Counter-Terrorism and Security Bill

Lord Hope of Craighead Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, the noble Baroness mentioned my name in her speech in support of this amendment. I put my name down to support it for reasons which I shall go into very briefly. As I mentioned in Committee, my attention was drawn to this problem by evidence which we received in the Joint Committee on the Draft Protection of Charities Bill. That evidence came in part from the independent reviewer, David Anderson QC, and in part from Muslim organisations which are interested in providing assistance to people who need humanitarian aid in places like Somalia which are difficult to penetrate without the assistance of the people who effectively run the country.

I shall make two particular points, without repeating what I said in Committee. First, David Anderson was critical of the definition in the legislation which he described as “monstrously” broad. It was broad for a particular reason, which one can see from looking at Section 1(5) of the 2001 Act, which contains the definition put into this Bill for its purposes. It states:

“In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation”.

It is that kind of scenario that may give rise to problems for a reason which was explained to us by one of the charitable groups. It said that when you go to these difficult countries, in order to get anywhere within those areas, you have to encounter and deal with the gate-keepers. The chairman of the Muslim Charities Forum asked:

“How can we go through the gatekeepers to reach the neediest people in Syria, Somalia or different parts of the world”,

if doing so would be caught by the Section 1(5) definition?

One can see how the thing might build up. The police might have information that the individual passing in front of them has previously gone to these areas and has provided money, as we were led to believe is necessary, in order to get through the gate. The proscribed organisation says, “All right. We’ll let you through, but you have to pay us a certain amount of money to do that”. It is a real trap. Of course, to give money to a proscribed organisation is prima facie assisting the purposes of the organisation, but the real reason for giving such money is to penetrate through the gate to provide the assistance which would otherwise not be available. These are my two points: first, the breadth of the definition and, secondly, what the evidence suggested to us is a very real problem in dealing with these areas.

Noble Lords will remember that in Committee we discussed an amendment to the primary legislation and, in particular in view of the contribution of the noble Lord, Lord Harris, I see that that is a very difficult thing to do at the moment without a good deal of further study and, no doubt, this is not the proper place for it anyway, although I suggest it may have to be dealt with sometime. What the noble Baroness is suggesting in her amendment is that there should be something in the code of guidance for officers so that they are alerted to this problem. Therefore, if they have that kind of intelligence, although what individuals say will not be conclusive, at least they will be aware that these people may have good reason for whatever they are said to have done which prima facie might seem to conflict with the definition in the statute.

On reflection, it would seem that the code is a better way of dealing with this without getting into the difficulties of amending primary legislation, which would go right across the board and might have rather deeper effects than we can contemplate at the moment. I suggest that the noble Baroness’s amendment is quite carefully crafted and there is real merit in the proposal that she has made.

[Lord Harris of Haringey]

My Lords, I have enormous respect for the noble and learned Lord, Lord Hope of Craighead, who has identified and talked about an issue that potentially has problems for humanitarian organisations under certain circumstances. However, the amendment remains irrelevant to that. While it may be quite attractive to use a code of practice as a means to identify this issue and make sure that officials are more aware of the potential complications, this code of practice relates to circumstances in which there are reasonable grounds for suspecting that person of the intention of leaving Great Britain for the purpose of,

“involvement in terrorism-related activity”.

It would be to stretch that definition to suggest that there is a suspicion that you are personally involved in terrorism-related activity because your organisation may have paid a sum of money to a gate-keeper in one of these circumstances, because this is about involvement in terrorism-related activity. I am therefore not sure that this is the right mechanism for addressing what I suspect is a real and valid problem that we need to find some way to address. Perhaps we can do that next time we revisit terrorism legislation, which will probably be in about four months’ time.

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On the basis of this explanation, I hope that your Lordships will feel reassured about the exercise of these powers and, accordingly, I invite the noble Baroness to withdraw the amendment.

[Lord Hope of Craighead]

Could the noble Lord clarify one point? I may have done so incorrectly, but I took him to say that, if a humanitarian organisation paid money to a gate-keeper that happened to be a proscribed organisation, that would be taken as assisting that organisation. The humanitarian organisation would therefore be open to prosecution and to the seizure of passports, which the amendment deals with. It is important to be clear on this because there are people listening—those from the Muslim charities in particular —who are deeply concerned about whether they are at risk. That might not have been quite what the Minister meant to say, but I would be grateful if he could clarify that.

[Lord Ashton of Hyde]

The Government’s position is that we do not want people to pay money to terrorists for any reason, so I think that what the noble and learned Lord said was correct.

Counter-Terrorism and Security Bill

Lord Hope of Craighead Excerpts

Wednesday 28th January 2015 Lords Chamber

[Lord Pannick (CB)]

My Lords, Oxford is well represented today. I declare an interest as a fellow of All Souls College. I find this a genuinely difficult issue. I am supportive of the Government’s general objectives in Part 5; far more supportive, I think, than some of the speakers who have addressed noble Lords this afternoon, particularly in the earlier debate.

It seems to me that the starting point has to be that there is a disturbingly large number of people out there who are prepared to take violent action for ideological and religious reasons. There is an even more disturbingly large number of people who are prepared to encourage or to condone such violence. For me, the most shocking part of the appalling events in Paris were not the attacks on the journalists and the kosher supermarket by deranged Islamists, it was that a minute’s silence for the victims was unenforceable in many French schools, because of sympathy for the murderers and their supposed cause from students and, presumably, their families. This demonstrates, I think, that in France there is an alarming failure to understand the basic principles of a liberal democracy; a democracy which protects the freedom of religion—rightly so—of those who refuse to recognise the basic rights of others.

My starting point is that the Government are rightly determined to prevent such developments here; developments which breed religion-inspired violence. Having said that, I share the concerns which have been expressed this afternoon about the impact of these provisions on freedom of expression and academic freedom in universities. My concern is very similar to that of the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady Kennedy. It is that the duty which the Bill will impose is very difficult to reconcile with the very idea of a university whose primary role is to encourage academic debate and dissent. I think that a code which can be enforced by legally binding directions is far too blunt an instrument in the context of a lecture hall or a seminar room. If you try to wear a policeman’s hat and an academic gown at the same time, you are unlikely, I think, to perform either task adequately.

The Minister’s helpful letter to noble Lords on this issue makes the point that academic freedom is not absolute, even in a university. The Minister is absolutely right: the law already restrains freedom of speech, in universities as elsewhere, through the law of defamation, restrictions on threatening or abusive words or behaviour, and prohibitions on support for proscribed organisations. Universities have no exemption in that context, but this Bill would impose duties that are far more extensive and far more destructive of basic academic freedom than anything which is contained in current law.

I would prefer universities to be excluded from Part 5, but would be much reassured on this difficult subject if the Government would support Amendment 105, in the name of the noble Baronesses, Lady Lister of Burtersett, Lady O’Loan, Lady Buscombe and Lady Sharp of Guildford, or something like it. Their amendment would write into the Bill the protection for freedom of speech currently contained, as your Lordships have heard, in Section 43(1) of the Education (No. 2) Act 1986. I note that, in the Minister’s letter to noble Lords, he says that the duty under the Bill,

“is in no way designed to cut across the importance of free and open debate”,

particularly in universities. Good, I am very pleased to hear that. But then let the Bill say so expressly, to provide reassurance to the many good people in universities and elsewhere who are very concerned, and rightly so, about this issue.

[Lord Hope of Craighead (CB)]

My Lords, I entirely support the points that have been made by all noble Lords who have spoken in favour of these amendments. I have a rather particular point to make about wording, which I do as a former chancellor of the University of Strathclyde, which of course is in Scotland.

Clause 41(1) makes it clear that Part 5 of the Bill applies to Scotland as well as to England and Wales—it does not apply to Northern Ireland, as the noble Baroness, Lady O’Loan, said. However, this gives rise to a problem about drafting. One has to be absolutely sure when one refers to legislation—as, for example, Amendment 105 does, along with Amendment 108 and others—that the legislation referred to applies to Scotland as well as to England and Wales. The problem with Amendment 105—which I entirely support in principle—is that Section 43(1) of the Education (No. 2) Act 1986 applies only to England and Wales, and does not apply to Scotland. The right to freedom of speech, and all the points that have been made in favour of the exercise of freedom of speech and about the difficulties of enforcing measures of the kind that we are talking about and so on and so forth, have just as much power and effect north of the border as they do in England and Wales. If Amendment 105 were to be agreed with the form of words which it has at the moment, it would create difficulties north of the border. That could be cured very easily by simply taking out the reference to,

“the duty in section 43(1)”,

of the 1986 Act, and substituting the words “the need to ensure that freedom of speech is maintained”. Freedom of speech in Scotland is deeply ingrained in the law of the country by, for example, Article 10 of the European Convention on Human Rights. One of the features of the 1986 Act is that it was passed some years before the Human Rights Act 1998 was enacted. Nowadays, you look to the convention rights in the Human Rights Act to see whether you have a right that you wish to assert. It is certainly true that Section 43 goes rather further and is quite detailed about the nature of the duty, but I have searched as best I can through the legislation in Scotland and, so far as I can see, there is no equivalent provision in either the education Acts or the university Acts in Scotland, which cover the same field.

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[Lord Bates]

My Lords, with the leave of the House I will take Amendments 113 and 114 together. Throughout our debates the Government have made it clear that we will rely on existing monitoring regimes for the relevant sectors. That remains the case. Although publicly funded further education is monitored by Ofsted, no such regime currently exists for all higher or private further education. We have asked the higher and further education sectors about monitoring of the Prevent duty as part of the consultation on the draft guidance, which has been undertaken in parallel to the passage of the Bill. I am pleased to say that in the discussions we have had, the sector has been broadly supportive of a limited regime, such as the one we are proposing.

Universities are not inspected. Rather, they are currently subject to limited monitoring and assurance regimes that apply to quality of provision and to accounting for the use of public money. Those regimes are based on risk and are designed to be proportionate and not burdensome. The overwhelming view expressed in the discussions so far has been to agree that a monitoring regime for this duty should be one that is both recognisable to the part of the education sector to which it is being applied and proportionate to the duty being placed upon the sector. We have achieved that with these amendments.

The amendments will allow the monitoring authority to require the provision of information by relevant education institutions to assess compliance with the duty. Information that institutions might be asked to provide to monitoring bodies could include details of risk assessments relating to how students might be at risk of being drawn into terrorism, policies and procedures on speakers and events, and on IT. We fully expect an institution to co-operate with the monitoring authority. However, there may be rare cases where the institution does not co-operate and, in such cases, where the monitoring authority has exhausted all other options to address the failure, the amendments allow the relevant Secretary of State to make a direction.

This is a serious step that we would not like to see taken unless it is strictly necessary. For that reason, the amendments allow for a monitoring authority—for example, when not satisfied that an institution has adequate provisions in place to comply with the duty—to request information about steps that the institution plans to take to ensure that it discharges its Prevent duty correctly. We expect this to be sufficient to avoid the use of direction in all but the most serious cases.

If an institution has failed to provide adequate information about compliance with the duty in spite of repeated approaches by the monitoring authority, we would expect any direction necessary to be given by the appropriate Secretary of State. That means the Secretary of State for Business, Innovation and Skills in England, not the Home Secretary and, for institutions in Wales, we expect it to be the Secretary of State for Wales, in consultation with the relevant Welsh Ministers. The amendments allow for the relevant Secretary of State to undertake monitoring or to delegate the function. We do not envisage that the Secretary of State will actually undertake this function, but it is important to explain the technical reason for including this possibility.

We may wish to consider whether the Skills Funding Agency is an appropriate monitoring body for part of the sector and if, in consultation with the further education sector, we determine that it is, then we would technically need the Secretary of State to deliver that function. That is because of the proposed legislative changes to abolish the office of chief executive of skills funding in the Deregulation Bill, which will mean that the Skills Funding Agency will become part of the Department for Business, Innovation and Skills and will operate through the powers and duties of the Secretary of State.

Going forward, the department with responsibility will work with the monitoring bodies and, once they have been confirmed, we will work with the sector to draw up a monitoring framework that sets out more explicitly how we expect to monitor compliance with the duty. I beg to move.

[Lord Hope of Craighead]

My Lords, I think I understand the purpose of the clauses from the explanation that the Minister has very helpfully given. He will not be surprised to hear that I have spotted that there is no mention of Scotland in either of these two clauses. As I mentioned earlier, if one looks at Clause 41 one sees that Part 5 of the Bill applies to Scotland as well as to England and Wales. Therefore, as far as I can judge, all the other clauses in this part are carefully designed to apply to that jurisdiction as well as to England and Wales. It is very strange that no mention is made of Scotland in either of these clauses or in the noble Lord’s explanation of their purpose. I may be wrong, but the equivalent bodies exist in Scotland to enable a similar system to be carried out. Is it simply that under the normal conventions, the Government have been unable to secure the agreement of the Scottish Government to these clauses, and will come back at a later date—perhaps before Third Reading or possibly in the other House, if this has to go there —or is this a deliberate intention not to apply the monitoring system to Scotland? If that is the intention, I would be very interested to know why that decision was taken.

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[Lord Bates]

My Lords, I am grateful to noble Lords for their questions. I will first deal with the questions from the noble Baroness, Lady Lister, on HEFCE. As the noble Baroness will be aware, that is one of the questions we specifically ask on page 21 of the consultation:

“Do you agree that the Higher Education Funding Council for England is the appropriate body to monitor compliance with this duty? … Are there other higher education regulatory bodies that should be involved in monitoring compliance?”.

In many ways the short answer is that we are consulting on that. That was one of the reasons why when I introduced the government amendments I said that in certain cases we nominate the Secretary of State for Business, Innovation and Skills as the designated person for these purposes. I hope that addresses that point.

I turn to the point mentioned by the noble and learned Lord, Lord Hope, on Scotland, which he raised in the previous context as well; as I have stated, it is our hope and intention to add Scottish bodies to Schedule 3 in due course. At such point we could look at making consequential amendments to this clause to make it applicable to Scotland. The other one relates to Northern Ireland. On the application of free speech in Scotland, which was referred to previously—I take the opportunity because the notes happened to arrive together—this part of the Bill applies to England, Wales and Scotland, but as yet no Scottish bodies are listed in Schedule 3; I made that same point earlier. However, we will look carefully at the wording used, to ensure that it applies equally across all territories, so the basic answer is what I already said in this regard.

[Lord Hope of Craighead]

Is it the intention to make further amendments by statutory instrument rather than by primary legislation? Obviously, if we had to come back with an amending statute, that would take time and be a rather laborious business. I wonder whether a better precaution would have been to put some kind of structure into the Bill at this stage, as is done elsewhere in this part, on the assumption that a number of Scottish authorities or institutions will be added to Schedule 3. But if it is possible to do it all by order the problem disappears, because that can be done quite simply.

[Lord Bates]

Perhaps I could reflect on that a little more and then return to it. Of course, there is still parliamentary time for further consideration of the Bill, and for Scottish bodies to be named and listed. We would be happy if that happened in time for them to be included on the face of the Bill. I shall consider further the noble and learned Lord’s point.

Counter-Terrorism and Security Bill

Lord Hope of Craighead Excerpts

Monday 26th January 2015 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, I would like to strongly support the amendment by the noble and learned Lord, Lord Brown. These measures are things that you only do in very, very special circumstances and under very controlled conditions, but the removal of them from the old control orders regime—we realise now—was a mistake and an error. I absolutely think that we have to put these measures in place to ensure that people are protected in these circumstances.

[Lord Hope of Craighead (CB)]

My Lords, I wish to add just a small point in support of what my noble and learned friend Lord Brown of Eaton-under-Heywood has said, and that is to stress the word “legitimacy” which he used in the course of his address. It is crucial that this particular system should not be open to challenges in the court to any extent; one must try to the maximum to minimise the risk of challenges. This is a very difficult area, as shown by these cases to which the noble Lord, Lord Carlile, just referred. It is the interaction between Article 3 of the Convention on Human Rights, which deals with detention, and Article 8, which deals with respect for the family life of everyone. Where you get these human rights in play, it opens up the possibility of arguments being raised by way of challenge to orders of this kind.

The strength of the amendment which is being suggested is that it cuts back the open door—if I might put it this way—to challenges, and limits them in the most sensitive of all areas, which is the kind of relocation to which the noble and learned Lord has drawn attention. It is right that this is not a probing amendment. It is actually a very important point to try to secure these TPIMs in a way that makes them robust enough to stand up against possible challenges which, if the amendment was not made, would be very likely to come.

[Baroness Hamwee]

My Lords, my support for the noble and learned Lord’s amendment is for real, to use his own term. I was reading a little—obviously I do not have the experience of other noble Lords, including my noble friend—about control orders at the time they were to be abolished and TPIMs introduced. One could not help but feel quite disturbed by some of the experiences undergone and the impact, as has been said, not only on the individuals subject to the orders but on members of their families so, as I say, I support this amendment.

I have just one question for the noble and learned Lord. It is about whether it is necessary—he must consider it is because he has included them—to have the words about the individual having “no connection”. As I read it, but I might have missed something, the amendment to Schedule 1 to the 2011 Act takes out the references to having a connection with a locality because the 200-mile limit is being introduced. If that is so, and we are losing references to there being a connection in the Schedule, is that reference necessary in the amendment?

Counter-Terrorism and Security Bill

Lord Hope of Craighead Excerpts

Tuesday 20th January 2015 Lords Chamber

[Lord Macdonald of River Glaven (LD)]

My Lords, I agree that we should not give away our freedoms in response to terrorism. However, I am satisfied that, properly crafted, this legislation need not do so. It would be a good idea if part of that crafting were to include a sunset clause, primarily for the reasons set out by the noble Lord, Lord Pannick. It is the practicalities of this measure—how it will work in practice—that are most in doubt. Those practicalities will significantly impact on the rights of people on whom the orders are imposed. So a sunset clause is a good idea. It is also a good idea for the reason set out by my noble friend a moment ago.

Two years is too short. The threat will be with us for much longer than two years, so that will be too short a time to assess the workings of this legislation. However, I support the idea of a sunset clause so that the House can thoroughly review how the legislation is working in practice.

[Lord Hope of Craighead (CB)]

My Lords, I will add briefly to the point made by the noble Lord, Lord Pannick. It relates to Amendment 7, to which I hope to return later, and concerns the problem of humanitarian assistance.

I do not want to elaborate just now, but there are concerns about people who offer humanitarian assistance in difficult areas such as Somalia, Syria and possibly Gaza. The way in which terrorism is defined in the Terrorism Act 2000 has a chilling effect on their activities, because of the risk that they might be caught up in what is thought to be a terrorist offence when they are actually trying to co-operate with the bodies there to provide humanitarian assistance. Of course, a prosecution—or a conviction—is a very different matter. However, the way that this measure is proposing to adopt in the fight against terrorism is a decision taken by a constable. It is a much easier thing to take at that stage.

The chilling effect of the threat of that kind of measure being taken against people who seek to provide humanitarian assistance may be quite considerable; it is difficult to assess at the moment. There is, however, considerable force in the point that the House should be able to look again at the way the measure is operating once we know what the effect is on those trying to carry out humanitarian efforts in these difficult areas.

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[Lord Bates]

I will check this, because it is a very important matter, but intuitively my belief would be that the answer is yes, because they would be in the United Kingdom and they would be reasonably suspected by the authorities or the police of intending to travel overseas from this country for terrorist-related activities. I will check on that and if it is not the case I will write to the noble Lord.

[Lord Hope of Craighead]

My Lords, I think there may be different types of transit. There are certainly some instances in an airport where you pass through and do not actually go through immigration control. You are simply passing from one airline service to another and you bypass the place where the police officer would be to seize your passport. Other people in transit may have to remain for a while, possibly because they want to see somebody or collect luggage. It may well be that the noble Lord is entirely right that in that situation, because you are confronted by a constable with the power, the power would be exercisable —so it may depend very much on the circumstances of the individual traveller.

[Lord Bates]

I agree and I shall seek clarification on that. It may also be the case that the power is triggered when someone on a no-fly list comes in, even though effectively they are not entering UK territory. However, when they arrive in the UK, they have to present their passport and travel documents—and, as I argued in my answer, at that point I would expect any action to be taken. Again, these are very important points and I will check with the authorities on how this will work in practice. It is probably covered in the draft code of practice on the seizure of passports, which is currently out for review. If so, I will certainly make sure that those views are noted as part of the consultation process.

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[Baroness Hamwee]

My Lords, I shall also speak to Amendment 7. Amendment 6 is one of those probing amendments which may seem a bit unexpected or counterintuitive coming from me. It seeks to inquire whether the reference to intention in paragraph 1(10) covers recklessness. The words I have used are, “recklessly as to the consequences”. Will my noble friend share with the Committee the Government’s thinking on restricting the term to intentionality?

My second amendment, already trailed by the noble and learned Lord, refers to humanitarian assistance. This is another probing amendment to ask how the Government plan to deal with workers travelling out who are associated with reputable organisations such as the Red Cross. I accept that this is a difficult area because there can be individuals who are not with such organisations but who, in their own minds, are going out to provide humanitarian aid. They might be so closely associated with those who are fighting that they would be seen by others as providing something which is closer to military support than the broader humanitarian assistance.

We need to find a way through this difficult area, but at this stage perhaps my noble friend can explain the Government’s thinking on this issue and what work they have done with the big, overstretched—I am sure they could do without a further consultation, but there you go—humanitarian organisations working in the Middle East. I beg to move.

[Lord Hope of Craighead]

My Lords, as I hinted earlier, I wish to add a little more detail in support of Amendment 7, in the name of the noble Baroness. The background to what I am going to say comes from my experience chairing the Joint Committee on the Draft Protection of Charities Bill, which has been considering a clause which would seek to add offences under the Terrorism Act 2000 to the list of offences a conviction for which will result in automatic disqualification from being a trustee of a charity. That may seem a little bit removed from what we are considering this afternoon, but we have heard evidence on that issue from various witnesses speaking about the chilling effect of the risk of prosecution under the terrorist legislation on the efforts of those who seek to provide humanitarian assistance in areas which are under the control of, for example, proscribed organisations.

Among our witnesses was the chairman of the Muslim Charities Forum, who said:

“I go to difficult areas like Afghanistan, South Sudan and Chechnya. Recently, two weeks ago, I was in Iraq, in Baghdad. I have been in Somalia, in Mogadishu and other countries. I think counter-terrorism legislation is preventing us from having access to the neediest people. There are proscribed groups in those areas, and we know them. They are the gatekeepers. How can we go through the gatekeepers to reach the neediest people in Syria, Somalia or different parts of the world?”

That was the problem to which he drew our attention.

Among our other witnesses was the Independent Reviewer of Terrorist Legislation, David Anderson QC, to whom the noble Lord rightly paid tribute early this afternoon and I entirely endorse his remarks. He said that charities operating in these areas run the risk of falling foul of terrorism law—for example, by delivering relief to a general population which may include individuals or groups designated as terrorists. He suggested that increased risk could deter charities and their trustees from delivering humanitarian support. He was talking about the risk that would be created by extending the definition that disqualifies people from being trustees on conviction for these offences. As I mentioned earlier, we are talking about a rather softer mechanism, which is very important but depends on a decision taken by a constable at the point of entry.

One of the points to which David Anderson drew our attention was that there are examples in other countries where this issue has been addressed. The Minister might be interested to know that the kind of exception which the noble Baroness is suggesting can be found in connection with the broad definition of terrorism when one studies, for example, legislation in Australia or New Zealand. They have specific exceptions in terrorism law to meet that point, including that of association with proscribed organisations for the purpose of providing humanitarian aid. That is very important and it is rather odd that it is raised as a tiny, probing amendment in a debate on a temporary exclusion order. It runs right through the effect of the broad definition of terrorism, which Mr Anderson described as quite disturbing because of its breadth, and adds a great deal of force to the noble Baroness’s amendment.

I invite noble Lords to think carefully about that because the humanitarian effort is something all of us would wish to support. Given the amount of effort that the Government rightly put into providing aid overseas, it would be most unfortunate if it is being cut off because of this kind of measure. Of course, there are ways in which it can be done without embarking at all on this kind of risk area, but those who are right at the frontier in these very difficult areas should not be discouraged by legislation of this kind if it is possible to protect them against its effects. The humanitarian exception may be one of the more important issues that we are considering today. I would be very interested, and I am sure that the noble Baroness would be too, to hear how the Minister would wish to consider the point.

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[Lord Ashton of Hyde]

My Lords, I am grateful to my noble friends for tabling more probing amendments. The Minister and I will be well and truly probed by the end of the Committee stage.

We have had an interesting debate, with arguments expressed on both sides. The definition of “involvement in terrorism-related activity” used in Schedule 1 is the same throughout the Bill. It may be helpful to explain to the Committee that this definition has already been changed from that which exists in previous legislation in line with the recommendation of the Independent Reviewer of Terrorism Legislation that the definition of terrorism-related activity in the TPIMs Act should be narrowed.

The effect on the current Bill is that involvement in terrorism-related activity does not include conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct which facilitates or gives encouragement to acts of terrorism, or which is intended to do so. David Anderson described these individuals as those who are at three stages removed from actually committing a terrorist act: the giving of support to someone who gives encouragement to someone who prepares an act of terrorism. This change in definition is consistent with the public protection to which the legislation is directed.

Amendments 6 and 7 would amend the definition of involvement in terrorism-related activity as it currently appears in the Bill. The provision to which Amendment 6 relates refers to,

“conduct that gives encouragement to the commission, preparation or instigation”,

of acts of terrorism, whether or not the conduct is intended to do so. The amendment would amend the definition to conduct that gives intentional or reckless encouragement. To answer my noble friend Lady Hamwee, we believe that reckless encouragement is included in the current definition and we believe that accidental or reckless encouragement should be captured when its consequence is to encourage the commission, preparation or instigation of acts of terrorism.

The provision to which Amendment 7 relates refers to,

“conduct that gives support or assistance to individuals who are known or believed by the person concerned to be involved in”,

the commission, preparation or instigation of acts of terrorism. It is clear that the support or assistance which falls within that definition is that which supports or assists individuals with acts of terror. We do not want to specify explicitly—this point was well made by the noble Lord, Lord Harris of Haringey—that those providing humanitarian assistance, however defined, are excluded from the definition of involvement in terrorism-related activity. For example, as the noble Lord mentioned, it is possible that a person acting in a humanitarian capacity can also give support or assistance that would enable others to engage in terrorism.

My noble friend Lady Hamwee asked whether we have consulted NGOs or charities on this, and the noble and learned Lord, Lord Hope, mentioned its possible chilling effect on charities. We have not specifically consulted, but such organisations are capable of referring to the consultation. We would encourage them to do so and to reply to it.

I want to reassure your Lordships that support or assistance is, in this legislation, quite clearly that which supports or assists individuals with acts of terror and not any other legitimate activity.

[Lord Hope of Craighead]

Does the Minister appreciate the difficulty our witness was talking about of having to deal with people he described as “gatekeepers”? There is a risk of misunderstanding where someone is trying to get through the gate, as it were, into these difficult areas and is being told what to do, as a condition of getting through to provide the assistance, by the so-called “gatekeeper”, who may well be in a proscribed organisation. There is a considerable risk, so we are told, of being thought to be providing assistance to him because you are telling him what to do, whereas in fact what you are trying to do is to take the aid through to those who really need it. I appreciate the point that is being made, but I wonder whether the Minister will consult a little more carefully on this sensitive issue to see whether it is being accurately dealt with in sub-paragraph (10)(d) on page 27.

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[Lord Rosser]

My Lords, my amendments in this group are Amendments 8, 14 and 15. Amendment 8 provides that, for the powers relating to search and seizure in respect of travel documents in paragraph 2 of Schedule 1 to be exercised, a constable must have “evidence or intelligence” to suspect that the person in question is there with the intention of leaving this country for the purpose of involvement in terrorism-related activity rather than “reasonable grounds” as provided for in the Bill.

This power of seizure of travel documents in this way is a new one and is presumably expected to be exercised only where the relevant authorities have either some hard evidence in respect of the individual whose travel documents they intend to retain or intelligence of a nature which they believe, bearing in mind its nature and source, may well prove accurate.

The Bill does not make provision for the person whose passport is seized to be informed, even in outline, of the reasons for the authorities suspecting that they may wish to travel abroad for purposes associated with terrorism and neither does the draft code of practice require a person who is subject to the exercise of the power to search for and seize travel documents to be told anything about the reasons underlying the suspicion that the person is intending to leave the country for the purpose of involvement in terrorism-related activity.

It is important that this new power should be exercised, as I have no doubt whatever is the intention, in a responsible and proportionate manner. The question is this: what do the Government intend the phrase “reasonable grounds” to mean if it does not mean suspicions based on evidence or intelligence? If it does mean that, why not say so in the Bill? No doubt the Minister will address that point in his reply.

Amendments 14 and 15 provide that an individual whose travel document has been removed may appeal against this decision in the courts over the evidence on the basis of which the conditions in paragraph 2(1)(a) and (b) of Schedule 1 were met. Those conditions relate to suspicions that the person is leaving the country for the purpose of involvement in terrorism-related activity or has arrived in this country with the intention of leaving it soon for that purpose. The use of these new powers of seizure of travel documents, including passports, will no doubt be undertaken in an appropriate, reasonable and proportionate manner. But since the tests as set out in the Bill are to be ones of “reasonable suspicion”, there is inevitably scope for genuine mistakes to be made on occasion. Our amendments provide for a right of appeal in court following the temporary seizure of a passport, initially for up to 14 days, over the reasons which led to that administrative decision under the terms of the Bill, a decision which, if wrong, could have significant implications for a person who found themselves, because of that decision, unable to travel outside the country for a period that could be up to 30 days. No doubt if further information had come to light in the mean time prior to the appeal which either strengthened or weakened the case for the original decision to seize the travel documents, that would also be placed before the court. Judicial review alone would not achieve this objective since it would not enable the person whose passport had been seized to challenge directly the basis on which the power had been exercised; namely, whether there were reasonable grounds to suspect that they intended to leave the country to become involved in terrorism-related activity.

It is of course the case that under the Bill the police have to apply to a court for an extension of time up to a maximum of 30 days if they wish to retain the seized travel documents beyond the maximum of 14 days laid down in the Bill. However, the court making that decision is not reviewing the reasons that led to the decision being made to seize the travel documents, but simply whether the authorities considering whether further disruptive action should be taken against the individual concerned had been acting diligently and expeditiously. An authorisation process of the decision to seize travel documents will exist up to the level of chief constable, but there is no provision within that process for the senior officers involved to consider representations from the person from whom the travel documents have been taken or from a representative of that person. That authorisation process surely cannot be regarded as an alternative to a right on application to have the decision to seize travel documents reviewed by a court. I hope that the Minister will be prepared to consider carefully the points I have made in support of my three amendments. I beg to move.

[Lord Hope of Craighead]

My Lords, I should like to say a word about Amendment 8. With great respect to the noble Lord, Lord Rosser, I think that the phrase used in the Bill, if it is properly understood, accommodates the point he is seeking to raise. I speak about this with a certain amount of background because the very first judgment I was asked to write when I began my career as a Lord of Appeal in Ordinary in this House was in a case called O’Hara against the Chief Constable of the Royal Ulster Constabulary, reported in 1997 as Appeal Case 286. What we had to do in that case was consider the meaning of the phrase. A bit of research revealed that it has actually been with us for something like 100 years and has been used repeatedly in measures such as the Public Order Act 1936 and other measures where a constable is being asked to take a decision as to whether to exercise a power of search, entry or something of that kind. That situation is analogous to the one we are contemplating in regard to the position of the constable under this schedule.

What, then, do the words mean? As we said in the judgment, they concentrate on what was in the mind of the constable at the time that he exercised the power. But it is important to appreciate that there are two aspects to what was in his mind. One is what we described as the subjective aspect, which is whether he formed a reasonable suspicion. However, the important point, which is a reply to the noble Lord, Lord Rosser, is that there is also an objective element, because he has to be able to say what the objective element was. There must have been reasonable grounds for the suspicion that he formed. They are the grounds that were in his mind at the time when he was judging whether they were reasonable. That is directed to the information that he had when he decided to do what he did. That raises certain questions. What was his information? Where did it come from? What was its content? How could one say whether it was reliable? In particular, who imparted the information to him?

These are the kind of questions that anyone examining the issue would wish to have answers to. The point is not so much whether the information was true or not, because that is not something that the constable can judge at the time. The point is what information did he have and did it include information that purported to be intelligence, which is the kind of point that the noble Lord was raising.

Properly understood, this phrase, which every constable is trained to understand, and the courts are well used to, is really able to accommodate the point quite adequately, and I suggest that the safest course is to stick to the familiar phrase, given the import of the phrase as understood and as explained in the case of O’Hara.

Modern Slavery Bill

Lord Hope of Craighead Excerpts

Wednesday 3rd December 2014 Lords Chamber

[Lord Patel (CB)]

I have added my name to the amendment in the name of the noble Lord, Lord Warner. Powerful arguments have already been presented as to why there is a need to make the role of the commissioner truly independent, and I strongly support that. The noble and learned Baroness, Lady Butler-Sloss, also referred to the evidence and the comments made by the Joint Committee in the scrutiny of the draft Bill. I further add that the role needs to be truly independent. When we come to discuss the functions, as we will on Monday, there will be several amendments, including mine, which we will no doubt debate at length. Those are important amendments. If we put the two groups of amendments together, it will make it even clearer why the role of the commissioner needs to be seen and defined as truly independent.

[Lord Hope of Craighead (CB)]

My Lords, I make a brief comment on this debate from my experience of setting up the Supreme Court. One of the concerns in moving the appellate jurisdiction from this House to the Supreme Court was the risk of its not establishing its independence from the Executive, which was of course never in doubt when the Appellate Committee sat in this House. One of the surprising struggles that we had to have at the beginning of the Supreme Court’s existence was in persuading officials in the Ministry of Justice that they did not really have any say over how the Supreme Court ran its affairs. It took some time to establish that point—and, in particular, that the chief executive, on whom the court depends for so much of its running, was to be answerable to the President of the court and not to the Lord Chancellor. Of course, that battle has been won and is now in the past, and the relationship is perfectly harmonious. But the fact that it took something like two or three years to establish that point was a lesson. It was not spelt out in every detail in the legislation that set up the Supreme Court, which was deliberately simple and easy to understand. I wish to stress that it is vital to get this sorted out at the very beginning, because opportunities for doing so later in legislation do not occur very often. I hope that the Minister will take that point into account as well as the others.

Data Retention and Investigatory Powers Bill

Lord Hope of Craighead Excerpts

Thursday 17th July 2014 Lords Chamber

Moved by

[Lord Hope of Craighead]

2: Clause 1, page 1, line 5, leave out “the requirement is” and insert “for objective reasons the requirement is strictly”

[Lord Hope of Craighead (CB)]

My Lords, this amendment returns to a point that I raised yesterday at Second Reading. As the noble Lord, Lord Phillips, pointed out in moving his amendment, Clause 1(1) is crucial to the whole scheme in the Bill and it is extremely important to get the language of it right. I will not go back over the points that he was making in general support of that proposition, but it is with a view to trying to get the language right that I have raised this issue again.

The Minister will recall that I was drawing attention to the wording of the judgment in the case that has given rise to all these problems, and I will come back to that in a moment. I note that in his reply to my comment, at col. 664 of yesterday’s Hansard, he said:

“The noble and learned Lord, Lord Hope of Craighead, asked why Clause 1(1) does not use the wording of the ECJ judgment. The test in the Bill requires the Secretary of State to consider”—

personally, I would accept that as an appropriate word—

“whether it is necessary to require a provider to retain data, but also whether it is proportionate for that legitimate aim. This is in accordance with the judgment, which also makes it clear that it is necessary to verify the proportionality of any interference with a person’s rights when requiring the retention of data”.—[Official Report, 16/7/14; col. 664.]

The point that I raised, and to which I return, is that the wording of the judgment is more precisely targeted. The reasons for it are explained in the judgment in a certain amount of detail because they draw attention to the concern that members of the public would have—possibly more by rumour and suspicion than by reality, but concern nevertheless—that their private lives were the subject of constant surveillance. It is for that reason that the court went on to say that it was necessary for,

“clear and precise rules governing the scope and application of the measure in question”,

to be laid down. That was in paragraph 54.

The criticism of the directive was that the “clear and precise rules” that were required were not apparent in that directive. Paragraph 65 is the crucial one. It says:

“It must therefore be held that Directive 2006/24 entails a wide-ranging and particularly serious interference with those fundamental rights in the legal order of the EU, without such an interference being precisely circumscribed by provisions”—

the word “provisions” is important—

“to ensure that it is actually limited to what is strictly necessary”.

My amendment picks up two points: the use of the words “objective reasons”, which are in the judgment; and also the phrase “the requirement is strictly” to be added before the word “necessary”. My concern is that, without words that match the judgment, those who seek to criticise or possibly even attack the measure will compare what is in the legislation with what is in the judgment. Lawyers do that all the time. I know that the future of the European courts is perhaps not entirely secure, but the fact is that for the life of this Bill if it becomes an Act, and up until the closure date, both of the European courts are capable of being appealed to. I am quite sure that the last thing the Minister would want is a challenge to this measure on those grounds in those courts.

My amendment is intended to be helpful. I am not trying to undermine the Bill. I am just trying to suggest that the language of it should be more precisely worded. I do not know where the phrase “necessary and proportionate” comes from. The ECJ judgment says that proportionality is part of necessity, so built into the idea of necessity is proportionality. I do not complain about the fact that they are both there—it is a useful combination of words—but it is the other bits, the strict use of this phrase and the need for objective reasons, that are necessary.

If one thinks through the way in which the exercise will be conducted, I have no doubt that the Secretary of State herself will not be taking all these decisions. This formula would, in fact, be instructing those on whom she relies to apply their minds to the requisite standard, and to provide convincing, objective reasons for the measure that is suggested should be taken.

I am grateful to the noble Lord, Lord Blencathra, for drawing my attention to an examination of the wording in the draft communications data Bill, as it then was, by the Joint Committee on the draft Bill. In paragraphs 62 to 67, there is a discussion about the language. One point that emerges from that discussion, which is very relevant to what I am trying to say, is that the wording is necessary, having regard to the fact that:

“Once a power is on the statute book”—

as this would be—

“it is available to be used, and also to be misused or abused, at any time in the future”.

Undertakings are all very well, as are all the various other protections that the Minister referred to yesterday as part of the United Kingdom’s system; but at the end of the day, it is the wording that directs the nature of the exercise to be carried out by those responsible for doing it that really matters.

That is why, in my experience, these courts are not all that impressed by what we tell them about how our system operates and the number of regulators and investigations that go on to check that everything is being conducted properly. They will look at the language in the statute. That is why it is so important to get the wording right if this measure is to stand up to scrutiny.

It is with that justification that I move this amendment, in the hope that the Minister will give further consideration to it, in the very short time available, to see whether it would not be wise to tighten up the wording. I think that it is in sympathy with what the Minister himself would wish to be done anyway. It is getting the wording on the face of the Act that matters so much. I beg to move.

[Lord Davies of Stamford (Lab)]

My Lords, I rise to support the noble and learned Lord, Lord Hope, in his amendment. Before doing so, I hope that it may be in order to say a word of appreciation to the Minister—on my behalf, but I dare say that I am speaking also on behalf of others who spoke in yesterday’s Second Reading debate—for obviously having worked late through the night with his officials. He produced a letter to my noble friend Lady Smith, a copy of which we all received this morning. I make that point because—given the circumstances of emergency legislation, which always, quite correctly, arouses scepticism, doubt and worry in people’s minds—it is particularly important that the Minister should give very careful answers to the many points raised in yesterday’s debate.

It would be wrong to say that the Minister has answered in this letter every question that was raised in the course of the debate. Indeed, he has not actually answered every question that was raised by the Constitution Committee’s report. For example, the Constitution Committee pointed out that the Joint Committee had said in 2012 that there was some difficulty or doubt about non-British companies being prepared to continue to co-operate, not so much on the retention of data but on the provision of communications content. The Government might have been advised to address that criticism and could simply have said, “Maybe we got it wrong, in retrospect, and should have taken notice of the Joint Committee’s observation back in 2012, rather than ignoring it”. However, that is just one point. I think that the Government have made an exemplary effort in a very short space of time to deal seriously with the matters that were raised in yesterday’s debate. It would be quite wrong for nobody who asked critical questions yesterday to recognise that effort and to thank the Government for it.

--- Later in debate ---

[Lord Taylor of Holbeach]

I am sure the usual channels make arrangements for any such potentiality. I am very grateful to my noble friend Lord Howard of Lympne for the way in which he presented the important point that the British Parliament and British law lie at the bottom of all this. We have had a chance to consider this matter. I do not know whether beliefs have been changed by our consideration of the previous amendment, but at least that consideration has been valuable. However, I still urge the noble and learned Lord to withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I am extremely grateful to the Minister for his reply and to all those who have taken part in this debate. I wish to make one or two further points. First, the Minister is, of course, right that the judgment was concerned with the directive and not with any UK measure: that is the nature of the jurisdiction it was exercising. However, when lawyers get to work in response to clients’ demands, some of whom have very deep pockets—we are dealing in this field with people who may well be in that category—people start thinking about things and drawing analogies with what is said by courts in analogous situations. That is the significance of the wording of the judgment so far as the wording we have put in the Bill is concerned.

As I think I explained, my intention in bringing this matter before the Committee for discussion is so that we can have a fuller discussion of the detail than we could have had yesterday at Second Reading. There is, of course, a lot of force in what the noble Lord, Lord Howard, says and one does not want to parrot the wording in European judgments just for the sake of it. However, there is the broader point made by the noble Lord, Lord Davies, earlier that there is a reassurance to the public, too, in adopting these words, which were chosen by the European court in order to meet what it saw as a concern about the use of this system. Therefore, I am not disappointed that I brought this matter forward as it requires very careful consideration. I hope that the Minister will think a little more closely about it before we get to Report, although there would obviously be difficulties if I were to bring the matter before the House again. However, for the time being, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

--- Later in debate ---

Moved by

[Lord Hope of Craighead]

3: Clause 4, page 6, line 31, after “kingdom” insert “in accordance with the laws of the country where the person is”

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, this is an amendment of a rather different character. It is really a probing amendment and it picks up a point that I also raised at Second Reading yesterday evening. In order to understand the point, one has to know a little more than the wording on the Marshalled List. I draw attention to a provision in the Bill which has to be read together with provisions in RIPA, in particular Section 22. Section 22(6) states:

“It shall be the duty of the … operator to comply with the requirements of any notice given to him under subsection (4)”.

The last but one subsection of that section—subsection (8)—states:

“The duty imposed by subsection (6) shall be enforceable by civil proceedings by the Secretary of State for an injunction, or for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or for any other appropriate relief”.

However, Clause 4(10) of the Bill seeks to insert in that subsection of RIPA the words,

“including in the case of a person outside the United Kingdom”.

I am not clear whether the enforcement measures which are forecast by the provisions in Section 22 of RIPA are intended to be applied extraterritorially. This is an important point of practice, concerning how one achieves a measure such as an injunction or some other measure by service upon somebody abroad, and then how this is enforced against that person.

I practised for 24 years in the Court of Session, and was its president for the past seven years. I am very well aware of the problems one has in dealing with people outside the jurisdiction. Some of these problems indeed related to people in England, not Scotland, and one had to be extremely careful that measures were in place to enable any order a court pronounced to be enforceable. Underlying this is the point the Minister made yesterday, that because of the challenges which are now being made one wants a system which is properly laid out and is foolproof, which will be effective and will command respect.

My concern is that there may be something lurking here at the very back of Clause 4 which is defective, because it has not been properly explored and thought through. Like the noble Lord, Lord Davies, I was extremely grateful for the letter written by the Minister’s advisers, which covered a lot of ground in great detail. However, on this point there is a reference to my intervention. The very last sentence on the bottom of the third page states:

“Where absolutely necessary, RIPA provides for enforcement by injunction through domestic courts”.

Indeed it does, and domestically there is no problem. The question is whether it is intended that it should be enforceable in courts in other parts of the world, and whether attention has really been given to the mechanisms that would be necessary to achieve that, in discussion with the various courts including the Court of Session. If the noble Lord was able to guide us a little more on that point, that would be extremely useful. It would reassure us that we are passing a measure which will command respect throughout the world, as it is intended to do. I beg to move.

--- Later in debate ---

[Lord Taylor of Holbeach]

I can say to my noble friend Lord Blencathra that although I have not read MLAT, I have been present when its provisions have been discussed. He will be aware that one of the provisions that we are hoping to set up involves appointing a diplomat to look at how we handle these matters. Indeed, our whole approach to this issue is about mutual co-operation. It is not adversarial, although we understand that the law has to assume adversarial premises and the definitions that might apply in such circumstances, but that does not undermine what we are trying to achieve.

I am again grateful to the noble and learned Lord for tabling this amendment. He spoke articulately at Second Reading on the difficulties of enforcing warrants across jurisdictions. He is probably mindful of that, given his Scottish experience in relation to English law. I understand that his intention is to improve the prospects for successfully enforcing obligations under RIPA on overseas companies, and clearly none of us could object to that.

Clause 4 makes clear that the obligations under RIPA apply equally to persons overseas who are providing telecommunications services to customers in the UK. It also makes it clear that those obligations are enforceable by injunction through the domestic courts. We have been clear throughout the passage of the Bill that we are not altering or extending the powers under RIPA. Accordingly, the provisions in Clause 4 simply make clear the status quo. It is on that basis that the House of Commons has consented to the Bill, and it is the basis on which it has been presented to this House.

The noble and learned Lord’s amendment would go much further than this, by purporting to allow for the enforcement of obligations under RIPA through overseas courts. As drafted, it would do this only in respect of requests for communications data. However, I assume his interest is in the enforceability of obligations under RIPA more generally. In view of the clear intention of the House of Commons, and of noble Lords who have supported this Bill on the basis that it does not introduce new powers, this is not an amendment that the Government could support. The issue of enforcement overseas is important but it is not a matter that we can address through the Bill before us.

As I have said, the Government’s approach under RIPA has always been to work with companies. We hope that making clear the obligations under RIPA will avoid the need for enforcement action. Where we have no option but to enforce, we believe that the prospect of sanction in the domestic courts—I repeat, the domestic courts—is a threat sufficient to compel many international companies to co-operate. That, however, is not our first position, which is to work with companies. Where necessary, there are established protocols for seeking recognition of a domestic judgment in foreign jurisdictions. It may be possible to strengthen our position in respect of this but these are complex issues of law, and are not matters that we can deal with today, when we are fast-tracking legislation through Parliament. We will look for the new tyre for our puncture when we consider the review that will take place after the enaction of this Bill, which has been introduced in the context of a pressing need to put the law beyond doubt. That is what the Bill is about, and only that.

I appreciate the noble and learned Lord’s intention with this amendment, and his useful interventions, including those at Second Reading, but the amendment is unnecessary. I am sure, though, that the issue of enforcement overseas is one in which subsequent reviews of powers and capabilities will be considered, and in which he will want to take part. I draw noble Lords’ attention to the fact that there is a copy of the paper, Senior Diplomat Draft Terms of Reference, in the Printed Paper Office. It states that one of the tasks of this diplomat will be:

“To consider a range of options for strengthening existing arrangements, including … through Mutual Legal Assistance Treaty systems”—

my noble friend was on the ball there—

“mutual recognition of national warrants; and … direct requests from law enforcement and intelligence agencies to the companies which hold the data”.

That is why this appointment is seen as being so important. I hope that with those assurances, a clearer view of the Government’s objectives in bringing this Bill forward, and having had an opportunity to consider the issues that the noble and learned Lord has raised, he will withdraw his amendment.

[Lord Hope of Craighead]

My Lords, I am grateful once again to the Minister for his helpful and full reply. I take absolutely the point that it is not the intention in the Bill to expand the existing law, and it would certainly not be my wish to disrupt that policy, which would be contrary to the basis on which the Bill passed through the other place.

I am still left in some doubt as to the purpose of Clause 4(10), which excited my interest, because it states,

“including in the case of a person outside the United Kingdom”.

I am tempted—but I shall not succumb to the temptation—to ask the Minister for an example of case where it would matter whether that provision is in the legislation. It may be that some nods and winks would give colour to the suggestion that this kind of thing may have happened in the past. It is because I have great difficulty in visualising the purpose of the provision that I am still in a state of some concern as to whether it is useful to have it there at all. I am not, however, asking for it to be removed. In view of what the Minister has said, I am happy not to press the amendment, which would add additional words. I shall leave it at that and I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, I join those who urge my noble friend not to be attracted by the arguments presented this afternoon for reducing the time available for the full consideration of these matters. I also join those who thank him for the assistance we have been given in the letter that was sent this morning to some, and possibly all, of us who are present. I also thank his officials who put up with some pestering telephone calls this morning, certainly from me.

I remind your Lordships that the sunset provision does not provide for revival of this legislation by statutory instrument. The sunset provision ensures that the legislation falls completely on 31 December 2016. We therefore have to allow due and proper time for consideration of these matters.

I join the noble Lord, Lord Rooker, in what he said. I am sure that the House was very pleased to hear that he is a member of the RUSI panel that has been put together with some difficulty and over considerable time at the behest of the Deputy Prime Minister. As I understand it, the panel will consider a substantial amount of evidence, not just from within the United Kingdom. It will be making comparisons with other jurisdictions, and the range of talents on the panel goes right across the disciplines that deal with this issue. We have to allow time for the RUSI panel to do its work.

A number of other reviews are also taking place. Shortening the timescale for the new legislation would undermine the extremely important review of RIPA, which will be a thorough and systematic review of the Act. Let us not forget that completely new legislation has to be in place before the end of 2016. We know in this House that, very properly, that legislation will be the subject of detailed debate. We know that some of my noble friends—I am looking at my noble friend Lord Strasburger who quite properly will be one of those—will put down amendments that will challenge some of the thinking behind the legislation that will be presented. That legislation will take some months to go through this House and we must be ready for it with reviews that have really looked at every issue.

Perhaps I can be forgiven for using a couple of words of Latin, which would probably be deprecated by the noble and learned Lord, Lord Hope, if he were sitting in court. I am pleased to see that he is shaking his head. Perhaps this is the time when we should—

[Lord Hope of Craighead]

I come from Scotland where Latin is still spoken by lawyers. We did not adopt the approach of the noble and learned Lord, Lord Woolf. I am very happy to listen to Latin words—and perhaps I will understand them as well.

[Lord Carlile of Berriew]

Not so long ago, I went to Cranston’s tea rooms in Glasgow and tried to order some lunch. Plainly it was because Latin was being spoken that I had such difficulty. What I was going to say, using two words of Latin, was that perhaps this is a time when we should festina lente.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, I should confess that when some of us went up to the office yesterday evening, I asked to put my name down in support of this amendment but I was told that since four people had already done so, there was not room for my name. The fact that my name is not on the amendment gives me a little more freedom to think about the issue.

I was anxious to support the amendment because the public, for some of the reasons that have been given by the noble Baroness and others, will be suspicious about the length of time that seems to have been taken in order to allow this measure to survive until it has expired. But I am persuaded by what the noble Lords, Lord Rooker, Lord West and Lord Butler, have said, and also by what was said yesterday evening by the noble Baroness, Lady Lane-Fox. The Minister may remember that she was chiding us for being hopelessly out of date and telling us that the whole thinking about the descriptions of the various mechanisms that we use needed to be revised. There is a great deal of work that has to be done to get the legislation right and to get it modernised, and the last thing we want, quite frankly, is to cut ourselves off by having a timetable that we have to work to in order to put legislation in place that will replace the measure we are talking about today.

I confess that I have changed my mind. I regret disappointing those whom I was seeking to support yesterday evening but I think the wiser course is to leave the date as it is, although there is certainly something to be done by way of public relations to persuade the public that the date has been well chosen for very good reasons.

Data Retention and Investigatory Powers Bill

Lord Hope of Craighead Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it was on a Wednesday in July, like today, just over nine years ago, on 7 July 2005, that the London bombings took place. I am sure that all noble Lords have their own memories of that dreadful day. My memories are closely associated with this Chamber. That morning the Lords of Appeal, who were still working in this building, gathered to give judgment. We were due to give judgment at 9.45, and before we could sit, as the House, to give judgment, prayers had to be said—but we found that the Bishop was missing. Prayers were said by the senior Law Lord, Lord Bingham, on our behalf.

The rumour was that the Bishop had been unable to come here because there had been an electrical surge on the Underground, and his line had been out of operation. It was only when we got upstairs to our rooms on the west corridor that we realised the real horror of that day. Those who remember it will recall how London became completely seized up with traffic jams, no public transport was able to move, mobile phones would not work, and the general feeling was one of extreme distress—horror at what had happened to the victims, and immense inconvenience and disruption to the way of life in London.

I mention that because whenever I am confronted, in court or indeed in here, by this kind of issue, about the balance between security and the right to privacy, I seek to find where the balance should be struck, realising how immensely important it is, from whichever side one is looking at the problem.

Against that background, one must commend the security services for the painstaking work that they do on our behalf, which is, no doubt, greatly assisted by the data that we are thinking about. One should also appreciate the immense burden that rests on Ministers, who have to take some of these acute decisions on our behalf, balancing, as they have to, privacy against security.

This is an extremely difficult issue, but on the principle of the measure I am in no doubt—as I think almost all of us agree—that the Bill should have a Second Reading. Its purpose, and the principle that lies behind it, seem to me entirely beyond question. The problem, as always when one considers matters in this House, is one of detail—and it is the opportunity of detailed scrutiny that is, in effect, being denied to us by the speed with which the measure has come forward.

Speaking entirely for myself, I think it is a great shame that the Government have excited criticism of the kind that they have, which undermines public confidence in an area where, as others have said, public confidence is so important. It is a great pity, it is a great disadvantage, and it is difficult for us, who are coping with detail in an unfamiliar area, to meet the requirements we have to meet in order to contribute effectively to the debate.

For my own part, I started my study of the issue by looking at the judgment of the European Court of Justice that gave rise to all the problems, in the case called Digital Rights Ireland, reported in April this year. It is an interesting, and quite easily read, judgment, and quite a lot of it entirely supports what the Government seek to do. The basis of the criticism is Article 7 of the European Charter of Fundamental Rights, to which this country is not a party. However, one has to bear in mind the fact that Article 52(3) of the charter says that in so far as it,

“contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms”—

the ECHR, to which we are, of course, a party—

“the meaning and scope of those rights shall be the same as those laid down by the said Convention”.

So there is a read-across between Article 7 of the charter, which the European Court of Justice was talking about, and Article 8 of the convention, to which the noble Lord, Lord West, referred, which contains the guarantee of the right to privacy. However, it is extremely important to appreciate that, as he also said, it contains the balancing provision that:

“There shall be no interference … except such as is in accordance with the law and is necessary in a democratic society”.

One is entitled to take that into account in considering what the court was talking about.

When the court analysed the case—this is in paragraphs 41, 43 and 44 of the judgment—it was satisfied that there was a genuine national interest in what the measure sought to do, and indeed in the objective of the measure that it was considering, which was the directive. In its judgment the court clearly makes the point that in connection with such issues,

“the retention of … data may be considered to be appropriate for attaining the objective pursued by that directive”.

So far, so good. But what was the basis of the criticism? One has to examine the judgment a little bit to understand what caused concern, and ultimately led to the decision that the court gave. We find that in paragraphs 37, 45 and 46, as well as paragraphs 59, 64 and 65. It was the detail of the wording of the directive, and in particular the wide-ranging and potentially serious interference with fundamental rights that it gave rise to, that caused the problem. This is the crucial sentence, in paragraph 65:

“without such an interference being precisely circumscribed by provisions to ensure that it is actually limited to what is strictly necessary”.

We find the same phrase—

“limited to what is strictly necessary”—

in paragraph 64. The noble Lord, Lord Paddick, picked up that aspect when he used the phrase “absolutely necessary” in his speech. This is a high test, and the court found that it was not satisfied by the directive.

That leads me to my first point for the Minister. In Clause 1(1) of the Bill, everything depends on the view taken by the Secretary of State about the requirement being imposed. The phrase used is “necessary and proportionate”. I would be grateful if the Minister could explain where that phrase comes from. It is not the phrase used by the European Court of Justice, and one might be forgiven for thinking that it does not constitute quite as high a test as the strict test that the court laid down in the phrase, “strictly necessary”.

The wording is important, because any court that is testing the ability of the scheme that the Bill contains to satisfy the requirements of the convention will look at the precise wording and see whether the guidance given to the Secretary of State, who has to take the decision, is sufficiently accurate and precise to enable him or her to fulfil the requirements of the directive. I am disappointed, I must say, that the carefully chosen wording of the court was not adopted here, and I would be grateful for an explanation of why that was not the case.

This is not an opportunity to go into detail, but one of the unfortunate aspects of the procedure being adopted is that we are being asked to rest on the basis of amendments to a code of practice and no doubt further regulations, which we have not seen. So a great deal of this has to be taken on trust. I am prepared, in this area, to repose a great deal of trust in Ministers. But the wording of the test that they are being asked to apply is absolutely crucial. If one is seeking a sound foundation—a legal basis that puts the matter beyond doubt—one needs to choose the words extremely carefully.

Finally, I come to the question of extraterritoriality. Like others, I have been given suggestions—including a considerably detailed one—that there is an extension of the investigatory powers. I think I owe it to Jack Straw, as the noble Lord, Lord Howard, mentioned earlier, to make this point: in Section 2 of the Regulation of Investigatory Powers Act there is a definition of one of the expressions in the Act—“telecommunications system”. That definition says that a “telecommunications system” means a system,

“whether wholly or partly in the United Kingdom or elsewhere”.

Jack Straw stressed the words “or elsewhere”, and said that built into the definitions in RIPA from the very beginning was a recognition that such systems operate widely well beyond our own shores, so it was wrong to think that extraterritoriality was something new. I accept that, and here is the foundation for that proposition, right in Section 2 of RIPA. I also accept that since then there has been some informal method of imposing extraterritoriality—no doubt very properly, with the co-operation of overseas bodies—but that, the way things are nowadays, there is a need for that to be regularised. That is what Clause 4 is all about. However, I have a word of warning. Warrants are all very well; you can write a warrant and get it issued. The problem is in its enforcement.

I will give two examples, one of which takes us back to 1987 and the Zircon affair, which may not mean very much to us nowadays. The journalist Duncan Campbell was working with the BBC to present a series of programmes called “Secret Society”. One of his programmes was about the funding by government of a spy satellite, which in those days seemed a horrifying thing to do—perhaps we are now so used to them that we do not mind them. Nevertheless, Duncan Campbell thought that something extremely sinister was going on, and the BBC, in Glasgow, as it happened, had in its possession a great deal of material on that. Special Branch knew about that, got a warrant in London, went over the border to Glasgow and delivered the warrant to the BBC, which caved in and gave a lot of material to Special Branch. The BBC then consulted its solicitor, who looked at the warrant and said, “This is no good, because it hasn’t been passed through the system for the enforcement of warrants in Scotland—no sheriff has been asked to look at it”. So all the stuff had to be handed back. Special Branch went back over the system, tried a second time—got it wrong again—and the third time got it right. All sorts of things could have happened, although I do not suppose that much happened, because they were dealing with paper copies. However, nowadays it is so important to get the system right. Has thought been given—as has obviously been given to the mechanism for the creation of the warrant in the first place—to its enforcement?

The other example is a reported decision of this House in a case called Granada Television, in 1999, which was the reverse problem. The Scots were trying to enforce a warrant or to obtain material in Manchester under a warrant for use in Scotland. They ran into all sorts of difficulties, which are described in that case, because of the problems of cross-border warrants. Therefore, while a great deal of thought has been given to the design of Clause 4—which I admire, as it deals with many of the problems—has thought been given to how you can enforce these warrants on people overseas? What about their enforceability in the United States or in China and the mechanisms which are necessary to make them effective? There is enough here that goes so far within our own shores, but the enforceability of warrants overseas may matter at the end of the day if we are to move beyond the informal process into an area that stands up to scrutiny in a court of law.

Serious Crime Bill [HL]

Lord Hope of Craighead Excerpts

Tuesday 8th July 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I have been drawn to my feet by the comments of the noble Baroness, Lady Smith of Basildon. I have had experience of prosecuting cases involving gang violence—in a way, this is a point in favour of the injunction system. One of the great difficulties for the prosecutor is proving involvement in these activities beyond reasonable doubt. In Scotland, we used to have an offence called mobbing and rioting—that was one of my first forays into prosecution—where a whole number of people were brought into court and accused of being involved in a mob. The noble Baroness is quite right: if they were so involved, they were liable for everything that the mob did. I found that I lost quite a number of the accused because I could not prove that they were sufficiently connected to be brought into the system. If one was applying the civil standard, it would be reasonably clear that one would be able to say that they were involved in the kind of activity that the injunction is directed at. I therefore see a value in the injunction system.

I may have misunderstood the Minister, but did he say that 45% of such injunctions are breached? That troubles me for a reason that might be worth mentioning. In the cases that I came across, there was great intimidation of individuals to force them into the gang activity. If one has a typical city area where the gang competes with a gang from another place 300 or 400 yards along the road, all youths of a particular age are expected to participate in the activities of the gang. I am a bit troubled by the idea of a person being singled out for an injunction and then turning to their colleagues—or compatriots, it might be—who are saying, “Come along and join us. Get hold of a weapon and attack the other people”. If he says, “Well, I’m sorry, I can’t do that, because I’ve got an injunction against me”, I think that he would be jeered at and drawn along simply out of shame and intimidation. It is that aspect of the system that worries me. I would be interested if the Minister had any information as to why such a high proportion of those injunctions are being breached, because it might suggest that there is something in the system that is in need of improvement.

Broadly speaking, I understand the policy behind this. As a former prosecutor, I think that it has a value in being able to get people into some kind of legal system to deter them from further activity which the criminal law perhaps cannot do.

[Lord Elton]

My Lords, mine is a much smaller question and reveals my ignorance of POCA. I understand that the applications will be made by the police. How long is it expected that it will take to grant the applications and are the arrangements for the interim in any way influenced by the proposed new section? I imagine that there is a section in the parent Act which applies the standards in the new section to the interim injunction. If not, how do they relate?

Serious Crime Bill [HL]

Lord Hope of Craighead Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, this is not an easy Bill to read, as I think the noble Baroness, Lady Hamwee, was indicating at the beginning of her speech, as so much of it is concerned with updating existing legislation in those fields with which it deals. Updating is really the thread that runs right through the Bill, from start to finish. In itself, I suggest that is to be welcomed. In each of those fields, experience has shown us that there are gaps that need to be filled. We know that where there are gaps in legislation of this kind, they will be exploited. Where there is room for evasion, it will be exploited, too. All the areas of law with which the Bill is concerned are vulnerable to being undermined in this way or are lacking in the power that comes with the increased sentences to which the Minister referred.

Serious and organised criminals—those who deal in illegal drugs, attack our computer systems or are engaged in paedophilia or terrorism—are not going to go away. Their presence in our community is a constant threat. We need to keep our lines of attack and defences up to date, so it is not surprising that the statutes with which this Bill deals are in need of amendment, although some were enacted not all that long ago, and that new measures are required in support of those we already have. Speaking broadly, the Bill deserves our warm support.

I am especially grateful to the Minister for the information pack that we were given the other day to help us through these provisions. It contains fact sheets and Keeling schedules, which are of course extremely useful, but they do not tell one everything. I was troubled by the fact that on my first reading, it seemed that the provisions in Clause 3(3)(b) and Clause 24(3), amending Sections 33 and 183 of POCA, which deal with appeals against the making of confiscation orders, provided appellants with an unqualified right of appeal to the Supreme Court. Everyone else has to go through a permission process before an appeal can be heard there and, as a result, appeals in the Supreme Court are available only if a point of general importance is involved and the decision appealed against raises a point that ought to be considered by the Supreme Court. On my first reading of this part of the Bill, I asked myself: why should the appeals in this field be any different?

The answer was provided by two of the Supreme Court’s judicial assistants but they did not find it in the Keeling schedules because it is to be found in delegated legislation set out in two orders made by the Secretary of State in 2003, details of which I need not give. However, the result is that the appeals referred to in these clauses are subject to the ordinary rule, although that is not apparent on first reading. I am greatly relieved that that is so and I hope that my researchers have provided me with the correct answer.

Some of the provisions, although at first sight well meaning, may require careful scrutiny. One of them is Clause 41 in Part 3, to which the noble Baroness referred and the noble Lord, Lord Richard, drew our attention. In response to what the noble Lord said, it seems to me that the way in which the issue of organised crime is being approached in Clause 41 is, in principle, the right one. He mentioned the alternative of using the law of conspiracy to deal with matters of this kind. When I was serving as a Lord of Appeal in Ordinary I was involved in a case where a conspiracy charge was used in connection with money-laundering. In the days when it was used, the rules for the framing of counts in indictment were subject to what is called the duplicity rule. It was very complicated and I shall not trouble to explain it but the point was that conspiracy was used to get around the difficulty. When the appeal reached us, we had to quash the conviction because the evidence necessary to prove conspiracy was not there.

It is quite a complicated area of law. Although, as a Scots lawyer, I hesitate to make suggestions for the English, I think conspiracy should be avoided if it is possible to do so. The great advantage of Clause 41 is that it goes straight to the heart of what it is seeking to attack and describes it in simple language. To that extent, I welcome Clause 41 and hope that the noble Lord feels able to defend it. As the noble Baroness, Lady Hamwee, indicated, there is concern that some well meaning, law-abiding professionals might be brought within the reach of the clause when what they are doing is providing advice and intelligence to the authorities. They might feel deterred from doing this—from getting too close to the people that Clause 41 is talking about—in case they become drawn into some kind of criminal prosecution. It is all about how the offence is defined in Clause 41(2) and the way the defence in Clause 41(8) is worded. It is not necessary to say more about this, but it is a clause that will require detailed examination in Committee.

I welcome the opportunity that the provision in Clause 62—particularly Clause 62(2), which deals with the meaning of “unnecessary suffering”—gives us to debate the issue. I say that against the background of a case of domestic violence, Yemshaw, in which my noble and learned friend Lord Brown of Eaton-under-Heywood and I were involved some years ago. In that case, the House was asked to consider whether the phrase “domestic violence” in the Housing Act 1996 to describe circumstances in which it would not be reasonable to expect a person to live with someone else in the same accommodation, required there to be, and be limited to, some form of physical contact. There had been two Court of Appeal decisions which said precisely that. Although the noble and learned Lord, Lord Brown, hesitated somewhat, we were persuaded in Yemshaw that, because of the way in which people look at these matters, it would be unreasonable to confine domestic violence to physical contact. So many cases of that kind are the product of intimidation and psychological abuse, which is equally untenable and makes it equally difficult for someone to live with someone else. Psychological harm was, therefore, said to be included within “domestic violence”.

The concern is that, if the issue of unnecessary suffering, as defined in Section 1 of the Children and Young Persons Act 1933, were to come to court against the background of Yemshaw, the court might feel that it should extend it to psychological as well as physical damage. There will be differing views in the House as to whether this would be desirable. My only point is to welcome the opportunity that we shall have to debate it. I mention Yemshaw because it indicates that this is an area of law that others are working on, as well as us. It is eminently desirable that Parliament should clear this up, rather than have the matter debated, with perhaps less range of discussion, in the courts. That is to be welcomed, whatever the end result may be.

There are one or two other matters that I should like to mention, particularly in relation to Scotland. This is the result of studying the Bill with the Scottish jurisdiction in mind. I have given the Minister notice and I hope he will at least be able to give me some indication in his reply as to what the answer would be. The first relates to Clause 63, which deals with the paedophile manual. The curious feature of that provision is that, according to the wording of the clause, it extends only to England, Wales and Northern Ireland, and not to Scotland. That is confirmed by Clause 69(2)(c), which deals with the extent of the Bill and makes it absolutely plain that it does not extend to Scotland. I take it that it is no accident that it is drafted in this way.

That seems at first sight to give rise to a very strange situation. We all live on the same island, as we keep hearing in the debates about the referendum. You could imagine that if someone who lived in Carlisle or Berwick-upon-Tweed wished to get access to one of these manuals, he would have to drive only a short distance to Gretna Green or Eyemouth and find someone who was in possession of one. He could consult it and then go back to Carlisle or Berwick-upon-Tweed and do whatever the manual had taught him to do. It is very puzzling that this does not extend to Scotland. So far as my researches go, there is no equivalent provision, at least in these terms; I discussed this question this morning with a criminal law practitioner and he said that to me. It is true that a recent measure in Scotland, the Sexual Offences (Scotland) Act 2009, covers a lot of ground and it may be that the Scottish Government are reluctant to expand on it at this stage, but some explanation is required as to why this measure, which seems eminently desirable, is confined to south of the border and why it appears to be assumed that people in Scotland will not be engaging in the same malpractice.

The second point is rather more technical. It relates to the provision in Paragraph 23 of Schedule 1, which provides that the civil standard of proof will apply to any proceedings in the High Court of Justiciary or a sheriff court relating to serious crime prevention orders. I suggest that the clause may be too widely drawn. It is mirrored to an extent by the provisions relating to England and Wales about the standard of proof, but the point that emerges from a detailed reading of these provisions is that the civil standard applies to proceedings in the High Court, which in England is mainly a civil court and deals with the making or amendment of these orders, whereas the criminal standard applies to proceedings brought in the Crown Court, which is the equivalent of the High Court of Justiciary or the sheriff exercising his criminal jurisdiction. It is not immediately clear to me why the civil standard should be expressed so broadly in relation to criminal jurisdiction in Scotland when it is carefully separated out in the equivalent English provision.

The names of the courts are bit confusing but I am sure that the draftsmen understand that the High Court of Justiciary is entirely criminal—that is its jurisdiction exclusively—and that it is therefore right to be very careful about altering the standard of proof there. The point is that there could be proceedings under these orders that relate to serious crimes—an attempt to pervert the course of justice in relation to these orders, for example—which one surely would have thought could be prosecuted according to the criminal standard. Again, this matter requires some explanation. It may be that those north of the border have some guidance to give us as to what the answer should be.

My final point is a quibble about drafting. I am reminded that there used to be a practice when I first came into this House in the middle of the 1990s; from the Cross Benches you would see Lord Simon of Glaisdale and one or two others sitting looking at Bills to find bits of grammar or drafting that they could draw to the House’s attention. Usually this was a bit tongue in cheek, but sometimes there were bits that really were worth mentioning.

There is one minor complaint that I should like to voice about what one finds in Clauses 57(1) and 58(3). Clause 57(1) deals with the jurisdiction in the magistrates’ court, but magistrates’ courts do not sit in Scotland. In Clause 58(3) we find that appeals, apparently from a magistrates’ court, may be taken in Scotland to the sheriff principal, who sits only in Scotland. Again, if one delves around in the Bill, the answer is to be found later on: in Clause 61(4) we find that a reference to the magistrates’ court is to be read as a reference to the sheriff. However, it is rather untidy to have to go there to interpret magistrates’ courts, when in Clause 58 it is all set out in full for you so that you have the proper English court and this court in the same clause. It would have been better either to group all the Scottish bits in Clauses 57 and 58, or to leave Clause 58 as one that apparently dealt only with England, and then clear it all up as is apparently done in Clause 61. That is the kind of point that Lord Simon would have raised. He would never have dreamt of putting down an amendment to deal with it but would have thought it proper to draw the House’s attention to it, and I should like to do that.

Immigration Bill

Lord Hope of Craighead Excerpts

Monday 12th May 2014 Lords Chamber

The professor points out that the international regime regulating the movement of people between states is premised on the credit accorded to nationally issued passports the legally binding guarantee of returnability attaching to those documents and the implicit prohibition on a state unilaterally resiling from that guarantee in violation of the rights of other states. The combined resources of the FCO and Home Office have been unable to provide a single instance indicating either that a national passport has not been treated in international law as guaranteeing returnability, or that a state has refused to accept back persons admitted to another country on the basis of such a passport. I still have these concerns, in addition to the ones so ably expressed by the noble Lord, Lord Pannick, and my noble friend and colleague Lord Macdonald.

[Lord Hope of Craighead]

My Lords, I will add a footnote to the points made by the noble Lord, Lord Pannick, and my noble and learned friend Lord Brown of Eaton-under-Heywood. I join them in welcoming Amendment 18A and Amendment 18B, which falls to be read together with it. Two questions lie behind one’s examination of Amendment 18A. The first concerns the point mentioned by the Minister once, if not twice. Is the wording of the provision compatible with our international obligations? The second concerns how the provision will work in practice. This will be the subject of the reviews referred to in Amendment 18B.

On the first point, the Minister said—I think twice, possibly more often—that the wording of the provision is deliberately narrow. He said it was narrowly worded and precisely targeted; it had to be narrowly worded and precisely targeted to meet the requirements of the convention. The international obligations are found in the European convention on nationality of 1997. It is worth reminding ourselves that the preamble says that it is concerned to avoid cases of statelessness “as far as possible”. The principles set out in Article 4 include that,

“everyone has the right to a nationality … statelessness shall be avoided”,

and,

“no one shall be arbitrarily deprived of his or her nationality”.

I think it is well known that Section 40 of the British Nationality Act 1981, as substituted by the Nationality, Immigration and Asylum Act 2002, was framed with very close regard to the provisions of that convention. One can see it, too, in the amendments introduced by the Bill. The second condition set out in new Section 40(4A) refers to the situation where,

“the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom”.

The phrase “the vital interests” is a precise quotation from Article 7(1)(d) of the convention and one can see how closely tied the wording of the statute is to that of the convention. It is important that the wording should be narrowly framed in order to meet what the preamble and Article 4 were talking about, but that has another significance when one looks at how the wording will work in practice. It is well known that the courts will construe legislation on the assumption that Parliament has intended to legislate in accordance with this country’s international obligations. One would expect a court to have regard to the wording of the convention and to construe the words narrowly. They are narrowly worded but they will be narrowly construed, too. The key words already identified are “is able”. It is not “maybe” or a possibility; it is “is”, in the present tense. “Able” is itself a powerful word, and the new Section refers to being able to become a national of a country, not to an ability to apply or be considered.

One other point is worth mentioning to appreciate the full package with which this House has been presented. Section 40of the British Nationality Act, as amended, describes the obligation of the Secretary of State in the event of an order being made under that section. It states:

“Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying … that the Secretary of State has decided to make and order”—

this is really important—

“the reasons for the order, and … the… right of appeal”.

These things must be set out in the written statement. Particularly important is the reference to reasons, which will be examined with great care should the matter go to appeal.

There is just one point that is worth bearing in mind: the reference to rights of appeal. Concern has been expressed by Liberty, and perhaps others, about the situation in which somebody would find themselves when faced with a written statement of this kind when abroad and the prospect of an order of this kind being made against them. It would seem to require exercising the right of appeal from abroad. That is a practical problem which those individuals might face.

My concern is whether the review referred to in Amendment 18B would be capable of picking up practical issues of that kind. It is difficult for us at this stage and in these situations to forecast the future with any precision, but that is the kind of practical point—envisaging how the issue will be worked out in practice—that will require very careful consideration. The more disadvantaged somebody would be by having to exercise his right of appeal abroad, the more concerned one would be about the fairness of the provision and, indeed, its compatibility with the convention. When the Minister replies, will he be good enough to cover that point about the scope of the review and whether it would include the kind of practical problem to which I have just referred?

[Baroness Kennedy of The Shaws (Lab)]

I have concerns about the shift by the Government, although I welcome that there has been a shift in the way that has already been described. My concern is that reasonable grounds to believe that a person may be able to acquire another nationality does not really deal with the difficulty we face in the circumstances in which these cases arise. The cases that have taken place so far in which people have had their citizenship removed have almost invariably—certainly in my experience—involved persons abroad. The reason given is that the person is a threat to national security. I raise this question, among those already raised by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope: would another country seriously consider giving nationality, even to someone who might have the ability to apply for nationality of that country, if it knew that British citizenship had been removed on the grounds that the person was believed to be in some way linked to, or to condone, international terrorism? Do we seriously believe that another state is likely to grant nationality to someone where that has been the basis for the removal of citizenship by Britain? My grandparents were Irish, and I am sure that I am entitled to apply for an Irish passport, although I have never done so, but would Ireland seriously be interested in acquiring a citizen who has already been deemed by Britain to be involved in supporting, condoning or in some way furthering terrorism? We have to be real about the circumstances that we are contemplating.

I want to add a number of questions to the ones that have already been asked.