Terrorism Prevention and Investigation Measures Bill

Lord Faulks Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord Eames]

I rise to briefly support the amendment of the noble and learned Lord, Lord Lloyd, but do so from an angle that has yet to be mentioned in the debate this afternoon. I base it on my own experience over the years. Exercising the duties given to me in Northern Ireland, I saw at first hand the burden that successive Secretaries of State had to carry on behalf of the Executive in situations of dire necessity demanding often urgent and serious decisions in a matter of hours. The former Secretaries of State who grace this House—I see the noble Lord, Lord King, in his place—will recognise the roles of the judiciary and the Executive.

The Bill has been thoughtfully carried to this stage, and I am aware from my own contacts of the thought and preparation that have gone into the terms before us. The Minister will obviously want to argue that the right way to do this in the case of urgent and very sensitive issues is through the work of the Executive and their decisions. In his position, many noble Lords would argue the same. However, where in the sensitive and urgent situation of widespread terrorism a whole community is faced with what should be protection by the Executive, there is a tendency not to value the importance of the community’s confidence in how those decisions are made.

In those years to which I referred in my own lifetime of experience, in the discussions to which I was privy and decisions that were taken where my own opinion was sought, there was no doubt of the urgency and necessity of moving as quickly from the level of executive or political decisions to what could be transparently seen as the decisions of the judiciary. The important point I am simply trying to underline is that, in our discussions this afternoon, let us bear in mind the question of the confidence of the community in decisions that are made at this level. I beg to suggest that, where those decisions are made by the judiciary, there is much more acceptance by a hard-pressed community under a situation of terrorism than in the other case. This is not to downgrade the integrity of any executive decision, and I am not doing that; I am simply saying that we must take a broader view. For that reason, I support the noble and learned Lord, Lord Lloyd.

[Lord Faulks]

I agree with what my noble friend Lord Macdonald and many other noble Lords said, that we can trust the judges. As the Bill currently reads, they have the task of scrutinising the imposition of measures on judicial review principles. Experience and the dicta of judges suggest that they will be particularly rigorous in this. This area is not generally considered one where Ministers are permitted quite the same sense of discretion as, say, on an issue of economics, but it is one where judges really can get in among the detail and form a view of a matter. They are only too conscious of the potential limitations of closed hearings and special advocates, and the potential risk that these present to those who are potentially the target of these measures.

On the amendment proposed by the noble and learned Lord, Lord Lloyd, I acknowledge his distinguished pedigree and the pedigree of the amendment, which I think goes back some time to the original control orders, but I respectfully suggest that it is inappropriate. I suggest that the obligation rests on the Home Secretary to protect the security of citizens. It rests upon her shoulders and it is a heavy burden. If one needs to find any emphasis in this from the Human Rights Act, Article 2 provides an obligation on the part of the public authority, the Government, to take measures to protect the life of citizens. Those measures will include appropriate measures to prevent outrages of this sort—that is of course what this Bill is concerned with. In this Bill she has to reasonably believe that an individual is involved in terrorist activity and reasonably consider that a TPIM and its appropriate measures are necessary. That is an exercise that she, with that heavy burden placed upon her, should perform.

As I understand it, this amendment is born out of an outright opposition to TPIMs and their predecessors, control orders. The courts have minutely examined these control orders in a number of cases. They have had various degrees of enthusiasm about them and about the closed hearings and the special advocates, but they said that they could operate unlawfully or they could operate satisfactorily—it would depend on the individual cases. However, they have survived what was a wholesale attack on them as a measure. It was not decided by any court that they were by definition contrary to the rule of law. It was acknowledged by judges in a number of cases that the security of the nation was a potent argument in favour of such orders.

It was not suggested in any of those judgments that it was better for the courts to have the decision in the way that this amendment suggests. I doubt that the courts would really relish such a task. Their job, traditionally, is to scrutinise, to examine the legality of the decision, but not to take upon themselves an essentially executive decision. I suggest that the Secretary of State—knowing, as she will, that her reasonable belief will be subjected to close scrutiny by a process which, correctly, places a heavy emphasis on the freedom of the individual—will exercise that power extremely responsibly, and I suggest that the balance should remain as it is in the Bill.

Finally, I will say something about the question of the standard of proof. If there is a fundamental shift in the way that power is to be exercised, as is suggested by the amendment, and the matter comes to the courts to decide, then it may be that the standard of proof should be the balance of probabilities. That is the test that has evolved over the years to decide civil matters generally. There have been recent decisions that suggest there is no shifting standard, but it remains the standard. It has developed pragmatically because there have to be decisions in civil cases to be distinguished from the higher standard in criminal cases.

However, as I understand the amendment proposed by the noble Lord, Lord Pannick, should the power remain with the Home Secretary, she should not have the decision based on reasonable belief but on balance of probabilities. I respectfully say that that balance of probability test may be appropriate where there is a judicial process to be undergone, but where we are talking about an executive decision, reasonable belief is much more appropriate than the process of coming to a conclusion on a 51:49 basis, which is far more suitable for a judicial determination other than the decision which at the moment would—and should—rest with the Secretary of State.

[Lord Pannick]

Under the Bill as it is at the moment, the judiciary are involved at the later stage. If they are to conduct a merits review, as the Government intend, they will apply the same test as to standard of proof as the Minister has applied in making the order. If the noble Lord accepts that balance of probabilities is suitable as a judicial test at the end of the process, surely the Secretary of State must apply the same test at the beginning of the process.

[Lord Faulks]

What I endeavoured to say was that the balance of probabilities would be appropriate were the courts to be taking that initial decision in place of the Secretary of State, which I understand to be the burden of the amendment put forward by the noble and learned Lord, whereas I understand that the suggestion made by the noble Lord, Lord Pannick, is that the initial stage and the decision to be taken by the Secretary of State should be on the balance of probabilities, and there I suggest that the current test is more suitable.

[Baroness Hamwee]

Does the noble Lord have any comments on the provisions in Clause 26, which provide for the Secretary of State to take a decision based on the balance of probabilities in the position where the more stringent measures might be applied?

[Lord Faulks]

I have no immediate answer to that, but at this juncture I would suggest that the initial decision-making process is far better on that basis because that is the most important stage: whether or not you decide that it is appropriate to impose, or seek to impose, a TPIM—with the approval of the court, it must be said.

[Lord Neill of Bladen]

My Lords, I wish to add my view. I entirely agree with what the noble and learned Lord, Lord Lloyd of Berwick, moved by way of an amendment. I fully support that and I also support the amendment tabled by the noble Lord, Lord Pannick. The basic question is one of justice: where should the order be made that leads to these deprivations of liberty? I have been told that you would have to be in a particular residence for a long period of hours. All those things in orders of that type are grave deprivations of privilege. Here, I agree with what the noble and right reverend Lord, Lord Eames, said based on his experience, which is borne out by the material that we are reading now as to where the public place their confidence. Perhaps not surprisingly, journalists come at the bottom. I do not know where lawyers come in but it is somewhere not very high up. Yet the judges seem to have the backing of the public as being in the safest and soundest place for judgments to be made. If those judgments involve the liberty of the subject, as I believe they do in this case, that is where we should put our money.

Terrorism Prevention and Investigation Measures Bill

Lord Faulks Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Faulks]

My Lords, this Government, like the previous Government, have a duty to respond to the threat of terrorism in a way that strikes a balance between individual freedom and the security of those potentially affected by acts of terrorism. This is and was no easy task. Control orders, introduced by the previous Government, were controversial, as were the various increases in pre-trial detention. However, the threat, principally from al-Qaeda, remains, and it calls now, as then, for extraordinary measures. On pre-trial detention, there is an acceptance that the previous Government probably went too far. However, I do not doubt for a moment the genuineness of their approach to pre-trial detention and the question of control orders, nor that they were reflecting concerns of the public and what they required the Government to do.

It is perhaps a little too easy to seem principled—even heroic—in deploying civil liberties as a trump card in this debate. Although I do not have the debating miles on the clock of some noble Lords, I have followed the debate from outside Parliament, and I never found in the rhetoric the comparisons with internment in the Second World War, control orders under the apartheid regime in South Africa or the regimes in Zimbabwe and Burma at all helpful.

However, as with pre-trial detention, modifications to the control order regime were needed. In bringing forward the Bill, the Government have made some important changes. Is the Bill simply control orders lite? The Secretary of State must now reasonably believe that the individual is or has been involved in terrorism-related activity and reasonably consider that the relevant measures are necessary. That is an important additional requirement. With great respect to my noble friend Lady Hamwee, it is a pretty high hurdle.

The menu of measures contained in Schedule 1 is varied and can be nuanced according to the particular situation where there is someone over whom the measures are appropriately directed. They exclude relocation measures, which previously existed. It is a fine judgment whether that is an appropriate exclusion, but there are sufficient measures to exercise the necessary degree of control without that. As I understand it, the Government were concerned, in so far as it was possible, to allow those who are the target of the measures to lead as normal a life as possible in the area with which they are familiar. Similarly, retaining the means of communication is important to allow them a modicum of a normal life.

Those and other changes may not alter fundamentally what the Secretary of State can do, but they are by no means trivial amendments. It is, of course, of paramount importance that safeguards are provided in a Bill of this sort. The primary one is the effective supervision of TPIMs by the courts. The High Court will consider whether to give the Home Secretary permission to impose a TPIM notice and will later review whether the notice and measures were in fact necessary. Is there any reason to think that the courts will not be rigorous in their approach to TPIMs? I think not. The existing case law about control orders shows how carefully the courts scrutinise measures of this sort. I agree with the noble Lord, Lord Hunt of Kings Heath, that that is the role of the judges, as opposed to the role of the Home Secretary.

In the other place, Hazel Blears said on 7 June 2011, citing a judge with whom she had spoken,

“whenever there’s a decision to be made between liberty and security, I … always err on the side of liberty”.—[Official Report, Commons, 7/6/11; col. 97.]

That was an observation of one judge, but my experience of the judiciary is wholly consistent with that observation.

The closed hearings which have to take place to maintain security are certainly unattractive at first sight. The use of special advocates who cannot communicate to their client the whole of the case raises the spectre of the target of one of these orders simply not knowing about the evidence against them. But those who act as special advocates are highly respected and principled lawyers who can be relied on to test the evidence with skill and care on their client's behalf.

The system is clearly far from perfect, but I think we can be satisfied with the courts, as they have shown hitherto in the considerable amount of litigation that has flowed from the predecessor measure, entitled control orders, whether under the auspices of Article 6 of the European convention or according to well established principles of English law.

Why do we need TPIMs at all? I wonder whether there is much dispute in your Lordships' House about the terrorist threat, but the situation is made worse by our inability to deport terrorists or potential terrorists because of the European Convention on Human Rights. Those who face torture or the threat of torture in their country are one thing—Article 3 provides them with protection—but the creative interpretation of Article 8 by the court in Strasbourg and thus in our courts has meant that it is all too easy for someone to resist deportation by raising arguments that they have established links here in a way which the courts have interpreted as their so-called right to family life. I say nothing about terrorists' liking or otherwise for cats.

Inevitably, this will be a compromise. The contribution of Liberty to the debate is something that one always looks at with great interest. I do not always agree with that organisation's observations, but it makes a highly valuable contribution to the debate. I was, however, disappointed with its conclusion and the one-sidedness of the report prepared for the Second Reading, which offered the view that TPIMs,

“will only perpetuate a regime which is unfair and puts us all at risk”.

That seems to me to ignore the risk at which the legislation is directed: the risk from terrorism. The Government have responded by bringing forward the legislation, which represents a compromise. As my noble friend Lord Howard said, of course it is the product of compromise and, no doubt, of intense discussion, with different views within parties and within the coalition. Where matters of security and terrorism are concerned, one hopes that there can be a degree of consensus in your Lordships' House. I am sure that during these debates, some useful amendments may be proposed. I am particularly conscious of the fact that there should be no two-stage process: someone subject to TPIMs who is then to be prosecuted. The Bill does something to preserve the imperative of bringing those people to the courts if at all possible by the duty to consult with the police. Amendments and improvements there may be but I suggest to your Lordships that this represents a good compromise.

I welcome the noble Lord, Lord Henley, to his post and wish him good fortune in steering this Bill, which reflects a considered compromise. It has the benefit of some learnt experience and I suggest that it represents a balance between the protection of the realm and the liberty of the individual.

Identity Documents Bill

Lord Faulks Excerpts

Tuesday 21st December 2010 Lords Chamber

[Lord Faulks]

My Lords, the noble Lord, Lord Pannick, and other noble Lords speak with great authority on the Human Rights Act, the convention and our obligation to follow the Human Rights Act. On this issue, there are strong cases to be made on both sides and there are abstentions. The reason why the Government may have decided that the Bill is compatible with the Human Rights Act is simply that the Act is concerned with substantial matters; it is concerned with violation of rights of real value. Whatever one may say about the value of £30, I respectfully suggest to the House that that is not what the Human Rights Act is concerned with. That is one of the reasons why the Human Rights Act has not always been welcomed on all sides of the House.

[Lord Sewel]

I briefly follow my noble friend Lord Howarth on the substantive issue of the Commons reason. This is a sensitive issue and there are clear conventions that we should not in this House criticise the proceedings of another place—and I would not dream of doing so. However, I wonder whether I can take Members of this House back to another period of Conservative government. I recognise that a declining number of Members of this House were in here at the time of the last Conservative Government. Those of us who were used to delight in the tussles between my noble friend Lady Hollis and my friend but, alas, noble opponent at the time, Lord Mackay of Ardbrecknish, on pensions legislation. Frequently, Lord Mackay of Ardbrecknish had to make concessions and was sometimes defeated. The effect of those concessions and defeats was that this House increased government expenditure. That Conservative Government never cried financial privilege.