicable after the order has been served. This is a most unusual and cumbersome procedure. It would surely be better and simpler for the Home Secretary to apply for the order and for the court to make the order in the normal way.

In her response to the excellent 16th report of the Joint Committee on Human Rights, the Home Secretary said that prevention orders of the kind we have before us in the Bill have become an established principle in our legal system. She cites anti-social behaviour orders, serious crime prevention orders and so on as examples. If serious crime prevention orders are to be the model, why does the Home Secretary not follow it through? Under the Serious Crime Act 2007, the Crown makes the application and the High Court or Crown Court makes the order. The same is true of anti-social behaviour orders except that the magistrate makes the order. I know of no case, and the Home Secretary cites none, where the order has been made by the Executive.

The noble Lord may argue that terrorism is different and that in terrorist cases the Home Secretary is in a better position to form a judgment than a court. That argument will not run as the courts have already held, in a case called Home Secretary v MB, that it is for the court to form its own view on the facts whether the individual has been involved in terrorism activity. If the court disagrees with the Home Secretary then it is the duty of the court to quash the order. The Government have accepted that that decision will apply when a review takes place, very shortly after a notice has been served under Clause 9. That being so, and it being accepted that it is the court’s decision that will prevail, what on earth is the point of the Home Secretary making the order in the first place?

In answer to the noble Lord, Lord Hunt, again—I hope to have better luck this time—there is no need to consult the judiciary about that proposal because the judges are already involved as the control order is currently administered at this stage of reviewing the orders made by the Home Secretary. There is nothing new for the judges in this. The sensible, logical order is for the Home Secretary to make the application—in that sense there will be a role for the Home Secretary—but for the court to make the order.

There is one other point, briefly. Why has the Home Secretary watered down the burden of proof? I agree on this with the noble Baroness, Lady Hamwee. Under the Serious Crime Act, which is apparently to be the model, the judge makes the order on the balance of probabilities—which is the normal standard of proof in civil cases. If the Serious Crime Act is the model, why should the same standard of proof not apply here? Once again, the noble Lord may argue that terrorism is in some way different. Once again, that argument will not run. If we want a precedent for the balance of probabilities being the appropriate standard of proof in terrorist cases, one need only look at Section 4 of the very Act that we are now being asked to repeal. In derogation cases, it is the court that makes the order on the application of the Home Secretary. The court decides the matter on the ordinary civil standard of proof. Why has that model not been adopted here?

One gets the same from Section 26 of the Act, which has been referred to, where the test is the balance of probabilities rather than the reasonable belief of the Home Secretary. What is the logic of having one test in Clause 3 and a different test in Section 26? I shall in due course propose amendments very simply to the effect—incidentally, they are quite simple to draft—that the order should be imposed by the court on the application of the Home Secretary and that the decision of the court should, as in all other cases, be the balance of probabilities.

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[Lord Hunt of Kings Heath]

That is extremely helpful but, on that basis, does the Minister agree that it would be sensible for the commencement order to start on, let us say, 1 January 2013, so that we can get through the Olympic year using the present provisions? Would that not be a more sensible approach?

[Lord Henley]

I will make no guarantee at this stage. I noted that my noble friend Lord Carlile suggested a delay for the Olympics. We will certainly look at that. It is something that I am sure will be argued in Committee. I give no guarantees but it is something that can be looked at. Obviously, it is important to get these things right.