Terrorism Prevention and Investigation Measures Bill

Lord Judd Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Judd]

My Lords, like others I welcome the noble Lord, Lord Henley, to his new responsibilities, although, also like others, I am sorry to hear the reasons for his predecessor not being able to continue and wish her a speedy, full recovery. The noble Lord and I live in the same county. Here it is perhaps not widely known that he has a very high standing there. He has won the most important, prestigious prize for marmalade making. As a great lover of marmalade I look forward one day to tasting his, although he has tough standards because I have never tasted better marmalade than that made by my wife.

As has been argued, it is clearly the responsibility of the Government to protect those within their jurisdiction. There is no argument about that. But it is also their responsibility to protect those institutions, and the way in which they function, which protect the citizen’s right to freedom and justice. Freedom and justice are the cornerstones which make the United Kingdom a good place to live. Terrorism presents huge challenges on the first of those and complex challenges for the Government, security services and the police on the second. None of us wants to undermine our enviable system of justice for which previous and existing generations have struggled for centuries. None of us wants to give the terrorists or extremists the satisfaction of seeing us putting to one side the very principles which have come to define Britain at its best.

It is therefore right to scrutinise most carefully any legislative proposals which depart from the administration of justice as we have come to respect it: namely, the right of the defendant to know of what he or she is being accused; the right to defend themselves against such accusations; the right to proper legal processes; the right to a fair trial; the right not to be imprisoned, which must include control methods that do not involve imprisonment in its conventional sense; the principle of innocence unless guilt is proved; and the principle of justice at all times being seen to be done. When and how far can action we describe as terrorist legitimately permit us to depart from the principles we cherish as central to our way of life? Indeed, in highly charged and emotional areas which encompass large numbers of people, how far will such a departure undermine confidence, stability and security? We all know, and I have made a point of talking to some of the police most closely involved in security operations, that they can be successful only when they are working with the population and the population feel that they are on their side. We always have to be very wary of the dangers of counterproductivity.

Terrorism is crime. It is crime of the most abhorrent nature. But it is crime. Why elevate it to a special legal status? All our efforts should be to endeavour to meet it, to contain it, and to confront those who are accused of it in our proven legal system of criminal justice. Exceptions must always be just that—exceptions. They need to be carefully considered and prepared with those defining them as necessary exceptions. Those who do so must be held vigorously and clearly to account.

I believe that a central criticism of this Bill is that it repeats the danger of drifting into a systematisation of ongoing alternative methods of dealing with some people accused of criminality, albeit of an extreme form. It therefore risks playing into the hands of the extremists as they endeavour to manipulate anxiety, doubt and alienation. The Joint Committee on Human Rights has looked at this closely. I am very glad that my noble friend Lord Dubs brought this home in his interesting remarks. The JCHR’s report is worthy of close attention, as is its report on the remedial order which follows. I hope that the Minister, when he replies to both, will fully and carefully cover the findings of the Joint Committee. If my noble friend pursues, as I hope that he will, his observations with amendments, he can certainly count on my support.

It may be helpful for the House to hear the specific response on this Bill to some of the observations that the committee makes. I shall try to summarise them. Why is there not an even stronger emphasis on bringing proposed restrictions back into the domain of criminal due process? The noble Lord, Lord Macdonald, spoke strongly on this. Why is there not a precondition in the Bill that when restrictions are being imposed on an individual, the DPP or equivalent must be satisfied that a criminal investigation into that individual’s involvement in terrorist-related activity is justified and that none of the specified terrorism and investigation measures to be imposed on the individual will impede a criminal investigation?

Why is there not provision for judicial supervision in relation to ongoing criminal investigation with a requirement for consideration of reports on progress as happens in the judicial role supervising court-imposed bail conditions? Why is there no time limit on the restrictions to ensure that they last for only a maximum period of time—perhaps two years—while the criminal investigation is conducted? Why is there still no proposal to require the Secretary of State at the outset to provide an individual who is subject to special restrictions notice with sufficient information about the allegations against him to give effective instructions in relation to those allegations?

We all know that intercept is central to that. We really need to know what progress is being made on the admissibility in some form of intercept evidence in the proceedings against an individual. Surely, where secret evidence is relied on, there should be a provision in the Bill both for a statutory obligation for the Secretary of State to give reasons for imposing the restrictions and for special advocates to take instructions from those whom they represent after having seen the closed material where the judge permits this. Why is this not in the Bill? When I was on the Joint Committee on Human Rights—and that was some years ago now—I remember special advocates coming to see us to discuss how unhappy they were with their role. They felt in many ways that this contradicted everything they understood from their legal training and the calling of the profession as they understood it. They were expected to defend their clients without full exchange of information with them and without being able to discuss what they were defending their clients against. We understand the difficulties but this does mean that action on this front cannot be delayed.

The Joint Committee on Human Rights makes the telling point that although the new regime is less severe than the control orders regime was, it remains at a far remove from normal criminal due process. Does this not therefore make it right that there should be a provision for Parliament to scrutinise annually the continued need for such exceptional measures and to evaluate how they work in practice? I hope that the Minister will deal with these serious observations of the Joint Committee in his reply.

I conclude with one wider observation. We all know that around this issue there is a concern about human rights and commitment to human rights, and about where they stand in our society. What happens in this sphere is an extremely good illustration of what goes wrong. Somehow we have drifted into a position in which we see the commitment to human rights legislation as a kind of restriction on us and that somehow we have got to justify what we are doing against the requirements of human rights. But that is not what fired the whole move towards human rights at the end of the Second World War. Leaders of all parties—leaders of that coalition, led by Churchill—saw at the end of the war that human rights were going to be central to the future stability of the world. They were not an optional extra for a decent society, they were a pillar of stability. That was clear for all those who had been through the experience of the Second World War.

Somehow we have lost that conviction. We see human rights as an imposition, a restriction on our getting on with the job, as distinct from seeing them as a central, indispensable element in our fight against terrorism and extremism. We must get back that sense of commitment to human rights, not massage them and get them out of the way. Least of all should we start playing popularism with the public on the issue. We have got to regenerate a deep and meaningful commitment to why they are so essential.