Terrorism Prevention and Investigation Measures Bill

Lord Hunt of Kings Heath Excerpts

Tuesday 15th November 2011 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

5: Schedule 1, page 22, line 5, at end insert—
“Residence measureA1 (1) The Secretary of State may impose restrictions on the individual in relation to the residence in which the individual resides.
(2) The Secretary of State may, in particular, impose any of the following—
(a) a requirement to reside at a specified residence;
(b) a requirement not to allow others to reside at that residence without the permission of the Secretary of State;
(c) a requirement, applicable between such hours as are specified, to remain at the specified residence.
(a) may be in any locality in the United Kingdom that appears to the Secretary of State to be appropriate;
(b) may be a residence provided by or on behalf of the Secretary of State.
(a) the condition that the individual remains overnight at other agreed premises between such hours as the Secretary of State may require;
(b) the condition that the individual complies with such other restrictions in relation to the individual’s movements whilst away from the specified residence as may be so required.
(a) the generality of sub-paragraph (7) of paragraph 14 (power to impose conditions when granting permission), or
(b) the power to impose further conditions under that sub-paragraph in connection with permission granted by virtue of sub-paragraph (5) of this paragraph.

[Lord Hunt of Kings Heath]

My Lords, I have a number of amendments in this group and I should like to start with Amendment 44A. At Questions, the noble Lord, Lord Henley, seemed to think that this was peripheral to our debates today but I do not think that it is. Surely the context in which we consider the Bill is in relation to the measures that are necessary to prevent terrorism. We were offered a Statement in lieu of a PNQ in the other place on the matter to which I am going to refer, but it is just as appropriate to discuss it here.

Amendment 44A essentially asks the Secretary of State to commission an independent review to report on the operational effectiveness of the terrorism prevention measures in place at our international borders. That is set in the context of serious concern about the operation and effectiveness of the terrorism prevention measures in place at our international borders and the Bill has to be seen in this context. Of course, one has to refer to the significant reduction in the levels of security in border checks at UK points of entry in the summer of 2011, which has been the subject of considerable parliamentary debate and concern over the past two to three weeks. The noble Lord will be aware that the Home Secretary has yet to answer some very serious questions, particularly in regard to the scale of the security breaches that have taken place.

The subject of the PNQ in the other place today concerned reports this morning that thousands of passengers arriving on private jets from all over the world were allowed into this country this summer without any passport checks as a matter of official policy, at least according to information that appears to have come from UK Border Agency e-mails. The internal UKBA documents show that immigration and customs staff were instructed not to meet passengers arriving on private charter flights, including executive jets, as part of a so-called light touch targeted approach to border checks that was adopted this summer without, as far as I am aware, the information being put into the public domain.

These e-mails from the UKBA also reveal the extent to which full passport checks on European passengers were scaled back under the limited pilot scheme authorised by the Home Secretary on 28 July. I have to say that this is a very worrying state of affairs. In the context of the cuts that have taken place in the UKBA budget, it suggests that the UKBA is having great difficulty in carrying out its functions effectively. Essentially, since the Government came to power, a number of additional responsibilities have been placed on the UKBA at the same time as the huge reduction in its budget. No wonder we have reached such a difficult situation. The point that I put to the noble Lord, Lord Henley, is that this exposes general concerns about the operation and effectiveness of terrorism prevention measures, which is why I commend Amendment 44A to the House.

I return now to a group of amendments moved in Committee by the noble Lord, Lord Carlile. The noble Lord is not able to be with us this afternoon but I am grateful to him for putting his name to my amendments. Essentially, they propose keeping the existing control order provisions for relocation—which is the central point of many of our discussions on the Bill so far—until after the Olympic Games. From a chosen date after 1 January 2013, it would be open to the Government to come back to Parliament and replace the current relocation provisions with the provisions in the Bill, which would remove relocation subject to the emergency legislation that is also in the Bill.

The evidence given by the Deputy Assistant Commissioner to the Public Bill Committee in the other place was quite persuasive on the reason for and effectiveness of the use of control orders. The decision in the case of CD earlier this year was made after the Government argued, in the interest of national security, for a relocation component in CD’s control order. I remind the noble Lord, Lord Henley, that in Committee the noble Lord, Lord Carlile, asked if the Government had changed their mind about CD and, if so, why. If they have not changed their mind, why are they bringing the Bill before us?

On timing, is it really sensible to remove the relocation provisions at the current time? The Olympics are almost upon us. The noble Lord will know of reports in the media of US concerns about Olympic security. I fully accept that the Government have stated that this has not been reported accurately, but there is no denying the challenge facing us. My amendment does not seek to detract from the essential point of this legislation. All it does is keep the existing exclusion order provisions until after the Olympics. At that point, if the Government are satisfied that they no longer need the provisions, they merely have to bring an order to Parliament and the provisions in the Bill will take over. If I may so, it is a pretty good offer. It allows the Government to continue with these provisions over a particularly challenging time but does not undermine what they are essentially seeking to do. The noble Lord was not very warm towards these amendments in Committee. Let us hope that he is a little warmer to them at Report. I beg to move.

[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.

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[Lord Henley]

Given that the noble Lord is quite an experienced Member of this House, he will know that the grouping is not a matter, sadly, that the Government have any control over, and that it would be a matter for the noble Lord, Lord Hunt of Kings Heath, to decide that he wished to have this amendment grouped with the other amendments. Of course, the Government are more than happy to go along with that.

If I may, I will deal with that amendment very briefly. It is an amendment that asks for yet another report and I have to say that it is not necessary. As the noble Lord, Lord Hunt of Kings Heath, knows, there is ample provision already in place for independent review. We have the independent reviewer of counter-terrorism, currently David Anderson QC, and for 10 years before him we had my noble friend Lord Carlile of Berriew, who did that job exceedingly well. The independent chief inspector of the United Kingdom Border Agency, currently John Vine, is also required to review the operation and effectiveness of the measures in place at our ports and airports. They both report annually to the Home Secretary and their findings and reports are laid in Parliament.

I will not go much further than that and I will not deal with the specific points that noble Lords have raised in relation to recent events, partly because John Vine has been asked by the Home Secretary to make a report into these matters. There are also two other internal reports that deal with these issues—again, which have been promised by my right honourable friend—that will be made available when they come out. It would therefore not be right or proper to deal with those matters.

Referring on to the question of private planes coming in and what controls we have there, as my honourable friend in another place, Damian Green, made clear, we have absolutely nothing to hide. We have in fact strengthened the procedures there compared to what they were pre-2010 and we have made sure that we prioritise and make appropriate risk-based assessments on any planes that come in. A Statement was offered to the party opposite but for reasons of its own it wished not to take it.

I turn to relocation. Again, I accept that this is an issue that has been debated extensively throughout the Bill’s passage both in this House and in another place. Obviously there are strong views on all sides. We accept that relocation has proved effective in disrupting terrorism-related activities, but it does, as my noble friend Lord Macdonald made clear, raise particularly difficult questions of proportionality. The question is therefore, as I put it at Second Reading and which I repeat now, one of balance. Our review of counter-terrorism acknowledged these difficult questions and considered them carefully. The review concluded that the best balance lies in a more focused use of the robust restrictions that will be available under the Bill together with the increased resources that will be available for covert investigation. It concluded that it will be possible to protect the public without the powers of relocation being routinely available.

We must always remember not to look at this Bill on its own. It is part of that wider package of changes, including those in the counterterrorism review, aimed at striking a better balance across the whole range of counterterrorism and security powers, and it will be complemented by the significantly increased funding that we are providing for those purposes. We have also published the Draft Enhanced TPIM Bill, which will be introduced if necessary, in exceptional circumstances, after some degree of prelegislative scrutiny, as is found appropriate by the authorities in this House and another place. It would provide more stringent restrictions, including that power of relocation, if necessary.

I understand that the noble Lord, Lord Hunt, has concerns over timing, particularly in relation to the Olympics. Again, he ought to listen to what my noble friend Lord Newton had to say about that, and possibly the Olympics is the one occasion when we would not want to be showcasing to the world the fact that we have measures of this sort. However, I take his concerns about the Olympics. The Government have made very clear that arrangements will be in place to manage effectively the transition from control orders to TPIM notices. Security arrangements for the Olympics are being planned on the basis that the TPIM Bill, and the powers available under it, will be in force. These plans are also proceeding on the basis that the additional powers contained in the Draft Enhanced TPIM Bill will, we hope, not be needed or be necessary. As is right and proper, our planning for the Olympics is both flexible and risk-based, and we will continue to monitor the threat to ensure that we adopt the most appropriate response, including keeping this issue under review as necessary in the light of developments.

Finally, my noble friend Lord Faulks raised a detailed and very important question about the transition period when this Bill comes in, which will be over Christmas. He asked whether I could provide some reassurance that the police would be able to manage this transition during that period. As the House will be aware, the Bill includes provision for a transition period during which control orders will remain in force to enable the necessary arrangements for TPIMs to be put in place where appropriate. The Christmas and New Year holidays are likely to fall within that period because we are approaching the time when the Bill will complete its passage through both Houses, assuming that the Bill receives Royal Assent before the Christmas period. We have recently received advice from the Metropolitan Police that while extensive preparations are being made for the transition to the new regime, an extension to the transition period from 28 days to 42 days would be required to ensure that operational risks are minimised over the holiday period. I give an assurance to the House and to my noble friend that I undertake to bring forward an amendment to the Bill at Third Reading that will make that necessary change in Schedule 8 to the Bill—I think it is more or less the last sentence of the Bill.

I hope that with those explanations, and stressing again the need for balance and proportionality, the noble Lord, Lord Hunt, will feel able to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to all noble Lords who have taken part in this short debate. I am disappointed that the noble Lord, Lord Henley, could not respond somewhat more positively to my Amendment 44A. My noble friend Lord Harris asked a number of pertinent questions. No doubt when the official inquiries report, we will get answers to them. There is an underlying concern about the security of our borders and the resources available to the UK Border Agency. I hope that we will have another opportunity to return to this in due course.

As for my other amendments, I say to the noble Lord, Lord Pannick, that at Second Reading I recognised the exceptional and intrusive measures that control orders imply and I do not at all detract from that. I just happen to think that they are one of the tools that should be open to the Government, with ample judicial review where they happen to be used.

I very rarely disagree with my noble friend. I was surprised at what the noble Lord, Lord Newton, said. After all, if the Opposition had indeed voted with the noble and learned Lord, Lord Lloyd, the Government would have been defeated. Government defeats are something that I usually rejoice in, but the fact is that I feel that it is right that we are consistent with the position that we took in Government and our view that, in the end, it is for the Home Secretary to make that judgment, rightly or wrongly. I do not think that it is a sad day for the Opposition. It would have been a sad day if we had taken an opportunist position.

The noble Lord, Lord Faulks, asked a very good question and I think that he got a very good answer. Forty-two days has a certain ring about it in the history of debating this legislation and I look forward to the debate at Third Reading when the noble Lord, Lord Henley, brings forward his amendment. At the end of the day, my noble friend Lord Harris and the noble Lord, Lord Bew, had it right: the amendments I am putting forward are modest ones. All they do is give the Government the opportunity to use exclusion orders for a very limited period to take us through a challenging period, with the option at the end—within just over a year—to come to this House with an order to remove those provisions from legislation and let this Bill follow its course. I still believe that that is, and would be, a sensible way forward, and I am disappointed that the Government are not going to take it.

The noble Baroness, Lady Hamwee, said that we are either equipped or we are not equipped. That is the Government’s position, to be either equipped or not equipped. They have made a great song and dance of getting rid of exclusion orders but have then said, “Just in case, we will have emergency legislation up our sleeve, and, by the way, there are certain circumstances when Parliament cannot be recalled, so we had better have it in this Bill as well”. We can talk about being equipped or not equipped: it is absolutely clear that the Government know that they might need these provisions in the future. That is why they are legislating for them, either through the emergency legislation, which is going through pre-legislative scrutiny at some point, or in this Bill. They ought to have welcomed the flexibility that my amendments would give them.

However, the most reverend Primate the Archbishop of York has advised me not to move the amendment on this occasion. He was a wonderful Bishop of Birmingham when I first met him. In this case, I will take spiritual advice and will not seek to press the House on this any further. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

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[Baroness Hayman]

My Lords, the noble Lord, Lord Pannick, has spoken with his usual clarity and force and that means I can be very brief. It was the issue of time limiting the provisions of the Prevention of Terrorism Act 2005 that six years ago brought me into conflict with my then own—and then government—Front Bench. I am delighted that the noble Lord, Lord Hunt of Kings Heath, has put his name to the amendment. I have to say, however, that like the noble Lord, Lord Newton, I was disappointed at his attitude on Amendment 1. He invoked the principle of consistency. I think he ought to be careful about that when we review this particular amendment, given that the Labour position then on time limiting was consistently to oppose any form of time limiting on the 2005 Act until two thumping defeats in this House and some fairly vigorous ping-pong.

[Lord Hunt of Kings Heath]

I am most grateful to my noble—and, dare I say, socialist—friend for raising that. The point I raised on our debate on the first amendment was consistency with the legislation, which we took through and which we were operating.

[Baroness Hayman]

My Lords, I have always felt that consistency was a dangerous principle for politicians to invoke. I make a serious point here. Of course there is a virtue in consistency, but there is also a Galbraithian view on thoughtless and mindless consistency. I have always felt that the overwhelming obligation for politicians was to be willing and able to justify their inconsistencies as well as to have underlying consistency of principle. However, this is all by way of an aside and I hope the House will at least feel that I am consistent in my view.

As the noble Lord, Lord Pannick, has said, when we are departing from the normal procedures and principles of the criminal law—and there are reports of various committees, both Joint Committees and committees of your Lordships House about the exceptional nature of the provisions in the Bill—there is an obligation upon us as parliamentarians to keep that under review, and always be willing to reassess what we have done and how we have done it.

In the words of the noble Lord, Lord Faulks, in our debate in Committee—I hope that I am not paraphrasing him—we have got it basically right in the Bill and there is no point in having an annual squabble about it. However, I do not see this as an annual squabble. I see it much more as the noble Lord, Lord Pannick, did, as the opportunity to reassess both the need and the efficacy of what we have put in place. These are difficult balances to strike. We do not get them right and perfect every time. There is a discipline imposed by Ministers having to justify each year the continuation of provisions that all of us recognise as important and exceptional and departing from principles that are equally fundamental to how we conduct ourselves as a society.

I feel very strongly that it is not an overwhelming burden to put on Ministers to ask them to have the respect for Parliament and the recognition of the departure from the norm that the measures in this Bill contain once a year, to reassess and bring before Parliament a renewal order that asks whether we have got it as good as we can get it. Therefore, I hope that the House will support the amendment tonight.

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[Lord Hunt of Kings Heath]

My Lords—

[Lord Henley]

What I was saying, if the noble Lord will allow me to continue my argument before he intervenes, is that we do not think that an annual review of this by Parliament is necessary: once during each Parliament should be sufficient. However, as I made clear, other reports from the independent reviewer and from my right honourable friend will come before Parliament to inform debate on these matters.

[Lord Hunt of Kings Heath]

All I wanted to say to the Minister was that while he referred to a Henry VIII clause, he might also have reminded his noble and learned friend of the other Henry VIII clause, which allows the Home Secretary in certain circumstances to go back to control orders.

[Lord Henley]

My Lords, the noble Lord said it for me. All I am saying is that the Bill can be withdrawn by my right honourable friend, should she so wish. Those powers are set out in the Bill.