Safety of Rwanda (Asylum and Immigration) Bill

Lord Howard of Lympne Excerpts

Consideration of Commons amendments
Wednesday 20th March 2024 Lords Chamber

[Lord Lilley (Con)]

My Lords, I am puzzled by this amendment. For 18 years, between 2004 and 2022, we had on the statute book an Act of Parliament which said there was an irrebuttable presumption that certain countries on a list were and would always be safe. I do not recall any Member of this Chamber, or anyone in the other Chamber when I was there, demurring. We had on the statute book an Act of Parliament that had no provision for a monitoring committee, and I do not remember any Member of this Chamber or that Chamber complaining about that. For 18 years, we had provisions which had none of the safeguards that the noble and learned Lord, Lord Hope, wants to include—and I do not recall him or any other Member of this Chamber demurring.

As I understand it, the only difference was that we were required to have that list by our membership of the European Union and still would have that list now if we had not left the European Union—and I do not recall anybody in this House saying it was wrong that that situation should persist or using it as an argument for leaving the European Union, so that we could then get rid of it, as we did. So, I think we are now making a bit too much of the lack of provisions and safeguards around one black country when we had no concerns about a list of white countries.

[Lord Howard of Lympne (Con)]

Is it not the case that that legislation did not simply lack the controls advocated by the noble and learned Lord, Lord Hope? It did not have the controls that are in this Bill. There was no monitoring committee. It simply did not have these controls in that legislation.

[Lord Lilley (Con)]

My noble friend is absolutely right, as he always is.

Safety of Rwanda (Asylum and Immigration) Bill

Lord Howard of Lympne Excerpts

3rd reading
Tuesday 12th March 2024 Lords Chamber

[Lord Sharpe of Epsom]

That the Bill do now pass.

[Lord Howard of Lympne (Con)]

My Lords, I wish to make a point which I hope may be taken into account by honourable Members in another place, though I fear it is unlikely to find favour with most of your Lordships. I cast no aspersions on the motivation which has led to the amendments your Lordships have passed. An undeniable consequence of most of these amendments would be delay in dealing with an issue which is regarded as important and urgent by very many people in our country—an issue to which no alternative remedy has been advanced. I hope that this point may be taken into account by honourable Members in another place, even if not by most of your Lordships.

[Lord Dubs (Lab)]

My Lords, mine is a different point. I am not sympathetic to the point that the noble Lord, Lord Howard, has just made. On Report, I raised the question of representations by the Government of Jersey and our Government’s failure to consult before including a provision in the Bill. I do not know whether this also represents the view of Guernsey and the Isle of Man, but the Government of Jersey said that they were not happy about it. I asked the Minister if he could clarify the position at Third Reading. Can he do so?

Safety of Rwanda (Asylum and Immigration) Bill

Lord Howard of Lympne Excerpts

Report stage
Monday 4th March 2024 Lords Chamber

[Lord German (LD)]

My Lords, we support all the amendments in this group. It is absolutely critical that domestic and international law is complied with. This should not be up for debate. It is who we are. It is what we stand for. If we seek to deviate from our domestic and international legal obligations, our role on the world stage and our ability to have influence globally is significantly diminished. We cannot shy away from the consequential impact this will have on other countries choosing to follow suit. As the United Nations Human Rights Council put it last Friday,

“international standards on the independence of the judiciary are closely linked to the rule of law and the separation of powers. ‘Provisions of the Rwanda Bill could undermine the principles of the separation of powers and the rule of law in the United Kingdom’”.

That is sufficient for us to support all these amendments.

[Lord Howard of Lympne (Con)]

My Lords, I begin by associating myself with the remarks of my noble friend Lord Hailsham about the late Lord Cormack. I cannot add anything to what my noble friend said, but it is entirely true that Lord Cormack is a great loss and we shall all miss him tremendously.

I am grateful to the noble Baroness, Lady Chakrabarti, and my noble friend for their references to my earlier intervention in these debates. I am not sure that the further interpretation that they place on my intervention is entirely justified or that I would entirely go along with it, but that is perhaps a matter for debate at a later stage.

The amendments in this group are all based on respect for the rule of law. A critical part of respect for the rule of law is the separation of powers, something much referred to in our earlier debates, and it is to that subject that I propose to address these remarks. As Anthony Speaight KC reminds us in his recent Politeia pamphlet, there is no such thing as the absolute separation of legislature, executive and judicial powers in our constitutional arrangements. Our Executive are rooted in our legislature and in any event, as Mr Speaight and others have pointed out, there are precedents for this legislation—for the proposition that Parliament can deem certain countries to be safe—including the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, passed under the Blair Government. The principle in that legislation was challenged in the case of Nasseri but was upheld by the Court of Appeal and the House of Lords. That, of course, is essentially what this Bill does: it deems Rwanda to be a safe country.

However, there is an even broader principle that is relevant here and is at the root of why this legislation is necessary. We have traditionally recognised the separation of powers between the Executive and the judiciary. That principle can be expressed in the proposition that decision-making is the responsibility of the Executive, but that the courts have the responsibility to review the lawfulness of those decisions.

That responsibility of the courts is what we know as judicial review. Its scope has been expanded greatly in recent years in ways which have not found universal approval but its principle is accepted as an important part of our constitutional arrangements. However, judicial review does not involve the courts substituting their own decisions for those of the Executive. It involves, in essence, an assessment of whether it was reasonable for the Executive to make the decision in question.

Illegal Migration Update

Lord Howard of Lympne Excerpts

Wednesday 6th September 2023 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, has my noble friend seen the recent, extremely sensible suggestion that, since the boats which are used in such dangerous circumstances to cross the channel do not comply with the safety requirements of the European Union, France and other member states have the power—and, indeed, the responsibility—to confiscate those boats? What representations are His Majesty’s Government making to France and the other countries to exercise these powers?

[Lord Murray of Blidworth (Con)]

My noble friend makes an important point. It is right that Home Office officials and National Crime Agency officers are working closely with the French to try to disrupt the supply of small boats. We now have many of the boats used in the crossings which have been confiscated following the journeys across the channel. By and large, they are not ones which are sold on the French market; most of these vessels are constructed for the purpose. I have seen them myself, and they are incredibly dangerous and not fit for crossing an area of open water such as the English Channel. I can reassure my noble friend that, from what I have been told, the practice of the French, when they disrupt a launch, is to destroy the effectiveness of the boat and to confiscate what remains of the boat. This is something the French authorities have been handling. We are working, as ever, with them to disrupt the maritime side, and further work to disrupt the upstream provision of both boats and engines is ongoing.

Public Order Bill

Lord Howard of Lympne Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Lord Deben (Con)]

I wonder whether I could suggest to the House that we have to think a little beyond the precise legal issues we have been concentrating on. First, I was drawn into this discussion by a previous speaker—the noble Lord, Lord Faulks—but I would remind him of my constant demand that we should take seriously the words of the Green vice-Chancellor of Germany, who made it absolutely clear that behaviour which meant that ambulances could not get to hospitals and suchlike was unacceptable as well as counterproductive. I do not think anybody would suggest that I have ever been a supporter of that kind of thing, and I do not think the noble Lord would have said that.

However, the Government have to face two very important questions. The first is on the point referring to the march of a million people, which of its nature is bound to discommode large numbers of other people. But as somebody who voted against a three-line Whip and against the Iraq war, it seems to me that unless you can accept that something so appallingly wrong can result in large numbers of people saying, “Not in my name”, you really cannot run a democracy. That is absolutely essential, so I need to know from the Government how they would explain that their particular way of looking at this would not have made illegal a march against the Iraq war. If that is not covered, then it seems that any of us who happen to believe in some fundamental issues will find it very difficult to support the Government.

The second thing the Government have to explain is how they see the position in which this puts the police. I have to say this carefully, but the truth is that the police’s reputation is practically at its lowest ever. We have to ask whether this is the right moment, in any way, to put them in the small “p” political position of making these kinds of decisions. That is why I voted against that ludicrous thing we introduced, which was that you could be prevented from making a noise. The concept was that, somehow or other, the police were going to say that if your protest was too noisy, they could stop it before it was started. I have never been on a protest that was not noisy and meant to be so; its noisiness was essential. But we passed that provision, which was and is nonsense. It will never be imposed but the Government argued for it, so they are in a slight difficulty here. The argument I used against that was not only that it was barmy, which was obvious, but that it would put the police in an embarrassing position at a time when the police are themselves—

[Lord Howard of Lympne (Con)]

Will my noble friend give way?

[Lord Deben (Con)]

If I can just finish that sentence—when the police are themselves in a difficult position. I give way to my long-lasting jouster.

--- Later in debate ---

[Lord Howard of Lympne (Con)]

Does my noble friend not agree that the insertion of the words in this amendment would place upon the police the initial duty of deciding what is or is not a reasonable excuse?

[Lord Deben (Con)]

I do not disagree, since that is what it says. I am merely saying that I want the Government to be clear about what they are doing by involving the police at what may not be the most sensible time.

The last thing I want to say to the Government is this. There are many serious issues which, in a democracy, we have to ask the Government and the Opposition to deal with. Some of those serious issues are not being satisfactorily dealt with and, in a democracy, there comes a moment when a Government have to say to themselves, “We are so unable to deal with this that we will have to accept that there will be a significant increase in the public demonstration against where we are”.

Western Jet Foil and Manston Asylum Processing Centres

Lord Howard of Lympne Excerpts

Tuesday 1st November 2022 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I too welcome my noble friend to his responsibilities. Does he recognise the inconvenient truth that it is almost impossible—perhaps entirely so—to deal with this issue without agreement with France going far beyond the level of co-operation to which he referred? Will he draw the attention of his ministerial colleagues to the agreement reached with France in 1995, under which it agreed to take back those who illegally entered the United Kingdom from France—they enter illegally, even if they subsequently claim asylum—and which it honoured?

[Lord Murray of Blidworth (Con)]

I thank the noble Lord for reminding me and my department of that very valuable agreement. Certainly, the best solution to this problem would be an agreement with France under which it accepted the return of everyone who crosses the channel. There could be no stronger deterrent to crossing it. I will of course encourage officials to look at the agreement made in 1995 and see what steps can be taken to revive it.

Counter-Terrorism and Security Bill

Lord Howard of Lympne Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

In moving Amendment 10 and speaking to Amendment 11, I am returning to an unimplemented recommendation made in his March 2014 report by the independent reviewer about which I spoke at Second Reading and in Committee. These are the only amendments which relate to Part 2 on TPIMs. I want to make just five points.

First, the main and certainly the most contentious change in the TPIM regime brought about by Part 2 is the provision for internal relocation orders—internal exile, as it is being called. In short, it gives the Secretary of State power to require someone who is suspected of involvement in terrorism to move as far as 200 miles away from their present home. Not surprisingly, these highly disruptive kinds of order—which, in years past, used occasionally and contentiously to be made in control order cases—are deeply resented. Occasionally, however, I accept that they are a regrettable necessity.

Secondly, one of the conditions to be satisfied before any TPIM order can be made is that the individual in question is or has been involved in terrorism-related activity, which is known as condition A. Under the present legislation, the 2011 Act, that condition is met if the Secretary of State “reasonably believes” that that is the situation. Clause 20(1) of the Bill would substitute for the requirement of reasonable belief on the part of the Secretary of State the requirement that he be satisfied on the balance of probabilities that the person is involved in terrorism.

Thirdly, to my mind there is no practical difference between those two tests, hence the effect of Amendment 10 would simply be to leave out Clause 20(1), which substitutes one for the other. But far, far more important than Amendment 10 is Amendment 11, which is directed to the court’s oversight powers with regard to TPIM orders. Under the 2011 Act as it stands there is provision for initial review hearings of these orders and later for appeals by the High Court in each case. However, for reviews and appeals, the 2011 Act expressly provides that:

“The court must apply the principles applicable on an application for judicial review”.

Amendment 11 would widen the court’s jurisdiction so that it would be for the court to decide for itself whether the person in question was probably involved in terrorism and not merely for the court, as now, to ask itself whether the Secretary of State’s conclusion about that was one that he could reasonably arrive at or whether it was, on the contrary, perverse.

Fourthly, this strengthening of the court’s oversight powers was specifically recommended by Mr David Anderson, the independent reviewer, in his report of last year. In his recent oral evidence that he gave in November and December respectively to the Joint Committee on Human Rights and the Home Affairs Committee of the House of Commons, he expressly regretted that his recommendation had not been implemented. In fact, Amendment 11 is more limited than Mr Anderson recommended. He recommended that in all TPIM cases the final decision on whether the person is or has been involved in terrorism-related activity should be one for the court rather than for the Secretary of State, subject only to judicial review. My amendment would secure that this is so only in those most troubling of cases that I have already mentioned where the suspect is to be relocated far away from his own home.

Fifthly and finally, I should note with gratitude that last Thursday, after the debate in Committee at which widespread support was shown for my amendment, the Minister was kind enough to see me to discuss this question. Essentially, as I understand it—he will correct me if I am wrong—the Government’s position is that this amendment is not necessary because case law shows that the court interprets and applies its review powers in such a way as to suggest that in effect the court already takes the final decision itself. If that remains the Government’s view, I would challenge it for these reasons.

First, it postulates, necessarily, that the court is disobeying the express statutory prohibition placed on it by the 2011 Act against exercising any fuller or wider jurisdiction than that of judicial review. Secondly, I must ask rhetorically why the independent reviewer would make this recommendation and, indeed, regret its rejection if in truth it is quite unnecessary. Thirdly, given that the Government accept that what they suggest is the court’s actual present approach to these cases—namely, that of deciding the question for itself— why on earth not write that into the statute and thereby, as Mr Anderson himself put it in his report,

“help reinforce the legitimacy of TPIMs”,

and reassure a sceptical public and a worried minority community that the court is indeed playing its full part in safeguarding those at risk of these orders against the inappropriate use of this draconian power?

Amendment 11 is the important one. Amendment 10, as I indicated in Committee, is really an optional extra. I beg to move.

[Lord Howard of Lympne (Con)]

My Lords, I oppose Amendment 11. I shall be brief, but I appreciate that what I am about to say runs the risk of disturbing the relative tranquillity of this afternoon’s proceedings. Amendment 11 seeks to transfer the responsibility for the making of a crucial decision in this process from the Secretary of State to the courts. It is but another skirmish in the turf war between some judges on the one hand and Ministers and Parliament on the other hand which has featured so extensively in recent debates in your Lordships’ House, not least in the context of judicial review. It is my contention that decisions as important as the one we are currently contemplating should be made by the Secretary of State and not by the courts, so I hope that the view which was ascribed by the noble and learned Lord to the Minister about who is to take the final decision is based on a misapprehension. That is because I am firmly of the view that it is the Secretary of State who should take the decision.

My reason is very simple. It is the Secretary of State who has the responsibility of protecting the people of our country from terrorism and terrorism-related activities, and it is the Secretary of State who is accountable to the people of our country for the exercise of that responsibility: accountable to the electorate both in their capacity as an individual Member of Parliament and in their capacity as a member of the Government of the day.

It is right, as the noble and learned Lord has acknowledged, that the decision of the Secretary of State should be subject to the normal processes of judicial review. That is a feature of the current proposals. But it is the Secretary of State whose decision it should be, not a decision of the courts.

--- Later in debate ---

[Lord Blencathra]

I take the noble Lord’s point but I want to make it clear to the House—I apologise if I gave a misleading impression earlier—that I did not see an all singing, all dancing final draft of a revised Bill. However, I saw some very important revised clauses which went to the heart of the matter we are discussing. I do not believe that the Home Office can legitimately hand over those clauses now because the Government and their coalition partner do not have full agreement on everything that needs to be in the Bill and we have not seen David Anderson’s report. David Anderson may have some key points to make which will require the Home Office to rewrite the measure again. Therefore, I do not think that we can take forward some new clauses, bash them into this Bill with two months to go and bounce them into the Commons.

About half the criticisms that I have just listed apply to the proposed new clauses before us today. Nothing has changed. Indeed, the Home Secretary has confirmed that we got it about right in our Joint Committee report and she wants to bring forward a new data Bill incorporating our recommendations. I say to my noble friend Lord Carlile that the Home Secretary did not say that she wanted the old draft data communications Bill with all its flaws, warts and all; she has made it constantly clear in her statements that she wants a new data communications Bill, but incorporating many of the amendments suggested in our report.

In those circumstances, I think that this House would be committing a grave error of judgment if it accepted these 18 proposed new clauses, which everyone agrees are thoroughly flawed. Of course, there is an imperative for new legislation in this area, but it has to be the best legislation which government and Parliament can invent. The risk of a terrorist attack is severe, but that is no justification for bad law, even if we had a sunset clause of just six months, or one month for that matter.

I am glad that my noble friend is not going to push this to a vote. I hope that other noble Lords will accept that. When we return to this matter in the new Parliament we will need a fully redrafted Bill that takes onboard Mr Anderson’s recommendations, which has had full consultation with the communication service providers that will have to implement it, and which has had a detailed Second Reading debate in the other place and in your Lordships’ House. The Home Secretary has made it clear that she wants new legislation but better than the clauses we have before us today. If we try to take any other shortcut, rather than new, properly worked out legislation, we will be seen to be acting in bad faith. That will make it infinitely more politically difficult for a new Government to bring in balanced measures that give the police and the security services the additional powers they need while protecting the fundamental privacy of the 60 million UK citizens who are not a terrorist threat. If it comes to a vote I reluctantly urge the House to vote against the amendments.

[Lord Howard of Lympne]

My Lords, it is always a pleasure to follow my noble friend Lord Blencathra, with whom I worked so closely and for so long in government. I am afraid that on this occasion I have to disagree with the contents of his speech. It seems to me that the answer to the points that he made was given by the noble Lord, Lord West, during his intervention. These amendments are not meant to be the last word on the provisions that the final Bill should contain; they are meant to give the other place an opportunity to reconsider these matters.

I am afraid that I was unable to be present at the debate in Committee, but I was able to listen to an exchange on the radio a few mornings ago between the noble Lord, Lord West, and the noble Lord, Lord Paddick. I found the arguments put forward during that exchange by the noble Lord, Lord West, wholly persuasive. That is why I came along this afternoon ready to support the amendment in his name and in the names of his co-sponsors. I have to confess to your Lordships that my determination to do so was reinforced in some measure by the belief—it is still not clear to me to what extent it was well founded—that the Conservative limb of the coalition was anxious to proceed with these proposals but were being prevented from doing so only by the pesky Lib Dems—I am so sorry, by my noble friends who sit on the Liberal Democrat Benches. That remains not entirely clear.

It seems to me that the case made by the four noble Lords who have sponsored this amendment is very compelling. It is clear from what my noble friend Lord King has said that we cannot take the matter further today and that, sadly, this legislation will not be put on the statute book before the general election. However, I join with those who have urged the Government and both of the major parties that might form the Government after that election to proceed with these measures with all possible haste.

[Lord Paddick (LD)]

My Lords, to address the comments made by my noble friend Lord King of Bridgwater and other noble Lords, in my opinion there is no doubt that we all face a very serious threat of terrorism. There is also no doubt at all that, because of the way that technology has moved on, there is a gap that means that the police and the security services cannot now get the information on mobile phone communication that they used to, due to changes in the way that people communicate via the internet. The first issue is: where does the balance lie between measures that would close that gap and the freedoms and civil liberties that we all enjoy? The second is: how do we fill that gap technologically?

Noble Lords will be pleased to hear that I have done some homework over the weekend. Obviously, I am not a technology expert, but this is what I have been told by technology experts. I am very grateful to the noble Lord, Lord Blair, for saying that he has no issue with people who argue on the basis of principle. One of the effects of these amendments, as my noble friend Lord Blencathra alluded to, would be to require communications service providers to store 12 months of web logs—the history of every website visited by everyone who uses the internet in the UK. The Joint Committee that my noble friend Lord Blencathra chaired said that this has considerable implications for the privacy of everybody who lives in this country and who uses the internet. I am sure that that is immediately obvious to noble Lords across the House.

What has not been mentioned is what I have learnt since we were in Committee. When people use web-based means of communication such as WhatsApp—according to my noble friend Lord King of Bridgwater, ISIL is one of the groups that uses this means of communicating —Facebook Messenger or any others, all these communications are encrypted. The vital data that the police and the security services need are held on servers that are mainly in the United States of America. Even if these amendments were agreed to, and even if these web logs were kept, there are serious doubts as to whether the American companies would comply with the UK legislation.

Another aspect of these amendments, and of the draft data communications Bill, would require United Kingdom communications service providers to skim off the encrypted data transmitted to and from the secure servers in the United States, in case the Americans decided that they were not going to play ball. This would cost in excess of £1 billion, and it is unlikely that the UK-based communications service providers would do so. Because of the levels of encryption, and because companies such as Facebook are constantly reviewing their encryption and making it more and more difficult to decipher, even if that data were captured there is serious doubt that the UK communications service providers would be able to make head or tail of it. Plus, they would not be able to decide what part of that encrypted data was the content of messages or Facebook pages and how much was simply who sent the message to whom, from where and at what time—that is what these amendments and what the draft data communications Bill was about. The noble Lord, Lord West of Spithead, talked at length about intercept evidence. These amendments and the draft data communications Bill have nothing to do with interception. They are about only what is on the envelope of the message, if you like, not its contents.

So what do we do? Obviously, something has to be done to try to get that data. That is why the coalition Government have appointed Sir Nigel Sheinwald as special envoy on international data sharing to sit down with the US Government and US companies to identify ways to overcome legal jurisdictions so that we can tackle crime and terrorism without compromising the privacy of the law-abiding majority. This is not a situation where these servers in the United States are beyond our reach. In 2013, US companies processed around 30,000 requests for “envelope” data from UK authorities. There is already consultation and collaboration and it is producing results.

These amendments are disproportionate, are likely to cost billions of pounds and certainly cannot be implemented immediately. Almost all communications service providers in the UK do not currently keep this data and have no storage capacity and capability to store it. That would be a long-term project; nothing of use would come out of it in the six months that my noble friend Lord King of Bridgwater talked about as a stop-gap measure. These amendments are likely to jeopardise the collaboration that we already have with the Americans, which is serving the police and the security services reasonably well.

Mention has been made of a debate that the noble Lord, Lord West of Spithead, and I had on BBC Radio 4 at the weekend on “Week in Westminster”. During that programme, the noble Lord said that the amendments tabled last week were too broad and that, if it had come to a vote last week, he certainly would not have voted for them. As these amendments have been changed hardly at all since last week, I assume that the noble Lord, Lord West, will not vote for his own amendments.

Data Retention and Investigatory Powers Bill

Lord Howard of Lympne Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Armstrong of Ilminster (CB)]

My Lords, we are talking about what the Secretary of State considers. I wonder whether the difficulty could be resolved if the Minister were to state formally, on the record in Hansard, that the Secretary of State must consider that,

“for objective reasons the requirement is strictly”

necessary.

[Lord Howard of Lympne (Con)]

My Lords, I rise with some temerity to disagree with the views expressed from the Benches opposite, but it seems to me, as a matter of principle, that when the Government and the Parliament of the United Kingdom consider how to introduce legislation consistent with a decision of the European Court of Justice, it is the substance of what the Government and the Parliament of the United Kingdom are providing which is important. It should not be necessary, and it would not be a healthy precedent, if Parliament took the view that every time we had to amend our legislation in order to comply with a judgment of the European Court of Justice, it was incumbent upon us to adopt language identical to that found in the judgment. So there is at least the vestige of a point of principle here, and that point of principle leads me to support the view expressed by the Minister.

[Lord Carlile of Berriew (LD)]

My Lords, I support what has just been said by my noble friend Lord Howard of Lympne. I speak not as a judge but as someone who has drafted many skeleton arguments to take before senior courts, and given a phrase such as “strictly necessary”, I would spend my time in preparing a case by looking for authorities decided by the courts in which there was a difference between the terms “necessary” and “strictly necessary”. I have spent some time doing so this morning, and I have failed to find such a case so far—although of course I will defer to the noble and learned Lord, Lord Hope, if he can find one for me. Judges are often so much better informed than those who appear before them, and I feel a little as if I am in that situation now.

However, speaking for those of us who are paid, sometimes a great deal of money, to create a difference where none exists between a phrase such as “strictly necessary” and the mere word “necessary”, I would say to the Minister: please avoid tautology. It is expensive, and not terribly helpful.

Data Retention and Investigatory Powers Bill

Lord Howard of Lympne Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, in view of the support for the proposals in the Bill, which has been voiced by the last three speakers—hedged around with caveats though that support was—I hope that I can be relatively brief in my support for those proposals. It is, of course, for my noble friend the Minister to reply to the criticism made by the noble Lord, Lord Butler, but it does not seem to me to be wholly unreasonable that the Government waited until they knew how they were going to proceed before putting proposals to Parliament or its committees. They could not know how they were going to proceed until they had completed their consultations with the companies to which the noble Lord referred. That does not seem to me to be unreasonable. However, that is really a matter for my noble friend the Minister. I propose to address my brief remarks to the substance of the Bill and the general proposals. They have not yet been challenged, but the debate is young and there may be those who may yet wish to challenge them.

One of my honourable friends in another place said yesterday that we should be cautious about allowing technology to infringe our freedoms. I would put it rather differently: I believe that we should embrace technology in order to protect our freedoms. The greatest freedom that any citizen can have is the freedom to carry out his or her lawful business without the danger of being blown up or being the victim of some other serious criminal offence. If the law enforcement authorities are to be able to carry out their job and protect that fundamental freedom, it is essential that they have the powers which are contained in this Bill.

The point was put extremely eloquently yesterday in another place. If noble Lords will permit me, I shall do something which I do not believe I have ever done before, which is to quote—with approval—from the observations of my immediate successor as Home Secretary, Mr Jack Straw. He said that,

“where there is a suspect for a crime, it is for a crime that has been committed in the past. The police will not know who that suspect is until they come to the police’s attention, at which point they have to get historical evidence. These days, part of that historical evidence will be in data records. They have to be able to access everybody’s data records in order to find those of one particular person, because the police, no more than the rest of us, are not given powers of clairvoyance with which to anticipate who is and who is not to be a suspect. Unless or until I hear from opponents of this Bill and of data retention how the police can be expected to identify in advance those who are going to be suspected of crime, I have to say that the whole logical basis of their argument completely falls away”.—[Official Report, Commons, 15/07/2014; col. 734.]

Mr Straw was absolutely correct in those remarks. They go to the nub of the need for the powers contained in this Bill. He went on in his speech to explain that the supervisory powers over the authorities which have the ability to exercise the powers contained in the Bill has been extended and strengthened in recent years. I believe that that supervision is robust, and that it is adequate to protect the essential liberties of the citizen. I commend these proposals to the House.

Terrorism Prevention and Investigation Measures Bill

Lord Howard of Lympne Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Howard of Lympne]

My Lords, I congratulate the Minister on his promotion. As I am sure he has already found out, the Home Office poses challenges of an entirely different order from those of other departments. I wish him well in his responsibilities. I join in the tributes paid to my noble friend Lady Browning, who performed her ministerial duties in this House, as she did in the other place, with very great distinction.

It is common ground in all parts of the Chamber that the best thing to do in respect of those who are suspected of involvement in terrorist activity is to prosecute them. We would all like that to happen. I welcome the fact that the Government are going some way towards making the process of prosecution easier by introducing post-charge questioning, which is something which I have advocated for some time. My noble friend Lady Hamwee mentioned at the end of her remarks the possibility of introducing intercept material as evidence in terrorist cases. Later in the debate the House will have the great benefit of hearing the wisdom of the noble and learned Lord, Lord Lloyd of Berwick. Although I am not privy to what he is going to say, and I anticipate it at my peril, I should be astonished if he did not make at least some passing reference to the desirability of introducing intercept material as evidence.

I have the dubious privilege of being a member of the advisory committee of privy counsellors charged with overseeing the work being carried out by Home Office officials in an attempt to achieve that objective. I was appointed to that committee by the previous Administration and reappointed by the present Administration. I joined the committee with a strong predisposition to making that evidence admissible. I had read the speeches of the noble and learned Lord, Lord Lloyd of Berwick, been impressed by them and largely agreed with them. I was extremely keen to see that the law was changed to make this possible. It may still be the case that that goal can be achieved, but I must tell the House that the difficulties in the way of achieving that objective are enormously greater than those that I had appreciated before I joined the advisory committee. Although I hope that we will be able to overcome those difficulties, I cannot pretend that I have enormous confidence that we will be able to do so. Therefore, the question the House has to consider, and the question which gives rise to the Bill, is: what do a Government and a society do in respect of people suspected of being involved in terrorist activity on the basis of material which is not admissible evidence in a court of law? I do not imagine that many people would suggest that that material can be ignored and that that society can be left at risk from those whom that material identifies as posing that risk.

Of course, this is not a dilemma which is particular or special to our country; other countries face it as well. The President of the United States campaigned three years ago on a promise to close Guantanamo Bay within a year. Those who are detained in Guantanamo Bay are there because they cannot be prosecuted under the ordinary laws of the United States of America. Three years later, Guantanamo Bay has not been closed, not, I am quite certain, because of any lack of good faith on the part of President Obama, or because of any lack of desire on his part to make good his campaign promise, but because of the very real difficulties of the dilemma that I have identified, which, indeed, was posed aptly and eloquently by the right reverend Prelate the Bishop of Oxford.

Therefore, what every Government have to do in the face of that dilemma is to strike a balance between the need to protect the public from the risk that these people pose while at the same time minimising the extent to which there is any interference with the individual liberty of those who have not been prosecuted and convicted in a court of law, which is the course of action that we would all desire, were it possible. To that question of striking the balance, there is no single absolutely correct answer. It is a question of judgment, and that judgment is always the outcome of discussion, debate and argument.

That is why I was not as impressed as perhaps he would have liked me to be by the suggestion by the noble Lord, Lord Hunt of Kings Heath, that the Bill is in some way to be regarded as less than ideal because it is the product of the coalition Government. The truth is that there will be in any Government—whether they be a single-party Government or a coalition—arguments, debates and discussions between different members of that Government as to where the balance should be struck. I was obviously not privy to the debates and discussions around the Cabinet table that led to the production of this Bill, but I would be very surprised if there were arguments simply between the Conservative members of the coalition on one side and the Liberal Democrat members on the other. I would suspect that there was a difference of view on both sides. That is the way in which our Government work, it is the way in which they should work and decisions emerge as a result of those debates, discussions and arguments. Those decisions are frequently compromises between the different positions, and they are none the worse for that. So there is no merit in the point that the Bill should in any way be criticised because it is the outcome of the debates, discussions and arguments that took place within the coalition.

[Lord Hunt of Kings Heath]

My Lords, I cannot resist. The point that I am making is that, as a result of the clear divisions, we have come up with a flawed process of a Bill with emergency legislation as a potential back-up because I am sure that there is an understanding among some members of the Government, and certainly in the security and police forces, that the Bill as it stands may not be sufficient. It is extraordinary legislation that gives the Home Secretary power, during a certain period, to use the enhanced provisions. The problem is the product of those discussions.

[Lord Howard of Lympne]

The noble Lord is, of course, perfectly entitled to criticise particular provisions in the Bill. What I am saying is that those provisions should be dealt with on their merits. It really should be no part of the argument that the Bill in its present form should be regarded as inferior or unsatisfactory because it is the outcome of the processes that took place within the coalition. As to the emergency provisions to which the noble Lord referred, an emergency gives rise to special needs and special circumstances, and it does not seem entirely unreasonable that the Bill should provide for those circumstances in the way in which it does.

I believe that on balance, and with one important reservation that may give some comfort to the noble Lord, the Government have got the Bill right and have struck the right balance between the various competing needs that have to be considered.

[Lord Lloyd of Berwick]

Is the noble Lord aware of any other country in the world which has control orders or anything like them? He referred to Guantanamo Bay, but that, of course, is not part of the United States.

[Lord Howard of Lympne]

Of course it is technically not part of the United States, and that is why it can exist as it does, but it is a product of the Government of the United States. It is the Government of the United States who have put in place the regime which exists in Guantanamo Bay, and I do not imagine for one moment that the noble and learned Lord would suggest that we should establish a regime similar to that in Guantanamo Bay in place of the measures contained in the Bill. The trouble is that you have to have something. It is true that every country proposes different ways to deal with the matter, but I do not think that ours is in any way the most draconian.

[Lord Carlile of Berriew]

In answering the question asked by the noble and learned Lord, Lord Lloyd, perhaps my noble friend would be mindful of the power in the United States to impose executive witness detention, never mind executive suspect detention. He might also be mindful of the arbitrary powers used in a number of other countries, for example, Pakistan and Sri Lanka, to detain people without any proper legal process and of the power, for example, in France, to charge people with association de malfaiteurs, something we are probably all doing in this House this afternoon, and then hold them in custody for months and months, quietly releasing them without charge.

[Lord Howard of Lympne]

I hope that my noble friend in that intervention has not exhausted the number of examples of that kind that I am sure he is able to give to illuminate the House. The truth is, I suspect, that if one conducted an extensive examination of the way in which other countries have faced up to this dilemma, one would find that the measures contained in the Bill are less draconian than those that exist virtually anywhere else in the world.

As I said, I believe that the Government have struck the right balance, with one not insignificant exception. When I gave evidence to the Public Bill Committee, I said that in my personal view the Bill would be better if it contained the relocation provisions, and I do not resile from that view. I believe that the relocation provisions would make it easier for the Security Service to carry out its responsibilities and would enhance the protection of the public. On that single point, I agree with the noble Lord, Lord Hunt, but for the rest of it, I believe that the Government have struck the right balance and that the Bill should be supported.

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[Lord Harris of Haringey]

I am of course delighted to try to defend the Bill on behalf of the Minister, although I suspect that the Minister will do a very good job of that in a moment. However, my interpretation of the provision is that it is about very specific locations and particular areas—for example the Olympic park, or whatever else it might be. It is not clear that it will permit the prevention of that individual living in the city that had previously been his home. That is the point that needs to be made.

[Lord Howard of Lympne]

Is not the point that there is an enormous gap between preventing someone entering a particular area, which is what the schedule permits, and requiring them to live in a particular area where the Security Service can maintain constant surveillance of them? That is the difference between the two, is it not?

[Lord Harris of Haringey]

My Lords, as ever I am grateful to the noble Lord, Lord Howard, for his helpful intervention. My point is simple. This was a power that previous Home Secretaries and the current Home Secretary found necessary. It is one that the security services and police said was necessary. However, we are now told that the fresh air of the West Midlands conurbation and its bucolic atmosphere have so changed this individual’s personality that he now poses much less of a threat. That is frankly implausible. The reality is that this power was necessary. The present Home Secretary, knowing of the proposal that she would bring before Parliament, chose to exercise the power. The power remains necessary.

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[Lord Dubs]

Of course, all Home Secretaries had access to this information which we do not have, so I cannot name a single Home Secretary in that regard. That does not mean that all Home Secretaries in history have always been right about everything. I say that with as much modesty as I can muster. Why is it that in many other countries intercept evidence is used when the same difficulties surely apply?

[Lord Howard of Lympne]

Can the noble Lord name a country with an adversarial system of evidence which is subject to the jurisdiction of the European Court of Human Rights? There are countries with adversarial systems that have allowed limited intercept evidence but are not subject to the jurisdiction of the European Court of Human Rights. There are countries that do not have an adversarial system but an entirely different system which have allowed limited admissibility of intercept evidence and are subject to the jurisdiction of the European Court of Human Rights. Can the noble Lord name a country that has both?

[Lord Dubs]

I am obviously well outside my comfort zone on this. I am not sure whether the Republic of Ireland meets the condition of the noble Lord. I believe that it uses intercept evidence, comes under the European Court of Human Rights and has a legal system similar to ours. I put that forward without the certainty that I am absolutely right—but I do not think that I am wrong. Given the silence of the noble Lord when I said the Republic of Ireland, I think I have got him there.

I am sorry that I have taken so long in getting away from what was meant to be my main argument. Those were just some preliminary points. I had no idea that they would cause so much excitement.

The Joint Committee on Human Rights, of which I have been privileged to be a member, has consistently expressed doubts about the control order regime and whether it is compatible with human rights. That is clearly the starting point for considering the changes being brought forward in the Bill. In fairness, the Bill modifies some aspects of the control order regime, for example moving the threshold from reasonable suspicion to reasonable belief and imposing a maximum time limit of two years—although it could be renewed if further evidence came to light about terrorist involvement. The restrictions imposed are also a bit less severe than the previous ones and there is a renewed emphasis on investigation and prosecution, although I would argue that it does not go nearly far enough because very serious concerns remain.

A main concern is that the priority should be the criminal prosecution of those suspected of involvement in terrorism. When people are involved in terrorism, the bottom line must be an attempt to use the criminal justice system and go for prosecution. Clearly nobody says that we will not do that, but when we have a system of TPIMs there will be a temptation to say, “Let’s go down that path rather than the more cumbersome process of getting the evidence and going for a prosecution”. There could be such a temptation—and, clearly, because we would all want to use the criminal law rather than an administrative process, we have to be careful that we do not drift into using TPIMs more widely.

In recent years, there has been a significant fall in prosecutions for terrorist offences. I wonder why that is. Certainly, there have been some important ones, but I am told that there has been a fall. The noble Lord, Lord Macdonald, who will speak after me—and I do not want to jump the gun, because he is an expert—in his report on the Government’s review of counterterrorism powers argued very clearly that restrictions on the freedom of those suspected of terrorism can be justified in constitutional and human rights terms only if they are part of a continuing criminal investigation. We are restricting individuals’ rights very seriously even under this new TPIM regime. The noble Lord’s fundamental criticism of the Bill, which I totally share, is that any replacement of control orders should be brought firmly within the criminal justice system. The Bill does not go nearly far enough in this respect.

It is true that the Government have restated their commitment to the priority of prosecution. However, as the Bill stands, the purpose of the new provisions seems to be more prevention than investigation and prosecution. I am confident that there will be a good debate on this in amendments to be brought forward in Committee.

I have one or two other points. Before imposing a TPIM, the DPP or the relevant prosecuting authority should be satisfied that a criminal investigation is justified and that investigation will not be impeded by any of the specified terrorism prevention and investigation measures. Clearly, if a TPIM is imposed on an individual, as was the case with control orders, that individual is totally alerted to what is going on. Even if surveillance is still carried on, that becomes much more difficult. So I can only assume that if we think that we have got somebody and there could be some evidence, we will not impose a TPIM because that would alert the individual and surveillance might be a better way in which to get the evidence—although, as we have discussed, intercept evidence would not be available.

I also believe that there should be judicial supervision in relation to any criminal investigation under this Bill. While the Bill provides that TPIMs can be imposed only with prior permission from the court and provides for an automatic review hearing, the Human Rights Committee recommended a widening of the court’s powers to look at whether the conditions for imposing a TPIM had been met and, at a review hearing, whether they continued to be met. Those would be additional safeguards that the Bill does not have. The Human Rights Committee is also keen that the Secretary of State should be required to provide the individual subject to a TPIM notice,

“with sufficient information about the allegations against him to enable him to give effective instructions”.

I agree that there is a balance to be struck there, because one cannot give all information away without revealing how it has been obtained. But in terms of the balance I would be happier if a little bit more information could be provided to the individual. I think that we could go further in that direction.

It has already been mentioned that under the Bill TPIMs are not subject to annual renewal by Parliament, but will be permanent. I hope that during its passage the Bill will be amended to require annual renewal. We are still talking about a serious erosion of the liberties of an individual. That requires proper scrutiny at intervals and a debate on the continued necessity for such exceptional measures.

Finally, I share the concern that the Government have a draft Bill that will enable them to give effect to exceptional measures. While in theory it may be attractive to say, “We have some more legislation and if we need it we can ratchet up the powers”, in practice we all know that it would be very difficult for Parliament to debate such a new measure at a time of national emergency—because there would have to be some crisis for this to happen. I am very nervous about the suggestion that, “We may need new powers and we will bring them forward to Parliament as and when they are necessary.” It is a difficult thing to conceive Parliament dealing with in that way.

I finish as I started, on intercept evidence. I have urged it, but it is not a silver bullet. I just believe that it would be helpful. I do not know what to do about the argument put forward by my noble friend that I cannot name any Home Secretary who has gone down that path, except to say humbly that I still believe that there is a case for considering it further.

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[Lord Macdonald of River Glaven]

I entirely accept what the noble Lord says, and I am sure he is right about that. Of course, if the controlees had been confined for 24 hours in Belmarsh or even in their homes, it would have been far more difficult for them to abscond, but the control order system that we had existed largely as a result of decisions made by the courts. My point is that this control order system, as it came to be, may not in a serious sense have been protective of the public because it was so easy to abscond and because so many controlees did just that. My more substantial point is that I think that only one was ever prosecuted with a substantive terrorist offence so if the Home Secretaries were right that these people had been involved in terrorist activity, that would appear to be a failure of public policy in that terrorists in those circumstances were escaping justice.

My view is that, given the nature of the control order regime, this was not surprising. One clear finding of the review, accepted by all sides so far as I could tell, was that the control order regime was inimical to prosecution. That resulted from the reality of control orders, which amounted to the warehousing of suspects under the aegis of the Security Service and the consequent destruction of the normal routes and possibilities of evidence gathering. This was not the intention of the control order regime but it was one of its effects, and it was absolutely clear to me from material that I examined during the review that the process of building prosecutions against controlees was weak and had low priority. In fact, it almost never occurred.

For very understandable reasons, when a man was put under a control order the police would simply move on to other cases, satisfied that that individual was adequately quarantined under watchful eyes. That low prioritisation of prosecutions will always be evident so long as the system of restrictions is positioned outside criminal justice. If I am right about that—I shall expand a little in a moment—it means that to situate TPIMs outside criminal justice is not only possibly offensive to principle; it is also, finally, offensive to public safety because it lets people get away with terrorism and escape justice.

Let me say straight away that TPIMs appear to represent an improvement on what went before. The most offensive features of the previous regime from my perspective—those closest to house arrest—have gone. Relocation and long curfews will be a thing of the past. Individuals will be permitted to use electronic communications, including computers and phones, and the orders themselves will be time-limited to two years. Yet in my view the Government have failed to grapple with the central issue: the nature of the orders themselves and the appropriate space for them to occupy within our constitutional arrangements. In my report on the review, presented to Parliament alongside the review, I called for TPIMs to be attached quite explicitly to criminal investigations. That would facilitate the prosecution of serious criminals and deal with the constitutional objections that have bedevilled control orders and will, I am sure, continue to bedevil TPIMs. This stance has since been supported by the JCHR and noted by the Constitution Committee of this House. It deserves more serious consideration than the Government have so far shown it.

I understand that it will not always suit the Security Service, for which I have the greatest respect, to have law enforcement authorities crawling all over suspects under its control. That no doubt explains in part the strong support that the Security Service has given to the control order regime but it is nothing to the point. The public interest is not always and inevitably to be equated with the policy of the Security Service. Sometimes, Governments need to stand back. It is patently absurd that individuals certified by the most senior figures in government to be active terrorists are not constantly and relentlessly under criminal investigation. I do not accept for one moment that because the material against an individual is presently inadmissible for one reason or another—many identified by my noble friend Lord Howard—the investigation should stop. On the contrary, it should be redoubled and have TPIM conditions attached to it for its duration. Let there be relentless investigation into people who are suspected of terrorist activity but let it be criminal investigation and let TPIMs be tied to that investigation—to facilitate and assist it so that no opportunity is lost to bring violent extremists to justice—in a manner consistent with our rule of law.

[Lord Howard of Lympne]

What would happen under the regime that my noble friend is suggesting if the police and prosecuting authorities came to the conclusion that there was simply no evidence that would justify the continuation of the criminal investigation? Under his proposals, would that mean that the restrictions currently under discussion would inevitably fall?

[Lord Macdonald of River Glaven]

If my noble friend does not mind my saying so, I am not sure that the example that he posits is one that I recollect from my period as DPP. Let us imagine the situation that would exist here: presumably the police or the Security Service would have in their possession something like an intercept that could not be used—for example, a suspect having a conversation with another individual about a plan to place a bomb on the Tube. With respect, that is not the end of an investigation; it is the beginning of one. The investigation that then takes place is into that individual, into the plan as described in the phone call, into the individual he has spoken to and into the associates of all.

The noble Lord will know from his time as Home Secretary that the sorts of powers and abilities that the law enforcement authorities in this country have, which we will not go into here, are considerable and significant. I do not recognise a situation in which a law enforcement investigation stops simply because the deeply incriminating material that you have until that time is the only material that you have and you do not anticipate discovering more.