Counter-Terrorism and Security Bill

Lord Thomas of Gresford Excerpts

Tuesday 13th January 2015 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, in the year 1219, some four years after King John put his seal to Magna Carta at Runnymede, Ghengis Khan, through his armies, invaded Persia. Their tactics were to create terror. Prisoners were executed, or even used as body shields by Mongol warriors as they charged against their enemies. If a city refused to surrender, diseased bodies were thrown over the walls to spread plague and disease—an early example of biological warfare to which the noble Lords, Lord Judd and Lord Jopling, referred. On the fall of the city, women and children were raped and slaughtered and, through terror, the Persians capitulated and the country was held down with relatively few Mongol forces. It is thought that the population of the area was reduced from 2.5 million to 250,000.

In the past year, we have seen such terror tactics used again across the same lands. Essentially, a war exists between two competing sects of the same religion of peace and it is a conflict that has lasted for more than a millennium. The army of Iraq, trained by the West and with far superior equipment, melted away rather than face the barbarity of ISIL forces. The United States and the United Kingdom have been dragged into the conflict by the barbaric execution of our citizens and by the fall of Mosul and the capture of the Haditha Dam. The polity that we sought to create in Iraq is in danger of collapse. We and other western countries—Canada, France, Australia and others—are now engaged in an asymmetric war in which we attack the enemy by the most technologically advanced means of drones and air strikes. Against them, the forces of terror have no defence. But the price we pay for warfare directed from secure and remote bunkers in our homelands is that we significantly increase the risk of a strike on our own civilian population. The war is brought home to us, as happened in Greenwich, in Canada, in Australia and, only last week, in France.

There is a further significant dynamic to which some noble Lords have referred: the volunteering or recruitment of radicalised young Muslims, born in this country, to fight on the terrorist side in Syria or Iraq. This is the context in which this counterterrorism Bill is brought forward. I believe that the citizens of this country are at greater risk now than when we had armies in the field in Iraq and Afghanistan. The point of balance between the safety of British people and civil liberties has shifted.

However, civil liberties are not abolished. Where there is sufficient evidence of a breach of the criminal law, all would agree that an individual should be investigated, arrested and tried in a judicial process where all the safeguards against injustice are in place. The problem we must examine is where there is not sufficient evidence for such processes and administrative powers are used as an alternative to prosecution. This Bill builds on a past of difficult legislations, as the noble and learned Lord, Lord Brown, mentioned.

Clause 1 proposes the seizure by police or other authorised persons of a passport where a person is suspected of intending to leave this country in connection with terrorism-related activity. The clause includes ancillary powers of searching and for the use of reasonable force. We have to ask ourselves whether this is a proportionate and necessary interference with an individual’s rights serving a legitimate aim.

First, there is already a power for a policeman to arrest without warrant a person he reasonably suspects to be concerned in the commission, preparation or instigation of acts of terrorism. What is the distinction between the exercise of that power and this new power to take away a passport? Is it possible to have a different evidential base for the suspicion necessary to trigger the existing power of arrest and the suspicion necessary for the new power to take away a passport? The draft code of practice says in terms that a reasonable suspicion cannot be formed on the basis of racial stereotypes. Obviously, there must be a stop list that causes someone at an airport or port to remove an individual’s passport. What is the basis of it? It surely cannot be the hunch of the policeman or the officer who happens to be on duty on the particular day, and yet, as the Bill is currently drafted, although someone is on a stop list, no reasons for the seizure have to be given. The noble and learned Lord, Lord Goldsmith, pointed out the difficulties of the limitations of judicial review. Without any reasons having to be given, the remedy of judicial review is further stultified.

Secondly, what happens to the individual whose passport has been removed? Is he simply sent back home or is he made subject to a TPIM order with a travel restriction? What happens to him?

Thirdly, as to the limited judicial oversight contained within the clause, the noble Lord, Lord Rooker, argued that judges should not be able to overrule Ministers. However, it is not the judges who overrule Ministers at their whim; it is the rule of law that controls the way in which a Minister behaves.

Why is there to be no judicial consideration of the officer’s decision unless an extension of the seizure beyond 14 days is contemplated? Why, even then, does the court have no power to examine the merits of the exercise of the power or to consider the evidential base of the original officer’s decision? The limited power of the court to examine whether the process has been carried out diligently and expeditiously is presumably modelled on the unsatisfactory power of a judge on an application to extend the custody time limits of a person held on remand in an ordinary criminal case. However, in applications in criminal cases the court has already considered the merits. Why cannot the court consider the merits of a decision under Clause 1?

Clause 2 gives power to the Secretary of State, on reasonable suspicion of involvement in terrorism-related activity outside the United Kingdom, to cancel the passport of a British citizen administratively and, again, without any judicial process. It is said to be a temporary order but it may last for up to two years, and then it may be extended or renewed without any time limit. It is surely wrong for the Government to contend in their human rights memorandum that the Human Rights Act 1998, which is engaged, and the United Kingdom’s obligation under the European convention, do not apply to the removal of citizenship from a person simply because he is out of the jurisdiction. That was the previous Government’s mistake in connection with the activities of troops serving in Iraq and Afghanistan, and it took the Supreme Court to put it right.

I shall support amendments for which the Joint Committee on Human Rights has argued, which would substitute an exclusion order with a “notification of return” order. The questions raised by the noble Lord, Lord Harris of Haringey, as to the effect of the temporary exclusion order on foreign jurisdictions must be answered. I do not regard this as a weak self-notification, as suggested by the noble Baroness, Lady Neville-Jones; I think it is the way forward.

Relocation under a TPIM order re-emerges in Clause 12. The independent reviewer told the Joint Committee on Human Rights in November that relocation was more effective than the power merely to exclude TPIM subjects from particular locations. We are not told why. Undoubtedly relocation has a down side: it has the most damaging effects on family life. As the highly experienced solicitor Gareth Peirce put it:

“This may affect only a small group of people but in terms of its contribution to what one might call the folklore of injustice, it is colossal”.

The noble and learned Lord, Lord Lloyd, said that we must keep the Muslim community onside. He is right because that community is the source of co-operation and intelligence that will defeat terrorism.

In the other place, in answer to the right honourable Kenneth Clarke, the Minister sought to justify relocation by reason of,

“the changing nature of the threat picture”.—[Official Report, Commons, 9/12/14; col. 800.]

What does that mean? Can the Minister explain specifically how relocation lessens the threat posed to the security of this country by returnees from Syria and Iraq? Is not a programme of reintegration within the community to be preferred? What will we do, for example, with the Cardiff jihadis who appeared in that clip that we saw? Will we house them separately in a completely alien society in Carlisle or Newcastle? Will we put them in a hostel for returnees so that they can be subjected to programmes of reintegration in, for example, Welsh-speaking Bala in Merionethshire? I refer to Bala for a particular reason. The authorities deemed it right in 1916, after the Easter Rising in Dublin, to place 1,800 Irish republican prisoners in an internment camp at Frongoch just outside the town. It became known as the Sinn Fein university, where republican leaders such as Michael Collins and Arthur Griffith gave lectures to inmates in guerrilla warfare. If banishment to Wales did not lessen the tension in Ireland, how does relocation lessen the threat today?

I want finally to refer to the proposed Privacy and Civil Liberties Board in Part 7. I support the broad concept that there should be a specific independent body that can act as a counterweight to the cadre within the Home Office, largely of ex-Security Service personnel, who have exerted such pressure on successive Home Secretaries and—dare I say it?—on the independent reviewer. I do not, of course, suggest that the noble Lord, Lord Carlile, or the current independent reviewer has given way to that pressure. The Bill, however, has only an outline of the membership, purpose and functions of the board. It might be right to leave the details to secondary legislation, but we are entitled to know now how its members are to be appointed and by whom; whether certain classes of people, such as human rights activists, will be excluded; and how it will relate to the work of the independent reviewer. Will the board have access to classified material and, if so, to what extent? It might well be of great assistance to the independent reviewer to have a body of experienced, independent people with whom he can discuss the issues that concern him and who will back him publicly; but a board that is designed to oversee or interfere with his powers, without knowledge of the material on which his conclusions are based, would be a total waste of resources.

This Bill is being put through this House under the fast-track procedure. We must be careful to ensure that these and many other issues are thoroughly discussed and ventilated before we give it our consent.