Terrorism Prevention and Investigation Measures Bill

Lord Lloyd of Berwick Excerpts

Wednesday 5th October 2011 Lords Chamber

[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.

[Lord Lloyd of Berwick]

Is the noble Lord aware of any other country in the world which has control orders or anything like them? He referred to Guantanamo Bay, but that, of course, is not part of the United States.

[Lord Howard of Lympne]

Of course it is technically not part of the United States, and that is why it can exist as it does, but it is a product of the Government of the United States. It is the Government of the United States who have put in place the regime which exists in Guantanamo Bay, and I do not imagine for one moment that the noble and learned Lord would suggest that we should establish a regime similar to that in Guantanamo Bay in place of the measures contained in the Bill. The trouble is that you have to have something. It is true that every country proposes different ways to deal with the matter, but I do not think that ours is in any way the most draconian.

--- Later in debate ---

[Lord Lloyd of Berwick]

My Lords, some noble Lords will remember, as I certainly do, when control orders were first introduced as an emergency measure in March 2005 after an all-night sitting. It was an emergency measure because the suspects then being detained in Belmarsh prison were due to be released within a few days as a result of a decision of the House of Lords in December 2004. The powers granted to the Home Secretary in 2005 were considered to be so extraordinary at the time that the Conservative opposition and the Liberal Democrats insisted on a sunset clause, and they carried the day in that respect. Six years later, those powers are to become in effect a permanent part of our constitution.

I had hoped that when the coalition Government took over, there would be an end to control orders. The coalition agreement promised to reverse the substantial erosion of civil liberties that had taken place under the previous Government and there was to be an extensive review of anti-terrorism measures. These were all good signs. I have not seen the evidence submitted to the review by the security services or the police, but I have seen the rest of the evidence, and I can say that with one exception, all the evidence in relation to control orders was in favour of abolition. Yet, once again, the Government have drawn back.

We are getting rid of relocation, and I am glad of that. Perhaps I may say to the noble Lord, Lord Hunt, that of course relocation is the most effective measure available, but in my view it is also the most inhumane. So there are improvements in the Bill which I welcome. But the fundamental objection is the same as it has always been: British subjects have been placed under severe restrictions so well described by the noble Baroness, Lady Stern, for lengthy periods by order of the Home Secretary, who is a member of the Executive, without ever having been convicted of an offence or, until recently, even being told what they were supposed to have done. Such powers are common enough in police states and, as the noble Lord, Lord Carlile, explained, they may be acceptable in Pakistan and India, but I never expected to see those powers exercised in England, save in time of war when the life of the nation is at stake.

[Lord Carlile of Berriew]

My Lords, with great respect to the noble and learned Lord, I really do not think he should be allowed to get away with that. The implication of what he has just said in what I take to be a rhetorical flourish is that what happens in Pakistan, for example, or what has happened in Sri Lanka, is to be equated with what has happened here. Does he not think that our judges, of whom he was one of the most distinguished in this country, have played an extremely sound and controlling role over the exercise of this jurisdiction and have ensured that in fact and in law, it was ECHR compatible?

[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.

[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.