Terrorism Prevention and Investigation Measures Bill

Lord Pannick Excerpts

Tuesday 1st November 2011 Lords Chamber

[Baroness Hamwee]

My Lords, the noble Lord, Lord Hunt, says that relocation has been very useful in disrupting terrorism activity. The problem I have is that I do not know and I do not know whether he knows. He may well believe that that is the case, but I am not sure that any of us really knows. That has been a difficulty throughout the debate on the Bill.

I have a couple of points on the drafting of Amendment 61. It seems to me that it slightly muddles accountability. Is it not for the Home Secretary to take the decision on the resources and to take responsibility for what resources are applied, rather than it being an arrangement with the terrorism co-ordinator who, I take it, is the co-ordinator within the Metropolitan Police? I am slightly concerned that the amendment dilutes the responsibility of the Secretary of State. The terrorism co-ordinator of course has a role in this. We have all heard senior police officers say that they will do what they can within the resources provided to them, and they are very cautious about saying that they have enough resources.

My second point is to ask whether it is possible to identify precisely the right resources and deploy them. That could well be something of a moving feast; the resources required will vary from time to time. I of course understand the concerns that lie behind the noble Lord’s amendment, but I am not sure whether it is a practical way of satisfying us all and, indeed, the public.

[Lord Pannick]

My Lords, I am assuming that the Government are satisfied that the available resources are sufficient to maintain security in this country. If that is not the case, it would be very troubling indeed.

--- Later in debate ---

[Lord Pannick]

My Lords, I, too, support the amendment. I am rather more optimistic that it will do a great deal of good. I agree with what has been said by the noble Lord, Lord Rosser, about the need for an annual review because of the exceptional nature of these powers, and because of the need for Parliament to have the opportunity to consider such matters annually. But there is a further factor. An annual review will surely impose an important discipline on the Government, and this is an area where we inevitably need to trust the Government. It will require Ministers periodically to consider the need for these measures, what they can say to justify them in parliamentary debates and whether or not these measures need an amendment. This is an important discipline, particularly in a context where the factual circumstances that are said to justify these exceptional measures are not going to remain static for as long as the next five years.

[Baroness Kennedy of The Shaws]

My Lords, I support the amendment. Unlike the noble and learned Lord, Lord Lloyd, I do not think it is pointless. We should always remind ourselves that emergency measures have a way of seeping into the legal system as a whole. We have learned that over time. Often, things that are introduced as emergency measures end up remaining on the statute book for far too long. The fact that we come together and annually review a matter—even if we do not manage to persuade the Government—does mean that the matter is before us, and we are still talking about something that is being used as an exception to the rule. I therefore urge those who are listening to see why this is important, and that we do have the annual review that we have always had in the past.

Terrorism Prevention and Investigation Measures Bill

Lord Pannick Excerpts

Wednesday 19th October 2011 Lords Chamber

This is an unjust measure. It offends against the traditions of our common law; it offends against the evolutionary history of our constitution; it offends against the doctrine of human rights; it offends against the basic principles of justice in this proud country. I support the amendment.

[Lord Pannick]

My Lords, Amendments 17, 42 and 43 in this group are in my name.

First, I would like to say that I support everything that has been said about their amendments by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lords, Lord Goodhart and Lord Morgan—although I have not known the noble and learned Lord, Lord Lloyd, for quite as long as I have known the noble Lord, Lord Goodhart. I support them because their amendments are designed to ensure that the imposition of a TPIM notice is a judicial act, and not an administrative act. If a restriction on basic liberty of this sort is to be imposed on British citizens because of allegations of wrongdoing, and it is not to be a part of the criminal justice process, then surely the procedure must contain as much of the rule of law as is possible.

When opening the debate at Second Reading, the Minister said at column 1137 that the Government’s approach to balancing civil liberties and national security in this context is that the Bill should go no further in limiting people’s rights “than is absolutely necessary”. That was the test he laid down, and it seems to me that that is the right test. However, if we are going to apply that test, surely it requires that the restrictions on people’s liberties are imposed only with the prior approval of a judge. If the security services cannot persuade a judge in a closed session—because that is what is going to take place—that the restrictions are needed, then surely they should not be imposed. In an urgent case, the judge would be asked to give temporary approval until the matter can be fully considered.

There was a suggestion at Second Reading that perhaps the judiciary would not want this responsibility. There are two answers to that. First, the Bill confers on the judiciary the responsibility for deciding whether a TPIM notice is appropriate at a later stage. There seems to be no difference in principle if the judiciary is instead asked to make the decision at the outset. Secondly, your Lordships should in any event have no doubt that if Parliament decides that it is appropriate to ask the judiciary to perform this role at the earlier stage, Her Majesty’s judges will perform their duty faithfully and effectively.

That is what I wanted to add on the amendments of the noble and learned Lord, Lord Lloyd. If, however, judicial control at the outset is not to be included in this Bill—which would be most regrettable—and if the imposition of a TPIM order is to remain at the outset an administrative process, then I have an alternative amendment, Amendment 17, to which the noble Baroness, Lady Hamwee, has added her name. The amendment concerns the standard of proof.

Under Clause 3(1), a TPIM notice may be issued by the Secretary of State where she,

“reasonably believes that the individual is, or has been, involved in terrorism-related activity”.

Amendment 17 seeks to substitute a test of the balance of probabilities. I would ask the Minister, in responding to this debate, to explain why it is that reasonable belief should suffice as the test to be imposed by the Secretary of State. A belief may be reasonable but wrong. Why should these sanctions be imposed on a person if the Secretary of State is unable even to be persuaded that it is more likely than not that the wrongdoing has been committed, or will be committed, by the individual concerned?

If the security services, with all the resources available to them, cannot satisfy the Home Secretary that on the balance of probabilities more likely than not an individual is involved in terrorist activities, surely there is no justification for imposing these restrictions on them. Of course, surveillance measures may well be appropriate even in relation to such a person against whom it cannot be shown on the balance of probabilities that they are involved—but that is a different matter and we are not discussing surveillance measures.

I want to speak also to Amendments 42 and 43 in this group which stand in my name. They ensure that when the court assesses the TPIM at a later stage under Clause 9, the court should form its own view on the merits and not apply a judicial review test. These amendments arise out of the concern expressed by your Lordships’ Constitution Committee, of which I am a member, at paragraphs 14 to 17 of its report. At Clauses 9(2) and 16(6), the Bill provides that when the court reviews the TPIM at the later stage, it should apply a judicial review test. In the control order context, the courts have made it very clear that they will treat the review as an appeal on the merits of the case. The Government’s Explanatory Notes accompanying the Bill accept that this enhanced level of scrutiny should also apply to the TPIMs.

The report of the Joint Committee on Human Rights, published today, also supports my Amendments 42 and 43. It says:

“The surest way to deliver the intense scrutiny that the Government says it intends is to write it explicitly into the Bill. We therefore recommend that the Bill be amended to make it clear on the face of the Bill that the review to be conducted by the courts at the review hearing is a ‘merits review’ (as opposed to a supervisory review)”.

Will the Minister please accept, as the Constitution Committee and the JCHR have proposed, that it is desirable to make it clear on the face of the Bill that at the later stage the court will be conducting an appeal on the merits, just as is the case in relation to control orders and as the Explanatory Notes state the Government intend to occur?

[Lord Phillips of Sudbury]

My Lords, my name appears with others on Amendments 1 to 4, 16 and 18 to 22. Amendment 5 stands in my name only. I accept that the Bill is warranted, but I echo the point that where in extreme circumstances—national security is a fit subject for an extremity—one departs from a fundamental freedom, it seems to be blindingly obvious that there is no less a fundamental duty to minimise that departure. I cannot for the life of me see how we do that by giving to a politician, however distinguished and assiduous, the task of making one of these—I am tempted to say draconian—orders on his or her own. That cannot be right and I echo all that has been said, in particular by the noble and learned Lord, Lord Lloyd, and by my noble friend Lord Goodhart.

--- Later in debate ---

[Lord Faulks]

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

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

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

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

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

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

[Lord Pannick]

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

[Lord Faulks]

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

--- Later in debate ---

[Lord Henley]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Pannick]

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

[Lord Henley]

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

--- Later in debate ---

[Lord Pannick]

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

[Lord Henley]

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Pannick]

My Lords, I offer the Government my support on this issue of relocation. The noble Lord, Lord Carlile, expressed concern that political considerations, as he put it, are trumping national security concerns. I suggest to the noble Lord and the Committee that the issue is more difficult than that. The way in which the noble Lord puts it ignores a vital dimension. The reality is that relocation is a particularly intrusive measure to impose on the subject. It is strikingly damaging to the personal life of the individual and his or her family.

[Lord Hunt of Kings Heath]

Will the noble Lord address the evidence given by the deputy assistant commissioner, which I know he will have read, which pays tribute to the effectiveness of that exclusion order?

[Lord Pannick]

I am coming to that, but let us at the outset recognise the impact of a relocation measure. If one is going to adopt a measure or power of this sort, one needs to recognise the striking impact that it has on the spouse and the children. A measure that amounts to internal exile of a person needs a compelling justification.

[Lord Carlile of Berriew]

I know that the noble Lord eats legal authorities for breakfast, probably literally sometimes. I would just like him to give his comments on the cogent judgment and reasoning of Mr Justice Simon in CD, the case to which I referred, in which the judge took the matters the noble Lord has just mentioned into account and reached a considered conclusion. Does he say that the judge reached the wrong conclusion, giving undue proportion to some of the factors he was weighing?

[Lord Pannick]

Of course, the learned judge was considering the exercise of the powers that are contained under the control order regime. The Committee and the House have to consider what is a fair balance—this is the test that the Minister rightly has repeatedly propounded—between national security and the liberty of the individual.

[Lord Carlile of Berriew]

I promise not to intervene on the noble Lord’s speech again but he is ducking the question. Does he not accept that Mr Justice Simon in that case, having weighed up the facts, came to the conclusion that the safety of the state and of the public was better protected by relocation and that it was proportionate to the interests of CD? If so, should we not keep the situation as it was then?

[Lord Pannick]

The noble Lord can intervene as many times as he likes. I welcome his interventions. My answer to his point is twofold. We can always add more and more intrusive measures and protect ourselves more effectively from the perspective of national security. The question is: what is a fair balance? I am assuming that the Government, not just concerned about a particular individual case but looking at these issues as a whole, have concluded that relocation would undermine the fair balance because of its particularly intrusive nature and that the combination of the measures contained in the TPIM and the surveillance measures that can always be imposed on an individual who is not relocated will effectively protect the public. It is true that there is a financial cost, which is the point made by the noble Lord, Lord Hunt. Does the noble Lord wish to add to that?

[Lord Hunt of Kings Heath]

The noble Lord is being very kind in accepting all these interventions, but this is an important point. If the Government were really confident, they would not be producing a draft emergency Bill or having the provision in this Bill to allow the Home Secretary in an election to use the enhanced measures. I am afraid the fact is that in their heart, and particularly in the noble Lord’s own department, they know that the exclusion provisions are very important. I am sure that, in the future, they are going to have to use the emergency provisions if this Bill goes through. I do not think that the Government have that confidence, and that is the worry.

[Lord Pannick]

We will hear from the Minister in relation to that in a moment. I am satisfied that a sensible and fair way of dealing with what is a very difficult issue, because of the primacy of national security and the particularly intrusive nature of a relocation power, is for the Government to satisfy themselves, as I assume they have done, that relocation powers are not needed. However, given the importance of this power, they recognise that it is sensible to have reserve powers available which, God forbid they are ever needed, can be brought into force. I support the Government on this.

[Baroness Hamwee]

My Lords, I, too, support the Government and I am very much with the noble Lord, Lord Pannick. If my noble friend Lord Carlile succeeds in getting answers to his questions about evidence, I shall consider that there is a huge amount of favouritism going on. That is exactly the sort of thing that we have all asked for on many occasions, but inevitably we are not satisfied because we know that advice to the Government is advice to the Government, and we cannot read their heart as we are being asked to do.

I do not quite understand the distinction between politics and security. For all the reasons we have talked about and will continue to talk about, it is a much more nuanced and complicated—there is probably a geometric term for it that I do not know—picture than a simple polarisation as regards the impact of particular measures. Of course surveillance is going to be costly, but another balance that one must come to is where one puts one’s efforts and spends one’s money.

--- Later in debate ---

Moved by

[Lord Pannick]

38: Clause 8, page 4, line 26, at end insert—
“( ) Directions under subsection (5) must include a direction that the Secretary of State shall provide the individual on whom the measures are imposed with sufficient information about the allegations against him or her to enable him or her at the review hearing to give (if possible) effective instructions to his or her representatives and information to the special advocate in relation to those allegations.”

[Lord Pannick]

My Lords, I shall speak also to Amendment 49. These amendments concern the disclosure of information to a person who is the subject of a TPIM. As the Committee knows, in the AF case in 2009 the Appellate Committee of your Lordships' House considered what the principles of fairness require as to the disclosure of information in the context of control orders. I repeat my declaration of interest—I represented AF in the Appellate Committee.

The Law Lords decided that a control order is invalid as a matter of law unless sufficient of the case against the individual is disclosed to him so as to enable him to give instructions to his lawyers to answer the allegations against him. If the Home Secretary is not prepared to disclose that much, the control order cannot be maintained. Disclosure to the special advocate does not suffice, said the Law Lords, because the special advocate cannot of course disclose the information to the subject of the order and obtain a response from him.

In the recent Supreme Court case of Tariq v the Home Office, the noble and learned Lord, Lord Hope of Craighead, explained the principle of law at paragraph 81 of his judgment. He said that in AF,

“the fundamental rights of the individual were being severely restricted by the actions of the executive. Where issues such as that are at stake, the rule of law requires that the individual be given sufficient material to enable him to answer the case that is made against him by the state”.

The TPIM, like the control order, involves severe restrictions on the personal liberty of an individual. Therefore, a TPIM is going to be unlawful unless the AF principle is satisfied. This was addressed in today’s report of the Joint Committee on Human Rights. At paragraph 1.20, it addressed the Government’s argument that the AF disclosure obligation,

“does not necessarily apply to all TPIMs because some will not be sufficiently ‘stringent’ to engage Article 6”,

of the human rights convention. The Joint Committee points out:

“This is an argument that the Government has already made and lost”,

in the context of control orders,

“in relation to ‘light touch control orders’”.

The Joint Committee expressed the view, with which I agree, that the AF disclosure obligation applies in all TPIM cases, because they will all involve severe restrictions on personal liberty. I should add that if the TPIM is less stringent, it is likely to be because the subject of the order is not one of the most dangerous individuals and there will therefore be a weaker security argument for non-disclosure of the essence of the case against such an individual.

Disclosure to the individual of the case against him is not just required by law, but is also of enormous importance as a matter of principle. Your Lordships will recall our earlier debate when one of the reasons given by the noble Lord, Lord Carlile, in his objections to the proposal of the noble and learned Lord, Lord Lloyd of Berwick, that the imposition of the TPIM should be a judicial process, was precisely that the subject is protected by the important disclosure obligations that will be imposed on the Secretary of State. The noble Lord emphasised that.

Amendment 38 would require disclosure of the essence of the case against the individual at the directions hearing. Amendment 49 would make clear that the rules of court must provide for such disclosure.

I have two questions for the Minister. First, does he accept that the AF principle requiring disclosure of the essence of the case against the subject applies in the context of a TPIM, as it does in the context of a control order? Secondly, does he agree that it would be preferable for the matter to be stated in the Bill, to avoid the expensive, protracted litigation which will otherwise inevitably occur?

The Joint Committee's report, which I mentioned, gave its support at paragraphs 1.21 and 1.23 to my two amendments. The Joint Committee added the valuable point that the disclosure obligation should be at the earlier stage of the preliminary hearing, to ensure that the subject of the TPIM can instruct his lawyers—or indeed give information to the special advocate—before the directions hearing. The noble Baroness, Lady Hamwee, has tabled drafting amendments to my two amendments. I shall certainly want to consider them and the suggestion of the Joint Committee before Report but, for today's purposes, I welcome the opportunity to hear the Minister's response to my amendments. I beg to move.

Amendment 39 (to Amendment 38)

Moved by

--- Later in debate ---

Amendment 39 (to Amendment 38) withdrawn.

[Lord Pannick]

I am grateful to the Minister for his careful response and to all noble Lords who have spoken in this short debate. I agree with the observation of the noble Lord, Lord Carlile, on the need for certainty in this and allied areas of the law. With regard to the amendment of the noble Baroness, Lady Hamwee, to my amendment, by talking about “if possible” I intended to refer not to the possibility of disclosure but the possibility of the subject of the order providing an answer. I respectfully agree with the noble Baroness that it would be wiser to omit the words, “if possible” to avoid ambiguity.

This is a simple but vital issue. Should the Secretary of State be able to impose these restrictions on an individual without telling him why? It is not just a question of fairness. Nothing is more likely to undermine public confidence in a TPIM than for the Secretary of State to make such an order without telling people why. I am sorry that the noble Lord, Lord Rosser, on the Opposition Front Bench, is not yet persuaded to support my amendment. His position, as he articulated it, appears to be at odds with the ruling in AF which makes it very clear that the duty of disclosure applies irrespective of national security concerns. I am also sorry that I have not yet persuaded the Minister that this matter should be in the Bill. I am still concerned that on a matter as vital as this, it is not good enough simply for the Bill to state that Ministers must act in compliance with Article 6 of the European Convention on Human Rights, welcome though that is. It is desirable to address the question of disclosure, which has led to enormous quantities of litigation in the past and will inevitably lead to much more litigation in the future if we do not address the matter specifically. It is highly desirable that this matter is put into the Bill in clear, unambiguous terms. We will no doubt return to this matter on Report but for the moment, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Visas: Domestic Workers

Lord Pannick Excerpts

Tuesday 18th October 2011 Lords Chamber

[Lord Henley]

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

[Lord Pannick]

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

“domestic workers are peculiarly vulnerable to abuse”,

and that,

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

[Lord Henley]

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

Terrorism Prevention and Investigation Measures Bill

Lord Pannick Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Pannick]

My Lords, we are debating the Bill at a particularly depressing time for civil liberties in this country. This country has long prided itself on the protection of fundamental freedoms, both here and in other parts of the world. However, we apparently now have a Home Secretary who believes that debate about human rights—an important and serious debate on complex issues—should be so debased that the right to family life can seriously and usefully be addressed by a fable about a cat rather than by any serious analysis of the issues of law and policy. That is a matter of grave regret. I very much hope that the noble Lord, Lord Henley, who I welcome to his responsibilities, will be able to persuade the Home Secretary to take a more informed, reasonable and reasoned approach to the issues raised by the Bill, issues that, as he rightly said in opening the debate, depend on securing a correct balance between state powers and civil liberties.

The regime proposed by the Bill, like the regime under the control orders legislation, raises concerns about the rule of law in four respects, which we will need to address in Committee. I share the concerns already expressed by the noble Lord, Lord Goodhart. First, we must accept that the Bill allows for sanctions against alleged wrongdoers by an administrative procedure that is wholly outside the criminal process, which is the point that the noble Lord, Lord Macdonald of River Glaven, has just addressed. My response to the interventions is that, regrettably, one finds that constituents up and down the country do not share concerns about civil liberties when they relate not just to alleged terrorists but to alleged murderers and rapists. Nevertheless, they are important aspects of a civilised society which it is our responsibility to seek to protect. Let us remember that the fact that these matters are being addressed outside the criminal process—I understand why they need to be so addressed—arises in the context that over the past 10 years we have enacted a vast number of new criminal offences to deal with terrorist activity, many of them concerned with preparatory acts, such as possession of material for criminal purposes.

[Lord Reid of Cardowan]

It is important to clarify this. I do not think anyone was suggesting that the public view was right or wrong; what we were trying to ascertain was the public view. That was the matter of disagreement with the previous speaker: the contention that the public view was that these were very troublesome and difficult issues and that we should get rid of control orders. That was what was in dispute, not whether the public view was right or wrong.

[Lord Pannick]

I am very grateful. If the noble Lord accepts—I hope he does—that the public view on these issues is not determinative, although plainly it is important, we will not differ much, save that I suspect that in some sections of the community there is particularly grave concern about control orders. My concern is that that may well be undermining the extent to which those communities are prepared to co-operate with the police and the prosecution authorities in bringing forward evidence that is vital to secure the conviction of terrorists and information that can be used to implement the administrative process. That is my concern, and it is why I share the view of the noble Lord, Lord Macdonald, that we must not be complacent about these matters.

The noble Lord, Lord Henley, said in opening the debate that it is necessary to have the TPIM regime in those cases where prosecution is not possible. The noble Lord, Lord Howard of Lympne, eloquently supported that approach. I, of course, understand the force of that point, but we must surely accept that it is nevertheless difficult to reconcile this approach with the rule of law. It is an exception to the rule of law. Because it is an exception—perhaps a justifiable exception—it is vital that we ensure that the detailed implementing provisions in the Bill satisfy the test which the noble Lord, Lord Henley, stated at the end of his speech, and which I was very pleased to hear from him. As I understood him, the test is that the provisions must go no further than is absolutely necessary. I commend that test to the House as the right one to adopt in testing the provisions of the Bill. That is the first concern.

The second rule of law concern is that the Bill allows for the sanctions—that is what they are—to be imposed by a Minister and not by a court, albeit that the court has a reviewing role. If a TPIM procedure is appropriate outside the criminal process—I understand why it is—the rule of law surely requires that Ministers do not themselves make the initial decision on such matters as who a person may associate with and where they may stay overnight with the court confined, as it is under Clause 6(3), to determining whether the initial decision of the Minister is “obviously flawed”. Surely the role of the Minister should be to make an application to an independent judge. It should be for the Minister to produce the relevant evidence, perhaps in closed session with a special advocate, for the judge to assess. It should be for the court to decide whether the order should be made. In urgent cases, the court could no doubt apply a threshold test. We need to consider this seriously in Committee.

[Lord Hunt of Kings Heath]

My Lords, in relation to the point the noble Lord has just made, has he ascertained the view of the senior judiciary about whether they would wish to be drawn into making such decisions? There is a balance here as to whether it is more appropriate for the Home Secretary to make those initial decisions, subject to judicial scrutiny, because ultimately the Home Secretary is responsible for security issues and is accountable to Parliament. Does the noble Lord not think—and I think he is following the argument of the noble Lord, Lord Macdonald, on this—that there is a danger of moving responsibility from the Home Secretary to the courts? I wonder whether the judiciary would want to accept that responsibility.

[Lord Pannick]

The factual answer to the noble Lord’s question is no. Of course I have not asked the Lord Chief Justice about this matter, but under the Bill, it is, in any event, the responsibility of the judge at the reviewing stage to decide whether the TPIM should be maintained. The Government accept in the Explanatory Notes that that should be akin to an appeal procedure, not just a judicial review test. The judges will have that responsibility at the end of the process. It seems to me that they should have that responsibility from the outset of this process. I would say to the noble Lord and to the judges, with genuine respect, that it really is not for judges to determine what responsibility they should have in relation to this fine balance between the public interest and civil liberties. It is surely for Parliament to decide how the balance should be struck and for us to decide whether it is best struck by the courts having the role that I suggest.

There is a third respect in which the Bill offends against the rule of law. It allows for sanctions to be imposed without any proof of wrongdoing, even proof to the civil standard of the balance of probabilities. A TPIM notice may be issued by the Secretary of State where she,

“reasonably believes that the individual is, or has been, involved in terrorism-related activity”.

When he winds up, will the Minister please explain why these sanctions should be imposed on a person if the Secretary of State is unable even to show that it is more likely than not that the wrongdoing has been committed or will be committed by the individual concerned? If the security services, with all their resources, and even with the use of evidence that could not be disclosed in a criminal court, cannot satisfy the judge on the balance of probabilities that the individual is involved in terrorist-related activities, there is surely no justification for taking these legal measures against that person. Of course, surveillance measures may well be appropriate against such persons, but that is not what we are discussing in this Bill.

There is a fourth respect in which the Bill departs from the rule of law: it allows for sanctions to be imposed although the individual has no right to see the material on which the allegation is based. In the AF case in 2009, which has already been mentioned, the Appellate Committee considered how the principle of fairness under the rule of law should apply in the context of control orders. I declare an interest: I represented AF in the Appellate Committee. The Law Lords decided that a control order is invalid unless sufficient of the case against the individual is disclosed to him personally to enable him, if he can, to give instructions to his lawyers to answer the allegations against him, and if the Home Secretary is not prepared to disclose that much, the control order cannot be maintained.

The TPIM, like the control order, involves severe restrictions on the personal liberty of the individual. Therefore, it seems to me that a TPIM will inevitably be unlawful unless the AF principle—you must disclose as much as enables the person to have a proper opportunity to answer the allegations—is satisfied. Does the Minister accept that? If so, does he agree that the Bill should be clarified by stating that point clearly?

I make one final point. Like the noble Lords, Lord Hunt of Kings Heath and Lord Dubs, I think that it is appropriate, given all the matters that I have mentioned, the sensitivity of the issue and the extent to which matters will develop from year to year, that this House and the other place have the opportunity to consider these important matters every year, not only at the expiry of another five years.

Equality Act 2010 (Specific Duties) Regulations 2011

Lord Pannick Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Waddington]

My Lords, we have had a very good debate, and I would like to thank all those who have taken part. I will not detain the House for long. I am sorry to pick on the noble Lord, Lord Lester, but in his contribution, he very neatly illustrated all that is wrong with the present situation. His line was perfectly simple: “There is nothing wrong with the law, so there is no need for us to register our concern about abuses, as the noble Lord, Lord Waddington, wants to do in his amendment, and there is absolutely no need to register our concern, let alone do anything about the abuses”. The noble Lord, Lord Lester, can live quite comfortably with the injustices, but I have to tell your Lordships that I cannot. When the adoption societies were forced to close, that was in accordance with the law. It was a gross injustice. The noble Lord, Lord Lester, can live with it; I cannot. When Brighton and Hove City Council withdrew funding for a care home because it did not like the owners of the home refusing to ask people about their sexual preferences, that was a gross abuse of power. The noble Lord, Lord Lester, can live with that sort of abuse of power; I cannot. When people are sent home from work because they want to wear a cross to signify their religion, I think that that is a gross abuse of power. The noble Lord, Lord Lester, can live with it; I cannot. We have an opportunity this afternoon to show that we have not taken leave of our senses. We are concerned about these abuses. We want to make it plain to people—

[Lord Pannick]

My Lords—

[Lord Waddington]

I am going to finish now. We want to make it plain to people that there is real concern throughout the whole country. We stand for fair, not unfair, behaviour. Let us make that plain this afternoon by voting for my amendment. I am happy to press it now and I ask noble Lords throughout the Chamber to join me in the Division Lobby.

Police Reform and Social Responsibility Bill

Lord Pannick Excerpts

Thursday 14th July 2011 Lords Chamber

[Lord Thomas of Gresford]

The answer is no; it is obvious. That is why I do not propose to press this amendment to a Division. It is as simple as that. That is what I was about to say. The Director of Public Prosecutions has indicated that his views will find their way into the Code for Crown Prosecutors once the legislation has been passed. We are content with that. Failure by Crown prosecutors to follow the code renders their decision-making susceptible to potential challenge by judicial review. I repeat, to make myself completely clear: I do not propose to press this matter to a Division. However, I am interested in the Minister’s response on this important, and clearly slightly divisive, question. I beg to move.

[Lord Pannick]

If nobody else wishes to speak on this matter, I certainly will. I was very pleased to hear from the noble Lord, Lord Thomas of Gresford, that he and the noble Lord, Lord Macdonald of River Glaven, agree with the thrust of Clause 155. As he stated, it is absurd to allow for an arrest warrant to be issued without the consent of the DPP when a private prosecution cannot proceed without the express consent of the Attorney-General. I oppose Amendment 308A. Its purport would be to include in the legislation criteria that would tell the director how to exercise his discretion in giving consent to the issue of an arrest warrant. As we have just heard as a result of the cross-examination techniques of the noble Lord, Lord Carlile, it is clear—as I understand the noble Lord, Lord Thomas—that the Director of Public Prosecutions does not wish to see his discretion confined in the legislation.

Police (Detention and Bail) Bill

Lord Pannick Excerpts

Tuesday 12th July 2011 Lords Chamber

[Lord Pannick]

My Lords, when the three political parties, Justice, Liberty and, of course, the House of Commons all agree that this Bill deserves support, I am not going to express a dissenting opinion. But I am going to express concerns about the constitutional issues raised by the way in which the Government have proceeded. Parliament is being asked to enact emergency legislation to overturn a decision of the High Court. High Court judges, no doubt regrettably, occasionally make decisions that are perceived to be of enormous detriment to the public interest. But in all previous cases where this happened, an appeal was brought in the hope and expectation that the Appellate Committee of your Lordships’ House, now the Supreme Court, would overturn the High Court judgment, and only if that legal remedy failed was emergency legislation brought forward.

There are good reasons why emergency legislation is contemplated only if the appeal process has been exhausted. First, if the appeal succeeds, the problem disappears and Parliament does not need to become involved. Secondly, if the appeal fails, the judgment of the Supreme Court provides a much more informed basis on which Ministers and Parliament can address all aspects of the issue. Thirdly, and not least, surely constitutional propriety requires that the law should be interpreted by judges, not by Parliament. I understand that to be the point of the interventions made by the noble Lord, Lord Thomas of Gresford. It is all very well to have Members of the House confidently asserting, as they did last week, that Mr Justice McCombe’s judgment was wrong and that the Bill merely returns the legal position to what it was. It is all very well to have the noble Baroness stating today that the Bill returns the law, as she put it, to the status quo ante, but I subscribe to the apparently old fashioned view that it is for the Supreme Court to determine what was the legal status quo. Indeed, this case is even more surprising, because we are engaged in this exercise notwithstanding the fact that there is an appeal; it is pending in the Supreme Court, listed to be heard on 25 July. I shall come back to the timetable in just a moment.

The Minister said this afternoon that the decision to legislate in advance of the outcome of that appeal raises no constitutional issue, because Parliament, of course, is sovereign and competent to legislate at any time. She made the same point in her very speedy response to the report of the Constitution Committee, of which I am a member. I am sure that all members of that committee will be extremely grateful to the Minister for the urgency and speed with which she addressed the issues that we raised; but is it really the Government’s position that no constitutional issue about the respective roles of the judiciary and Parliament is raised when emergency legislation is introduced to overturn a decision of a lower court which is pending appeal to the Supreme Court and when the emergency legislation is being brought forward on the basis that it simply restores the previous position, which has therefore, it is implicitly suggested, been misunderstood by the High Court judge?

Of course, I understand that we cannot now wait for 25 July, because the Supreme Court may, on 25 July or very soon thereafter, dismiss the appeal and by then Parliament will be in recess, but that does not remove my concern about what has happened in this case. The vice is that nobody asked the Supreme Court to hear and determine the appeal more speedily. Appeal courts regularly hear and determine appeals very speedily indeed when it is necessary to do so. The timetable in this case is as follows: Mr Justice McCombe gave his oral judgment as long ago as 19 May. He refused permission to appeal on 25 May and on the same day he certified a point of law which enabled an application to be made to the Supreme Court for leave to appeal. That is seven weeks ago. It was not until 21 June that an application was made to the Supreme Court by the Greater Manchester Police for permission to appeal. For reasons which I still do not understand, the Government appear to have been unaware of the crucial significance of this case until about 30 June, even though Professor Michael Zander published an article pointing out the concerns on 18 June—he must have been aware of the problem some days before that.

The Supreme Court granted permission to appeal and expedited the case so that it will be heard on 25 July, but I have made inquiries of the Supreme Court and been told that neither the Greater Manchester Police nor anyone else asked the Supreme Court to hear the appeal earlier than 25 July because of the urgency and the need for Parliament to consider emergency legislation if the appeal was not to be heard earlier than 25 July. I am also told by the Supreme Court that, if it had been asked, it would of course have considered trying to hear the case more speedily because of the need to do so. That is what should have happened in this case. As soon as the importance of the issues was understood and the possible need for emergency legislation was recognised, an application should have been made to the Supreme Court for it to hear the case last week or at the beginning of this week on the grounds that, if the appeal failed, then and only then would the Government need, or possibly need, to bring before Parliament emergency legislation. There would then have been time to consider the matter before the Summer Recess and after the appeal if it were unsuccessful.

As noble Lords will know, the Attorney-General may intervene in any court proceedings to protect the public interest. The Secretary of State does not appear to have asked the Attorney-General to apply to the Supreme Court to hear the case more urgently. If such a request was made, it certainly was not acted upon. I should emphasise that, although the Supreme Court has very helpfully given me the information that I have recounted to noble Lords—I am very grateful to Jenny Rowe, the chief executive, for that—the views that I express on these matters are mine alone.

My concern is that this Bill is a most unfortunate constitutional anomaly. Parliament should not normally be asked to consider emergency legislation to overturn a High Court judgment when there is a pending appeal on the very issue which is before the highest court in the land. That should not happen unless every effort has been made to persuade the Supreme Court to hear an even more urgent appeal.

There is simply no precedent that I am aware of, and understandably so, for what we are doing today—reversing a judgment of the High Court with retrospective effect on the basis that we are satisfied that we are restoring a status quo, even though a Supreme Court hearing is pending and no application has been made for it to hear the matter more speedily.

I have four questions for the Minister. First, is she aware of any previous occasion when emergency legislation has been brought forward to repeal the effect of a High Court decision without first appealing to the Appellate Committee, now the Supreme Court, and asking that court to hear the matter with considerable expedition? Secondly, can she explain why, before coming to Parliament, the Secretary of State apparently did not ask the Attorney-General to apply to the Supreme Court to hear this appeal with considerable expedition so that it could it take place early in July and so that, if it were dismissed, we would still have time if necessary to consider emergency legislation? Thirdly, what steps has the Secretary of State now taken to ensure that all police authorities—indeed, all other public authorities—know that if the High Court gives a judgment on a matter of public interest which causes general concern it is vital that it is communicated to central government without delay so that steps can urgently be taken, if appropriate, to ensure that an appeal is heard with great expedition? I ask that question—I do not attribute blame—because there appears to have been considerable delays in this case in communicating concerns from Greater Manchester through to Whitehall.

My fourth and final question is this: what is going to happen if the Supreme Court hears this appeal on 25 July and if the appeal succeeds? Will the Government then bring forward in the autumn a short Bill—even shorter than this one—to repeal this emergency legislation as entirely unnecessary and to remove from the statute book a most unfortunate constitutional anomaly?

--- Later in debate ---

[Baroness Browning]

My Lords, this has been a constructive debate. I welcome the support for the Bill from the opposition Front Bench. I am particularly grateful to the noble Lord, Lord Hunt of Kings Heath, for his remarks in his opening speech. He raised some issues that I shall touch on since they were also picked up by other Members of your Lordships’ House.

I shall reiterate something about the scope of the review of bail. This was raised not only by the noble Lord, Lord Hunt, but by the noble Lords, Lord Thomas of Gresford, Lord Clinton-Davis and Lord Dear, and the right reverend Prelate the Bishop of Chester. When we look at pre-charge bail later this year, it will be to consider the issues raised today, including the overall time limit. However, we will need to ground that review in evidence. At the moment, much of what we have heard is anecdotal. Therefore, any and all input to that review in advance of its terms of reference being drawn up will be welcome. I can tell your Lordships’ House and the wider community today that, further to the point raised by the noble Lord, Lord Hunt, about members of the public, there is a wide community of interest in this whole area. We would welcome, even before the autumn, any written submissions that will help us to set the terms of reference for that review, which will be wide and far-reaching. I hope it is of help to the House to know that.

I was asked about what legislation might follow. I say to the noble Lord, Lord Rosser, that it is a bit premature for me to identify any legislation that may come from the review. There might well be something, but until we see the terms of reference, have gathered that information and can see how to take the matter forward, it would be premature for me to say today what legislation might be needed.

A lot has been said about the Home Office and timeframe involved by several noble Lords, including the noble Lords, Lord Hunt of Kings Heath and Lord Pannick. I hope the House will bear with me but it might be helpful, since a lot of attention has been paid to this, if I read out for the record of the House the situation as regards the timeline. To set that in context, the wider consequences of the ruling could not be considered until the judge issued his written ruling, setting out the reasons for his decision. That judgment was issued on Friday 17 June. Most importantly, even at that stage, its wider consequences were not readily apparent. The judge himself reiterated his belief that the consequences would not be as severe as might be feared in impeding police investigations in the vast majority of cases. It was only as the complex ruling was examined early the following week by ACPO, the CPS and Home Office officials that the full consequences became apparent. However, I will, for the record of the House, read out the points in this whole process and those at which the Home Office—both officials and Ministers—was involved.

[Lord Pannick]

Can the noble Baroness explain why the Home Office was unable to understand the implications and importance of this decision on 17 June, when Professor Michael Zander was able to publish an article on this subject on 18 June and must, therefore, have understood the implications some time before that?

[Baroness Browning]

If the noble Lord will bear with me, I shall begin at the beginning and work my way through the timeline. Because we have had such a short debate, it is very important to put this on the record so that noble Lords have the full information. I will read it slowly because a lot of dates are involved.

On 5 April 2011, the district judge refused the Greater Manchester Police’s application for an extension to a warrant of further detention in the Hookway case. On 19 May, in a judicial review, Mr Justice McCombe, sitting alone at the Divisional Court in Manchester, upheld the district judge’s ruling in an oral judgment. I should point out that he sat alone because an early hearing was requested, but only one judge was available to sit; so the request was made—a point referred to by the noble Lord, Lord Rosser. On 25 May, the Greater Manchester Police sought initial views from Ann Whyte QC, who stated that the judgment may relate only to specific cases or warrants of further detention. Yet again, the legal advice was that this might have quite a discrete interpretation in terms of its wider implementation. The following day, 26 May, the Greater Manchester Police invited Home Office officials to become an interested party in an effort to seek leave to appeal to the Supreme Court and forwarded papers for consideration. The written judgment was not of course available at that point—26 May.

As I am reading this, I realise that it is all right for me—I have a piece of paper in front of me. For the purposes of clarity, when I have read this into the record I will also place it in the Library of the House.

On 17 June, the Greater Manchester Police, as we have heard, received the written judgment from the High Court and forwarded a copy to the Home Office on that day. That was a Friday. On Monday 20 June, the Greater Manchester Police and Home Office officials studied the written judgment, and the broad scope of the problems presented by the judgment first started to become apparent. Until that point, there had been some consideration—not only because of the QC’s opinion but because of the wording of the judge in his oral judgment—that this matter was not going to be as far reaching as it has subsequently proved.

It was on 20 June that the GMP and Home Office officials started to consider the written judgment. The next day, 21 June, the GMP invited ACPO representatives and the Home Office officials to meet to discuss the implications. Home Office officials agreed with ACPO to convene an urgent meeting to discuss the implications, which took place the following day. ACPO, the CPS and the Home Office officials met at the CPS’s headquarters. The full magnitude of potential difficulties then became quite apparent. The following day—we are talking about one day following the other—ACPO alerted the CPS chief executive, and ACPO issued notification of judgment to all chief constables. On 24 June, the ACPO lead met with the CPS director-general, and Home Office Ministers were informed at that point. ACPO commissioned advice from Clare Montgomery QC, and ACPO issued interim guidance to all chief constables. That was a Friday.

The following Monday, 27 June, Clare Montgomery QC’s advice was received in conference by ACPO, the CPS and Home Office officials. ACPO issued further guidance to all chief constables. ACPO commissioned forces to provide real-life examples of the impact of the ruling to support the case for urgent legislation. On 29 June, ACPO commissioned further legal advice from Steven Kovats QC. The following day, ACPO received that advice from the barrister and presented its case for urgent legislation to Home Office Ministers. On the same day, the Minister for Policing and Criminal Justice made an Oral Statement to the House of Commons on the need for urgent legislation. To pray in aid the words of ACPO lead Jim Barker-McCardle:

“It was only when ACPO received the written judgment on 17 June, and a number of senior people were able to spend some significant time considering the issue, that the seriousness of this became apparent. As the ACPO lead on this issue, I was not going to advise Ministers that the police service needed, in exceptional circumstances, fast-track legislation until I had satisfied myself first that the legislation was necessary and that the police service could not operate effectively in light of this judgment, beyond the very short term”.

I hope that that is helpful to the House and I am sorry if it is lengthy and detailed.

--- Later in debate ---

[Baroness Browning]

My Lords, I do not doubt that for one moment. I shall cite him as often as possible on behalf of the Home Office.

I turn to the noble Lord, Lord Pannick, who talked about there being no precedent for the fast-track legislation in front of us. There is a precedent for this. A High Court judgment in July 2002 in the case of Hwez and Khadir held that the practice of granting temporary release, subject to restrictions, to people detained under the Immigration Acts was unlawful. The Government legislated to overturn that judgment in Section 67 of the Nationality, Immigration and Asylum Act 2002. Subsection (3) provides:

“This section shall be treated as always having had effect”.

The purpose was to avoid a situation where people subject to immigration controls who do not have leave to remain but who cannot lawfully be detained were left at large without there being any way of keeping track of them. Retrospection avoided the need to reassess the cases of persons on temporary admission on an individual basis.

As a member of the Constitution Committee, the noble Lord, Lord Pannick, has raised issues that replicate some of those that the Constitution Committee raised. I notice that the Constitution Committee may return to the issue after the Bill is enacted and the Supreme Court has heard the appeal by Greater Manchester Police. We will, naturally, consider carefully any further report that comes forward from the committee.

The noble Lord also asked what steps are now taken to ensure that police and public authorities report judgments to central government as soon as possible. There is an assumption there that the Greater Manchester Police should have acted quicker in alerting the Home Office to that judgment. As I pointed out in explaining the timeframe, we were aware and officials were engaged, but under a set of circumstances that was perhaps not quite clear to the House under the legal advice at the time. I do not disagree with the principle of what the noble Lord said. Timeliness is very important; lessons can always be learnt. We need to look forward to see things coming over the hill and not just wait to see what happens, when it is too late. That is my understanding of his question. I hope that I have satisfied him by outlining the timeline, but the general principle of what he asked, which is about the timeliness of information-sharing between agencies and authorities, is important, especially in issues as serious as this. I take his point; I know that, in the Home Office, we will endeavour to ensure that it is not overlooked.

On the question of the Supreme Court, although Mr Justice McCombe gave his judgment orally in May and certified the point of law, it was not possible for police counsel to prepare the appeal papers until the written judgment available on 17 June. As I have explained, an early hearing was requested but 25 July was allocated by the Supreme Court. An early date having been allocated, neither the GMP nor the Home Office believed that there was any prospect of an even earlier date being allocated.

The noble Lord also asked why the Secretary of State did not ask the Attorney-General to hear the case earlier in the public interest. The Secretary of State was made aware that the GMP was appealing to the Supreme Court for an expedited hearing. Subsequently the police also requested that the court stay the effect of the Hookway judgment. The court gave an expedited hearing date of 25 July, which, as I have said, is earlier than the original date. The Home Secretary felt there was no reason to think that government intervention would make that hearing even earlier. That is the case and I do not think that I can add any more to that. Clearly the Home Secretary did not feel it appropriate to approach the Attorney-General because a concession had already been given with the date agreed for the hearing.

[Lord Pannick]

The noble Baroness is being very patient indeed. We do not have a Committee stage on this Bill, so I hope she will excuse me if I press her slightly on this. Does she agree in principle that it is highly desirable, before emergency legislation is brought before Parliament, that every step is taken to try to ensure that the Supreme Court is asked to hear a case with very considerable expedition so as to avoid emergency legislation if at all possible?

[Baroness Browning]

I certainly do not disagree with the noble Lord on the general principle, and I will take his point back with me.

Police Reform and Social Responsibility Bill

Lord Pannick Excerpts

Thursday 16th June 2011 Lords Chamber

[Lord Carlile of Berriew]

My Lords, we are proceeding in the usual orderly way of your Lordships’ House and there remain two amendments that have not yet been spoken to. The first of those is the new clause proposed in Amendment 246, which is in my name and those of other noble Lords, who have been very helpful in our approach to it. Then there is an amendment to that new clause in the name of my noble friend Lady Tonge. I say at the outset that I accept entirely her amendment to my proposed new clause. It seems eminently sensible. The proposed new clause is about giving an account to Parliament of the progress in war crimes cases. I hope the House will indulge me for a few minutes in speaking to this. I shall then say a few words about the matters that have been discussed hitherto. However, unlike my noble friend Lord Thomas of Gresford, I shall not give further details of what was designated by him to be a private conversation that took place earlier in the Bishops’ Bar.

There is a specialist war crimes team within the UK Border Agency, which is a very good thing. However, unlike many European and other countries, there is no specialist war crimes unit in either the police or the prosecution services. Other noble Lords and I were involved in all-party and non-party negotiations with the previous Government to expand the universal jurisdiction. Those negotiations were successful. However, they were successful subject to the insistence of the previous Government that what is in Clause 154 should be inserted into the law. All those involved in those negotiations accepted that at the time as being a realistic argument.

As I have said, there is no specialist war crimes unit in either the police or the prosecution service in any part of the United Kingdom. Instead, in England and Wales responsibility for war crimes is shared by SO15—Counter Terrorism Command in the Metropolitan Police—and the equivalent section, headed by Sue Hemming OBE, in the Crown Prosecution Service. The police team responsible for war crimes is also tasked with counterterrorism policing relating to dissident republican groups from Ireland. It therefore has an enormous amount of work to do and deals with a fast-moving scene, irrespective of war crimes.

What does the proposed new clause seek to do? It requires the Government to report annually on all legal action taken against suspected war criminals in the United Kingdom, and on the assistance given to other states and international criminal tribunals. I should argue to your Lordships that it is entirely reasonable and proper that the public and Parliament should be able to take stock of progress in war crimes on a regular basis. Taking stock in that way—having accountability of that kind—will ensure that the Government bestow on the relevant police section the resources that are needed to prosecute war crimes. There have been no prosecutions for war crimes since the prosecution in 2005 of an Afghan warlord who was found living in south London. However, a Peruvian was arrested in Tiverton in Devon in March 2011. He is accused of torture and crimes against humanity for his alleged role in more than 100 killings as a member of a death squad, and is currently on police bail. We hope to see some progress in that case within, of course, the usual legal proceedings.

It is remarkable, given the number of war criminals who are believed to be living in the United Kingdom, that there have been no other prosecutions since 2005. It suggests that insufficient resources are being given to the task. After all, one should bear in mind that, since 2005, the UK Border Agency has taken immigration action against 360 suspected war criminals, while the Metropolitan Police is currently pursuing 29 viable lines of inquiry. The 360 suspects come from a number of countries, including Iraq, Afghanistan and the former Yugoslavia. The UK has also received extradition requests for four subjects from Rwanda who won their extradition proceedings and remain in the United Kingdom.

In addition to the 360, I was visited this afternoon by a representative of an organisation in Bangladesh, which is not included in the list that I enumerated as 360 cases. It is believed that there are several Bangladeshis who have been able to take refuge in this country who committed vast atrocities during the 1971 war in that country. They, too, should be the subject of investigation.

In sum, the purpose of the proposed new clause is to ensure that the necessary progress is maintained in dealing with war crimes and crimes against humanity. I hope that my noble friend the Minister will give some encouragement to myself and others who they put their names to the amendment in the hope that we will see more action promised and in due course taken on this front.

I now turn to the amendments proposed to Clause 154. Despite the eloquence of my noble friend Lord Thomas of Gresford, I am disappointed that my noble friend Lord Macdonald of River Glaven was not here to speak to his amendment this afternoon. I know that he has a busy diary and I am sure that he is doing something very important. But I am glad that we have the wisdom of the noble and learned Lord, Lord Goldsmith, and the noble and learned Baroness, Lady Scotland, who will inform the House of their experience.

The importance of my noble friend Lord Macdonald of River Glaven and his potential contribution is that he is the immediate past Director of Public Prosecutions. I am working on the assumption that he has not consulted his successor, because what is proposed in his amendment, spoken to by my noble friend Lord Thomas, is inconsistent with what has been said very cogently to parliamentary committees by the current Director of Public Prosecutions, Keir Starmer QC.

I would say this to my noble friend if he were here, but were he still the Director of Public Prosecutions I do not believe that he would be prepared to support an amendment of this kind. It is quite simple in my view—I seem to be the only one from the Liberal Democrat Benches who is supporting our Government on this matter this evening—but the simplicity needs to be stated. The Director of Public Prosecutions and his senior staff make charging decisions every single day of the week. That is what they do a lot of the time and it is done at the most senior level. The suggestion that there would be a delay is a canard.

I do not think that I have to declare an interest—indeed, it would be sexist to do so—when I say that my wife works in a senior position for the Crown Prosecution Service, but living with a shared telephone I am well aware of the urgent decisions that are considered in great depth and taken at all kinds of unsocial hours and on all matters of urgency. The suggestion that there would be a delay is simply quite wrong. Furthermore, the Director of Public Prosecutions and his senior staff have enormous experience in making charging decisions. They make all the important charging decisions that take place in this country—or almost all; they should make all, if they are referred to them by their junior staff. In so doing, they apply the Crown Prosecution Service code.

These amendments, particularly that spoken to by my noble friend Lord Thomas of Gresford, attempt to fix in statutory stone something that is much more evolutionary—and needs to be. The Crown Prosecution Service code has gone through many changes. It is reviewed and changed regularly. Since Keir Starmer QC became DPP, it has been changed again and there may be good reasons for changing it in future. Furthermore I hope, and indeed apprehend, that the Director of Public Prosecutions would want to consult widely on the universal jurisdiction and might well wish to issue a code of practice. That might involve some changes to the current code. After all, the Crown Prosecution Service has a special code for dealing with rape cases which is non-statutory. It would be extremely foolish to make it statutory because it would be prevented from change. The same applies to the universal jurisdiction.

I say to my noble friend Lord Thomas of Gresford, in the kindest possible way, that the noble and learned Lord, Lord Goldsmith, with a single kick scored a hat trick when he demonstrated that the amendment put forward by my noble friend, and indeed by my noble friend the former Director of Public Prosecutions, is fundamentally flawed in its text. It shows exactly the danger of attempting to put into tablets of stone this sort of provision, even when it has been drafted by lawyers as distinguished as they.

I say to noble Lords who have tabled amendments to Clause 154 that we have a responsible Crown Prosecution Service, that we have a responsible and able Director of Public Prosecutions, and that it has been decided that this should be done not by the Attorney-General but by the Director of Public Prosecutions, who is a completely apolitical figure. It seems that the Government have got this exactly right. I hope that the Minister will not budge in his determination that Clause 154 should be unamended.

[Lord Pannick]

I was a witness to the discussions in the Bishops’ Bar between the noble Lords, Lord Thomas and Lord Carlile. I will not give evidence; I claim immunity. I welcome Clause 154. It will remedy a serious anomaly in the current state of our law. The anomaly is that although a prosecution in this sensitive and important context requires the consent of the Attorney-General, a person may be arrested and detained without any consideration as to whether such consent is likely to be given. It has been suggested in this debate that there have been very few cases of that. So what is all the fuss about? Why do we need to change the law? The noble Lord, Lord Campbell-Savours, made that point in opening and the noble Baroness, Lady D’Souza, made the same point.

I declare an interest. Over the past few years, I have advised, pro bono, a number of individuals who have been deterred from visiting this country by reason of the state of our law. They have been deterred even though there was no realistic prospect whatever of the Attorney-General giving consent to a prosecution. These people would not have been protected by diplomatic immunity because that applies only to certain very senior Ministers. They were deterred from coming to this country because of the risk that material would be put before a magistrate at an urgently convened hearing which might result in them being arrested and detained for a couple of nights, with all the inconvenience and embarrassment that that would cause, until this unhappy matter could be sorted out by the Attorney-General confirming that he or she did not intend to prosecute. So it is quite wrong to suggest that the current law has no serious effect. I should also mention that I have also advised, again on a pro bono basis, Jewish community groups in this country concerned about this aspect of the law.

--- Later in debate ---

[Lord Campbell-Savours]

As a non-lawyer, I wonder whether I can ask the noble Lord a lay man’s question. What kind of considerations would the public interest considerations be in the application for a warrant in a case like this? What would the DPP have in mind?

[Lord Pannick]

The DPP dealt with that matter in the evidence that he gave to the Public Bill Committee. He was very reluctant to address hypotheticals but said:

“There may be a case where there is a very powerful argument … the example that is given by others and therefore not from my mouth is where you have a fraught and difficult peace negotiation that has to take place in 24 hours in a country and you need international leaders there. I do not know. There may be a situation where you would have to carefully consider the arguments one way or the other”.—[Official Report, Commons, Police Reform and Social Responsibility Bill Committee, 20/1/11; col. 134.]

[Lord Campbell-Savours]

I—

--- Later in debate ---

[Lord Pannick]

I will just finish my answer, then I will happily give way to the noble Lord. If he is saying that public interest has no role in this area then his quarrel is with the code for Crown prosecutors, but his amendment does not address that.

[Lord Campbell-Savours]

When the noble Lord said that the DPP was totally independent, he appeared to be saying that they would not have political considerations in mind. If peace negotiations were about to take place, surely that is a political consideration. It is precisely those sorts of areas that might cause the public some concern, even though the justification may be merited.

[Lord Pannick]

I am grateful to the noble Lord. It is of course the experience of all those who have held the sensitive and difficult office of Director of Public Prosecutions and Attorney-General—we are fortunate to have two former Attorney-Generals here—that they have to address these sensitive and difficult questions. There is nothing unusual about this area that singles it out from the problems that are faced, if not on a daily basis then I am sure on a weekly or monthly basis, by those who hold that office. I am sure that they will be able to assist the House regarding this matter.

My point is that the noble Lord’s amendment seeks to give an advisory role to the DPP in relation to a matter that the magistrate simply has no role under existing law to determine. I suggest with respect that that is not a sensible way to proceed, nor would it be sensible to confer on the magistrate a new role, which the magistrate has never had, of having to consider the criteria in the code for Crown prosecutors of whether there is a realistic prospect of conviction or whether the public interest justifies a decision being taken.

The other amendment, Amendment 245AA, would include in the legislation criteria that told the DPP how to exercise his discretion. It would be quite unprecedented for Parliament to tell the DPP what criteria to adopt in exercising his functions, nor do the courts do so. Indeed, it was highly controversial that the Appellate Committee of this House decided in July 2009 to require the DPP even to publish guidelines on whether he would prosecute for assisting a suicide. I declare an interest as counsel for Mrs Purdy in that case. Parliament and the courts have, for good reason, preferred to leave the DPP to develop his own criteria in the code for Crown prosecutors. Amendment 246 raises very different issues—

[Lord Thomas of Gresford]

Does the noble Lord agree that it would surely be right that the DPP should apply the same standards when he is considering one of these cases that come from abroad as he would for a person within the domestic jurisdiction?

[Lord Pannick]

I certainly agree that the DPP should apply the same standards in the sense that he asks whether there is a realistic prospect of conviction and whether the public interest justifies a prosecution. The application of those principles, though, will inevitably depend on all the facts and circumstances of the individual case. It would be unprecedented for Parliament to tell the DPP in detail how to apply his discretion, and there is nothing in what the DPP said to the Public Bill Committee that should cause concern to noble Lords about the manner in which he proposes to exercise this new power if he is given it.

[Lord Phillips of Sudbury]

I think it is fair that I ask the noble Lord this. He has said several times now that the consent of the Attorney-General to one of these prosecutions is required. My understanding, and I want to get this quite clear, is that the Attorney-General can issue a nolle prosequi that his consent is not required.

[Lord Pannick]

It amounts to the same thing. If the Attorney-General takes the view that it is inappropriate for a prosecution to continue, they will say so. The purpose of the provision of English law is to ensure that the Attorney-General is able, in this sensitive and important context, to take a view on whether it is appropriate.

[Lord Phillips of Sudbury]

My Lords, to pursue the point, there is a vast difference, with respect, between getting the consent of the Attorney-General as a prerequisite and the right of the Attorney-General to intervene by way of nolle prosequi. The noble Lord is mistaken in what he draws from that.

[Lord Pannick]

My understanding is that consent is required. In any event, with great respect, I do not see the practical difference. Other noble Lords will assist the Committee in that respect.

[Lord Goldsmith]

My Lords, this is a delicate and sensitive matter and I will spend a few moments on it. I entirely understand why noble Lords who have spoken have raised the points that they have. There are some footnotes as well, but two major things emerge from the debate so far. First, it is interesting that, despite the fact that certain noble Lords have said, “Let’s leave the system exactly as it is, there’s nothing wrong with it”, everybody who has spoken so far has proposed a change to the present system, either by supporting the Government or by tabling amendments as the noble Lord, Lord Campbell-Savours, has done—

Identity Documents Bill

Lord Pannick Excerpts

Tuesday 21st December 2010 Lords Chamber

[Baroness O'Cathain]

No, I am not. Please listen to what I have said. The self-righteousness coming from the other side is quite sickening.

I abstained in the debate because I felt that there was a moral justification for the money to be repaid to the people who were conned by those opposite into spending money on ID cards. There is no point in denying that by trying to be the people who support everybody out there and by adopting a high moral tone and self-righteousness. Rubbish.

[Lord Pannick]

My Lords, I hope that I will not be accused of being self-righteous if I say that I share the concerns that have been expressed by the noble Lords, Lord Hunt of Kings Heath and Lord Howarth of Newport.

Behind the moral issue and the issue of principle, I think that there is a legal issue. The Minister will recall, as mentioned by the noble Lord, Lord Hunt of Kings Heath, that it was suggested to her on the previous occasion when we debated the matter that she might wish to take specific advice from the law officers as to whether the Government’s approach is consistent with this country’s obligations under the European Convention on Human Rights. The concern, which is very simple indeed, is that the Bill removes a property right without any compensation, in breach of Article 1 of the First Protocol to the ECHR and, therefore, that the amendment that noble Lords approved was not only wise but necessary.

When we last debated this matter, the Minister’s answer was that the ID card remained the property of the Government and therefore there was no difficulty. With respect, however, that is no answer at all. It is very well established in the case law of the European Court of Human Rights—indeed, it is common sense—that, when the Government grant a licence or an authorisation to do something, that of itself establishes a property right. If that licence or that authorisation is then removed by the Government, contrary to the expectation that has been created, the Government have a duty, other than in the most exceptional circumstances, to pay compensation. That legal obligation is precisely consistent with the substance of our debate on the previous occasion and with the amendment that was approved by noble Lords.

I therefore join the noble Lord, Lord Hunt of Kings Heath, in asking the Minister to explain whether she has indeed taken specific advice from the law officers, to deal in more detail with the substance of this concern and to explain to noble Lords how it can be that what the Government intend to do is consistent with this country’s international obligations.

[Lord Campbell of Alloway]

If there is a breach of human rights, of course that is a worry, but it is the job of the Court of Human Rights to put it right. If we are concerned with a matter of principle—I understand what the noble Lord is saying—surely the policy of a previous Government cannot be constitutionally binding on the next Government. Whether it is unfortunate and whether there is criticism, the policy of this Government was in fact accepted by this House. If we have got it wrong and the noble Lord is right, that will not affect the validity of this piece of legislation in this country. However, if an application is later made to the Court of Human Rights, it may decide that the point of principle here is that this Government—I do not always agree with them or, indeed, with any Government—have the entitlement in constitutional principle to reject the advice of the previous Government.

[Lord Pannick]

I have, of course, enormous respect for the knowledge and judgment of the noble Lord, Lord Campbell of Alloway, but on this occasion, with respect, I do not agree with his opinion. It is part of the law of this country that the Minister, like all other Ministers, has a positive duty under the Human Rights Act to confirm to this House and the other place that the legislation that the Government are bringing forward is consistent with the European Convention on Human Rights. That is the law of this country. I respectfully ask the noble Baroness to tell this House, consistent with her duty under the law of this land, why she is confident—if she is—that this proposal is consistent with our international obligations.

[Baroness Hamwee]

On all previous occasions when we discussed this matter, I was honest with the House that I had some difficulty with it, but is what was the substantive issue then in fact the issue for today? I have been waiting to hear some comment on the Commons reason for disagreeing with this House’s amendment. The noble Lord, Lord Howarth of Newport, addressed the issue of financial privilege and suggested that we should not accept it. However—and this is an entirely personal view—I think that this may well be an issue that goes to heart of the relationship between the two Houses. I have grave doubts as to whether we should tackle that convention on the back of this Bill. This is an important, stand-alone issue, but it is not one that we should seek to overturn in this manner.

--- Later in debate ---

[Baroness Neville-Jones]

I repeat to the House that the Government believe that this legislation is compatible with the European Convention on Human Rights. I do not think that I am obliged to say whether or not we have consulted the law officers, nor to say what legal advice we have taken. However, we believe it to be compatible with the convention. As we take our duties seriously, that is a clear statement to the House that we believe that we are acting lawfully.

[Lord Pannick]

Does the Minister appreciate that the question is not simply whether or not the Government are satisfied that the Bill that they are putting forward is compatible with the convention? Will she address the point that on the previous occasion, and in the debate today, a specific concern has been raised about why it is feared that the Government’s position is incompatible with the convention? That is why it was suggested to the Minister on the previous occasion that specific advice should be taken from the law officers on this precise point. I am sure that it would assist the House if the Minister were at least able to say whether she went back to the law officers in the light of the debate on the previous occasion, and in the light of the specific concern that was raised, in order to assure herself and noble Lords that that point had been considered and the Government were satisfied with regard to it.

[Baroness Neville-Jones]

I do not think that I am able to enlighten the House any further on the question of taking legal advice. We believe our actions to be lawful.

--- Later in debate ---

[Baroness Neville-Jones]

This is a matter for the House, but I should like to answer the other points that have been made.

[Lord Pannick]

I am very grateful to the noble Baroness but she really has not answered the substance of the concern. I suggest that the only way she can do that is by telling the House whether or not the law officers have been consulted. It is a matter for the House what step to take but I suggest to the noble Baroness that the appropriate step for it to take is to adjourn further consideration of this matter until she is able at least to assure it that the concerns that have been expressed by a number of noble Lords have been considered by the law officers. I entirely accept that there is no obligation on the Government to tell the House what the advice of law officers is but it must be assured that they have been consulted on this matter. Therefore, I ask the noble Baroness to accept that the appropriate step is for further consideration to be adjourned.

[Earl Attlee]

I think that it is appropriate for the Minister to carry on with the rest of her speech, answer the other questions that noble Lords have asked and wait to see whether further inspiration arrives.

Identity Documents Bill

Lord Pannick Excerpts

Tuesday 21st December 2010 Lords Chamber

[Lord Howarth of Newport]

My Lords, I will speak briefly about two issues. We certainly accept the convention that the noble Baroness is under no obligation to tell the House what the advice of the law officers was. However, I am surprised, not least in the light of the earlier observations by my noble and learned friend Lord Morris of Aberavon, to hear her assert that she is under no obligation to tell the House whether she received advice from the law officers. I wonder whether part of the reason for her difficulty earlier in the afternoon was that the advice of the law officers was not consistent. Perhaps they disagreed among themselves, which put her in an embarrassing and difficult position. Perhaps she would be willing to cast any light on that; if she would, I think that the House would be interested.

The second issue is the one that I raised earlier. I am genuinely unclear, from what the Minister said this afternoon, whether the Government are asserting financial privilege and hiding behind a ruling of the Speaker and whether they are content that this extension of the doctrine of financial privilege to cover matters of expenditure as well as measures concerned with revenue raising is an appropriate new doctrine for them to espouse and to use for their political convenience. As I suggested earlier, if that is the case, there are large implications for this House, which we should ponder and take seriously. Will the Minister tell us in plain terms whether the Government consider that this is a matter of financial privilege and therefore outside the authority and competence of this House to vote on?

[Lord Pannick]

My Lords—

[Baroness Anelay of St Johns]

My Lords, perhaps I might remind the House that we have in a sense invented procedure this afternoon to assist the Minister to make a statement of explanation. Noble Lords will understand that of course we expect a noble Lord on the opposition Front Bench to be able to put the opposition view. Other noble Lords might wish to put very brief questions. We allowed a little latitude to the noble Lord, Lord Howarth. Perhaps we might now return to the normal convention of making brief interventions so that my noble friend can return to the assurance, which she has given very clearly to the House, that at all times she has taken the appropriate legal advice and, as she has tried to assure the House, that the Government have acted properly. Of course I understand that matters of parliamentary procedure and privilege, and constitutional issues, have been raised by the opposition Front and Back Benches. I also understand that these will be debated on another day. Our minds today are concentrated on one Bill and one or two Motions.

[Lord Pannick]

I am grateful to the noble Baroness. I shall confine myself to brief questions. First, the Minister indicated that legal advice had been taken. Will she accept that there is a difference, which concerns noble Lords, between taking legal advice on these matters and taking legal advice from the law officers?

The second matter arises out of the noble Baroness’s statement that it is a convention that Ministers do not confirm whether or not legal advice has been sought from the law officers. Does she accept that it is a different matter if she has given a specific assurance to the House that legal advice will be sought from the law officers and that it is entirely appropriate that she should confirm to the House whether her own assurance has been fulfilled?

My third and final question is: will she also accept that it is not a universal rule that the Government do not tell the House whether legal advice has been sought from the law officers? There are many, many examples of the Government telling this House and the other place that legal advice has been sought from the law officers. Professor Edwards’s book, Law Officers of the Crown, gives many examples, the most recent of which, of course, relates to the legality of the invasion of Iraq.

[Baroness Neville-Jones]

My Lords, it is not clear to me how much more help I can be to the House. I have tried very hard to be of help. Perhaps I can take up the points that have been made. I was asked in the House—I am looking at Hansard—whether the advice was from the law officers. I said that I was not sure but would seek to confirm it. That is indeed what I undertook to do. I am advised that I am not in a position to disclose either the fact of seeking that legal advice or its contents. That is why I am not able to take what I have said to the House this afternoon any further. The only way that I could do that would be—