Justification Decision Power (Amendment) (EU Exit) Regulations 2018

Debate between Lord Henley and Lord Pannick

Tuesday 22nd January 2019 Lords Chamber

[Lord Henley]

My Lords, it is complex and technical. There is no one body called the justifying authority; there are a number of different authorities. On certain occasions, it will by my right honourable friend the Secretary of State for Business; on other occasions, if it was a matter relating to health, it could be the Secretary of State for Health. As I made clear earlier, where it was a devolved matter, it could be the devolved Administrations.

Let me give an example to illustrate how a whole range of things are covered—I am thinking of something that has been in the news recently. If prisons wanted to install a new system for examining or scanning prisoners and others as they came through—I believe that that has already been justified—that involves ionising radiation. I shall now add a further complication: one might presume that the Ministry of Justice would be the justifying authority in that matter, but on this occasion it would be the Home Office. In other words, it would have to look at what the risks to people using these things might be and whether the societal benefits that I referred to earlier were greater such that we wanted to install the technology, hence the need for a justifying authority. There are a number of justifying authorities.

Unlike some other regulations that the noble Lord and I have debated, these are both what we could call deal and no-deal regulations. We are just trying to make sure that the right order is in place so that life can continue as before, with the appropriate justifying authority making the appropriate decision.

[Lord Pannick (CB)]

Can I ask the Minister some questions before he sits down?

--- Later in debate ---

[Lord Henley]

On that last point, I have had an assurance from my noble friend Lady Vere that a reward will be on offer—but let us wait until we have got through all four of these before I rely on the generosity of her offer: she might change her mind later.

Let me deal with the points that have been raised. The noble Lord, Lord Pannick, asked when these were published. I can assure him that they were published on 23 November last year. The instrument makes absolutely no changes to policy: it is just a technical amendment to ensure the continued operability of the justification regulations, and therefore a public consultation was considered unnecessary and inappropriate. Subsequent regulations made using the power contained in this instrument will continue to be subject to the consultation requirements, where the justification regulations impose on the making of justification decisions.

[Lord Pannick]

Can the Minister then give an undertaking that those exit regulations brought before the House that do make policy changes will be the subject of public consultation?

[Lord Henley]

My Lords, where appropriate, that will happen. I can speak only for regulations that I will bring before this House relating to my department—but the noble Lord will no doubt be in his place to listen to other Ministers and other regulations as they come through. I repeat that, when we come to make further decisions under these regulations, at that moment—because there might be a change in policy—those decisions will be subject to the consultation process that I spoke about. If the noble Lord will bear with me, I will give way on this.

[Lord Pannick]

I am very grateful for the noble Lord’s patience. Is he then giving that undertaking in relation to regulations brought forward by his department—that if they are exit regulations that make a change of policy, they will be the subject of public consultation before they are brought before the House?

Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2018

Debate between Lord Henley and Lord Pannick

Tuesday 22nd January 2019 Lords Chamber

[Lord Henley]

Either I will write to him or the noble Lord will be aware that fairly soon—when we have finished with my regulations, whenever that will be and whether I get the sweets from the sweetie box referred to earlier—I will be followed by my noble friend Lord Gardiner from Defra, who might be in a better position to advise him on these matters. We will certainly pass that on to my noble friend. I do not think it would help if I did write to the noble Lord on that subject; I leave it to him to make that point later. He also wanted to know—I think this was at the heart of the question from the noble Lord, Lord Pannick—what the regulations will resemble in the event of a deal scenario. These new regulations have been drafted for a no-deal scenario. The old 2008 regulations would have remained in effect for the implementation period if there was a deal. In the event of a deal, the future supervision and control of shipments of radioactive waste and spent fuel will be subject to negotiations with the EU. This may mean that the 2019 regulations never come into force, or come into force in an amended form. I do not think I can take that any further.

[Lord Pannick]

With the indulgence of the Minister, I ask whether he agrees that it would be helpful to the House if the Explanatory Memoranda to regulations of this nature were to state clearly that they were regulations brought forward specifically for no deal and to explain why the regulations, in the view of the Government, would not be appropriate at all or in this form if there were a deal. I am looking at the Explanatory Memorandum to these regulations and cannot immediately see that we are told they are no-deal regulations.

[Lord Henley]

I thought it was implicit in the regulations. I thought I made that clear in my opening remarks. I hope that will satisfy the noble Lord.

[Lord Pannick]

I am sorry to come back to the Minister. I am not questioning his assertion that these are no-deal regulations; I entirely accept that. I am simply saying that when we perform our scrutiny function and look at these regulations for the purposes of debate, it would be very helpful if the material—the Explanatory Memorandum—were to state for the guidance of Members of the House that they were no-deal regulations and what the position would be if there were a deal. That is all.

[Lord Henley]

My Lords, I have now set that out. These regulations have been to the appropriate scrutiny committees. They have not queried that part of the Explanatory Memorandum, and I do not think I can take the noble Lord any further.

Nuclear Safeguards (EU Exit) Regulations 2018

Debate between Lord Henley and Lord Pannick

Tuesday 22nd January 2019 Lords Chamber

[Lord Henley]

The noble Lord is possibly getting confused with safety and security, and thinking not only about nuclear safeguards. We are talking about only three sites, two of which are in west Cumberland—I have forgotten where the third is, but I shall write to the noble Lord. We will continue to be compliant with IAEA standards. I appreciate that, as the noble Lord said, a slightly different safeguards regime—not safety or security—is set out by Euratom. That will take a little longer, which is why we will need not only further inspectors but nuclear accountants. We will be ready to meet the IAEA standards in March and will get up to the Euratom standards on safeguards a little later.

[Lord Pannick]

The Minister said that it was “only” a matter of safeguards, but does he accept that safeguards are important? Will he also accept that the inevitable consequence of what he is telling the House is that, from 29 March this year until the end of December 2020, there will a diminution in the quality of the safeguards people enjoy in this important industry? Is that acceptable?

[Lord Henley]

My Lords, I shall be increasingly careful about what words I use when I speak in front of distinguished lawyers such as the noble Lord, Lord Pannick. I will try to avoid using “only” in future. What I am saying is that we will meet our standards in relation to safeguards. My reason for wanting to emphasise safeguards as opposed to safety and security is that one does not want to start creating anxiety as to whatever might happen in terms of safety and security. This measure is nothing to do with safety and security; it is to do with nuclear safeguards, which, as the noble Lord will know probably better than me, is a highly technical term—no doubt he would be able to explain it better than me. We will meet our international obligations in March this year. That is the assurance that I give to the House. It is why, when the Nuclear Safeguards Bill went through the House, it was important to noble Lords such as the noble Lord, Lord Warner, and others that we had the appropriate number of inspectors in place. I gave assurances then that we would have enough inspectors in place and I am grateful that we have been able to honour those commitments, for which we should praise and thank not me but the ONR.

The noble Lord, Lord Grantchester, asked whether it was the same regime. I am trying to make it clear that our aim is to establish a regime equivalent in effectiveness and coverage—the noble Lord, Lord Pannick, cited “equivalent”—to that currently provided by Euratom, but obviously they are not exactly the same. In many respects, it reflects and is based on Euratom regulation 302/2005—which, if the noble Lord, Lord Pannick, would like to study it, could be his bedside reading. These domestic regulations have been drafted to reflect the fact that they will operate appropriately within a UK regulatory and operational landscape. They also take account of the United Kingdom’s obligations under its relevant international agreements.

I think that deals with the issues that were raised, with the exception of costs, raised by the noble Lord, Lord Grantchester, to which I now have a response. Our transitional costs were estimated at some £10 million in the final impact assessment published with the Nuclear Safeguards Bill. The safeguards regulations’ final impact assessment gives the higher figure that the noble Lord quoted: estimated transitional costs of £28 million. This difference does not reflect an actual increase in ONR’s expected costs; the two estimates are not directly comparable, since they cover different periods. The Bill’s impact assessment did not include an implementation period as part of the withdrawal agreement running to 31 December 2020 and therefore included costs only up to March 2019. The regulations’ final impact assessment includes the implementation period and therefore includes costs incurred in that period too. I hope that the noble Lord will accept that explanation and I apologise for temporarily losing the relevant bit of paper.

--- Later in debate ---

[Lord Henley]

I will write to the noble Lord about the precise moment, but we are moving towards that in terms of the extra staff the ONR is seeking to recruit.

[Lord Pannick]

I am very surprised that the Minister is so reluctant to answer the question from the noble Lord, Lord Adonis, because the committee’s report states in terms that his department said that the higher Euratom standards will not be reached until the end of December 2020. His department’s response recognises that there will therefore be a lessening of the standards that currently apply. Why will he not just accept the obvious facts that his department has accepted in its answers to the committee?

[Lord Henley]

The noble Lord, too, I suspect, is trying to frighten the horses. What I am saying is that we are meeting some very high nuclear safeguards standards—nothing to do with security or safety—and we will be there in due course. We have always been clear that we will deliver on our international obligations from day one. That is what I have made clear, and we will build to Euratom standards by December 2020.

Justice and Security Bill [HL]

Debate between Lord Henley and Lord Pannick

Tuesday 19th June 2012 Lords Chamber

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

My Lords, this has been an interesting and long debate. It seems quite a while since we started at 3 pm. We have got through some 22 speakers and I find myself being the 23rd. It is a short Bill, of some 16 clauses, but it raises some pretty big issues and has attracted a very distinguished congregation—if I may put it in those terms—to speak on it.

There has been some comment about the number of lawyers here today, and I was very grateful to the noble Lord, Lord Dubs, for being the first to point out—echoed by others—that this is not just a legal Bill and not just for the lawyers. I was glad that the noble Baroness, Lady Smith, having done a quick count, pointed out that the non-lawyers are in the majority in this debate, which is probably as it should be. However, as the noble Baroness said, it has attracted a lot of other distinguished speakers. We are very grateful for the presence of all those who are members of the JCHR and the Constitution Committee; all those who, like my noble friend Lord Lothian and the noble Lord, Lord Butler, are currently members of the Intelligence and Security Committee; and former members, self-described as part of the awkward squad, in the form of the noble Lord, Lord Campbell-Savours.

We are grateful for all that, and I hope that, as part of this debate and a fairly lengthy Committee stage and other stages, we will be able to go some way towards achieving the consensus that the noble Lord, Lord Lester, was looking for. It will not be possible to get consensus on every item, because I think that there are some fairly deeply held views that cannot be brought together, but I am sure that there are many things on which we will be able to get agreement. I am sure, too, that we will make every effort to ensure that the best possible Bill leaves this House to go on to another place. As my noble friend Lord Faulks, stressed, we need a very thorough Committee and later stages.

As I said, it is a short Bill that raises some extremely big issues. My noble and learned friend Lord Wallace took it in its proper order. He dealt first with Part 1 and then with Part 2 on the restrictions on the disclosure of sensitive material. If noble Lords will bear with me, I prefer to take it the other way round, because there has been far more talk in the debate about Part 2 than Part 1, but I will get to Part 1 in due course. I must also say in my opening remarks that it will obviously be very difficult for me to answer all the points put this afternoon in the necessarily shortish speech that I have to make, but I shall try to cover some of the broad themes. I hope that my noble and learned friend and I will be able to write to noble Lords and copy those letters to others as appropriate after the debate and ensure that we get those letters out before Committee, which, I understand, will be in the week commencing 9 July, so we have a little time to do that.

I begin with Part 2, with CMPs and Norwich Pharmacal. That has obviously excited most of the debate. Like my noble and learned friend the Advocate-General, I believe that the case is made to change how we deal with sensitive information in our courts. The novel application of Norwich Pharmacal jurisdiction to national security information has had consequences with key allies, as many noble Lords mentioned—I think the first was the noble Lord, Lord Butler. It is not just America, as some have implied, it is all our key allies. However, the provisions in the Bill are not driven solely by our intelligence partners. Secret intelligence generated by the UK’s own security and intelligence agencies could be liable to be disclosed as well. Parliament has recognised that the work of the security and intelligence agencies is of a special type. Information is core to their work and special arrangements already cover how they use and disclose it.

Although we all aspire to be able to hear every court case in open court with all relevant information disclosed to all parties in the case, I think that most noble Lords have accepted that there will be times when some of that information cannot be disclosed without damaging the public interest. The question we must put to ourselves—this will take some time in the course of our debate in Committee—is how we deal with that situation. Settling cases or asking the court to strike them out as untriable, may mean that claims, often making extremely serious allegations, can go unexamined and we are unable to get to the truth of what happened. I do not believe that that is justice.

PII has been another approach. It enables cases to go ahead with fully open proceedings but at the expense of excluding relevant and sensitive material from the case. That can work in some cases, but there are times when it does not—for example, where a case is saturated in sensitive material, as David Anderson QC put it. A successful PII application can render a case untriable or leave the Government unable to defend themselves without damaging national security. That can be unfair for claimants or for the Government.

CMPs have been the solution to that problem and they have worked successfully in a number of contexts. The noble Lord, Lord Butler, said that they were the least worst option. My noble friend Lord Lothian described them as being, on balance, about right. Openness is sacrificed for part of the proceedings, and this enables all relevant material, including national security sensitive material, to be taken into account by the court, but it is done in such a way that the proceedings are fair and the interests of any party excluded are properly represented. The Supreme Court has stated that it is for Parliament to decide what the procedures should be for dealing with such cases. The Government produced the Green Paper and we listened to the views. Again, many noble Lords, I think particularly my noble friends on the Liberal Democrat Benches, have accepted that we listened to the views and have moved forward a great deal from what was in the Green Paper and put forward for public consultation. We have brought forward the amended proposals in this Bill.

Noble Lords have highlighted a number of key issues in this debate and those discussions that we will have during subsequent stages of the Bill will obviously let us explore whether the Government have the balance right in these important matters. Perhaps I might deal with one or two of the points that have been raised that deserve some response at this stage, if I can find the right bits of paper—they are all here but in a strange order.

First, I wanted to cover the points made about special advocates and the recent paper that they put to the Joint Committee on Human Rights. I have seen their evidence, which I believe was published last week. The special advocates are reiterating arguments which they have made and, in effect, have had rejected by the courts. To some extent, special advocates do themselves a disservice. They are extremely effective, particularly in arguing in court that more information should be disclosed, and have helped to win cases by challenging closed evidence on occasions. The best way of dealing with this would be to quote what the noble and learned Lord, Lord Woolf, said in M v Secretary of State for the Home Department. He stated:

“Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC … We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.

I commend that to the special advocates and would suggest that they reflect on it.

I turn to the Binyam Mohamed case, which the noble Lord, Lord Lester, raised and has dealt with. He probably knows more about it than anyone else. On the information revealed in that case and whether it was in the public domain, my understanding is that the Court of Appeal ordered that seven paragraphs redacted from the Divisional Court’s judgment, which contained a summary of US intelligence reporting, should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. The judge in the US did not put the contents, or a summary of the contents of the US intelligence reporting provided to the UK, into the public domain. The court made findings of fact based on allegations about Binyam Mohamed’s treatment that were not challenged by the United States Government.

I turn from that to the questions raised by the noble Baroness, Lady Ramsay, about the Bill’s provisions on intercept and how the evidence to support the conclusions of the Privy Council’s report on intercept would be used in criminal cases. The amendment contained in this Bill to Section 18 of RIPA lifts the prohibition in Section 17 of that Act so that intercept material can also be discussed in a CMP. This is in line both with other, existing statutory CMPs and with our desire to take account of all relevant information in CMPs.

As the noble Baroness knows, the Government are separately conducting an extensive and detailed review in order to assess the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. This work continued under the guidance of the cross-party group of Privy Counsellors that she referred to. It will report in due course. I appreciate—I answered a question on this a few months ago—that we have been using that expression “in due course” for some time. However, I think that it underlines the very great difficulty of coming to a reasonable solution in this matter. I myself have changed my views this way, that way and again, and I know other far more distinguished people than me who have looked at this in much greater detail than I have who have also found it very difficult to come to a final decision. However, the process will continue. I was grateful that the noble Baroness referred to the work being done by the distinguished body of Privy Counsellors that is dealing with that.

The noble Lords, Lord Dubs and Lord Pannick, and other noble Lords, dealt with the whole question of whether it was for the courts to decide between PII or closed material proceedings. We are not convinced that the question of whether there should be a PII claim or a CMP should be left to the courts. It is a very important constitutional point that the Executive in the end have to be the guardian of the United Kingdom’s national security interests. Obviously, the courts will play an essential role in scrutinising the Government’s exercise of these functions. However, we believe that the question of whether to claim PII, and, accordingly, a CMP, should be left to the Home Secretary.

Similarly, the noble Lord, Lord Macdonald, suggested that a CMP should be held only after a full PII exercise, but we believe that it would be costly and illogical to go through a potentially lengthy PII process first. It may be obvious at the beginning, for example, that too much will be excluded. We understand that the Lords Constitution Committee did see the need for full PII; the report says that we can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to a CMP.

[Lord Pannick]

Does the Minister at least accept that a CMP should be a last resort if, and only if, there are no effective means of addressing all relevant factors?

[Lord Henley]

That is a point that we will consider at much greater detail when the noble Lord puts down his amendments, which I am sure will appear. We will discuss that in Committee and no doubt at later stages. The point is that at the moment I am making our case and want to clear the arguments in detail. That is why I was rather loath to take too many interventions in this winding-up speech. I appreciate that my noble and learned friend took some seven interventions in opening, but on this occasion I am going to resist most of them, because the important point is that we discuss these matters in Committee, when we can deal with them in greater detail. The noble Lord will then be allowed to intervene to his heart’s content.

I see that my time is beginning to run up, and I want to get on. However, I shall say one more thing on this. I will deal with the question on sensitive information in Norwich Pharmacal clauses, which a number of noble Lords—my noble and learned friend, Lord Mackay, and the noble Lords, Lord Pannick and Lord Dubs, for example—all seemed to think was somewhat too wide. I must stress that this is the definition in the Norwich Pharmacal clauses; I appreciate that the noble Baroness also raised the definition of sensitive information for the Intelligence and Security Committee in Schedule 1, but that is obviously a different matter.

The fact is that virtually all material sought by Norwich Pharmacal applicants from the security and intelligence agencies is material the public disclosure of which would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from agencies; they seek information specific to them that would be held by an agency and available only from that agency. If it was information necessarily derived from sensitive sources or from techniques or capabilities from a foreign intelligence department, all or any of that could be damaging to the public interest if disclosed. The approach taken in the clause in the Bill mirrors the protection of such information found, for example, in the Freedom of Information Act.

I turn to the less controversial part of the Bill, Part 1—if I can find the right part of my notes—which deals with oversight. This part had somewhat less coverage than the rest of it, but, after the speech from the noble Lord, Lord Campbell-Savours, and the interventions from the noble Baroness, Lady Smith, I am beginning to understand that it might generate just a bit of controversy and I might have some work to do, unlike my noble and learned friends, as I do that part of the Bill in Committee. I did not want to overlook the important changes that we are making to this and it is right that we should periodically re-examine the way in which we scrutinise that work. Again, I pay tribute to the current members of the Intelligence and Security Committee.

We are grateful to the noble Lord, Lord Butler, and my noble friend Lord Lothian for sharing the benefit of their experience of sitting on that committee. I am also grateful for the views that we heard from the noble Baroness, Lady Manningham-Buller, particularly what she said about trusting the head of the security services far more than she would trust Ministers. I will take that on the chin. I think she was echoing what the noble Lord, Lord Campbell-Savours, said, but she echoed it with approbation.

I recognise the experience that the noble Lord, Lord Campbell-Savours, has, and I am pleased that we will have an interesting time in Committee on that aspect of the Bill. The noble Baroness, Lady Ramsay, was concerned about the membership and thought that there was scope in the Bill for more Members of this House. I do not believe that there is any detail in the Bill about how many there can be, but I think the current rules are that at least one must come from each House, so it would be possible to have eight Peers and one Member of the Commons, or it could be the other way around. It will be for the Committee to decide what the appropriate number should be. That is something that we can discuss.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Henley and Lord Pannick

Tuesday 15th November 2011 Lords Chamber

[Lord Henley]

There is obviously a distinction but both involve one’s human rights. That is the importance. The noble Baroness may have noticed that when my noble friend Lord Sassoon noticed on the television that the noble and learned Lord was making these points, he came in to have a quick word with me to make clear what he had discussed, and I will try to convey those feelings to the House. I hope that I have understood what my noble friend whispered to me on the Front Bench, and I hope that the noble Baroness will accept it.

As we also made clear, we believe that it is not just the view of the Executive that is crucial in these matters. That is why I quoted earlier the view expressed by the courts. It is consistent with the view expressed by the Court of Appeal in the case of MB, which the noble and learned Lord also referred to, in which the court said that,

“the Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect”.

In the same judgment the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and by the European Court of Human Rights.

As I said at the beginning of my speech—in asking, as it were, for something approaching an Occam’s razor to be put to this argument—it is just getting it down to the simple question: which do you think is the appropriate body to make this decision?

[Lord Pannick]

My Lords—

[Lord Henley]

I am not going to give way until I finish this point, and then I will give way to the noble Lord.

We believe that it is for the Home Secretary to make the decision, and for this decision to be subsequently reviewed, because the Home Secretary is a politician who is answerable to Parliament. I appreciate that some will knock the role of politicians but I would remind noble Lords of the very powerful speech made by the noble Lord, Lord Reid, at Second Reading, where he reminded us that most of our freedoms are the result of politicians and their acts, and not of the courts. The Home Secretary, as a politician answerable to Parliament, will make that decision and that decision will then be reviewed by the courts in due course. It is that very simple decision that we want to make. Should it be the Home Secretary or should it be the courts? We believe that it should be the Home Secretary. I will now give way to the noble Lord.

[Lord Pannick]

I am grateful to the noble Lord. I am puzzled by why he thinks that judicial control at the outset would undermine ministerial responsibility when he accepts that there should be judicial review on a merits approach at a later stage if the order is challenged. Why is the latter equally not an undermining of ministerial responsibility?

[Lord Henley]

Because my right honourable friend is responsible for security and, as I said, she is answerable to Parliament. We believe that she should make that initial decision and that later on it can be looked at by the courts. However, we think it right and proper that she should make it. That is the reason why, as I said, I am trying to strip this amendment down to its simplest point: do you want the decision made by my right honourable friend the Home Secretary or do you want it made by the courts? We believe it right that it should be made by my right honourable friend and then reviewed by the courts. For that reason I cannot support the amendment that the noble and learned Lord has moved.

--- Later in debate ---

[Lord Henley]

I am just wondering whether the Opposition want to comment on this matter.

It is very important to start by reminding the House what we have under control orders, what we are proposing and what the amendment proposes. Under the control orders, the standard of proof was a “reasonable suspicion” by the Secretary of State. We considered this, as your Lordships are well aware, in the counterterrorism review, and it was concluded that it was necessary to raise the test of involvement in terrorism-related activity from “reasonable suspicion” to “reasonable belief”. Reasonable belief is considerably stronger than reasonable suspicion, as my noble and learned friend Lord Mackay has said. We have raised that standard, as is right and proper. It will provide an additional safeguard, and is consistent with the approach taken in the Terrorist Asset-Freezing etc. Act 2010.

It is obviously a matter where we have to consider proportionality and the appropriate balance. Again, I have to weary the House by stressing the need for that balance. We consider that a change to reasonable belief will not be prejudicial to national security. It is right that the Secretary of State should be able to take action to protect the public in circumstances where she reasonably believes that an individual has been involved in terrorism-related activity and the measures are necessary. I was grateful for the support of my noble and learned friend in this matter.

It was right to raise the standard of proof to reasonable belief, but we do not believe that it is necessary to go as far as a balance of probabilities, which might be a more appropriate action if this amendment had been considered at the same time as the first amendment we debated and if this were a matter for the courts to decide. As it is, this is a matter for the Home Secretary to decide, and we believe that this is the right action and that a move to a balance of probabilities would provide the wrong balance for the main TPIM regime in terms of ensuring that the public will be protected.

My noble friend Lady Hamwee went on to mention the enhanced TPIM Bill. That is a different matter where we are obviously considering much more draconian measures should they ever, sadly, be necessary. That is something that will be considered in due course by this House and another place as part of the scrutiny of the draft legislation. For this Bill, we believe that getting the balance right means sticking with reasonable belief, which is a considerable improvement on reasonable suspicion. I hope, therefore, that the noble Lord, Lord Pannick, will feel able to withdraw his amendment on this occasion.

[Lord Pannick]

My Lord, I do feel able to withdraw this amendment. I do so in particular because the noble and learned Lord, Lord Mackay of Clashfern, tells the House that reasonable belief, in the circumstances, is a stronger test than balance of probabilities. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Henley]

My Lords, the noble Lord said it for me. All I am saying is that the Bill can be withdrawn by my right honourable friend, should she so wish. Those powers are set out in the Bill.

[Lord Pannick]

My Lords, I am disappointed by the Minister’s response, although I admire his powers of advocacy in what I regard as a hopeless cause. This is an exceptional Bill. I am sorry that the Minister feels unable to respond to the wisdom and experience of other noble Lords who have spoken in the debate. The noble Baroness, Lady Kennedy of The Shaws, spoke of eternal vigilance. I hope that your Lordships will at least agree that annual vigilance is essential in relation to this Bill. I wish to test the opinion of the House.

UK Border Agency

Debate between Lord Henley and Lord Pannick

Monday 7th November 2011 Lords Chamber

[Lord Henley]

My Lords, I again make it clear that these are only allegations at this stage. The individuals have only been suspended—two of them only on a precautionary basis. We will have to wait for the results of the independent inquiry. As to staff levels, I do not accept there has been a misdirection of staff in these matters. It is very important we use staff in the best manner possible. We all know that we have to reduce the size of the United Kingdom Border Agency. Over the spending review period it will have to lose some 5,000 or so posts. That is the nature of things when we have to deal with the cuts that we are faced with—and we know why we are faced with them.

We will make sure, as far as possible, that the staff are used in the best possible way. That was one reason behind a pilot of this sort. The initial report from the pilot seemed to indicate that it was doing rather well in terms of the increased numbers of people whom it was catching. Obviously we will have to wait for the result of John Vine’s inquiry.

[Lord Pannick]

My Lords, does the Minister accept that border controls were relaxed without ministerial authority because of the unacceptably long queues at ports of entry? If it is the case, as the Statement asserts, that,

“there is nothing more important than the security of our border”,

surely it should be the highest priority of this Government to ensure that the border agency employs sufficient staff to ensure that full checks can be carried out at all ports of entry without the unacceptable delays that cause the need for such measures to be adopted.

[Lord Henley]

My Lords, the noble Lord would not want me to speculate on why certain individuals are alleged to have relaxed the rules beyond what the Home Secretary authorised in the pilot. That is the point of the investigation being mounted by John Vine. We look forward to that investigation in due course. I do not accept his second point that we have necessarily to maintain United Kingdom Border Agency staff numbers at the precise level that they have been for some time. The noble Lord will know that the numbers went up quite considerably when the Border Agency was created a few years back with the merger of a number of different agencies. We now have to reduce it in size but we will make sure that staff are deployed in precisely the right manner. That matter, too, will be covered by the investigation.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Henley and Lord Pannick

Wednesday 19th October 2011 Lords Chamber

[Lord Henley]

My Lords, I am sorry if I misunderstood my noble friend; I am a simple soul in these matters. However, my understanding was that he had suggested that this measure was outside the rule of law. What I was trying to get over is that I do not accept that point. The Bill is going through a proper process and after it has been enacted, by the will of Parliament, it will be subject to review by the courts. That is the important point to remember.

The group of amendments before us deal with four major points which I will deal with in order. The first one concerns the very simple point of whether the courts should make these orders rather than the Home Secretary. Secondly, we heard the arguments about where the standard of proof should be. A subsidiary part of that was in the amendments of the noble Lord, Lord Pannick, who said that even if we did not accept the first part—that is, shifting the argument to the courts—the standard of proof for the Home Secretary’s decision should be changed. Thirdly, we heard the arguments of the noble Lord, Lord Pannick, set out in Amendments 42 and 43, dealing with the full merits review. Fourthly, there were arguments about the time limit and how long the TPIM orders should last—whether one year, two years or beyond. I should like to deal at some length with all four points and I hope that I can get them in the right order. Perhaps my notes can assist me in that. It is important that I set out my points.

I should deal first with the proposal for court-paid TPIM notices. I do not agree, as I made clear at Second Reading, that judge-imposed TPIMs represent the right approach for the new regime. I am grateful that on this at least, I have the support of the Opposition Front Bench. They might not like other parts of the Bill but I got the distinct impression that the noble Lord, Lord Rosser, agreed with me on that issue. Our view is that it is appropriate that TPIM notices should be imposed by the Home Secretary. As the noble Lord, Lord Rosser, put it, she is responsible for national security and is best placed to determine what is necessary in the interests of national security, with the benefit of the broader knowledge of the threat picture that sits with her role as Home Secretary.

I emphasise that this is consistent with the approach taken to other executive actions in national security cases, and decisions based on sensitive material. This includes—an example given by my noble friend Lord Carlile—decisions to exclude, deport or deprive people of citizenship on the basis of national security considerations. It is also consistent with the approach taken on decisions to freeze terrorists’ assets—the new legislation which this House approved only last year. It is also consistent with the current provisions under which all control orders have been made.

Noble Lords will appreciate that this is the view not just of the Executive; it is also consistent with views expressed by the courts on the roles properly played by the Home Secretary and the courts in national security matters. The Court of Appeal explicitly recognised in its 2006 judgment, in the case of the Secretary of State for the Home Department and MB, that,

“the Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect”.

In the same judgment, the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and the European Court of Human Rights. This supports the argument that the proper division of responsibilities in the field of national security is for the Home Secretary to make the decisions but for the judiciary to review those decisions, and to review them rigorously, as it always does.

The TPIM Bill provides for extensive, multi-layered court oversight and review of the Home Secretary’s decisions. This includes a requirement for court permission before imposing a TPIM notice, an automatic full review of every case in which a TPIM notice is imposed, and the right of appeal against the Secretary of State’s decisions in relation to, for example, requests to vary the measures imposed or revoke the notice. We think that this apportionment of roles best serves the interests of national security while ensuring that the civil liberties of those who are made subject to TPIM notices are properly protected.

I turn now to the question of the standard of proof. Again, the noble Lord has suggested that his judge-made TPIM notices should be made on the balance of probabilities. The noble Lord, Lord Pannick, offered his alternative in Amendments 42 and 43 by suggesting that the same should be imposed on the Secretary of State, were she to be the one making that decision. Although the approaches are different, the question that we need to raise is the appropriate test for imposing a TPIM notice.

The issue of a proper test for the preventive powers now included in the Bill was carefully considered as part of the counterterrorism review conducted by the Home Secretary and the Home Office. The conclusion reached was that it was right to raise the threshold for imposing a TPIM notice to “reasonable belief” from the test of “reasonable suspicion” required to make a non-derogating control order—which is the only kind that has ever been made. I am grateful to my noble friend Lord Carlile for reminding the House that no derogating orders have been made.

The decision was made as part of that review that the standard should be raised to reasonable belief from the test of reasonable suspicion. We believe that raising the threshold to reasonable belief provides an additional safeguard in the new regime compared to the current control order regime. As we made clear when we announced the outcome of the review in January, it is also consistent with the approach that we have taken to the provisions relating to terrorist asset freezing in the Terrorist Asset-Freezing etc. Act 2010.

The TPIM regime is a preventive regime intended to protect the public from the risk of terrorism. In reaching the decision to move to reasonable belief, we therefore considered whether changing the threshold in that way could put the public at risk. Our conclusion was that it would be unlikely that any of the cases where we would want to impose a TPIM notice would fail to meet the higher test of reasonable belief.

We are therefore satisfied that the change to reasonable belief is unlikely to be prejudicial to national security. At the same time, that represents an increase in the protection for the civil liberties of the individuals concerned. Those favouring the amendment take the view that the threshold should be further raised to “the balance of probabilities”. In that review, we considered that option. However, we concluded that a move to the balance of probabilities for the main TPIM regime would not give us the right balance to ensure that the public will be protected. Again, I stress that it is a question of getting the balance between ensuring the protection of the public and protecting the liberties of individuals.

[Lord Pannick]

Can the Minister tell the Committee a little more about why the balance of probabilities test would not provide sufficient protection for national security?

[Lord Henley]

The test that the noble Lord proposes, as is made clear by the Joint Committee on Human Rights report, is a slightly tougher test than what we suggest, which is that of reasonable belief. If there is a slightly tougher test, that obviously implies that there would be a greater risk to security. We have increased the test from reasonable suspicion to reasonable belief. We do not believe that we should increase it any further. I hope that the noble Lord will accept that argument; but I see that he does not, and I give way yet again.

--- Later in debate ---

[Lord Pannick]

I am simply trying to establish whether an assessment was made that a balance of probabilities test would be positively damaging to national security in this country. Was such a conclusion reached?

[Lord Henley]

I made clear that, as part of that review, we considered moving to that test. I was not in the Home Office at the time, so I do not know what precise consideration was given, but in the end the decision was taken that, yes, we will raise the standard from reasonable suspicion to reasonable belief, but that to take it beyond that would create risks. A decision had to be made on where the appropriate balance should be, and that is why we came down in favour of reasonable belief rather than a balance of probabilities.

I hope that the noble Lord can accept that, but I can see that it is a very difficult one and we will no doubt discuss it in later stages of the Bill. We believe that reasonable belief should deal with the questions raised by the noble Lord. The same applies to his Amendments 42 and 43 when talking about the decision being made by the Home Secretary herself. Again, I noted what my noble friend Lord Faulks had to say on that matter. Possibly they were better words for use with the Home Secretary’s decision rather than when talking about a judicial process. Again, we feel that we have the balance about right.

I turn now to the question raised on the full merits review in the noble Lord’s Amendments 42 and 43, which I mistakenly said were his amendments on the alternative, but that is covered by his Amendment 17, so I correct myself at this stage. His Amendment 42 specifies that a full court review of a TPIM notice under Clause 9 must be “on the merits” and would delete the subsection of that clause which specifies that,

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

As the noble Lord explained, these amendments are designed to ensure that the review of an imposition of a TPIM notice provides a full merits review. He articulated the view of the Constitution Committee—yet another committee that has been looking at this—in its report on the Bill: that it should be clear, on its face, in cases concerning TPIM notices. The function of the court is not limited to ordinary judicial review. Such a constitutionally important matter should not be left for clarification in the Explanatory Notes. Similarly, the noble Lord, Lord Hunt, made it clear that the purpose behind his intention to oppose the question that Clause 9 stand part of the Bill is to facilitate consideration of this same issue.

The Government have been clear that judicial oversight of the process of imposing measures must be a key feature of the new regime. The involvement of the courts is an important safeguard for the rights of the individual, and the Bill takes a comprehensive and multilayered approach to this. As the Explanatory Notes explain, the case law relating to control orders is subject to a particularly intense level of review by the High Court. It is absolutely the case that the Government intend for the same intense level of scrutiny to be applied in court reviews of TPIM notices under Clause 9. All noble Lords will be aware that the courts have not been slow in finding against Home Secretaries of whatever regime for many years in control order litigation, and have used their powers to quash control orders or to give directions to the Secretary of State as appropriate under the current system of judicial review principles, as interpreted by the Court of Appeal in the case of MB.

We are of the view that the courts will apply relevant case law to TPIM proceedings as appropriate. That will, of course, include the case law on the type of review undertaken by the courts in these kinds of cases. In summary, in relation to the full substantive review of each control order, the Court of Appeal ruled again in MB that the High Court must make a finding of fact as to whether the reasonable suspicion limb of the statutory test for imposing a control order is met, and must apply intense scrutiny to the Secretary of State’s decisions on the necessity of each of the obligations imposed under the control order while paying a degree of deference—

Visas: Domestic Workers

Debate between Lord Henley and Lord Pannick

Tuesday 18th October 2011 Lords Chamber

[Lord Henley]

My Lords, I am not sure whether that is part of the consultation, but the consultation has been completed and we are considering the responses to it. I can give an assurance to the noble and learned Baroness that I will look at that, too, as part of that process.

[Lord Pannick]

My Lords, does the Minister agree with the conclusions of the Home Affairs Committee of the other place two years ago that,

“domestic workers are peculiarly vulnerable to abuse”,

and that,

“To retain the existing Migrant Domestic Workers visa and the protection it offers to workers is the single most important issue … in preventing the forced labour and trafficking of such workers”?

[Lord Henley]

My Lords, I accept what the noble Lord has to say about domestic workers being particularly open to abuse. That is why we want to get the right balance. However, I think the noble Lord would also agree that we need an immigration system that is fairer and more honest and commands public confidence. We want to get the right balance; that is what is behind the consultation and that is what we will be looking at in the responses.