Terrorism Prevention and Investigation Measures Bill

Lord Lloyd of Berwick Excerpts

Tuesday 15th November 2011 Lords Chamber

Moved by

[Lord Lloyd of Berwick]

1: Clause 2, page 1, line 6, at beginning insert “The court may on the application of”

[Lord Lloyd of Berwick]

My Lords, we are all agreed that the measures which can be imposed by the Home Secretary under Clause 2 could place serious intrusions on personal freedom. On the second day in Committee the noble Lord, Lord Rosser, referred to the “profound impact” on the liberty of the individual of these exceptional measures. He was right. He might perhaps have added that these restrictions are by no means temporary. Of the 12 individuals currently subject to control orders, one is already in his fifth year of being subject to a control order and four have already been subject to control orders for between two and four years. It is my case that restrictions of that severity should not be imposed by the Home Secretary—more particularly when the individuals concerned have not been charged with or convicted of any offence—and it is right and proper that they should be imposed by the courts. That is the purpose of the first amendment. There are a number of subsequent amendments dealing with the same point, but this debate will turn on the first amendment, and the position is very simple.

The amendment has already received strong support from the Joint Committee on Human Rights. That report came too late to be considered in Committee by the noble Lord, Lord Henley, as fully as he would have wished. As the report presumably contains the Government’s best case for leaving Clause 2 as it stands, I shall deal with it in some detail. In their original response to the concerns of the Joint Committee on Human Rights, the Government relied upon,

“a well-established principle across our legal system of imposing”,

preventive restrictions,

“to protect the public from criminal behaviour”.

They cited numerous examples of such preventive orders: serious crime prevention orders, anti-social behaviour orders, risk of sexual harm orders and many others of the same kind. In every one of those instances, the order is made by the court, as it should be, and not by the Executive. That particular principle, although certainly well established, does not help the Government in any way in relation to Clause 2 and this amendment; indeed, it favours the amendment because it illustrates the way in which preventive orders are habitually made.

In their more recent response, the Government rely upon a different well established principle, that in national security cases it is the Home Secretary who makes the decision and not the court. What is the evidence of this other, and more restricted, principle? With one exception, which I will of course come to, the only example given by the Government in their response was the power of the Home Secretary to deport individuals on national security grounds. That was the power to which the noble Lord, Lord Carlile, referred in Committee. I am sorry not to see him in his place today. When I asked him whether he would accept that there is a distinction between deporting foreigners and deporting British citizens, he described the distinction I was seeking to make as “casuistic”, so I feel I had better make that distinction good.

The power to deport is contained in Section 3(5) of the Immigration Act 1971, an old and very familiar provision. It specifically excludes deportation of British subjects. One might ask: how could the Home Secretary claim the power to deport British subjects? Where would she deport them to? The same applies to the other example given by the noble Lord, Lord Carlile, that the Home Secretary has the power of deprivation of citizenship. That power, which is contained in Section 20 of the British Nationality Act 1948, applies only to those who have obtained British citizenship by fraud and other similar such cases. It has never applied—and could never have applied—to British citizens by birth. Therefore, we can forget about deportation orders and deprivation of citizenship orders made by the Home Secretary as being a valid precedent. I am somewhat surprised that that was even mentioned in the recent government response to the Joint Committee on Human Rights. That perhaps shows the extent to which the Government have had to scrape the barrel to find any precedent at all for Clause 2 of the Bill.

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[Lord Lloyd of Berwick]

The noble Lord has been very clear. I fully understand—and that is exactly what is provided in a subsequent amendment. I think that it is Amendment 3. You have to read Amendment 1 with an amendment that strikes out the words,

“the Secretary of State reasonably believes”,

in Clause 3(1). So it does tie up.

[Lord Phillips of Sudbury]

I could not see the amendment that did that.

[Lord Lloyd of Berwick]

I think that it is Amendment 3.

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[Lord Henley]

My Lords, I thank the noble Lord, Lord Rosser, for those remarks, just as I thank my noble friend Lord Faulks for his remarks. I believe that we are not alone in objecting to the amendments put forward so ably by the noble and learned Lord, Lord Lloyd, for whom I have the utmost respect. We have been debating matters of this sort, sometimes on the same side, sometimes on different sides, for many years. I acknowledge his expertise, but I have to say that I do not agree with the gist behind this large group of amendments that he has tabled with support from my noble friend Lord Goodhart, the noble Baroness, Lady Hayman, and others.

Put simply, the key change under these amendments would be that TPIM notices would be imposed by a judge rather than by the Secretary of State. We have heard a great many legal arguments put forward by a great many extraordinary and eminent noble Lords—some learned, some not learned, but many are more learned than even the most learned of learned Lords. If we can take an Occam’s razor to this point, the question is: do we think that this it right for the Home Secretary to make this decision or should it be a matter for the courts? It is as simple as that.

It is no secret that the Government take a different approach to that proposed by the noble and learned Lord and other noble Lords, be they learned or not. It is no secret that we take a different approach from that recommended by the Joint Committee on Human Rights and others who have spoken in this debate. These are matters that we have debated in the House during the Bill’s passage and to which the Government have responded, in full, to the Joint Committee on Human Rights, including their response to the report of 19 October issued earlier this month.

The arguments are well rehearsed. I appreciate that noble Lords have again set out their views that such restrictions that may be imposed under this Bill—and which I emphasise are preventive, not necessarily punitive—should only ever be imposed by a judge. It is a respectful and principled decision. It has consistently been held by some in this House in relation to control orders in the past and now to TPIMs, but we cannot agree with it. We do not accept, as the noble and learned Lord, Lord Lloyd, would put it, that it is unprecedented for decisions of this sort, based on national security cases or on sensitive material, to be taken by the Executive. As he is aware, there are a number of occasions when executive decisions are made by the Home Secretary and others.

The noble and learned Lord was wrong to suggest that deprivation of British citizenship applies only to citizenship obtained by fraud. It can also be used on grounds of being conducive to the public good if the citizen is of dual nationality, which the noble and learned Lord did not mention in his response. He did mention that it can also be used under asset freezing, under the Terrorist Asset-Freezing etc. Act 2010. Again I appreciate that the noble and learned Lord did not accept that Bill, but it is now an Act. It can be used on financial restrictions under the Counter-Terrorism Act 2008. It can also be used—and has been very recently—regarding decisions to proscribe organisations that the Home Secretary believes are involved in terrorism. It is a well established principle that it is the relevant Secretary of State who can take such decisions in, for example, cases of asset freezing and others such as immigration cases with a national security dimension, with subsequent judicial oversight. That is the important point to remember. My right honourable friend the Home Secretary will make that decision. She is the right person to make it, but it will be reviewed by the courts in due course. I give way to the noble and learned Lord.

[Lord Lloyd of Berwick]

Does the noble Lord accept that the only precedents on which he relies, other than the very recent terrorist asset-freezing legislation, are immigration decisions which have nothing whatever to do with what is before us? They deal basically with foreigners, not with British-born subjects.

[Lord Henley]

It is still a matter of national security. That is why we believe that it is for the Home Secretary to make the appropriate decision and for that to be reviewed by the courts. The noble and learned Lord mentioned the 2010 Act, with which he did not agree and which he opposed. I mentioned that but I also mentioned the Counter-Terrorism Act 2008 and the financial restrictions under that. That is another example. I accept that the other matters concern immigration decisions but they are important. I also mentioned the fact that the Home Secretary has the power to proscribe organisations which she believes are involved in terrorism. Again, that matter can be reviewed by the courts, as can the one we are discussing. Therefore, it is irrelevant whether the earlier matters concerned only immigration, as the noble and learned Lord put it. These matters go beyond that. They involve national security. I will give way to the noble Baroness in a minute when I have finished this point. Therefore, I think it is right that my right honourable friend the Home Secretary should be involved in those decisions.

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[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 Lloyd of Berwick]

The Minister has not dealt at all with the point on Section 4 of the 2005 Act. There is a clear case, as I am sure he realises, where the initial order is made by the court and not by the Secretary of State. Why should that not apply here? It is not an answer to say that that is a derogation order—or if that is an answer, why is it an answer?

[Lord Henley]

My Lords, if I had wanted to use up a great deal of the House’s time, I could have answered a great many points, and indeed the House may wish me to answer them. I was trying to bring this matter down to a simple question for the House: who would be the appropriate person to make this decision?

Section 4 was raised. The Government’s counter-terrorism review looked at that but did not consider that derogating control orders provided an appropriate parallel. No derogating control orders have ever been made and the context here would be different. Derogating control orders would impose obligations so stringent that the Government would, as I understand it, need to derogate from Article 5—that is, the right to liberty—of the European Convention on Human Rights before such orders could be imposed. Non-derogating control orders—the only kind ever used—can, by definition, impose only less restrictive obligations, and Parliament agreed that these should be made by the Secretary of State.

I go back to the very simple point that I want the House to address in the noble and learned Lord’s amendment: who do you think is the right person to make this order? We believe that the right person is the Home Secretary because the Home Secretary is answerable to Parliament and is responsible for national security. That will then be looked at by the courts, but we do not believe that it should be the courts ab initio. For that reason, I cannot support the noble and learned Lord’s amendment.

[Lord Lloyd of Berwick]

My Lords, I regret that I find the noble Lord’s reply to the debate pretty unsatisfactory. I have as great a respect for him as he says he has for me, and I just wish that he could have made a better case for the Government than he has. I think that the case is as weak as it could possibly be. I do not suppose that this amendment is likely to succeed, but it should and I therefore propose to divide the House.

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[Lord Harris of Haringey]

My Lords, I am grateful to have the opportunity to follow the noble Lord, Lord Bew, who has summed up the argument about prudence on this amendment. This is not a new power—it is making available during the Olympics year the existing powers. That is all that it does. It does not create a new power, despite what my noble friend Lord Judd has said. I am very conscious—and I do not think that the Minister answered this point on Second Reading or in Committee—that the power of relocation has been used in a very small number of cases, and it has been used by the present Home Secretary. This is not some hangover from the days of the previous Administration in terms of its use; it has been used by the present Government and the present Home Secretary.

I would like to be satisfied on why the Government think that a power that was used earlier this year, because the Home Secretary considered it necessary on the basis of the information that she had received is no longer necessary in the period during the Olympics when we know that the threat will be extremely difficult. That is extremely important.

[Lord Lloyd of Berwick]

Is not the possible answer to that question that, at that stage, the Home Secretary was not aware that she had sufficient resources by way of surveillance to do without relocation?

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Tabled by

[Lord Lloyd of Berwick]

15: Clause 3, page 1, line 16, leave out “the Secretary of State reasonably believes that”

[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 Lloyd of Berwick]

My Lords, I support the amendment spoken to by the noble Lord, Lord Pannick. It covers the same ground as my amendment, which would have amended Clause 6 by substituting civil standards of proof for “obviously flawed”. I agree with every word that the noble Lord, Lord Pannick, has said.

The great advantage of the balance of probabilities as a test is that it is flexible. At the more serious end, it approaches the criminal standard. There could hardly be a more serious finding to make against an individual, as has been said often today, than that he has been engaged in terrorist activity. Therefore, the burden of proof in these cases ought to approach the criminal standard. There is not the slightest justification for a burden of proof which is less than the civil standard.

With one exception there is no precedent that I can find in English law for a serious finding, such as is involved here, being made on the basis of reasonable belief. In the earlier debate I referred to many instances of prevention orders being made by the civil courts, some in serious cases such as sexual harm and so on, and in every case the burden of proof has been the balance of probabilities, and so it should be here.

[Lord Macdonald of River Glaven]

My Lords, Clause 4 of the Bill indicates that the finding which will be made in relation to a TPIM is that an individual has been involved in,

“the commission, preparation or instigation of acts of terrorism”;

or in,

“conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so”;

or in,

“conduct which gives encouragement to the commission, preparation or instigation of such acts, or is intended to do so”;

or in,

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

such conduct.

This is a very grave finding. As I suggested earlier, it is a finding which justifies a standard of proof on the balance of probabilities rather than reasonable belief. I support the amendment for the reasons that have already been set out.

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[Lord Mackay of Clashfern]

My Lords, we have to bear in mind that as the Bill now stands, the initiator of this procedure is the Secretary of State with responsibility for national security. The Secretary of State has available to him or her all the information that the state can provide, including on a secrecy basis, on these matters.

When a court is deciding something, the balance of probabilities is a suitable standard because it is not expected to believe one thing or the other; it is to accept the balance of the evidence one way or the other. Requiring the Secretary of State to believe is a higher standard than the balance of probabilities. I cannot believe that the Secretary of State would be entitled, on a mere balance of probabilities, to come to the belief that this is what happened.

Of course, Secretaries of State might be rather special, and they might be able to come to a faith and belief without much in the way of evidence. However, that is taken care of by the language in the Bill as it stands, that the belief must be reasonable. So it is not only belief but a reasonable belief. In other words, the Secretary of State must have available to him or her information as a result of which he or she comes to be convinced that the person has engaged in the activities that the noble Lord kindly laid out for us. I agree that it is an extremely serious matter but the language in the Bill is suitable to a situation in which a decision has to be made, not by someone who has to review the evidence as an impartial judge but by someone who comes to the evidence with the executive responsibility to take the necessary action. In my view, this requirement that the Secretary of State should reasonably believe that the person in question has been involved in these activities, is a stronger and more reliable basis for going forward than a mere balance of probabilities. It is difficult to see how one could be convinced on the balance of probabilities alone.

[Lord Lloyd of Berwick]

The noble and learned Lord refers to a “mere” balance of probabilities. He will of course be aware of the many cases decided in the highest courts where what he calls a “mere” balance of probabilities can approach the criminal standard, specifically in cases such as these.

[Lord Mackay of Clashfern]

I agree with that and am very much aware of it, but it is still a mere balance of probabilities. Although it can go very close to the criminal standard, it is still a balance of probabilities that is being used, and I would say that the criminal standard requires a jury in effect to believe—to be sure—that this is what happened. I regard “reasonable belief” as a very strong and appropriate phrase to use where the person initiating the procedure is the person with the responsibility to have before him or her all the necessary material.

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Moved by

[Lord Lloyd of Berwick]

39: After Clause 9, insert the following new Clause—
“Time limit on measures under section 2
(1) Measures imposed under section 2 shall remain in force for the period of one year, or such lesser period as the court shall determine.
(2) Measures may be renewed for a further period of one year, and no more, on a further application to the court if the court is satisfied on the civil burden of proof that the individual has been involved in terrorist related activity since the imposition of the original measures.”

[Lord Lloyd of Berwick]

My Lords, very briefly, Clause 5 enables the Secretary of State to renew measures for a further year if conditions A, C and D are satisfied. He does not need to be satisfied of condition B, that there has been fresh terrorist activity during the first year. Amendment 39 has two separate purposes. First, it requires the Secretary of State to be satisfied of fresh terrorist activity during the first year before he automatically renews for the second year. Secondly, it places an absolute limit on renewal of two years. It cannot go beyond that.

Curiously enough, this amendment might have received some support from the noble Lord, Lord Carlile of Berriew. If I remember correctly, it was his view that somebody who had been subject to a control order for two years would have little further potential use as a terrorist. He was rather minded to pose—or had some sympathy with posing—a limit of two years on the extent to which these measures can be renewed.

The Minister said at an earlier stage that it is not the Government’s intention to use measures of this kind to warehouse individuals who are suspected of being terrorists. Yet, as we know, they have been warehoused—if that is the right word—for periods of three, four and five years without ever having been charged or tried. That is happening now. The purpose of this amendment is to ensure that that does not happen in future. There should be a final limit of two years. I beg to move.

[Lord Rosser]

My Lords, very briefly, this amendment seems to provide for a TPIM to remain in force for no more than a year or a lesser period determined by the court. It also provides that the measures may be renewed for a period of no more than one further year if, on application to the court, the court is satisfied on the civil burden of proof that the individual has been involved in terrorist-related activity since the imposition of the original measures. If that is correct, our view is that those considered to be engaged in serious terrorist activity are not often likely to have so changed their intentions within a period of 12 months. For that reason, it would not be appropriate to end the order. The amendment suggests that it would be, unless there was evidence of further terrorist-related activity. If we understand the amendment correctly, our view is that it would detract from the ability to protect the public. We are not inclined to support it.

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[Lord Henley]

My Lords, I get the impression that the House wishes to move on. I never understand these things—I do not know whether the noble Lord, Lord Hunt, wishes to go out for dinner or whatever—but I will endeavour to be relatively brief.

I was amused for the second consecutive amendment as first the noble Lord, Lord Pannick, and then the noble and learned Lord, Lord Lloyd, cited my absent noble friend Lord Carlile as being a likely supporter of their amendments. It is easier to make these assertions in his absence. We will invite my noble friend to look at Hansard in due course and decide whether he necessarily agreed with the noble Lord or the noble and learned Lord. I just say that in passing.

I thank the noble and learned Lord for his explanation, which would obviously change the provisions relating to the period for which a TPIM notice can have effect. I will set out our thinking on this issue. In his model, there would be a requirement for new terrorism-related activity to have taken place while a TPIM notice is in force, in order to allow that TPIM notice to be extended into a second year. Again I must dare to use the word “balance”. We do not think that this strikes the right balance in the context of preventive orders of this kind. Indeed it would undermine the ability of the Government to protect the people of this country from a risk of terrorism.

The counterterrorism review carefully considered the issue of time limits and how long restrictions such as these should remain in force on the basis of the same evidence. It concluded that extension of a TPIM notice for a further year should only be allowed on one occasion if the notice continues to be necessary in order to protect the public. After that one extension—up to two years—new evidence would be required to impose a new TPIM notice. That is a significant move away from the position in control orders, which can potentially be renewed indefinitely on the basis of the same evidence where the control order remains necessary.

We are of the view that the ongoing necessity for the notice can be made out for a second year on the basis of the original terrorism-related activity. This is particularly so where that activity is very serious, suggesting that the individual’s mindset and intentions, perhaps to do serious harm, will not have changed after just one year subject to restrictive measures. Indeed, there are many court judgments in the control order context confirming that, for the purposes of public protection, ongoing necessity is not dependent on new terrorism-related activity since the imposition of the control order. We do not believe that the new terrorism-related activity should be required in order to extend the original TPIM notice for that one year.

While the Government’s view is that TPIM notices should not be used to warehouse people, and should not be imposed indefinitely on the basis of the same evidence—as can happen under control orders if the statutory test continues to be met—a notice that can only last one year without evidence of new activity undertaken while subject to the measures will not be sufficient to disrupt the threat posed by the individuals concerned in many cases.

Again I come back to the question of balance. We believe that the balance is about right in what we propose—that is, one year with the ability to extend it for another year. If there is to be any extension beyond that, we need new evidence of terrorist-related activity of one sort of another, as set out in the Bill. The limits proposed by the noble and learned Lord’s amendment shift the balance too far the other. I hope that he will be happy to withdraw his amendment on the basis of that explanation of balance.

[Lord Lloyd of Berwick]

My Lords, I am sad, but nevertheless I withdraw the amendment.

Amendment 39 withdrawn.