Terrorism Prevention and Investigation Measures Bill

Lord Newton of Braintree Excerpts

Tuesday 15th November 2011 Lords Chamber

[Baroness Hayman]

My Lords, I have added my name to these amendments and, given the speeches of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart, I can be relatively brief. I certainly will not challenge them in terms of legal expertise, having ended my legal career with a first degree in 1969, but I feel strongly on this issue because of my own experience as a parliamentarian. I had the honour to be a member of the Privy Council committee chaired by the noble Lord, Lord Newton of Braintree, who I am glad to see in his place, which reviewed the provisions of the Anti-terrorism, Crime and Security Act 2001, particularly Part 4 of that Act, which was considered by us and by many others to be unsatisfactory. The Government paid little heed to the results of that committee’s deliberations until the courts made them do so. We ended up with the 2005 Act, in which I played some part on the duration of control orders, an issue to which we will return, mutatis mutandis, later in today’s Report stage.

I came out of that experience, particularly the experience of the Privy Council review committee, with two clear views. One was that there was a problem that needed to be addressed and that there was some justification for going beyond the normal criminal legal procedures in terms of the threat of terrorism. Some of that was in terms of creating new offences—we saw the offence of “acts preparatory to terrorism” that came out of that review, which I believe has been helpful—but even that was not enough and there was the need, as I think the noble Lord, Lord Goodhart, has just said, for measures that were extraordinary. I do not need convincing on that score.

The other thing that became clear to me was that we should, as legislators, try to make those extraordinary measures deviate as little as humanly possible from the fundamental principles that we normally apply, through the criminal justice system and the whole of our legal processes, to the deprivation of liberty and to constraints upon movement and actions—the fundamental human rights of those living within our country, particularly our citizens. I look at the provisions of the Bill, which I believe are an improvement on control orders—limited but an improvement—and ask myself whether we are deviating as little as humanly possible.

I believe there would be a great improvement, without a balanced increase in risk to security, if we transferred that initial decision on the imposition of such measures from the Secretary of State—the Home Secretary—to the courts. That is the fundamental and simple reason why I support these measures. I was emboldened to do so partly because of the comments made by the chairman of the Privy Council committee, the noble Lord, Lord Newton of Braintree, as I always pay great respect to those who have been my chairs on committees. Perhaps we will hear from him later. However, I remember that, when we were discussing the 2005 Act and talking about analogous issues and the role of the judiciary, one of my colleagues who was not in sympathy with the position that I was taking turned on me and asked, “What’s so special about the judges?”, to which I replied, “They’re not the politicians”. That fundamentally remains my position today, and it is why I added my name and give my support to this group of amendments.

[Lord Newton of Braintree]

My Lords, on this occasion I have not actually been tempted. I had hoped to come in anyway, although I was a little late getting here, and I apologise for that. I would like to say to the noble Baroness, Lady Hayman, that I much appreciate the remarks she has just made. I well remember the experience we had together and the hugely valuable contribution that she made to that committee. I can also say that I share her views on absolutely everything that she has said, so I will not speak at great length. I agree also with what I have heard since I came into the Chamber. The Minister ought to know—if he was in any doubt—that there was not complete unanimity on this point on the Benches immediately behind him, even though the voices so far have come from elsewhere.

The arguments adduced on the previous occasion in Committee to which the noble Baroness has referred were, frankly, unbelievably thin. I do not blame the Minister for that—I suspect that they are inherently thin, and unless they are a lot thicker this evening then I will find myself in some difficulty, and he needs to know that.

[Lord Macdonald of River Glaven]

My Lords, I support these amendments. I declare an interest as the independent reviewer of the counterterrorism review. I should also like to pay tribute to the noble and learned Lord, Lord Lloyd, for the many hours that he has devoted to these issues over the years.

Why should it be the court rather than the Home Secretary? In my brief analysis, there are four reasons. First, on any analysis, the measures in this Bill are an exception to our normal rule-of-law principles for reasons set out very clearly by my noble friend Lord Goodhart. Secondly, they constitute a very serious potential stigmatisation of those subjected to them: a declaration of belief on the part of the state that the individual is involved in acts of terrorism. In my estimation it can hardly get much worse. Of course, the orders are anonymised, but family, friends and no doubt, the wider community, quickly become aware of the fact. Thirdly, our courts are very well used to adjudicating issues of national security, and they do it time and time again—for example, every time a question of public interest immunity arises, and in many other situations too. I am not aware of any credible argument that they do so incompetently. They may of course embarrass the Government and one or more of the agencies from time to time, but that is an entirely different point. Fourthly, and finally, our courts are independent, and they therefore bring the vigour of their independence to their decision making. In this area, that becomes a question of important public confidence.

My analysis is that it is the exceptionality of these measures, their severity, and the damage that they may do to their subject—who after all has heard no more than the gist of the case against him, quite exceptionally—that demands that they should be orders of the court rather than punitive and potentially damning directions of the Home Secretary.

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[Lord Judd]

I am grateful to the noble Lord, Lord Pannick. Of course, he is right. That is not the first time he has been right: nor, I imagine, will it be the last. I make one plea to my noble friend. I am concerned that, if the official position of the Opposition and the party which I support—and of which I am a member—is that it is not necessary, as was demonstrated on the last amendment, for action to originate with the courts and judges, this will extend still further the powers that will flow from an executive decision by the Secretary of State. To have such far-reaching powers—whether they are needed at all is a separate issue—without the action having originated in the courts becomes even more disturbing. I hope that my noble friend and his colleagues, in considering future policy over a longer period, will give this serious consideration.

The noble Lord, Lord Phillips, in the debate on the previous amendment, made what for me was the most powerful argument: that is, what are we trying to do? We are trying to promote the security and well-being of the British people. If we are going to do that we must have the maximum possible support for what is being done in all the communities that matter in this context. If that is to be the case, and if people are not to be prone to manipulation by extremists in the midst of their concern and anxiety, it is desperately important to demonstrate that when extensive powers are brought to bear, they have the authority of the courts and are part of the whole tradition of the administration of justice and the rule of law as we have understood it in this country.

Let us make no mistake. The objectives of the extremists are to undermine and destroy our commitment to the rule of law as we have understood it and to destroy the credibility of our claims about the rule of law. We must be careful that we do not play into the hands of the manipulative extremists and put the vulnerable and the impressionable under still more pressure to join their ranks.

[Lord Newton of Braintree]

My Lords, before I say anything else I had better warn my noble friends on the Front Bench that—to their surprise—I am about to support them, along with the noble Lord, Lord Pannick. However, that is in the context of having voted against them on the previous amendment and having agreed with every word that the noble Lord, Lord Judd, said, which built on what my noble friend Lord Phillips said in the previous debate. If these provisions had still been in the Bill during the previous debate, they would have been a major focus of it. The notion that one forces somebody away from their friends, takes their children out of their schools and breaks all their links by a relocation order, underlines the desirability of this being something that is sanctioned by the courts and not done as an executive fiat by the Home Secretary.

I will speak, but not at length, to the Labour Front Bench. This is a bit of a sad day for all of us except the 79 who formed a small group in the Lobby behind me. However, in the light of this debate, it is an even sadder day for the Labour Party—I suspect that the noble Lord, Lord Judd, would agree with me but I will not ask him to indicate that—when set against the background of much of what it has stood for over the years. One thing that pleased me when we got the coalition was that there were clear indications—and not just because it was a coalition—that the Conservative Party was occupying the freedom ground again rather than the authoritarian ground. There are now reasons to question that, but I will not go on down that line.

I want to conclude without repeating points that have already been made. Okay, there will be problems during the Olympics, but they will be a great showcase for our country: its values, qualities and abilities. Why do we want, in the course of the Games, to maintain a proposition that is, frankly, inimical to everything that most of the rest of the world thinks that this country stands for and to what most of us think is what our democracy stands for? That is my question and that is why I support the Minister.

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[Lord Mackay of Clashfern]

I agree with that and am very much aware of it, but it is still a mere balance of probabilities. Although it can go very close to the criminal standard, it is still a balance of probabilities that is being used, and I would say that the criminal standard requires a jury in effect to believe—to be sure—that this is what happened. I regard “reasonable belief” as a very strong and appropriate phrase to use where the person initiating the procedure is the person with the responsibility to have before him or her all the necessary material.

[Lord Newton of Braintree]

My Lords, having stuck my neck out first one way and then the other in the earlier part of our proceedings, I had decided to keep my head down on this one. I want to say to my noble and learned friend, given the views I expressed in the House earlier in the day, that he has made me feel better. It may be respectable to keep my head down, so I shall continue to keep it down.

[Baroness Hamwee]

My Lords, that was a very obvious keeping-down of the head, done in a rather energetic fashion.

I would like to raise a point which I raised—obviously rather ineffectively—at the last stage, and that is to ask why the Government make a different provision for the generality of the Bill than for the temporary power provided in Clause 26? Under that power, the Secretary of State can impose enhanced measures on individuals whom she,

“is satisfied, on the balance of probabilities, are, or have been, involved in terrorism-related activity”.

It does not seem to me that the answer to that question can be that the situation is different. The urgency of the situation—with Parliament not sitting and, as I understand it, a heightened state of security—relates to the ability of the Secretary of State to make an order. However, the balance of probabilities relates to the individual, not to the overall situation.

I am glad to see the noble and learned Lord, Lord Lloyd, nodding. I too feel better now, as it is obviously not a completely stupid question. I do not see where the distinction comes, as we would still be considering individuals. It may be that the noble and learned Lord, Lord Mackay, has answered the question for the Minister, I do not know.

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[Lord Newton of Braintree]

I have three prefatory remarks. First, I apologise to one of my noble friends, to whom I had given the impression that I might simply pack up my tent and go away. Actually, I got so interested that I am still here—and from that she will know that I may not be as totally supportive as she would like.

Secondly, I would just like to say what a joy it is that the noble Baroness, Lady Hayman, is now back in our deliberations rather than presiding over them as Lord Speaker, and to say how good a speech she made alongside that of the noble Lord, Lord Pannick, in supporting the amendment. I will not follow her down the line of discussing obstinacy versus consistency as a virtue, but I am bound to say that one thing that I have observed in government over the years is that when consistency becomes obstinacy, which is what happens on too many occasions with politicians, it is a danger and not an asset.

Thirdly, I would say to my noble and learned friend Lord Mackay, who I was very keen should speak before me, that he has again given me a greater cloak of respectability than I normally have on these occasions. The House will realise from that that I agree entirely with what my noble and learned friend said, and I hope the Government will think again about this, as the case is clear, compelling and strong.