Counter-Terrorism and Security Bill

Lord Thomas of Gresford Excerpts

Wednesday 28th January 2015 Lords Chamber

[Baroness Hamwee]

My Lords, I have Amendments 118G and 118K in this group but I want to say on Amendment 118J that I take the noble Baroness’s point about the impact on communities. The point has been raised with me as well and rightly so.

The first of my amendments in fact builds on the consultation paper. Under the section headed “What would the … Board do?”, it sets out in bullet-point form a number of core objectives. In most of the cases it uses the terminology that the subject of the consideration is,

“sufficient to meet the threat and adequately take account of privacy and civil liberties concerns”.

I think that I would prefer to see the word “properly” rather than “adequately” take account of privacy and civil liberties concerns. It is essential that that aspect is set out in the consultation paper, and I would hope to see it spelled out in the remit for the board in the statute as well. If it is not there, it is not there, and it will be difficult for the board to pursue that. My amendment is quite mild in that it seeks to provide advice to Ministers on that aspect of legislation. I have used the word “adequately” to reflect the consultation paper, although, as I said, I would prefer proper account to be taken of those concerns by that clear purpose being put on the face of the Bill.

My other amendment is about the chairmanship of the board, to which the noble Baroness referred. My amendment would give flexibility around whether the independent reviewer should chair the board. Mr Anderson has made his views clear about this being a possible diversion of his time and energy. I have a lot of sympathy with that, and the JCHR also took the point. The independent reviewer could still have an extremely central role in determining membership and the work programme without being the chair. I am not saying in this amendment that he—or, in future, she—should not chair the board; I am leaving it open for further consideration.

[Lord Thomas of Gresford (LD)]

I have an amendment in this group. It may be a miserable little amendment suitably to be looked at at 11.20 pm. It says simply that any regulations under the clause should be by way of affirmative resolution.

Perhaps I may say something a little more widely about the group. When I looked at Clause 36, the first question that came to my mind was: what is it for? You do not get very much out of the wording. It seeks to provide advice and assistance to the independent reviewer. Why and for what purpose? Then we look at what the regulations are to contain. They may include provision about,

“particular things that the board may or must do”.

This lack of clarification about the purpose of the clause is reflected in the amendments tabled by the noble Baroness, Lady Smith, and my noble friend Lady Hamwee.

I was quite interested in Amendment 118F because it contains provisions which I think would have shocked to the core the Home Secretary in the previous Government—the thought that these wide-sounding provisions should be given to a board. On the other hand, my noble friend stresses that this should be about privacy and civil liberty concerns. I think that if it were about privacy and civil liberty concerns, we would understand a little more about it. However, as it is, the lack of clarity about what it is for means that we are about to have the anvil dropped from a large height by the noble Lords, Lord Pannick and Lord Carlile. I trust that we will hear a little more in clarification from the noble Lord in reply.

[Lord Pannick]

From a modest height, I am very concerned that Clause 36 will undermine the essential role of the independent reviewer. The current holder of the post, David Anderson, and his predecessor, the noble Lord, Lord Carlile of Berriew, have achieved a remarkable degree of success. They have commanded the confidence of the public and of the NGOs that have expertise in this area. They have also commanded the confidence of the intelligence services and the Government. To command the confidence and, indeed, the respect of all these different constituencies is a deeply impressive achievement. However, that confidence and respect have necessarily depended on the personal independence, integrity and judgment of those who have performed this role. The job cannot be done by a committee. The clause is silent on whether the independent reviewer will share all the secret information with the board. If so, there is a real danger that he will not, in practice, be given such free access to confidential information in the future. If he is not to share the information with the board, I cannot see how it can do much to advise and assist him.

My other concern is that Mr Anderson, as has already been mentioned, has limited time to devote to the primary task of reviewing counterterrorism legislation. The very last thing that he needs is a committee structure that will inevitably use up his finite time which would be far better spent on the front line on essential activities of reviewing the operation of the relevant legislation. For all the reasons that have already been given and for these reasons, Clause 36, certainly in its current form, is a very bad idea. I hope that the Government will fundamentally reconsider it in the limited time before Report next Wednesday.

--- Later in debate ---

[Lord Bates]

Perhaps I was thinking of the aphorism that a camel is a horse designed by committee.

[Lord Thomas of Gresford]

May I ask if it is apposite to call the independent reviewer a donkey?

[Lord Bates]

Indeed, not a donkey, nor a camel, though he certainly does more than the work of both, which I guess is the point which is being made to all of us here—that is a serious point about how we support a highly effective individual in a highly effective office to do his duties more effectively. I will seek to address some of the specific points on my way through, but I give notice that part of my instructions, should I race past it on page 11 of my speaking notes, is that we will be returning to this on Report. I hope that that will provide some comfort to noble Lords as they consider what to do with their amendments at this stage.

Clause 36 is a very important clause, as it should be. It is right that as the legislative landscape changes, we pause to consider the safeguards and oversight arrangements we have in place for counterterrorism laws, to ensure that we are getting the balance right between responding to these threats and the protection of civil liberties.

Few would question the exemplary job David Anderson QC is currently doing as the Independent Reviewer of Terrorism Legislation, or the contribution of his predecessor. I totally take on board my noble friend’s injunction to make haste slowly and the fact that we should ensure that there is a robust independent scrutiny of some of our most far-reaching counterterrorism powers. We should be proud of the long-standing, very effective and transparent system of independent oversight that we have in the UK, but we should not rest on our laurels.

Clause 36 provides for the creation of a board which will support the independent reviewer of terrorism legislation. As our legislative armoury necessarily increases, there is also an increasing demand for the review of particular aspects of counterterrorism legislation, and that this is a substantial task for one individual to undertake. David Anderson has himself made clear that he is operating at the very limit of his capacity and that there is a need to reform the independent reviewer’s role. It is intended that the board will provide support in the discharge of the independent reviewer’s statutory responsibilities, but also that the board will produce reports and advice to the independent reviewer, expanding the capacity and breadth of experience available to our oversight arrangements, and enabling a greater range of matters to be subject to review.

It may be helpful at this point to deal with Amendments 118F to 118J which go to the heart of a very important issue, in the same way as other amendments, in seeking to set out particular matters on which the board will report.

Clause 36 provides for regulations to be made which will be subject to the affirmative procedure and which would set out the precise detail of the board. Among other matters, these regulations will make provision about the appointment, membership and particular functions of the board. I fully expect that a number of the issues covered within these amendments may be appropriately dealt with in those regulations.

We are approaching the end of the public consultation period on 30 January, as the noble Lord, Lord Butler, pointed out. The Government will consider carefully the outcome of that consultation prior to bringing forward the regulations setting out the details on how the board will operate. Of course, it is important that the comments of your Lordships in this debate and at other stages of consideration are also considered as part of that consultation.

However, I am mindful that a number of views which have been expressed in this House—