Anti-social Behaviour, Crime and Policing Bill
Lord Pannick Excerpts(12 years, 6 months ago)
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Lord Pannick (CB)
I add my thanks to the Minister, the whole ministerial team and the Bill team for the remarkably constructive way in which they have addressed all the many issues that have arisen under this complex Bill. I ask the Minister one question. Will the welcome sense of harmony that has been displayed today extend to the amendment that the House carried last week on the definition of when compensation will be paid for a miscarriage of justice? Is the Minister able to tell the House whether the Government will commend that amendment to the other place?
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this gives me an unexpected opportunity to come to the Dispatch Box. On behalf of the Ministry of Justice, I would welcome a conversation with the noble Lord, but I can go no further than that.
Anti-social Behaviour, Crime and Policing Bill
Lord Pannick Excerpts(12 years, 6 months ago)
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Lord Pannick (CB)
My Lords, Amendments 93A to 93D are in my name and the names of the noble Lord, Lord Lester of Herne Hill, the noble Baroness, Lady Kennedy of The Shaws, and the noble and learned Lord, Lord Hope of Craighead. They concern the power to detain people at ports and airports and the power to copy and retain their personal electronic data, and propose that these powers should be exercisable only if the officer reasonably suspects that the person concerned is involved or has been involved in acts of terrorism. Your Lordships will know that the application of the existing powers is currently the subject of litigation in the David Miranda case concerning the detention of the partner of a journalist on the Guardian newspaper, but I do not want to address the circumstances of that case. I want to focus on the principles.
I have no quarrel with the Bill recognising that the power to stop, question and search at a port or airport should be exercisable whether or not there is any reasonable suspicion. However, I believe that the more intrusive powers of detention of persons and retention of their electronic data must be subject to greater safeguards. The Joint Committee on Human Rights has so recommended in its very helpful reports, most recently in its ninth report, published on 6 January. The Terrorism Act 2000, which Schedule 8 to this Bill would amend, allows for detention without any need for the officer to have any suspicion, reasonable or otherwise. The Bill would allow for detention for questioning for up to six hours—a very substantial interference, on any view, with individual liberty.
The independent reviewer of terrorism legislation, Mr David Anderson QC, has stated that there should be greater protection for individuals before they are detained or their electronic data are copied. In his evidence to the Joint Committee, at paragraph 28 of the ninth report, Mr Anderson said:
“It is hard to think of any other circumstances in which such a strong power may be exercised on a no-suspicion basis”.
Indeed, the Joint Committee noted that the Government were unable to give any other examples of such intrusive powers being exercisable without a requirement of some kind for suspicion.
Mr Anderson concluded that the threshold should be subjective suspicion on the part of a senior officer. The Government have not brought forward an amendment to introduce even that limited test, but, in any event, I do not think that such a control would be adequate in the context of the detention of persons and the copying and retention of personal electronic data. As the Joint Committee concluded, a subjective suspicion threshold is no safeguard whatever. Simply to require that an officer in fact suspects provides no independent scrutiny of the officer’s reasoning. The development of administrative law over the past 40 years confirms that subjectively worded powers are simply incompatible with effective legal control.
It is true that Mr Anderson was not persuaded that an objective test of reasonable suspicion was appropriate in this context. Mr Anderson’s concern is that this would impose too great an interference with policing powers, especially having regard to the difficulty in identifying wrongdoers and the appalling devastation that terrorists can cause. Despite the genuine respect which I have for Mr Anderson, I think his conclusions on this subject are wrong. The concerns to which Mr Anderson rightly draws attention—the difficulties of detection and appalling consequences of failing to identify wrongdoers—are well understood by the courts. Such factors would inevitably and properly be given great weight by the courts when deciding whether there was reasonable suspicion to justify the detention.
The noble and learned Lord, Lord Hope of Craighead, spoke for the Appellate Committee of this House in addressing what a reasonable suspicion test means in the case of O’Hara v the Chief Constable of the RUC, 1997 Appeal Cases at 286. That was a case concerned with the police power to arrest a person who the officer has reasonable grounds for suspecting to be a terrorist. The noble and learned Lord, Lord Hope, emphasised that such a test required the court only to assess the information in the mind of the arresting officer at the time, whether based on his own observations or what he had been told by others, and whether or not the information he had in his mind at the time later turned out to be false.
If it is truly the case that the detention is not reasonable on the basis of what was known to the officer at the time of the detention, having regard to the difficulties in identifying terrorism and the appalling consequences of letting a terrorist go through, then detention should simply not occur.
When this matter was discussed in Committee, the noble Baroness, Lady Smith of Basildon, speaking from the Opposition Front Bench, referred to the difficulty in finding an appropriate balance in this context. I recognise the difficulty, but the House needs to confront it. Without a reasonable suspicion test the powers conferred by the Bill involve no balance at all. The powers provide inadequate protection for the citizen, inadequate encouragement to officers to maintain high standards and inadequate assurance to the public to promote the support on which effective policing depends, especially when we all know that these powers are used against black and ethnic minority individuals to a disproportionate extent compared with their numbers in the population.
Lord Lester of Herne Hill (LD)
My Lords, when I was young at the Bar, there was a High Court judge who used to make a habit when he was giving judgment of simply saying, “I agree”. Having heard the noble Lord, Lord Pannick, I am tempted just to say, “I agree”. However, I wish to add a few points which he has not made and which it may be appropriate for me to make at this stage.
First, perhaps I may record, as a member of the Joint Committee on Human Rights, our misfortune at having lost the noble Lord, Lord Faulks, as a recent powerful and distinguished member, and the good fortune of the Government in having him—now in a sedentary position, unfortunately—on the Front Bench.
Secondly, the Joint Committee on Human Rights recorded in its earlier report its welcome of the government amendments that the Minister has described. I simply echo our appreciation of the amendments that are before us now.
Thirdly, I do not wish to say anything about the pending Miranda case but I do not see that its outcome will in any way affect the Government’s decision on whether to accept this amendment as it is not the function of the court in that case to decide on a future scheme that better protects liberty.
Fourthly, there is another case pending in the European Court of Human Rights—the case of Malik—to which the Joint Committee referred in paragraph 108 of its fourth report. What we are now saying today will be read by the Strasbourg court in disposing of that case. One of the reasons I am adding to the speech of the noble Lord, Lord Pannick, is that I hope that the way in which the Government and the Official Opposition reply to this will be helpful to the Strasbourg court.
In the Malik case, there is a root and branch attack on the compatibility of the schedule with the European Convention on Human Rights. The Joint Committee on Human Rights has said that it has little doubt that that challenge will fail. There is nothing inherently incompatible between the schedule and the European Convention on Human Rights. However, as many lawyers will remember, there have been a whole series of cases in Strasbourg with names such as Klass against Germany and Malone against the United Kingdom where the Strasbourg court has said that it is necessary that there are adequate safeguards against the abuse of powers, including police powers. This amendment addresses the need for more adequate safeguards.
My view is the same as that of the noble Lord, Lord Pannick—indeed, I look forward to the speeches of the noble Baroness, Lady Kennedy, and the noble and learned Lord, Lord Hope of Craighead—and probably all of us agree that there is a need for more effective safeguards against the possibility of abuse. An objective, reasonable standard seems to be the minimum that is now required. The Joint Committee has considered this twice—once in its original report and once in its most recent report—and came to the firm view that these safeguards are necessary. If the Government were to reject that opinion today, all I can say is that if I were in Strasbourg arguing for the Crown I would find myself in some difficulty because I am convinced that the Strasbourg court will scrutinise the reasons the Minister will give in deciding whether there are adequate safeguards. In other words, I think Mr Malik will lose but it would be a pyrrhic victory for the Government unless they were able to convince that court that there were adequate safeguards. I would rather avoid that today by putting the adequate safeguards into the Bill instead of waiting for another defeat in Strasbourg, in effect, and having to do it on a further occasion.
Lord Pannick (CB)
I am grateful to all noble Lords who spoke in favour of Amendments 93A to 93D. I am disappointed that neither the Minister nor the noble Baroness, Lady Smith of Basildon, accepts that those intrusive powers should be controlled by a reasonable suspicion test. For my part, I see no good reason why other terrorism powers are so constrained but that there would be problems in dealing with the matter in this way for detention at a port or airport.
I should add that, as the noble Lord, Lord Lester of Herne Hill, suggested, for the law to continue to allow for detention without a requirement for reasonable justification will inevitably lead to condemnation in the Strasbourg court. The noble Lord, Lord Faulks, whose elevation to the Front Bench is welcomed on all sides of the House, will no doubt be able to give the Minister confidential legal advice on the matter.
However, as the Minister said, the House will inevitably be returning to these issues in the light of the Miranda judgment and Mr Anderson’s consequent report. I shall therefore, in due course, not move Amendment 93A.
Immigration: Detention
Lord Pannick Excerpts(12 years, 7 months ago)
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Lord Taylor of Holbeach
My Lords, Mr Muazu’s flight to Nigeria on Friday returned to the UK for operational reasons which were not connected to his health or conduct. I assure noble Lords that a member of the Nigerian high commission was on that flight.
Lord Pannick (CB)
My Lords, does the Minister believe that it was a sensible use of resources to charter an aircraft to remove a single individual from this country, as in the case of Mr Muazu?
Lord Taylor of Holbeach
The operational practices are not a matter that I want to discuss particularly but this case has great public interest. It is not the first time that an aircraft has been chartered for this purpose. It might help noble Lords to know that the number of enforced removals in 2008 was 17,200-odd and last year it was 14,600-odd. However, voluntary removals went up from 18,000 to 29,663 last year.
Electoral Registration and Administration Bill
Lord Pannick Excerpts(13 years, 6 months ago)
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Lord Pannick
“Voting procedure
(1) Schedule 1 to the Representation of the People Act 1983 (parliamentary elections rules) is amended as follows.
(2) In paragraph 37 (voting procedure) after sub-paragraph (6) insert—
“(7) A voter who is in the polling station or in a queue outside the polling station for the purpose of voting at the time specified for the close of the poll shall be entitled to apply for a ballot paper under sub-paragraph 1 above and a ballot paper shall be delivered and the voter entitled to vote in accordance with this paragraph.””
Lord Pannick
My Lords, this amendment is tabled in the name of the chairman of your Lordships’ Constitution Committee, the noble Baroness, Lady Jay of Paddington, and three members of that committee: the noble Lords, Lord Lexden and Lord Lang of Monkton, and myself. The amendment addresses a mischief that occurred at the previous general election and which may recur at future elections, however careful the preparations.
The mischief is that eligible voters who present themselves at the polling station before the close of the poll at 10 pm are unable to vote if the relevant officials do not issue them with the ballot paper to which they are entitled by 10 pm. At the previous general election in 2010, some 1,200 voters queuing at 27 polling stations in 16 different constituencies were adversely affected in this manner.
Your Lordships’ Constitution Committee considered the matter. We concluded that eligible voters who present themselves at the polling station before it closes at 10 pm should not be denied a vote because they are not given a ballot paper by 10 pm, perhaps because many other voters arrive at or around the same time, or perhaps because the administration of the polling station is less than efficient. The right to vote is precisely that—a fundamental right. It should not be defeated by circumstances outside the control of the voter. Indeed, when we are rightly concerned to do everything possible to encourage people to vote, we should not be putting obstacles in the way of eligible voters who do make the effort to attend at a polling station and who are then frustrated by their inability to cast a vote.
The Electoral Commission has expressed its strong support for this amendment for very similar reasons. The amendment commands, I think, widespread support across the House. The arguments which have so far been presented by the Government in answer to the amendment are, your Lordships may think, very weak indeed. First, it is said by the Government that the voter need not wait until just before 10 pm. He or she could or should vote earlier. However, for many people, voting early is not an option because of work or family commitments. In any event, close of poll is 10 pm. Voters should not be required to guess how far in advance of 10 pm they need to attend at the polling station in order to be sure of being allowed to vote.
The second argument presented by the Government is that such a change in the law would cause practical problems. That is very unconvincing. All that needs to happen is that at 10 pm the polling officer closes the door of the polling station, or if, unhappily, there is a queue outside, stands at the back of the queue to ensure that anyone arriving after 10 pm cannot join the queue. The Electoral Commission has pointed out that the Scottish Government introduced such a reform in 2011. At the Scottish council elections last year, the change in the law enabled voting by three people who arrived by 10 pm but would otherwise have been denied a ballot paper. There were no practical difficulties. The Electoral Commission issued sensible and practical guidance to presiding officers.
The third argument advanced in opposition to this change in the law is that it is unnecessary, as the lessons have been learnt from the experience of the 2010 general election. The answer is that, however good the preparation may be, there is always a risk of a queue building up which prevents one or more eligible voters from voting because they have not received a ballot paper by 10 pm. Issuing a ballot paper may take a minute or two and, if several people arrive in the period just before 10 pm, a queue can easily build up. The risk of a queue is all the greater if ballot papers are being handed out for local as well as general elections. The Electoral Commission has rightly said that,
“no degree of planning alone can entirely mitigate the potential risk of queues at the close of poll”.
The final argument which the Government advance is that not many voters will be adversely affected. However, even one eligible voter denied a vote in these circumstances is one too many. The Government cannot have it both ways. They cannot say both that very few voters will be affected and that the amendment will cause practical problems. This amendment is correct in principle, it is workable in practice and it is much needed. I beg to move.
Baroness Jay of Paddington
My Lords, as always, the noble Lord, Lord Pannick, has presented the amendment with enormous clarity and great conviction. As chair of the Constitution Committee, I can say that we have been working on this question for some time. We held a stand-alone inquiry on it in the autumn of 2011 and published our first report in January 2012. The most interesting thing about the difference between the report that we issued then and our subsequent scrutiny report on the Bill that is before your Lordships’ Committee this evening is that the Electoral Commission changed its mind between the two reports. That is significant. It looked at the evidence that we had taken and engaged in extensive correspondence and “offline” discussion with us and came back in October with the report from which the noble Lord, Lord Pannick, has quoted extensively. I think that it was convinced by the arguments that we made—I am sure that it was by others, too, and took other evidence—and, at the same time, the Government, as the noble Lord, Lord Pannick, has said, have continued to advance the same arguments. We heard those arguments last Wednesday when Chloe Smith represented the Government at a meeting of the Constitution Committee and put forward precisely the arguments which the noble Lord, Lord Pannick, has described.
It seems obvious that the fundamental right to vote is the question on which we should focus, and that the law in relation to this matter focuses almost exclusively on the rights and responsibilities of the statutory role of a returning officer and not on the right to vote. If one looks at it from the perspective of the voter, as the noble Lord, Lord Pannick, again has said, we can be talking about small numbers, but it is worth remembering that the Electoral Commission reckons that around 1,200 people were affected in 2010 by the law as it stands and the individual is very important in this respect. I would just add—not that it is significant in terms of statistical comparisons, but it is still relevant—that, in 47 constituencies in the 2010 election, fewer than 1,200 votes formed the majority, and in 28 constituencies, fewer than 600 votes formed the majority. In a sense, this can be significant, and if one puts value on the individual vote, as I certainly do, then the human right to vote is clearly very important.
The argument which was very current before our discussions with the Electoral Commission last year was that the law as it stood was secure. The Constitution Committee challenged this because when we looked at the two cases that were being relied on at that stage—one from 1901 and one from 2001, almost exactly 100 years later—it was very clear that these depended on the impact and role of the returning officers and not on the individual voter. We think that the time has come to achieve clarity about the rights and responsibilities of the individual voter, which could be done by this simple amendment. The noble Lord, Lord Pannick, has already referred to the example of Scotland. I would refer also to the example of the United States, where in the presidential elections last November there were certain polling areas where queues were in place two hours after the official closing of the poll and yet the votes were still counted. This is something that we need to look at very swiftly and in time for the 2015 election.
Lord Taylor of Holbeach
There is no experience there to suggest that there is any problem; the numbers involved are very small indeed. The noble Baroness—or possibly the noble Lord, Lord Pannick—talked about three voters. The note I have here says that possibly 10 voters may have been issued with a ballot paper after 10 pm under the more liberal regimes. This is nowhere near the scale of the 2010 general election situation here. I should say that in the United States, the majority of queues that form there are the result of mechanical voting and the breakdown of the technology used for voting. That is not the same sort of problem that we are talking about here.
I hope I have given noble Lords a run-down of the difficulties that Parliament would face if it chose to be more flexible in this area. I hope the noble Lord will feel free to withdraw his amendment.
Lord Pannick
I am very grateful to all noble Lords who have spoken in this interesting debate, not least to the Minister, despite his surprising failure to fulfil the expectation of the noble Baroness, Lady Hayter, and simply say yes to this amendment. The noble Lord recognised that at first sight, everyone would see the force of this amendment. I would hope that any reasonable observer would retain that opinion after considering the matter at length.
I cannot for my part see that the amendment would introduce any lack of clarity into this area of the law or that any minimal reduction in clarity should outweigh the fundamental right to vote. Concern about exit polls, deliberate queue forming and problems about what is a queue, all of which are factors to which the Minister referred, certainly demonstrate the noble Lord’s considerable debating skills. But whether these are realistic problems are matters on which I would take a different view. For my part, I would be very doubtful that a queue needs to be defined. I would be satisfied that a polling officer would be able to address any problem, not least with the assistance of any relevant guidance from the Electoral Commission and would know a queue when he or she saw one.
I will withdraw the amendment, not least because it would be inappropriate to vote on a 10 pm rule as the hour approaches 10 pm. There certainly would be no need for the doorkeepers to stand at the back of any queue were we to vote tonight. However, I say to the Minister that we will return to this matter on Report. I will carefully consider of course what he has said when I have read the debate. But at the moment I am wholly unconvinced by the arguments that he has put forward. I beg leave to withdraw the amendment.
Crime and Courts Bill [HL]
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Lord Pannick
My Lords, I support the noble Lord, Lord Avebury. As he said, it is very difficult effectively to pursue an appeal from abroad. As I understand the clause that the noble Lord seeks to amend, the Secretary of State may take advantage of the temporary absence abroad of an individual. He or she may wait for the individual to go abroad, and may act even though the individual may be abroad—as often happens—for compassionate reasons such as the ill health of a child or an aged relative. The clause is very unjust and very arbitrary.
Baroness Smith of Basildon
My Lords, when the noble Lord, Lord Avebury, raised this issue in Committee, I raised with the Minister some questions about the process that the Government were seeking to introduce. Like the noble Lord, Lord Avebury, I was not entirely satisfied with the replies I received. In fact, I did not receive responses to some of the questions that I raised. I hope that in the time that has expired since 4 July this year the Home Office has been able to provide some answers to those questions.
The point was raised about someone’s leave to remain being cancelled while they were out of the country. I am still unclear—because I have not had a satisfactory response—about the criteria for cancelling someone’s leave to remain while they are out of the country. Is it a purely administrative decision because the decision-making time has come up for that person—they were going to be denied leave to remain and they happened to be out of the country—or is it the case, as the noble Lords, Lord Pannick and Lord Avebury, suggested, that the Home Secretary will lie in wait for somebody to leave the country, possibly on compassionate grounds, whereupon their leave to remain will be cancelled? It would be helpful to know what the criteria will be and how the decision will be made.
It would also be useful to have information on what proportion of cancelled leave to remain is cancelled when the subject is outside the country as opposed to when the subject is in the country. I asked that in July in Committee and did not receive an answer. There has been some time since July to get that information; I hope that the noble Lord will have it available.
Another issue is the definition of “public good”. The legislation refers to a decision on removing the right to remain as being taken,
“wholly or partly on the ground that it is no longer conducive to the public good for the person to have leave to … remain”.
Is there a definition of when the public good is no longer there, or when it should be decided that there is no public good and that leave to remain should be withdrawn? The Government need to answer questions on this. I was disappointed not to get responses from the previous Minister—I am not suggesting that the present Minister did not answer me in July—and I hope to get some responses today.
Lord Taylor of Holbeach
I tend to disagree with the noble Lord. I cannot see why it should be possible to allow somebody whom the Secretary of State for the Home Department has decided to exclude to return to this country purely to pursue an appeal against that decision. I do not accept that that is reasonable and that is why we have included this clause in the Bill.
Lord Pannick
I am grateful to the noble Lord. Is not the point that however reprehensible the allegations against the individual, if they are present in this country then they are entitled to remain and pursue an appeal? The question is whether, because of the accident that they may be abroad for a day or two for entirely understandable compassionate reasons and because the Secretary of State takes advantage of that absence to make a decision, they should then be unable to pursue an appeal while within the United Kingdom.
Lord Taylor of Holbeach
I think we disagree on that. Noble Lords will understand the premise on which the Government are basing their decision. It cannot be right to allow someone to return to this country when the decision has already been made by the Secretary of State that that person is considered to be undesirable to admit to this country and that is the reason for their exclusion. I should perhaps help the debate by giving some figures. Since 2005, 426 individuals have been excluded on the grounds of national security, unacceptable behaviour, serious criminality or war crimes. Annual figures have varied over the years from 111 in 2007 to 40 last year. Incidences of the decision to exclude an individual with an accompanying decision to cancel leave have totalled 30 over that period. The most was seven in one year and the fewest was two. This year to date: nil. I hope that helps noble Lords to put this matter in perspective. The Government have a responsibility for the security of the country and I hope that will carry some weight with noble Lords in this argument.
I will now carry on with what I was intending to say. Clause 27 seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The individual must be outside the United Kingdom at the time of the decision for the Clause 27 provision to have effect, the effect being that on certification the in-country right of appeal under Section 92 of the Nationality, Immigration and Asylum Act 2002 no longer applies to such a decision, which means that the person has an appeal from outside the United Kingdom. To be clear, the individual will still have a full merits appeal but that will be exercisable from outside the United Kingdom instead of from within the United Kingdom. We accept that the power to remove appeal rights from the United Kingdom to abroad must be reserved for highest-harm cases. This is why we have restricted the application of the certification power to individuals where the decision to cancel their leave is based on the Secretary of State’s assessment that their presence in the United Kingdom is not conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of that decision.
Such cases have been, and will remain, the exception rather than the norm. Clause 27 seeks to maintain the operational integrity of the Secretary of State’s power to exclude an individual from the United Kingdom. Such decisions are not taken lightly and are reserved for the highest-harm individuals. It is therefore imperative that such a decision remains operationally effective, pending judicial scrutiny. For these reasons I cannot support Amendment 118D, which seeks to remove Clause 27 from the Bill. Similarly, Amendment 118C could seriously undermine the Government’s ability to secure our borders against individuals who pose a threat to the United Kingdom. The amendment would exclude from Clause 27 those individuals who are stateless, those who have previously been granted leave to enter, those who remain based on a successful asylum or human rights claim, and those who raise human rights or asylum issues in their grounds for appeal. As previously stated, it is right that we provide protection to those in need and the Government remain committed to their international obligations to such individuals. However, the Government also have an important obligation to protect the public from high-harm individuals whose actions pose a threat to national security or the rule of law.
Lord Pannick
Lord Pannick
“( ) section (Abolition of scandalising the judiciary as form of contempt of court);”
Extradition
Lord Pannick Excerpts(13 years, 9 months ago)
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Lord Pannick
Does the Minister accept that delays have been caused primarily by Strasbourg rather than London? Will he express agreement with the views of the Lord Chief Justice last month that these delays would make any reasonable person furious? Will the Minister share with the House the communications that the Government have had with the European Court in Strasbourg, expressing concern as to those delays? I should also declare an interest in that I was counsel for Mr McKinnon during an appeal to the Appellate Committee of this House.
Lord Taylor of Holbeach
I thank the noble Lord. The question from the noble and learned Lord, Lord Morris, was about delays in the normal process and not about delays in the European Court of Human Rights in Strasbourg. I hope that I understood that correctly. Perhaps I may inquire about correspondence with this Government to see whether it is possible to release any of that for the noble Lord. If so, I will place a copy in the Library.
Justice and Security Bill [HL]
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The Minister of State, Home Office (Lord Henley)
My Lords, this has been an interesting and long debate. It seems quite a while since we started at 3 pm. We have got through some 22 speakers and I find myself being the 23rd. It is a short Bill, of some 16 clauses, but it raises some pretty big issues and has attracted a very distinguished congregation—if I may put it in those terms—to speak on it.
There has been some comment about the number of lawyers here today, and I was very grateful to the noble Lord, Lord Dubs, for being the first to point out—echoed by others—that this is not just a legal Bill and not just for the lawyers. I was glad that the noble Baroness, Lady Smith, having done a quick count, pointed out that the non-lawyers are in the majority in this debate, which is probably as it should be. However, as the noble Baroness said, it has attracted a lot of other distinguished speakers. We are very grateful for the presence of all those who are members of the JCHR and the Constitution Committee; all those who, like my noble friend Lord Lothian and the noble Lord, Lord Butler, are currently members of the Intelligence and Security Committee; and former members, self-described as part of the awkward squad, in the form of the noble Lord, Lord Campbell-Savours.
We are grateful for all that, and I hope that, as part of this debate and a fairly lengthy Committee stage and other stages, we will be able to go some way towards achieving the consensus that the noble Lord, Lord Lester, was looking for. It will not be possible to get consensus on every item, because I think that there are some fairly deeply held views that cannot be brought together, but I am sure that there are many things on which we will be able to get agreement. I am sure, too, that we will make every effort to ensure that the best possible Bill leaves this House to go on to another place. As my noble friend Lord Faulks, stressed, we need a very thorough Committee and later stages.
As I said, it is a short Bill that raises some extremely big issues. My noble and learned friend Lord Wallace took it in its proper order. He dealt first with Part 1 and then with Part 2 on the restrictions on the disclosure of sensitive material. If noble Lords will bear with me, I prefer to take it the other way round, because there has been far more talk in the debate about Part 2 than Part 1, but I will get to Part 1 in due course. I must also say in my opening remarks that it will obviously be very difficult for me to answer all the points put this afternoon in the necessarily shortish speech that I have to make, but I shall try to cover some of the broad themes. I hope that my noble and learned friend and I will be able to write to noble Lords and copy those letters to others as appropriate after the debate and ensure that we get those letters out before Committee, which, I understand, will be in the week commencing 9 July, so we have a little time to do that.
I begin with Part 2, with CMPs and Norwich Pharmacal. That has obviously excited most of the debate. Like my noble and learned friend the Advocate-General, I believe that the case is made to change how we deal with sensitive information in our courts. The novel application of Norwich Pharmacal jurisdiction to national security information has had consequences with key allies, as many noble Lords mentioned—I think the first was the noble Lord, Lord Butler. It is not just America, as some have implied, it is all our key allies. However, the provisions in the Bill are not driven solely by our intelligence partners. Secret intelligence generated by the UK’s own security and intelligence agencies could be liable to be disclosed as well. Parliament has recognised that the work of the security and intelligence agencies is of a special type. Information is core to their work and special arrangements already cover how they use and disclose it.
Although we all aspire to be able to hear every court case in open court with all relevant information disclosed to all parties in the case, I think that most noble Lords have accepted that there will be times when some of that information cannot be disclosed without damaging the public interest. The question we must put to ourselves—this will take some time in the course of our debate in Committee—is how we deal with that situation. Settling cases or asking the court to strike them out as untriable, may mean that claims, often making extremely serious allegations, can go unexamined and we are unable to get to the truth of what happened. I do not believe that that is justice.
PII has been another approach. It enables cases to go ahead with fully open proceedings but at the expense of excluding relevant and sensitive material from the case. That can work in some cases, but there are times when it does not—for example, where a case is saturated in sensitive material, as David Anderson QC put it. A successful PII application can render a case untriable or leave the Government unable to defend themselves without damaging national security. That can be unfair for claimants or for the Government.
CMPs have been the solution to that problem and they have worked successfully in a number of contexts. The noble Lord, Lord Butler, said that they were the least worst option. My noble friend Lord Lothian described them as being, on balance, about right. Openness is sacrificed for part of the proceedings, and this enables all relevant material, including national security sensitive material, to be taken into account by the court, but it is done in such a way that the proceedings are fair and the interests of any party excluded are properly represented. The Supreme Court has stated that it is for Parliament to decide what the procedures should be for dealing with such cases. The Government produced the Green Paper and we listened to the views. Again, many noble Lords, I think particularly my noble friends on the Liberal Democrat Benches, have accepted that we listened to the views and have moved forward a great deal from what was in the Green Paper and put forward for public consultation. We have brought forward the amended proposals in this Bill.
Noble Lords have highlighted a number of key issues in this debate and those discussions that we will have during subsequent stages of the Bill will obviously let us explore whether the Government have the balance right in these important matters. Perhaps I might deal with one or two of the points that have been raised that deserve some response at this stage, if I can find the right bits of paper—they are all here but in a strange order.
First, I wanted to cover the points made about special advocates and the recent paper that they put to the Joint Committee on Human Rights. I have seen their evidence, which I believe was published last week. The special advocates are reiterating arguments which they have made and, in effect, have had rejected by the courts. To some extent, special advocates do themselves a disservice. They are extremely effective, particularly in arguing in court that more information should be disclosed, and have helped to win cases by challenging closed evidence on occasions. The best way of dealing with this would be to quote what the noble and learned Lord, Lord Woolf, said in M v Secretary of State for the Home Department. He stated:
“Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC … We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.
I commend that to the special advocates and would suggest that they reflect on it.
I turn to the Binyam Mohamed case, which the noble Lord, Lord Lester, raised and has dealt with. He probably knows more about it than anyone else. On the information revealed in that case and whether it was in the public domain, my understanding is that the Court of Appeal ordered that seven paragraphs redacted from the Divisional Court’s judgment, which contained a summary of US intelligence reporting, should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. The judge in the US did not put the contents, or a summary of the contents of the US intelligence reporting provided to the UK, into the public domain. The court made findings of fact based on allegations about Binyam Mohamed’s treatment that were not challenged by the United States Government.
I turn from that to the questions raised by the noble Baroness, Lady Ramsay, about the Bill’s provisions on intercept and how the evidence to support the conclusions of the Privy Council’s report on intercept would be used in criminal cases. The amendment contained in this Bill to Section 18 of RIPA lifts the prohibition in Section 17 of that Act so that intercept material can also be discussed in a CMP. This is in line both with other, existing statutory CMPs and with our desire to take account of all relevant information in CMPs.
As the noble Baroness knows, the Government are separately conducting an extensive and detailed review in order to assess the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. This work continued under the guidance of the cross-party group of Privy Counsellors that she referred to. It will report in due course. I appreciate—I answered a question on this a few months ago—that we have been using that expression “in due course” for some time. However, I think that it underlines the very great difficulty of coming to a reasonable solution in this matter. I myself have changed my views this way, that way and again, and I know other far more distinguished people than me who have looked at this in much greater detail than I have who have also found it very difficult to come to a final decision. However, the process will continue. I was grateful that the noble Baroness referred to the work being done by the distinguished body of Privy Counsellors that is dealing with that.
The noble Lords, Lord Dubs and Lord Pannick, and other noble Lords, dealt with the whole question of whether it was for the courts to decide between PII or closed material proceedings. We are not convinced that the question of whether there should be a PII claim or a CMP should be left to the courts. It is a very important constitutional point that the Executive in the end have to be the guardian of the United Kingdom’s national security interests. Obviously, the courts will play an essential role in scrutinising the Government’s exercise of these functions. However, we believe that the question of whether to claim PII, and, accordingly, a CMP, should be left to the Home Secretary.
Similarly, the noble Lord, Lord Macdonald, suggested that a CMP should be held only after a full PII exercise, but we believe that it would be costly and illogical to go through a potentially lengthy PII process first. It may be obvious at the beginning, for example, that too much will be excluded. We understand that the Lords Constitution Committee did see the need for full PII; the report says that we can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to a CMP.
Lord Pannick
Does the Minister at least accept that a CMP should be a last resort if, and only if, there are no effective means of addressing all relevant factors?
Lord Henley
That is a point that we will consider at much greater detail when the noble Lord puts down his amendments, which I am sure will appear. We will discuss that in Committee and no doubt at later stages. The point is that at the moment I am making our case and want to clear the arguments in detail. That is why I was rather loath to take too many interventions in this winding-up speech. I appreciate that my noble and learned friend took some seven interventions in opening, but on this occasion I am going to resist most of them, because the important point is that we discuss these matters in Committee, when we can deal with them in greater detail. The noble Lord will then be allowed to intervene to his heart’s content.
I see that my time is beginning to run up, and I want to get on. However, I shall say one more thing on this. I will deal with the question on sensitive information in Norwich Pharmacal clauses, which a number of noble Lords—my noble and learned friend, Lord Mackay, and the noble Lords, Lord Pannick and Lord Dubs, for example—all seemed to think was somewhat too wide. I must stress that this is the definition in the Norwich Pharmacal clauses; I appreciate that the noble Baroness also raised the definition of sensitive information for the Intelligence and Security Committee in Schedule 1, but that is obviously a different matter.
The fact is that virtually all material sought by Norwich Pharmacal applicants from the security and intelligence agencies is material the public disclosure of which would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from agencies; they seek information specific to them that would be held by an agency and available only from that agency. If it was information necessarily derived from sensitive sources or from techniques or capabilities from a foreign intelligence department, all or any of that could be damaging to the public interest if disclosed. The approach taken in the clause in the Bill mirrors the protection of such information found, for example, in the Freedom of Information Act.
I turn to the less controversial part of the Bill, Part 1—if I can find the right part of my notes—which deals with oversight. This part had somewhat less coverage than the rest of it, but, after the speech from the noble Lord, Lord Campbell-Savours, and the interventions from the noble Baroness, Lady Smith, I am beginning to understand that it might generate just a bit of controversy and I might have some work to do, unlike my noble and learned friends, as I do that part of the Bill in Committee. I did not want to overlook the important changes that we are making to this and it is right that we should periodically re-examine the way in which we scrutinise that work. Again, I pay tribute to the current members of the Intelligence and Security Committee.
We are grateful to the noble Lord, Lord Butler, and my noble friend Lord Lothian for sharing the benefit of their experience of sitting on that committee. I am also grateful for the views that we heard from the noble Baroness, Lady Manningham-Buller, particularly what she said about trusting the head of the security services far more than she would trust Ministers. I will take that on the chin. I think she was echoing what the noble Lord, Lord Campbell-Savours, said, but she echoed it with approbation.
I recognise the experience that the noble Lord, Lord Campbell-Savours, has, and I am pleased that we will have an interesting time in Committee on that aspect of the Bill. The noble Baroness, Lady Ramsay, was concerned about the membership and thought that there was scope in the Bill for more Members of this House. I do not believe that there is any detail in the Bill about how many there can be, but I think the current rules are that at least one must come from each House, so it would be possible to have eight Peers and one Member of the Commons, or it could be the other way around. It will be for the Committee to decide what the appropriate number should be. That is something that we can discuss.
Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011
Lord Pannick Excerpts(14 years, 7 months ago)
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Lord Laming
My Lords, it is a great pleasure to follow the right reverend Prelate and we should be extremely grateful for the insight and human quality that he has brought to the House. I think that the whole House would wish to dissociate itself from any unpleasant comments and criticism that have been directed at the noble Baroness who has moved this Prayer to Annul. She is rightly held in high regard in this House and no one should doubt the sincerity of her position.
The debate has moved on considerably since I prepared my notes and I shall therefore be brief and summarise my views. I am not a lawyer and I speak in a purely personal capacity. I approach this matter from a more social point of view. Successive Governments deserve great credit for the sensitivity and understanding that they have demonstrated in handling the registration of civil partnerships under the 2004 Act and the way in which they have demonstrated equal sensitivity under the Equality Act 2010. As a result of these pieces of legislation and the regulations that have been provided, it seems to me, from a lay point of view, that the churches have all the necessary freedoms and safeguards that they may wish to have. This is well illustrated by the fact that the churches will have to make their own decisions to opt in to these arrangements. It is certain that there is nothing in this legislation that in any way promotes a particular lifestyle.
I am a member of the Church of England and I have the honour to represent your Lordships on the Ecclesiastical Committee. I am a great admirer of all faiths and therefore find it very difficult to appear to be critical. However, I do so with kindness because I would not be being faithful to my beliefs if I failed to say that it has saddened me, and no doubt many others, that the churches have not been in the vanguard of promoting equality in our society. The way in which the Government have tackled this sensitive area is very worthy and credible and I very much hope that in approaching this matter the churches will follow that example.
We Anglicans like to say that we are part of a broad church. That is true theologically, but it may not be necessarily true socially. I hope that in approaching these matters we will not only be gracious to our fellow human beings but generous and understanding. I hope that this Prayer to Annul will be rejected by the House.
Lord Pannick
My Lords, I very much respect the principled views of the noble Baroness, Lady O'Cathain, but this is not a matter of conscience, it is a matter of legal interpretation. As the noble and learned Lord, Lord Mackay of Clashfern, said, the question is whether there is any real doubt as to what a court would say on the matter. Your Lordships may have found it rather striking that the noble and learned Lord did not give the House any opinion at all as to the answer to this question; he confined himself to saying that views are expressed by QCs on this matter. In my experience of this House, it is rare for the noble and learned Lord not to give the House his very welcome opinion on issues, and I am sorry that he gave the House no opinion on the credence that could be attached to the opinions that have been expressed.
My view, for what it is worth, as a barrister practising in the area of human rights law and administrative law, is that there is no possibility whatever of any court accepting the arguments that have been advanced in those opinions. That is for two reasons. First, the court would focus on Section 202. It would recognise that Parliament has expressed in the clearest possible terms that religious bodies have a power to conduct civil partnership ceremonies but no duty whatever to do so. The regulations faithfully implement what Parliament has decided
The noble Baroness, Lady O'Cathain, expressed a concern that had been expressed by her advisers that that is not good enough because it is the Equality Act that, as she put it, poses the danger. The noble and learned Lord, Lord Mackay, made the same point. My answer to that concern is that it is the very Equality Act that expressly addressed civil partnerships and allowed civil partnerships to be conducted on religious premises for the first time but made it absolutely clear that religious bodies have no duty to conduct such ceremonies.
Lord Mackay of Clashfern
The noble Lord must accept that the operative effect of the provision in the Equality Act is to make an amendment to the Civil Partnership Act 2004, and nothing more.
Lord Pannick
I entirely accept that, but it is the Equality Act that addressed this very question of the circumstances in which religious bodies may, but have no obligation to, conduct civil partnership ceremonies. It therefore seems to me highly unlikely that any court will say that that very legislation, the Equality Act, nevertheless imposes indirectly some duty on religious bodies to do precisely what Section 202 of the same Act states that they do not need to do.
Secondly, if there were any ambiguity in the Equality Act—there is none, but if there were—a court would interpret the Equality Act by reference to the right under the European Convention on Human Rights and by reference to Section 13 of the Human Rights Act, which this Parliament enacted, which states that on any question that might affect the exercise by a religious organisation of the right to freedom of religion, the court must have particular regard to freedom of religion. It is plain beyond argument that the court would therefore say that a religious body has no duty to do what would conflict with the religious rights of the church or other religious body concerned.
Earlier in this debate, the noble Lord, Lord Tebbit, asked for assurances that the European Court would not interfere in this matter. I would be extremely surprised if the European courts would trespass on a fundamental question of religious freedom, but if they did, nothing that we decide today would affect that—it is simply irrelevant to this debate and therefore cannot be used either to support or to argue against the Prayer that the noble Baroness presents to the House.
Lord Tebbit
The point is that we are opening the way for the court to do so. The noble Lord said that he would be very surprised if it did. Has he never been surprised at the judgment of a court?
Lord Pannick
I submit that this Parliament must proceed by what we recognise is the overwhelming probability. We cannot legislate on the basis of something that would be wholly contrary to what Parliament has decided as recently as 2010. I say with great respect to the noble Lord that the attitude of the European Court is completely irrelevant to this debate.
I have to tell noble Lords that if I were asked to advise a client on the prospects of success for someone who wished to compel a religious body to hold a civil partnership ceremony against its will, my advice—and, I am sure, the advice of every other competent lawyer practising in this field—would be that any such application would be completely hopeless and misguided. Therefore, I hope that the noble Baroness will withdraw her Prayer for annulment.
Lord Mackay of Clashfern
The noble Lord took great comfort from the Human Rights Act, which of course dates back some time before the 2004 and 2010 Acts came into being, yet the noble Lord, Lord Alli, and those with him, thought that it was wise to put into the 2004 Act an avoidance of doubt provision. Therefore, they were not prepared to trust the Human Rights Act provision alone to avoid any doubt that might arise. Such a provision does not suggest that there would be a legitimate attack; it simply suggests that doubt is to be put at rest completely, and that is what I should like to see here.
Lord Pannick
My answer to the noble and learned Lord is that in 2010, when the noble Lord, Lord Alli, was seeking to persuade the House to create for the first time, contrary to what had been decided in 2004, a power for religious bodies to conduct civil partnership ceremonies, it was perfectly understandable that it should be made clear that this was a power but not a duty. We had that debate and resolved the matter. There is no ambiguity and we really do not need to revisit it.
Baroness Deech
Given the protection for religious freedom that the noble Lord, Lord Pannick, has just described, why did the Equality Act and the Human Rights Act not permit a Jewish school to continue its religious freedom in maintaining the definition of Judaism that had prevailed in the Jewish religion for thousands of years?
Lord Pannick
As the noble Baroness knows very well, that case raised completely different issues. No specific provision in the Equality Act addressed that question. I have to declare an interest. As the noble Baroness well knows, I was the counsel who acted for the JFS, the Jewish Free School, in that litigation, and the problem was that there was no specific provision. By contrast, the Equality Act addresses this very question and it does so in the clearest possible terms.
Terrorism Prevention and Investigation Measures Bill
Lord Pannick Excerpts(14 years, 8 months ago)
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Lord Pannick
I, too, support the noble and learned Lord, Lord Lloyd of Berwick, on Amendment 1, and his proposal that the imposition of a TPIM should be a judicial and not an administrative act. If restrictions of this nature on basic liberty are to be imposed, they are to be imposed on British citizens, and imposed entirely outside the criminal law process. Surely it is necessary for the procedure to require that they be imposed by judges, particularly when they are being imposed by reason of serious allegations of wrongdoing on the part of the individuals concerned?
The Minister said at Second Reading—and I reminded your Lordships in Committee—that the Government’s approach to this Bill was to try to balance civil liberties and security by ensuring that the Bill goes,
“no further than is absolutely necessary”—[Official Report, 5/10/11; col. 1137.]
in limiting people’s rights. Those were his words. Surely that test, that criterion—which must be the right criterion—requires that these restrictions be imposed only with judicial approval. If the security services, with all the information available to them, are unable to persuade a High Court judge in a closed session, where the material is not disclosed to the individual concerned, that the restrictions are needed, the restrictions should not be imposed at all.
If the Revenue requires a court order before it is able to raid a person’s house in order to seize his documents, surely the Home Secretary should require a court order before she can require that same individual to remain in his house overnight, or not to contact other specified persons, or before she can impose any of the other specific restrictions under a TPIM order.
Your Lordships should have no doubt that for these orders to be imposed by a judge on application by the Home Secretary, and not to be imposed administratively by the Home Secretary herself, would substantially increase confidence in these orders in those sections of the community most suspicious of them.
The Archbishop of York
My Lords, this clause gives the Home Secretary power to impose measures for terrorism prevention—so in many ways she is acting like a judge—and investigation, so she is behaving like the DPP. That is not right. You cannot combine functions that belong to the courts and the Director of Public Prosecutions into one person. That is always going to be problematic.
In this country, one of the greatest joys is that no one is deprived of their liberty unless they have committed an offence defined in law, been investigated and gone before a court, which in the end imposes the deprivation of liberty. Of course, you tell me, “This is the United Kingdom; the Home Secretary could never be near this”. In Uganda, if the President felt that you were committing treason, he made an order and you found yourself arrested, locked up and deprived of the possibility of any defence. Of course, you would say, “That is terrible; it should not be like that”. Friends, it happened to me.
Therefore, I feel where you are going at the moment, if you are going to deprive and impose specific measures on a person, surely it should be by application to the courts, and it would be the duty of the Home Secretary to present evidence that persuades a judge. Of course, we will be told that the Home Secretary will act very quickly. As the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, said, it can be done ex parte, very quickly; there is no reason that cannot happen. For the sake of those of us who came to enjoy the separation of the Executive from the judiciary and still see it as the greatest defence for the liberties of people, I hope that the Government will accept that this will be an improvement to the Bill if this separation is made.
There should be no doctrinaire stuff about it. In the end, it cannot really be the same person who does all this. Thank God, I will never be Home Secretary. If I were, I would find this clause terrifying, because in my conscience I would not want to be the judge, jury and executioner all in the same place—and the DPP as well, all combined into one. For the sake, therefore, of keeping this fantastic balance of the Executive and the judiciary never meddling with one another, this legislature would do well to accept all of the amendments that have been tabled by the noble and learned Lord, Lord Lloyd of Berwick. This is what I rejoice about in this country—its liberty and its separation of powers.
Lord Henley
There is obviously a distinction but both involve one’s human rights. That is the importance. The noble Baroness may have noticed that when my noble friend Lord Sassoon noticed on the television that the noble and learned Lord was making these points, he came in to have a quick word with me to make clear what he had discussed, and I will try to convey those feelings to the House. I hope that I have understood what my noble friend whispered to me on the Front Bench, and I hope that the noble Baroness will accept it.
As we also made clear, we believe that it is not just the view of the Executive that is crucial in these matters. That is why I quoted earlier the view expressed by the courts. It is consistent with the view expressed by the Court of Appeal in the case of MB, which the noble and learned Lord also referred to, in which the court said that,
“the Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect”.
In the same judgment the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and by the European Court of Human Rights.
As I said at the beginning of my speech—in asking, as it were, for something approaching an Occam’s razor to be put to this argument—it is just getting it down to the simple question: which do you think is the appropriate body to make this decision?
Lord Henley
I am not going to give way until I finish this point, and then I will give way to the noble Lord.
We believe that it is for the Home Secretary to make the decision, and for this decision to be subsequently reviewed, because the Home Secretary is a politician who is answerable to Parliament. I appreciate that some will knock the role of politicians but I would remind noble Lords of the very powerful speech made by the noble Lord, Lord Reid, at Second Reading, where he reminded us that most of our freedoms are the result of politicians and their acts, and not of the courts. The Home Secretary, as a politician answerable to Parliament, will make that decision and that decision will then be reviewed by the courts in due course. It is that very simple decision that we want to make. Should it be the Home Secretary or should it be the courts? We believe that it should be the Home Secretary. I will now give way to the noble Lord.
Lord Pannick
I am grateful to the noble Lord. I am puzzled by why he thinks that judicial control at the outset would undermine ministerial responsibility when he accepts that there should be judicial review on a merits approach at a later stage if the order is challenged. Why is the latter equally not an undermining of ministerial responsibility?
Lord Henley
Because my right honourable friend is responsible for security and, as I said, she is answerable to Parliament. We believe that she should make that initial decision and that later on it can be looked at by the courts. However, we think it right and proper that she should make it. That is the reason why, as I said, I am trying to strip this amendment down to its simplest point: do you want the decision made by my right honourable friend the Home Secretary or do you want it made by the courts? We believe it right that it should be made by my right honourable friend and then reviewed by the courts. For that reason I cannot support the amendment that the noble and learned Lord has moved.
Lord Hunt of Kings Heath
My Lords, I have a number of amendments in this group and I should like to start with Amendment 44A. At Questions, the noble Lord, Lord Henley, seemed to think that this was peripheral to our debates today but I do not think that it is. Surely the context in which we consider the Bill is in relation to the measures that are necessary to prevent terrorism. We were offered a Statement in lieu of a PNQ in the other place on the matter to which I am going to refer, but it is just as appropriate to discuss it here.
Amendment 44A essentially asks the Secretary of State to commission an independent review to report on the operational effectiveness of the terrorism prevention measures in place at our international borders. That is set in the context of serious concern about the operation and effectiveness of the terrorism prevention measures in place at our international borders and the Bill has to be seen in this context. Of course, one has to refer to the significant reduction in the levels of security in border checks at UK points of entry in the summer of 2011, which has been the subject of considerable parliamentary debate and concern over the past two to three weeks. The noble Lord will be aware that the Home Secretary has yet to answer some very serious questions, particularly in regard to the scale of the security breaches that have taken place.
The subject of the PNQ in the other place today concerned reports this morning that thousands of passengers arriving on private jets from all over the world were allowed into this country this summer without any passport checks as a matter of official policy, at least according to information that appears to have come from UK Border Agency e-mails. The internal UKBA documents show that immigration and customs staff were instructed not to meet passengers arriving on private charter flights, including executive jets, as part of a so-called light touch targeted approach to border checks that was adopted this summer without, as far as I am aware, the information being put into the public domain.
These e-mails from the UKBA also reveal the extent to which full passport checks on European passengers were scaled back under the limited pilot scheme authorised by the Home Secretary on 28 July. I have to say that this is a very worrying state of affairs. In the context of the cuts that have taken place in the UKBA budget, it suggests that the UKBA is having great difficulty in carrying out its functions effectively. Essentially, since the Government came to power, a number of additional responsibilities have been placed on the UKBA at the same time as the huge reduction in its budget. No wonder we have reached such a difficult situation. The point that I put to the noble Lord, Lord Henley, is that this exposes general concerns about the operation and effectiveness of terrorism prevention measures, which is why I commend Amendment 44A to the House.
I return now to a group of amendments moved in Committee by the noble Lord, Lord Carlile. The noble Lord is not able to be with us this afternoon but I am grateful to him for putting his name to my amendments. Essentially, they propose keeping the existing control order provisions for relocation—which is the central point of many of our discussions on the Bill so far—until after the Olympic Games. From a chosen date after 1 January 2013, it would be open to the Government to come back to Parliament and replace the current relocation provisions with the provisions in the Bill, which would remove relocation subject to the emergency legislation that is also in the Bill.
The evidence given by the Deputy Assistant Commissioner to the Public Bill Committee in the other place was quite persuasive on the reason for and effectiveness of the use of control orders. The decision in the case of CD earlier this year was made after the Government argued, in the interest of national security, for a relocation component in CD’s control order. I remind the noble Lord, Lord Henley, that in Committee the noble Lord, Lord Carlile, asked if the Government had changed their mind about CD and, if so, why. If they have not changed their mind, why are they bringing the Bill before us?
On timing, is it really sensible to remove the relocation provisions at the current time? The Olympics are almost upon us. The noble Lord will know of reports in the media of US concerns about Olympic security. I fully accept that the Government have stated that this has not been reported accurately, but there is no denying the challenge facing us. My amendment does not seek to detract from the essential point of this legislation. All it does is keep the existing exclusion order provisions until after the Olympics. At that point, if the Government are satisfied that they no longer need the provisions, they merely have to bring an order to Parliament and the provisions in the Bill will take over. If I may so, it is a pretty good offer. It allows the Government to continue with these provisions over a particularly challenging time but does not undermine what they are essentially seeking to do. The noble Lord was not very warm towards these amendments in Committee. Let us hope that he is a little warmer to them at Report. I beg to move.
Lord Pannick
I support the Government in their decision not to include the relocation power in the Bill. The speech of the noble Lord, Lord Hunt of Kings Heath, was notable for what he did not say about relocation powers. He did not mention the central feature of such a power, which makes it particularly intrusive and particularly damaging to the life of the individual who is the subject of it as well as to the lives of all members of their family. That is why such a measure should surely only be available if the Government conclude that it is truly necessary to protect national security. My understanding is that they do not, as the Minister made clear in Committee. I support them in that.
Lord Faulks
I agree with what the noble Lord, Lord Pannick, said. I understand the reasons behind this change, yet I have some sympathy for what the noble Lord, Lord Hunt of Kings Heath, said. It is reasonable to ask for reassurance about what will be a massive event with security implications. I am sure that the Minister will answer that query. I wonder if there is also an issue in relation to the transition from control orders to TPIMs at the end of this year, as the 28-day transitional period will fall over Christmas and new year. I would be grateful if the Minister would provide some reassurance that the police will be able to manage this transition.
Lord Pannick
My Lords, with the consent of the noble and learned Lord, Lord Lloyd of Berwick, I shall speak to Amendment 16, which is in my name and the name of the noble Lord, Lord Macdonald of River Glaven.
A TPIM notice may be issued under the Bill by the Secretary of State where she reasonably believes that an individual is or has been involved in terrorism-related activity. Amendment 16 seeks to substitute a test of balance of probabilities. The argument in favour of this amendment is very brief. If the Secretary of State is not satisfied on a balance of probabilities that an individual is involved in terrorism-related activities, surely there is no justification for taking these exceptional legal measures against him.
I asked the Minister on the first day in Committee, at cols 312 to 313 of Hansard, whether there would be any impediment to national security if the balance of probabilities test were to be adopted. The Minister did not suggest that any such conclusion had been reached in any of the reviews that had been undertaken. I remind your Lordships also that on the first day in Committee, at col. 301 of Hansard, the noble Lord, Lord Carlile of Berriew, with his extensive experience, said that he would have no difficulty if the balance of probabilities test were to be the test adopted in the Bill. I hope the Minister will be able to accept the amendment.
The Deputy Speaker (Baroness Harris of Richmond)
My Lords, I must tell the House that if Amendment 15 is agreed to I cannot call Amendment 16 by reason of pre-emption.
Lord Henley
I am just wondering whether the Opposition want to comment on this matter.
It is very important to start by reminding the House what we have under control orders, what we are proposing and what the amendment proposes. Under the control orders, the standard of proof was a “reasonable suspicion” by the Secretary of State. We considered this, as your Lordships are well aware, in the counterterrorism review, and it was concluded that it was necessary to raise the test of involvement in terrorism-related activity from “reasonable suspicion” to “reasonable belief”. Reasonable belief is considerably stronger than reasonable suspicion, as my noble and learned friend Lord Mackay has said. We have raised that standard, as is right and proper. It will provide an additional safeguard, and is consistent with the approach taken in the Terrorist Asset-Freezing etc. Act 2010.
It is obviously a matter where we have to consider proportionality and the appropriate balance. Again, I have to weary the House by stressing the need for that balance. We consider that a change to reasonable belief will not be prejudicial to national security. It is right that the Secretary of State should be able to take action to protect the public in circumstances where she reasonably believes that an individual has been involved in terrorism-related activity and the measures are necessary. I was grateful for the support of my noble and learned friend in this matter.
It was right to raise the standard of proof to reasonable belief, but we do not believe that it is necessary to go as far as a balance of probabilities, which might be a more appropriate action if this amendment had been considered at the same time as the first amendment we debated and if this were a matter for the courts to decide. As it is, this is a matter for the Home Secretary to decide, and we believe that this is the right action and that a move to a balance of probabilities would provide the wrong balance for the main TPIM regime in terms of ensuring that the public will be protected.
My noble friend Lady Hamwee went on to mention the enhanced TPIM Bill. That is a different matter where we are obviously considering much more draconian measures should they ever, sadly, be necessary. That is something that will be considered in due course by this House and another place as part of the scrutiny of the draft legislation. For this Bill, we believe that getting the balance right means sticking with reasonable belief, which is a considerable improvement on reasonable suspicion. I hope, therefore, that the noble Lord, Lord Pannick, will feel able to withdraw his amendment on this occasion.
Lord Pannick
My Lord, I do feel able to withdraw this amendment. I do so in particular because the noble and learned Lord, Lord Mackay of Clashfern, tells the House that reasonable belief, in the circumstances, is a stronger test than balance of probabilities. I beg leave to withdraw the amendment.
Lord Pannick
“( ) This Act expires at the end of the period of 1 year beginning with the day on which it commences.
( ) The Secretary of State may, by order, revive the Act if a draft of such an order is laid before and approved by an affirmative resolution of both Houses of Parliament.
( ) An order under this section expires a year after the day on which it is made.
( ) An order made by the Minister under this section is to be made by statutory instrument.”
Lord Pannick
My Lords, your Lordships have come to the final amendment on Report. Amendment 53 in my name and in the names of the noble Baroness, Lady Hayman, and the noble Lord, Lord Hunt of Kings Heath, would require an annual review of this legislation in Parliament as is currently the case with control orders.
Our debates at Second Reading, in Committee and today on Report have confirmed that the Bill addresses a fundamentally difficult problem for a free society, which is afflicted by the scourge of terrorism. The Bill, regrettably but necessarily, confers powers on the state to impose substantial restrictions and detriments on persons suspected of involvement in terrorism but against whom no proceedings are brought in the criminal courts. These orders will be imposed by the Secretary of State as an administrative matter, given that your Lordships rejected the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick. On any view, these are exceptional measures in a free society.
It is vital that the continuing need for such exceptional measures be examined every year. This will serve three important purposes. First, it will impose a discipline on Government. Civil servants and Ministers will need every year to consider the continuing case for the provisions and they will need to defend them in Parliament. Secondly, this will provide a means by which the continuing need for the measures can be explained to the public every year, and in particular to those sections of the community that are doubtful as to the need for the measures and their fairness. Thirdly, of course, it will give us—Parliament—an opportunity to express our view every year as to whether the measures continue to be justified. Both your Lordships’ Constitution Committee, of which I am a member, and the Joint Committee on Human Rights have supported the amendment. Indeed, your Lordships’ Constitution Committee in its Report questioned whether it is constitutionally appropriate not to have annual reviews of what it described as a scheme of “extraordinary executive powers”.
In Committee on 1 November—I refer to Hansard cols. 1131-1132—the Minister made three main points. First, he said the Bill contains adequate protection because it provides for a sunset clause after five years. However, 2016 is a long way away, and annual reviews are needed for all the reasons I have given. Secondly, the Minister said the Bill is the product of detailed scrutiny and has struck the right balance in its substantive provisions. The point is that the Bill contains exceptional measures, the need for which will depend on the nature and extent of the threat posed at any particular time. However confident noble Lords may be that the contents of this Bill strike the right balance, this is a context where annual scrutiny is essential. Thirdly, the Minister emphasised that the Secretary of State has power under Clause 21(2) to repeal the powers. However, that is no substitute for an annual obligation on Ministers to come before Parliament so that we can debate, and Ministers can explain to us and to the wider public, whether these wholly exceptional measures are still needed. I beg to move.
Baroness Hayman
My Lords, the noble Lord, Lord Pannick, has spoken with his usual clarity and force and that means I can be very brief. It was the issue of time limiting the provisions of the Prevention of Terrorism Act 2005 that six years ago brought me into conflict with my then own—and then government—Front Bench. I am delighted that the noble Lord, Lord Hunt of Kings Heath, has put his name to the amendment. I have to say, however, that like the noble Lord, Lord Newton, I was disappointed at his attitude on Amendment 1. He invoked the principle of consistency. I think he ought to be careful about that when we review this particular amendment, given that the Labour position then on time limiting was consistently to oppose any form of time limiting on the 2005 Act until two thumping defeats in this House and some fairly vigorous ping-pong.
Lord Henley
My Lords, the noble Lord said it for me. All I am saying is that the Bill can be withdrawn by my right honourable friend, should she so wish. Those powers are set out in the Bill.
Lord Pannick
My Lords, I am disappointed by the Minister’s response, although I admire his powers of advocacy in what I regard as a hopeless cause. This is an exceptional Bill. I am sorry that the Minister feels unable to respond to the wisdom and experience of other noble Lords who have spoken in the debate. The noble Baroness, Lady Kennedy of The Shaws, spoke of eternal vigilance. I hope that your Lordships will at least agree that annual vigilance is essential in relation to this Bill. I wish to test the opinion of the House.
UK Border Agency
Lord Pannick Excerpts(14 years, 8 months ago)
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Lord Henley
My Lords, I again make it clear that these are only allegations at this stage. The individuals have only been suspended—two of them only on a precautionary basis. We will have to wait for the results of the independent inquiry. As to staff levels, I do not accept there has been a misdirection of staff in these matters. It is very important we use staff in the best manner possible. We all know that we have to reduce the size of the United Kingdom Border Agency. Over the spending review period it will have to lose some 5,000 or so posts. That is the nature of things when we have to deal with the cuts that we are faced with—and we know why we are faced with them.
We will make sure, as far as possible, that the staff are used in the best possible way. That was one reason behind a pilot of this sort. The initial report from the pilot seemed to indicate that it was doing rather well in terms of the increased numbers of people whom it was catching. Obviously we will have to wait for the result of John Vine’s inquiry.
Lord Pannick
My Lords, does the Minister accept that border controls were relaxed without ministerial authority because of the unacceptably long queues at ports of entry? If it is the case, as the Statement asserts, that,
“there is nothing more important than the security of our border”,
surely it should be the highest priority of this Government to ensure that the border agency employs sufficient staff to ensure that full checks can be carried out at all ports of entry without the unacceptable delays that cause the need for such measures to be adopted.
Lord Henley
My Lords, the noble Lord would not want me to speculate on why certain individuals are alleged to have relaxed the rules beyond what the Home Secretary authorised in the pilot. That is the point of the investigation being mounted by John Vine. We look forward to that investigation in due course. I do not accept his second point that we have necessarily to maintain United Kingdom Border Agency staff numbers at the precise level that they have been for some time. The noble Lord will know that the numbers went up quite considerably when the Border Agency was created a few years back with the merger of a number of different agencies. We now have to reduce it in size but we will make sure that staff are deployed in precisely the right manner. That matter, too, will be covered by the investigation.