Terrorism Prevention and Investigation Measures Bill

Lord Lloyd of Berwick Excerpts

Wednesday 19th October 2011 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

1: Clause 2, page 1, line 6, at beginning insert “The court may on the application of”

[Lord Lloyd of Berwick]

My Lords, these amendments fall into two main groups. The first includes Amendments 1 to 3, 7, 8, 25, 27, 29, 36, 37, 40 and 41. I start by referring to the restrictions set out in Schedule 1 to the Bill, which were so well described by the noble Baroness, Lady Stern, at Second Reading. It is wrong in principle for punitive restrictions of the kind set out there to be imposed on a British subject by a member of the Executive in time of peace. It is as simple as that. The Minister’s predecessors on both sides of the House have previously argued that such restrictions are not punitive—they are preventive. I suggest that that is playing with words. Looking at Schedule 1, any ordinary reader would say that these restrictions, whatever their purpose, are punitive in effect.

In her response to the excellent report of the Joint Committee on Human Rights, the Home Secretary argued that prevention orders are now a common feature of our legal system. She cited anti-social behaviour orders, football banning orders, serious crime prevention orders, violent offender orders and so on. However, in all these cases the order is made by the court—either the High Court or the magistrates’ court—as it should be. Therefore, the purpose of the first group of amendments is simply to bring the Bill into line with the precedents on which the Home Secretary herself relies. In other words, it is for the Home Secretary to make the application for an order, but for the order to be made by the High Court.

It may be said that we are dealing here not with ordinary crime but with terrorism, and, where the safety of the public is at issue, it is the Home Secretary who should make the order because it is the Home Secretary who is answerable to Parliament. There are two answers to that argument. One need look no further than Section 4 of the Prevention of Terrorism Act 2005—the very that Act that we are repealing. It provides that, in the case of derogating control orders, it is the High Court that makes the order, not the Home Secretary. That surely puts paid to the argument that in terrorist cases it is for the Home Secretary to make the order because it is she who is answerable to Parliament.

There is a second answer. Clause 9 provides that the court must review the case as soon as practicable after notice has been served. The crucial question of fact on that review will be whether the individual is or has been involved in terrorist activity. In the leading case of the Secretary of State for the Home Department v MB—2007, Queen’s Bench, at page 415—the Court of Appeal held that, in considering that crucial question, the court must reach its own conclusion on the facts. If it disagrees with the Home Secretary, it must say so and quash the notice. It is the court’s decision on the facts which will prevail, not that of the Home Secretary. The Government have accepted that that should be so. However, if that is to be so, it is difficult to see what, if anything, is left of the argument that it is the Home Secretary who should make the order because the Home Secretary is answerable to Parliament.

--- Later in debate ---

[Lord Carlile of Berriew]

I do not know whether the noble Lord has studied the effect of the case of AF (No. 3), but if he were so to do, he would find that there is a requirement for the court. Successive Home Secretaries, close to whose department I have worked, have always been assiduous to ensure that there was sufficient material—particularly since AF (No. 3)—so that the individual concerned knew the case he had to meet, at least in gisting terms. I urge the noble Lord to read the Green Paper published today by the Ministry of Justice, Justice and Security, which deals in part with these matters.

I would like to move on to the substance of these amendments. The noble and learned Lord, Lord Lloyd of Berwick, called into his argument the requirement for a court to approve a derogating control order under the 2005 Act. In deploying that argument, surely we should remember that, first, there have been no derogating control orders under the 2005 Act; and secondly, had there been a derogating control order, it would have been so dramatic that we would have had to derogate from part of the European Convention on Human Rights. This would have required, in effect, a change to our constitution which plainly ought to be passed through the courts at the earliest possible phase. I am afraid that, with real respect, I reject that argument.

In dismissing deportation applications and deportation decisions that are made daily by Home Secretaries, the noble and learned Lord said that they are made against foreigners so it is less significant, but if he thinks back to the Belmarsh case that was decided at the end of 2004, he will recall that the Judicial Committee of this House, of which he was a most distinguished member at one time, held that discriminating in that way against foreigners was unlawful. Indeed, the so-called Belmarsh provisions were struck down because they were disproportionate and discriminated against foreigners by treating them differently from United Kingdom citizens.

[Lord Lloyd of Berwick]

My Lords—

[Lord Carlile of Berriew]

Perhaps I might finish this point before, predictably, the noble and learned Lord stands up. I do understand the distinction he is making. It seems to me, with great respect, somewhat casuistic.

[Lord Lloyd of Berwick]

Surely the noble Lord must accept and understand the difference between deporting a British subject and deporting an immigrant. It is obvious.

[Lord Carlile of Berriew]

What I understand is that a deportation decision can be made by the Home Secretary. The administrative court is considering these cases hour by hour, let alone day by day, often as matters of great urgency. It is considering cases in which people have been imprisoned. Sometimes, very young people are imprisoned in unpleasant circumstances in this country. I do not hear the noble and learned Lord saying that this is an act that should be the subject of approval by a judge. In any event, it would be a practical impossibility because the Upper Tribunal and the administrative court are swamped by more than 10,000 of these cases at present.

I also reflect on much simpler situations. It is suggested that taking a citizen’s freedom away is something that should be determined by a judge in every circumstance. But we even let police constables do it every day of the week. When a police constable arrests a citizen for something as “minor” as, for example, shoplifting, the person may be taken into custody on the fiat of a police constable. When people are charged with serious offences and not bailed, although they are brought before a judge quickly, as is envisaged in this Bill, they are taken off to such unpleasant places as Strangeways or Belmarsh and find themselves in custody until they are brought up fairly summarily before a judge. Although it goes without saying that judges in every instance are very careful in considering such cases, the care they take does not bear comparison with the care that High Court judges give to controlees in control order cases.

We have already mentioned deportation cases. Organisations are proscribed by the Secretary of State, taking the precious freedom of association and membership of groups away from citizens of this country and foreigners without discriminating between them. Decisions are made to invade people’s privacy in what may be an outrageous way by warrants to intercept their telephones as a result of administrative acts. They are not brought before a court. Certainly, retired judges are involved in these decisions but these are not transparent hearings with evidence and tribunals. The subject does not even know that it is happening. In addition, covert surveillance, which can be an appalling invasion of people’s privacy, is performed as an executive act.

It seems to me that there is some confusion here among my noble friends and other noble Lords in their analysis of the roles of different parts of the state apparatus in the conduct of state business. In my judgment, for what little it is worth, the act of making a TPIM or a control order has exactly the character of ministerial responsibility that successive Home Secretaries, some of whom are noted Members of your Lordships’ House, are able to carry out. What follows has exactly the character of judicial scrutiny which judges are extremely well able to carry out and are experienced in carrying out. It seems to me to be a clear part of our constitutional settlement and to fit within it very clearly.

The standard of proof is not an easy question and I do not pretend that there is a perfect answer to it. If one reads through the open judgments in control order cases, one sees that the reasoning of judges in those cases has been very strong. In almost every case, I would venture that in reality the judgment has been made on the balance of probabilities and I would not have a particular difficulty if that was the standard set.

However, there is a danger of underestimating the difference between reasonable grounds to suspect and reasonable grounds to believe. As a judge on the Judicial Committee of this House put it on one occasion: “Reasonable grounds to suspect means I suspect that it may be so, while reasonable grounds to believe means I believe that it is so”. It seems to me that the executive act of a Minister asking the question “Do I believe it to be so?” is a proper standard to set and can be scrutinised carefully by the courts. If the proof of the pudding is ever in the eating in court, that is what has happened with control orders.

So far as a one-year TPIM with a two-year limit is concerned, when I was the independent reviewer of terrorism legislation I always supported a two-year limit, and I still do. I see no reason why there should not be a one-year limit with an extension available. That seems to accord with the purpose of control orders or TPIMs. One can reasonably expect that during a one or two-year period, the potential of the individual concerned to be a terrorist is much reduced as a result of the order. However, I do have to say to noble Lords that there are cases where that has not been so, and there would have to be some exceptional provision so that those who, despite a TPIM, continue to be active in terrorism should be subject to a new order if the evidence is available at the end of a two-year period.

--- Later in debate ---

[Lord Lloyd of Berwick]

My Lords, I am grateful to the Minister for his careful response to this large group of amendments. I shall read what he says in Hansard. Indeed, I shall scrutinise, if that is the right word, what he says with care. He referred to the decision in MB as in some way supporting his view that it should be for the Secretary of State, rather than for the judge, to make the order. However, I do not agree with that reading of the case. As I read it, MB requires the court to make a full merits review at the Clause 9 stage. That is a matter we shall discuss again, just as we shall discuss again the Minister’s reasons for preferring reasonable belief to a balance of probabilities.

With two exceptions, all noble Lords who have spoken have supported these amendments. I am particularly grateful to the noble and right reverend Lord, Lord Eames, and to the noble Lord, Lord Macdonald. We shall definitely return to all these matters on Report, and in the mean time I beg leave to withdraw the amendment.

Amendment 1 withdrawn.