Counter-Terrorism and Security Bill

Lord Woolf Excerpts

Monday 2nd February 2015 Lords Chamber

[Baroness Hamwee]

My Lords, at the last stage I supported the noble and learned Lord. I had not thought it would be appropriate to come in at this stage because I had to deal with something else while remaining in the Chamber, so I was not able completely to concentrate on what he said. However, as one of those who, I suppose, must be regarded as having danced the most during the earliest part of this afternoon, I reaffirm my support. I trust the courts to take a proper attitude to the issues which come before them, which is what this amendment is about.

[Lord Woolf (CB)]

Before the Minister rises, I will just say that, as I understand what is proposed by my noble and learned friend Lord Brown, he is not saying that the courts’ powers should be in any way unusual. This is really giving them an ordinary responsibility within the scope of judicial review as I have always understood it.

[Lord Bates]

I am grateful to the noble and learned Lord for moving the amendment. I was conscious of disagreeing with only one element of what my noble friend Lord Howard said. He said that he was going to disturb the tranquillity of the proceedings. From the perspective of the Government Whips’ Office and of Ministers, tranquillity is quite a sublime quality in debate on these matters. These matters evoke strong feelings on all sides of the House. My noble friend Lord Tebbit brought home from his personal experience the point that we are dealing with real threats to real lives. That is the ultimate threat to liberty that we are seeking to legislate for in the Bill before us.

I said that I would reflect on the point made by the noble and learned Lord, Lord Brown, last week, as I took it as seeking clarification. I was grateful to him for the time which he gave me, my officials and the legal team from the department in reviewing this matter. However, as the noble Lord, Lord Howard, put so succinctly, this is a matter of principle. It is a well observed principle that, in the realm of national security, the Executive have ultimate power, responsibility and accountability. That is the way that it has been, whether it is in relation to exercising royal prerogative over passports, temporary exclusion orders, interception of communications, excluding foreign nationals or deprivation of citizenship for those with dual nationality —I could go on. The principle is this: when it comes to national security, the Executive have to take the responsibility. That is an onerous responsibility to take. It is also entirely right, as the Bill provides for, that there should be an ability to challenge such a decision of the Secretary of State by way of judicial review and the courts.

I promised the noble and learned Lord that I would seek to put some additional words on the record which might give him some comfort. They are in relation to the technical legal point that he touched on, as did the noble and learned Lord, Lord Woolf, but they do not seek to move away from the fundamental grounds on which the Government are resisting this amendment, that of not wanting to sacrifice the principle that it is the Secretary of State who should decide.

As part of the review of the TPIMs imposed in the cases of CC and CF, their legal representatives argued that in TPIM cases the reasonable belief test,

“requires that at least the foundation of past facts upon which the belief is predicated must be proved on the balance of probabilities”.

As part of Lord Justice Lloyd Jones’s consideration, he applied Judge Collins’s judgment in the case of BM, who said that,

“to found a reasonable belief that a subject is or has been involved in TRA”—

that is, terrorist related activities—

“and that a TPIM is necessary does not involve the requirement to establish involvement in specific TRA to any higher standard than that which can properly give rise to such a belief. No doubt some facts which go to forming the belief will be clearly established, others may be based on an assessment of the various pieces of evidence available. But there is certainly no requirement that particular TRA needs to be established to the standard of at least more probable than not”.

Based on this precedent, we expect that the courts will see the balance of probabilities as a higher standard and that this will impact on their consideration.

As the noble and learned Lord will be aware, the court will also seek to interpret the difference in wording, as it is entitled to do. His amendments seek to differentiate between the test which the Home Secretary is required to apply and that which the court is to apply. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make a holistic decision to impose a TPIM notice in order to protect the public from terrorism. The Government hold firm to that principle, which has had cross-party support. I express my gratitude to my noble friends who have spoken against the amendment, I hope that, with that additional explanation, the noble and learned Lord will see why the Government take the position that they do and will not be able to support the amendment if it is pressed.