Terrorism Prevention and Investigation Measures Bill

Lord Neill of Bladen Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord Faulks]

I have no immediate answer to that, but at this juncture I would suggest that the initial decision-making process is far better on that basis because that is the most important stage: whether or not you decide that it is appropriate to impose, or seek to impose, a TPIM—with the approval of the court, it must be said.

[Lord Neill of Bladen]

My Lords, I wish to add my view. I entirely agree with what the noble and learned Lord, Lord Lloyd of Berwick, moved by way of an amendment. I fully support that and I also support the amendment tabled by the noble Lord, Lord Pannick. The basic question is one of justice: where should the order be made that leads to these deprivations of liberty? I have been told that you would have to be in a particular residence for a long period of hours. All those things in orders of that type are grave deprivations of privilege. Here, I agree with what the noble and right reverend Lord, Lord Eames, said based on his experience, which is borne out by the material that we are reading now as to where the public place their confidence. Perhaps not surprisingly, journalists come at the bottom. I do not know where lawyers come in but it is somewhere not very high up. Yet the judges seem to have the backing of the public as being in the safest and soundest place for judgments to be made. If those judgments involve the liberty of the subject, as I believe they do in this case, that is where we should put our money.

[Lord Rosser]

My Lords, one of the attractions of these debates is that we get not one but many legal opinions—different opinions from distinguished legal practitioners, at no charge and expressed with some force. The effect of many of these amendments is to significantly alter the Bill. One set within the group we are talking about gives the power to impose specified terrorism prevention and investigation measures on an individual to a court, rather than to the Secretary of State. It also appears to require that before such measures can be imposed, the individual concerned has to be or has been involved in terrorism-related activity, which, if that is the case, sounds a bit like shutting the prevention of terrorism door after the horse has bolted. Most people would prefer to see action taken against the small minority minded to commit acts of terrorism before they carry out the deed, rather than afterwards.

The second set of amendments we are discussing continues to give the Secretary of State a role but appears to raise the bar that has to be cleared by the Secretary of State before he or she can impose specified terrorism prevention and investigation measures. As far as the Government are concerned, the bar has already been raised under this Bill from “reasonably suspect” to “reasonably believes”. Amendment 17 raises it higher to,

“is satisfied on the balance of probabilities”,

a term with which the judicial system is more familiar and with which, no doubt, its practitioners are more at ease.

The outcome of all these amendments is quite likely to be that the number of people subject to the renamed control orders is less than it would have been under either of the thresholds—the Government’s proposed “reasonably believes” or the current legislation’s “reasonably suspect”—for the Secretary of State to cross before imposing a TPIM. That may be one, but surely only one, of the intentions of these amendments, since their authors are clearly unhappy with both the present arrangements and the amended arrangements set out in the Bill—so unhappy, indeed, that the first set of amendments largely takes the Secretary of State out of the equation.