Crime and Courts Bill [HL]

Lord Dubs Excerpts

Monday 25th March 2013 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I hope that what I am about to suggest will find favour with the noble Lord and the rest of the House. I remind noble Lords that we have 20 pages of amendments before us to consider at some time tonight. They were never considered at all on the Floor of the House of Commons and have never been considered by us at all, until now. They could have been brought before us last year. They were not. They have been brought before us at the last moment, and it is almost disgraceful for us to be asked to amend the law in an important respect that will undoubtedly affect our foreign relations without the matter having been properly considered in this House and the other place. I am sorry that the noble Lord does not immediately rise to that debate, but I seriously suggest to him—and I hope that there will be support for this—that instead of debating these 20 pages of amendments, the whole part that deals with extradition should be considered in the next Session of Parliament. It could easily be dealt with as a new Bill brought before either this House or the other place at the beginning of the next Session. That would be the proper way to deal with a matter of this importance.

[Lord Dubs]

I support the noble and learned Lord in what he said. It seems rather curious that the Government have introduced amendments in the Commons at the last minute that, by definition, we cannot debate fully because we are dealing with Commons amendments. We cannot have the proper debate that we would be likely to have in Committee and on Report. We are being treated rather badly by the Government. This is an important issue. A couple of years ago, when I was a member, the Joint Committee on Human Rights spent a lot of time considering extradition—it is an important issue. In terms of parliamentary democracy, the Commons did not consider these amendments at all, and we are being asked to do so in a truncated form late this evening when we will not have a chance for a proper debate. Surely the noble and learned Lord has a good case.

[Lord Phillips of Sudbury]

My Lords, I understand my noble friend Lord Taylor’s point, but I also understand fully the point made by the noble and learned Lord, Lord Lloyd of Berwick. We bring our Chamber into disrepute if we try to deal with 80 pages of amendments in the course of this afternoon and evening, including, as has been said, 20 pages of not just brand new but highly complex legislation on which we ought to consult outside this Chamber. The issues concerned could not be of greater importance.

--- Later in debate ---

[Lord Lloyd of Berwick]

My Lords, perhaps I may speak to Amendment 24B, which is included in this group. Earlier today I suggested that Commons Amendments 24 and 136 should be postponed for the reason that these amendments, unlike all the others we have been discussing today, were not considered at all on the Floor of the House of Commons, and are only being considered at this very late stage in this House—one that is, let me say, barely full. This is not the way to legislate. It is also so unnecessary.

When I said earlier today that these two amendments should be postponed, I think I made it clear that the Government should withdraw these two amendments now and bring them back early in the next Session of Parliament when we can debate them properly both in the other place and here. I cannot see what the Government can possibly lose by taking that course. Yes, there would be some delay, but as it is seven years since we have had a forum bar on the statute book and it has never yet been put into force, I find it impossible not to ask what the hurry is now. Although there would be a delay of a few extra months, it would not make all that much difference, and at least it would mean that we had done justice to these very important amendments, which now we shall not be able to do.

I agree with almost every single word of the noble Lord, Lord Rosser, in his excellent speech, but he will not actually expect me to support the detail of his amendment. That is because we already have the Scott Baker review, which was published just under two years ago. What we ought to be doing today is implementing that review rather than legislating in its teeth and asking for another review in three years’ time. I repeat, what a way to legislate: to appoint a group like that led by Lord Justice Scott Baker to go into this question and then to ignore what it said. I believe that I am right in saying that the noble Lord, in proposing his amendment, did not once refer to Lord Justice Scott Baker’s report. Again, what a way to legislate.

I turn to the merits of the new forum clause and ask how it would fare judged against the Scott Baker report. I can say that it has all the defects of the 2006 forum clause, which was so strongly criticised by Lord Justice Scott Baker, with some more defects besides. The basic mistake is to believe that the question of where a defendant should be prosecuted when there are different countries claiming jurisdiction should be decided by a judge, on the grounds, so it seems, that that will produce a fairer result. I can understand that view but, in my strong opinion, it is not the way ahead. Where there are competing jurisdictions, the question can only sensibly be decided by agreement between the two competing jurisdictions. One of the main considerations in these cases must always be where the bulk of the evidence lies on which the defendant is to be convicted, if he is to be convicted. That is essentially a question for the prosecuting authorities. They will have all the material at their disposal. How is that material to be put before the judge? Are they to appear before the judge and argue the toss before him—is that what is proposed? If it is to be a judge, why should it be a judge in England rather than a judge in the requesting state? At pages 222 and 223 of the report, the authors give nine distinct reasons why a forum bar is not the way ahead. I would have liked to have heard the noble Lord’s answer to each one of those reasons. However, I will content myself with simply reading their conclusion, at page 228:

“However, in our firmly held view the issue of forum is better decided by the prosecuting authority than the court. A decision about where a case should be tried is par excellence a prosecutorial decision, as is a decision whether it should be prosecuted at all: the prosecuting authority will be familiar with the detail of the case, the available evidence and the viability of proceeding in one jurisdiction rather than another”.

That conclusion should have been accepted by the Government but it has not been.

That is only one of the reasons given in the Scott Baker report. Another, which I think the noble Lord has already touched on, is that it would necessarily generate satellite litigation. I will read what the report says the district judges, the people who decide these cases, had to say on that question:

“The evidence of the District Judges dealing with extradition cases was strongly to the contrary”—

in other words, against a forum bar. The report continues:

“They cautioned that if brought into force the sections would generate litigation and that it would be very difficult to control the evidence of the party seeking to resist extradition. For example, it will be contended that wide ranging disclosure of documents is necessary when an ‘all the circumstances interests of justice’ test has to be met”.

One of the many reasons why the 2006 forum bar was never brought into force was that it was thought to be too complicated. If the 2006 Act was complicated, how much more complicated is this forum provision, where we have prosecuting certificates of the designated prosecutors being questioned, under proposed new Section 19E in Amendment 136, before the High Court in judicial review proceedings? How is that going to speed up the process of extradition, which is the whole object of these proceedings? It is madness to think that it will; it will not.

Another reason that has been given—this is the last that I shall mention—is that enacting these provisions will automatically put us in breach of our international obligations. That is certainly a point which was carefully dealt with by the noble Lord, Lord Rosser, and I agree with what he said. In respect of category 1 countries, for example, we already have a system for deciding between two countries where there is a dispute as to where the proceedings should take place. That is known as Eurojust, and it is a system that is operating now and without any difficulty. If we pass a forum bar, we will have to opt out of Eurojust. Are we to be the only country to do so? No other country, so far as I know, has suggested anything similar to a forum bar.

What about the category 2 countries? Exactly the same applies as when we had existing extradition arrangements. Why should other countries which are not in Europe be satisfied with the decision of our court about which is the most suitable jurisdiction for the defendant to be prosecuted? Those are reasons which were given by the noble and learned Baroness, Lady Scotland, and they were absolutely sound. No answer to that objection has yet been given.

I come back to where I started. These are but three of the reasons why this forum will not work. I prophesy that it will not ever be brought into force. Like the 2006 Act, it will be found to be impracticable and actually impede the speed which is so essential in these extradition cases. I wish the noble Lord had accepted my suggestion that this matter should now be withdrawn by the Government and brought back again in the next Session when we could debate it properly. However, I understand that it is now too late to hope for that.

[Lord Dubs]

My Lords, earlier today the noble and learned Lord, Lord Lloyd of Berwick, and one or two other Members of this House raised the question of the Government’s procedure in this matter. I have to say that I cannot recall an instance where the Government have introduced a fundamental amendment not in Committee or on Report, but actually when the Commons were discussing the Bill and amendments to our amendments. There would have been plenty of time in the early stages of the Bill in either House for the Government to have introduced the amendment. I cannot understand why this seems to be an afterthought.

Governments usually do these sorts of things when there is a real sense of urgency, when there is a dramatic reason why they have to move quickly. I cannot for the life me understand why they felt it necessary to do this at the last minute. Having heard the Minister earlier today, I feel that he was caught. Had he been a Back-Bencher—and I hope he is not going to be a Back-Bencher as a result of all this—I suspect that he would have agreed with out arguments. However, being the Minister, he is rather debarred from saying on the spot that the Opposition or other Cross-Benchers are right and the Government are wrong; he cannot say that. However, in his heart of hearts I suspect that is what he may have been thinking.

It seems to me that this is not a proper way to treat either House of Parliament, when there is absolutely no reason why the Government should behave in this way. The difficulty we are in is that there is no easy way of testing the arguments because the rules of procedure for this part of the Bill, when we are dealing with Commons Amendments, give us a very limited opportunity to be critical. We do not have the flexibility that we have in earlier stages of legislation. We are caught in a position where we have a very serious matter, and where we cannot do justice to the process of scrutiny in order to come up with a better answer. The Minister may have said one or two things which are now going to be difficult to put to the test.

The Minister mentioned the death penalty. As somebody who is very keen on campaigning internationally to abolish the death penalty, I had understood that it was absolutely accepted practice by Britain that we would never under any circumstances let anybody be extradited to a country where there was no assurance that the death penalty would not be used. Why the Minister mentioned the death penalty, I do not know, but I hope that the existing policy will hold good.

Ibrahim Magag: Disappearance

Lord Dubs Excerpts

Tuesday 8th January 2013 Lords Chamber

[Lord Taylor of Holbeach]

I can inform the House that 10 people are subject to TPIMs. I cannot give the grounds for any of those orders having been made.

[Lord Dubs]

The Minister said that this was an instance where there was not enough evidence to take the person to court. Perhaps I may say to the Minister, if we were to use intercept evidence, would we not be able to bring all these people to court? Is it not time for the Government to move forward on working out a system whereby intercept evidence could be used in these cases?

Chilcot Committee: Intercept Evidence

Lord Dubs Excerpts

Tuesday 24th July 2012 Lords Chamber

[Lord Henley]

My Lords, I may depress the noble and learned Lord a little when I tell him that it has actually been longer than four and a half years. I gather that seven previous attempts going back to 1993 have been made to try to resolve this issue, which gives some indication of the difficulty of dealing with it. We have made a coalition commitment that the Government will seek,

“to find a practical way to allow the use of intercept evidence in court”.

However, we must focus on the benefits, costs and risks of so doing, and that is why we want to get it right. As regards the legal advice, I can only say to the noble and learned Lord that it would not generally be appropriate to put into the public domain independent legal advice that had been offered by counsel.

[Lord Dubs]

My Lords, does the Minister agree that if the risks associated with making intercept evidence available in court could be made acceptable to the Government, surely the benefits of using such evidence in court would be enormous? We would bring to justice people who at the moment cannot be brought to justice. It would be a much better way of running these things than having control orders, TPIMs and what have you.

[Lord Henley]

My Lords, I think I can agree entirely with the noble Lord, but we have to accept that there are risks and that we have to find a balance between the risks and the benefits. That is what we are trying to do. As the noble Lord will appreciate, for a whole series of Governments going back to 1993, this is quite a difficult matter to resolve.

European Court of Justice: Jurisdiction

Lord Dubs Excerpts

Wednesday 20th June 2012 Lords Chamber

[Lord Henley]

My Lords, again I totally agree with my noble friend on that matter. But it means that we have to make very difficult decisions at the time about what is precisely in the United Kingdom’s national interest. We will not make a decision on all 133 measures before that. There might be individual measures, as my noble friend will be aware, on which we might have to make a decision before then. But as a totality we will leave this to 2014.

[Lord Dubs]

Will the Minister confirm that the Government have no intention of opting out of the European arrest warrant, which, for all its faults, is still the best way to ensure that criminals—some of whom commit very serious offences, including terrorism —are brought to justice in this country?

[Lord Henley]

My Lords, the European arrest warrant was one of those matters agreed to before 2009. Therefore, it is covered by what we are discussing today. As I have said, we will make our decision at the appropriate time in 2014. It might be that we feel that in the national interest we do want to opt out of it; it might be that we do not. But I think that we will leave that to another day.

Justice and Security Bill [HL]

Lord Dubs Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Dubs]

My Lords, I am not a lawyer and I have searched my mind about whether I have ever seen an official secret in my life. The answer is that I do not think that I have. In Northern Ireland, we had Cabinet minutes which were heavily redacted and the contents had appeared in the papers before I read them anyway. I do not count that as having seen any official secrets, so perhaps I am disqualified from contributing to this debate.

I recall that in the past, not that many years ago, the name of the director of MI5 or MI6 was an official secret. We were not even to know that such people existed. That has moved on now and it is much more possible to have some element of knowledge and scrutiny of the security services. Of course, the threats in the intervening years have become more international and more serious, and to deal with them has required more international co-operation. I say that in the context of how anybody would look at the Bill.

I regret that the noble Baroness, Lady Manningham-Buller, will speak after me because I would have liked to have known what she had to say before I contributed, although I had a little chat with her a few minutes ago so I have some idea. I remember vividly the contribution that she made when we debated 42-day detention. She knocked the Labour Government for six with a short maiden speech, which many of us who were present will remember vividly and almost word for word. I regret that I cannot listen to her before making my contribution.

I want to talk mainly about Part 2 of the Bill. This is not a specialist issue just for lawyers: it is central to our country and to the way that the rule of justice operates. It is constitutionally a significant change. It undermines the principles of open justice and natural justice. I welcome the concessions that the Government have made between the Green Paper and the Bill, but I contend that there are still weaknesses.

I served on the Joint Committee on Human Rights. I was rotated off about three weeks ago, so I am not as up-to-date as I would like to be, but I recall that when we published our report on the Green Paper it was embargoed. The Deputy Prime Minister made a passionate statement criticising the Green Paper. I assumed that he had somehow got hold of a copy of the embargoed report because the timing was too close to be coincidental, but be that as it may. I also welcome the report of the House of Lords Constitution Committee.

Clearly, there must be concern about the anxieties in the United States and other countries that we might reveal information given to us in confidence. On the other hand, we have had examples where the Americans themselves have not been that good at keeping secrets. Indeed, there was one instance in addition to the one quoted. In the Yemen case, the Americans leaked or revealed the fact that one of our people had given valuable information from Yemen. That endangered the safety of that individual. I say that only to demonstrate that the Americans themselves are not always as good at keeping to the principles that we are told are the basis for this legislation.

I welcome the fact that inquests will be excluded. I welcome the fact that the Bill will confine itself to national security material and that SIAC’s jurisdiction will include the possibility of JRs regarding citizenship and exclusion from the UK. However, there is something I do not understand. If someone has lived in this country for some years and then applies for citizenship, why is that aspect covered by the secrecy implicit in the Bill? Surely, if a person has been here for years, we know that he or she is here and we are onto them. Indeed, there is an argument that we should keep quiet and see what else we can learn from them. If we start challenging their entitlement to citizenship, albeit in a secret court, we are actually giving the game away. I do not understand the argument there. Perhaps the Minister can reveal it.

The key issue is the secret hearings and the CMP material inherent in Part 2 of the Bill. Of course, the problem is that the Government may use and rely on closed material even though other parties are not allowed to see it. To quote again from the noble and learned Lord, Lord Kerr, who has been quoted before:

“Evidence which has been insulated from challenge may positively mislead”.

That surely has to be the theme for those of us who are concerned about the Bill.

I understand that the courts traditionally are reluctant to challenge the Government on national security matters and if the Government say that it is a national security matter, the courts will normally accept that. The effect of the Bill will be largely to replace PII with CMP where the Government want that to happen. In truth, the Bill preserves the PII process in cases involving national security where in the Government's words it is more appropriate. But as the Bill stands, it is the right of the Secretary of State—his exclusive discretion —to decide which way to go. I think that that is more power than should be the case. I do not believe that the Government have fully demonstrated the case against PII.

I understand that the key benefit of the PII procedure is that there can be balance. The courts can balance one consideration against another. That is surely its particular strength. If we are throwing that out, that is a retrograde step. Do we have to have the alternative of the Secretary of State saying either that PII is okay or we have to have CMP? I wonder whether there might not be a way in which the strength of PII and the benefits of CMP as alleged could be put in such a way that the court itself could decide which of the two methods to use. I am not sure how well that would stand up, but I put it forward to the Minister as a possibility that might get the Government off the hook.

As for Norwich Pharmacal, I share the concerns that have been expressed by others. In particular, Clause 13(5) refers to disclosure that would be damaging,

“to the interests of national security, or … to the interests of the international relations of the United Kingdom”.

That seems to be very wide indeed. I understand national security, although it is vaguely defined. But if we are talking about damage to the international relations of the United Kingdom, all sorts of things damage our international relations, even a leak about something that a British embassy is doing. I wonder whether that is going too far and if we dropped that the Norwich Pharmacal jurisdiction approach would still apply more happily.

I turn briefly to Northern Ireland. While it is good that inquests have been excluded from the Bill as a whole, there is still a range of civil proceedings in Northern Ireland dealing with the legacy of the conflict that will be affected by the introduction of CMPs. I give three examples. There are possible challenges to the PSNI, possible concerns about decisions by the historical enquiries team and possible miscarriages of justice. Some of the issues in Northern Ireland are very serious. We have already had difficulties with the Finucane case with too much secrecy causing lack of confidence in the system. I wonder whether we are not getting into rather difficult terrain by applying this approach to some of the sensitive issues in Northern Ireland. I noted with interest the suggestion of the noble Lord, Lord Thomas of Gresford, that there should be a disclosure judge as well as a Diplock judge. I do not know enough about that, but that is another option worth considering.

I notice that the Government for the first time retain the right to use intercept evidence in CMP cases. Given all the arguments that we have had about intercept evidence, I still believe that we should find a way, where appropriate, of occasionally using intercept evidence in our courts as a way of bringing people to justice. Every time the Joint Committee on Human Rights had a meeting with Home Office officials we were told that it was all being considered, but nothing seemed to come out at the other end. It is interesting that the Government have in a small way conceded the case by saying that intercept evidence may be used in CMPs. I hope that that is a sign that the use of intercept evidence in a wider sense is still on the Government’s agenda.

Immigration: Controls at Airports

Lord Dubs Excerpts

Wednesday 16th May 2012 Lords Chamber

Asked By

[Lord Dubs]

To ask Her Majesty’s Government what steps they are taking to improve the efficiency and effectiveness of immigration controls at British airports.

[The Minister of State, Home Office (Lord Henley)]

My Lords, the Government have announced several measures on these issues. National resources are being used flexibly to provide up to 80 additional staff at Heathrow every day. Mobile teams are deployable to assist with surges in passenger numbers and the skills and experience of staff are being maximised. Additionally, a border force is working with the airport operators and airlines to ensure that they receive accurate and timely information to enable resources to be deployed effectively.

[Lord Dubs]

My Lords, it does not seem to be working. At 10.30 pm one evening last week in Terminal 1, five immigration officers were dealing with British and EU people and two were dealing with people with other passports. The e-passport system was not working. Although it may have taken under half an hour for people like me to get through, the foreigners with other passports looked like they were waiting for hours and hours. Does the Minister agree that this is simply not acceptable and is a consequence of the Government’s cutbacks in staff?

[Lord Henley]

My Lords, I totally reject what the noble Lord says about cutbacks in staff affecting what is happening. It is not a question of numbers. The important thing is to make sure that we get the right people in the right places at the right time. Rostering, therefore, is done in line with the schedules as they vary between summer and winter. We then adjust them accordingly in line with information we receive, say, from BAA or the airlines about flight delays, weather and so on. We have also brought in this mobile force which we can move around a certain amount to make sure that the right people are there at the right time to deal with the numbers. Obviously, it will always be difficult but we want to continue to improve things and I believe that we are making progress. Perhaps I may remind the noble Lord that at the Home Affairs Select Committee meeting only yesterday, Andrew Lord, director of operations at British Airways, made it clear that it had seen great improvements in recent weeks.

Abu Qatada

Lord Dubs Excerpts

Tuesday 7th February 2012 Lords Chamber

[Lord Dubs]

My Lords, is this not perhaps the most obvious example we have ever had of the fact that the use of intercept evidence in limited cases would enable an individual to be brought to trial in this country, found guilty and imprisoned without all the problems of the European Court of Human Rights apparently causing us difficulties? If the Government would only allow intercept evidence to be used in limited instances, we might be a lot further forward than we are now.

[Lord Henley]

Intercept evidence is a matter that we have debated in this House and in another place on a number of occasions. I have debated it from the opposite side of this House in a previous role as a justice spokesman, just as I have as a Minister on this side. It is a very difficult issue. The special committee of privy counsellors should continue to examine it and report to Ministers in due course. Being frank and honest with the noble Lord, I have changed my mind more than once on this issue. It is an issue on which it is very easy to flip-flop between the two sides. The advantages at times seem overwhelming, but one then discovers that the risks to one’s intelligence and the sourcing of evidence can be even greater. It is a difficult question and not one that I would want to answer in detail when repeating a Statement of this sort.

Police: Stop and Account

Lord Dubs Excerpts

Thursday 20th October 2011 Lords Chamber

[Lord Henley]

My Lords, the first point to make is that both stop and search and stop and account are vital tools for the police in deterring crime and combating anti-social behaviour. It is also vital that they must be used as sensitively as possible, as the noble Lord implies in his question. With regards to monitoring, it is vital to get this right. That is why I am very keen to stress the balance between accountability and bureaucracy, given the potential savings to the police in not having to record stop and account and in allowing them to carry on their activities properly without excessive bureaucracy. The police will still record stop and search, but recording stop and account is a matter for local decision-making, and that is why the Met, for example, will continue to record stop and account.

[Lord Dubs]

My Lords, if the Minister looks at his notes, he will see that stop and search and the issue of ethnic monitoring goes back to at least 1981 following the Brixton riots. Does the Minister have any figures to show the proportion of young black people stopped and searched compared to white people, and if he has not got the figures, will he look them up? I suggest the ratio is between 6:1 and 8:1.

[Lord Henley]

My Lords, the noble Lord is right to say that this goes back to 1981, but the recording of stop and account came after the Stephen Lawrence inquiry. This Question is directly related to the fact that we will no longer make it compulsory to record stop and account, which I have explained. I do not have at my fingertips the figures that the noble Lord seeks, but I shall write to the noble Lord and make sure that he has them.

Terrorism Prevention and Investigation Measures Bill

Lord Dubs Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Dubs]

My Lords, I welcome the noble Lord, Lord Henley, as the Minister and pay tribute to the noble Baroness, Lady Browning. I hope that she will get better soon and will be with us again before too long. I was talking to her only yesterday to commiserate on her health. She said that she really enjoyed the job, and the fact that she did so was obvious in how she dealt with the business of the House. It was a pleasure for us all, even if we disagreed with her.

I am a member of the Joint Committee on Human Rights and I want to develop one or two arguments. At the outset, however, I should say that if I were speaking later in the debate, I would probably be saying to the noble and learned Lord, Lord Lloyd, that I agreed with him on intercept evidence and to the noble Lord, Lord Macdonald of River Glaven, that I agreed with the thrust of his arguments. But given that I have not yet heard them speak, I shall have to say a word about that.

The noble Lord, Lord Howard, mentioned intercept evidence and the committee on which he serves. Those of us not privy to the sort of information that he now is—as presumably he also was when in the Cabinet—are not as aware as he is of the difficulties involved in the use of intercept evidence. It is a difficult point which affects the whole debate on terrorism that most of us do not have access to the information which determines how decisions are ultimately made by Ministers. We have to take it as an act of faith and there are limits to the amount of faith we can always have. I am very keen on the use of intercept evidence and would like to hear—I am not going to because it is all secret, of course—the arguments against the use of it, given that it is now normally used in many other countries which presumably have the same difficulties that the noble Lord referred to.

[Lord Reid of Cardowan]

Briefly, my noble friend raises a good point that he does not have access to the information on which sometimes the judgment is based. I merely commend to him a study: can he name one British Home Secretary who does not agree with the noble Lord, Lord Howard, in his estimate of the dangers and disadvantages of introducing what my noble friend proposes?

[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.

Terrorism Act 2000 (Remedial) Order 2011

Lord Dubs Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Carlile of Berriew]

My Lords, on this occasion I feel able to support the Government’s proposals unequivocally and without demur. During my time as independent reviewer of terrorism legislation I saw—and I mean saw with my own eyes—Section 44 being overused, misused and occasionally abused. It produced very few, if any, results in terms of counterterrorism intelligence or information, and its passing is not mourned.

The problem was that there was no requirement for reasonable suspicion and it was treated as a random power to stop and search. I had not heard before this evening that my noble friend Lady Hamwee had been stopped and searched. I recall the noble Lord, Lord West, revealing that he had been stopped and searched, and he told me colourfully of the incident.

The passing of Section 44, and the Government’s speedy action in preventing its use, has been welcome, but there was always a gap to be filled as a result. There are going to be events—the Olympic Games are an obvious example but there may be many others—in which there will be reasonably robust intelligence that gives rise to a reasonable suspicion that a terrorism act will take place. It is important to allow the police to protect the public at such events by giving them a power to stop and search. It is not a random power and it is not expressed in this order as a random power. I agree with my noble friend that it is desirable that police officers who find this kind of power quite difficult to exercise, particularly if they have come from a different part of the country to carry out crowd control duty, should have as much guidance and as good briefings as possible before they are placed on duty with this power in their hands.

I have some experience of the reviewing of the authorisations which, as the Minister reminded us, used to be for 28 days under Section 44 in geographical areas. During my time as independent reviewer a new look was taken at these authorisations, and greater demands were rightly placed on chief officers to ensure that the authorisations were not simply pro formas but that reasons were given. I hope that the same sort of discipline will apply to authorisations following approval of this order.

I know that the civil servants in the Office for Security and Counter-Terrorism who scrutinise the applications now have a great deal of experience, which they apply very well in that scrutiny. I therefore believe that as a result of this order we have replaced Section 44 with something that is better, necessary and properly limited in scope.

[Lord Dubs]

My Lords, we all know about the sensitivity of stop and search, and any improvement in the way that it is carried out—as is represented by this remedial order—is all to the good. However, I have one or two questions based upon my membership of the Joint Committee on Human Rights. The noble Lord, Lord Carlile, said that the searches would not be random. Am I right in thinking that in the code of practice there are references to random searches? The JCHR was anxious that those references be removed and that the code of practice be devised so that the stop could be,

“justified by the precise nature of the intelligence about the threat”.

Rather than the searches being random there would have to be some intelligence because the order would clearly not be applied unless there was some background knowledge of this sort. It would be desirable to remove the word “random” from the code of practice.

In another report of the JCHR, we suggested that the code of practice be modified to:

“Require the authorising officer to have a reasonable basis for his belief as to the necessity of the authorisation and to provide an explanation of those reasons”.

These would not be large changes, but I wonder whether we might urge that the code of practice be looked at again. Police officers need all the guidance that they possibly can have in dealing with very sensitive situations. We all know that certain communities will feel that they are more targeted than others—notwithstanding the experience of the noble Baroness—and I should have thought that we ought to look again at the code of practice to make sure that it reflects exactly what we want it to reflect and gives our police officers on the street the maximum support for the way they behave.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord, Lord Henley, will be glad to know that, unlike in previous debates, he is receiving unanimous support from noble Lords tonight for the remedial order, which I believe to be an entirely reasonable and proportionate response. I echo the comment of the noble Baroness, Lady Hamwee, about the timing. Clearly, it is within the due time. I agreed, through the usual channels, that we would have this debate after the Second Reading. On reflection, it is not sensible to have such a debate at this time. Many noble Lords who have spoken on Second Reading would have liked to have taken part in these deliberations as well. We might learn from that for the future—perhaps when we potentially come to annual debates on the previous legislation; we shall see.

I refer the noble Lord back to the point raised by the noble Baroness, Lady Hamwee, about the two reports of the Joint Committee. He will know that in the first report, the Select Committee asked the Government to provide Parliament with more detailed evidence of the set of circumstances in which the police have experienced the existence of an operational gap in the absence of a power to stop and search. I thought that that was a reasonable request by the Select Committee. The committee’s second report expresses muted disappointment that the Home Secretary had not accepted any of its recommendations. However, the committee goes on to say that, none the less, it thinks that the Government should find a way to tell Parliament more about the undisclosable reasons for their belief that there is a significant operational gap in the police's counterterrorism powers.

I am not being naive here. I well understand the issue for the Government: there are circumstances where it is difficult to give that information. I hope that, none the less, the noble Lord will see whether it might be possible to provide some information as a follow-up to the debate. The Select Committee has put its finger on an important point.

However, I do not intend to repeat the comments made by other noble Lords in the debate. I very much support them. We support the remedial order and look forward to the noble Lord's response.