Terrorism Prevention and Investigation Measures Bill

Lord Phillips of Sudbury Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord Pannick]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Phillips of Sudbury]

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

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, in this context, unlike my noble friends and other noble Lords who have spoken, I propose to speak in support of the Government and of the proposals in this part of the Bill. I hesitate to dice with a great historian on matters of history, but I say to the noble Lord, Lord Morgan, that he was a little selective in his expression of the historical context. First, in describing Regulation 18B, perhaps he should have told the House that it was of a completely different character. The way in which it was made meant that the victim or subject knew nothing at all of the reasons why the order was made. The so-called tribunal that heard Regulation 18B cases was completely lacking in transparency of any kind. The great dissenting judgment of that wonderful Welsh judge, Lord Atkin, in Liversidge v Anderson took decades to be accepted as the norm for judicial review. Although Churchill described Regulation 18B and its procedures as,

“in the highest degree odious”,

a phrase that has become celebrated, the fact remains that during Churchill’s prime ministership numerous people—indeed, hundreds of people—were imprisoned as a result of it, and he did not take steps to legislate in favour of that dissenting judgment. Indeed, it was long after he had ceased to be Prime Minister that that happened. I think that the lessons of history as described by the noble Lord are not terribly helpful.

One should also bear in mind that whether we are talking about control orders or the diluted version in TPIMs—admittedly only slightly diluted, apart from the matter that we are going to consider in the next group—they do not involve the incarceration of the individual. They involve some restrictions on the individual’s freedom which I understand most in this House regard as proportionate and reasonable given the requirements of national security.

My noble friend looks as though he wants to intervene, but then he always does. Does he want to?

[Lord Phillips of Sudbury]

He does. It seems to me that my noble friend’s historic account of Regulation 18B omits to mention that it was prevalent during wartime and that, as soon as that was over, it was repealed.

[Lord Carlile of Berriew]

Which was one of the reasons why it was so unjust, because a very large number of people were made the subject of Regulation 18B and almost none of them had any evidence of any kind whatever against them. When we are dealing with TPIMs or control orders, we have individuals against whom there is very robust intelligence. I do not think my noble friend has had the opportunity to read that intelligence, but had he done so he would undoubtedly be so satisfied, being a reasonable person.

--- Later in debate ---

[Lord Rosser]

I have no doubt that the views that I am expressing are not in line with those of a great many people, but perhaps they did not have to deal with the situation that we face today—the threat of acts of terrorism. I repeat that we regard this as a ministerial decision. It should be made by a Minister responsible for national security, accountable to Parliament and the electorate, and open to challenge in the media. Such a decision is subject to scrutiny by and in the courts but it is the Secretary of State who should make the decision. The Government, not the courts, will be held accountable for the top priority of protecting the public from terrorism. Governments, not judges, pay the price for failing to protect the nation from terrorism, and people look to their Government, not the courts, to protect them from acts of terrorism.

[Lord Phillips of Sudbury]

The noble Lord has twice said that the Minister is answerable to the media. How can the Minister be answerable to the media for an order made in total secrecy?

[Lord Rosser]

I said “open to challenge in the media”; I am not sure that is the same as being accountable to the media. On this issue we continue to hold a very different view from that expressed by, among others, the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Morgan.

I appreciate that one of the arguments is that the very system of control orders that we have provokes people who might otherwise have been only minded to commit acts of terrorism actually to do so. I am not aware of the evidence that supports that contention but I am aware that acts of terrorism were committed when there were no control orders in existence and that control orders, which have affected a limited number of people, seem to have been in effect during a period when we have been afforded a fair degree of protection from acts of terrorism, despite the threat level having been either severe or substantial.

I also appreciate that there are concerns over human rights. However, I understand that it is being held that control orders are compliant with the European Convention on Human Rights. As well as the rights of the individual, there are surely issues about the rights of innocent people to be protected from acts of terrorism. As the Minister said at Second Reading:

“It is clear that the current threat from terrorism remains serious and will not diminish in the foreseeable future. It is also clear that in this country there are, and will continue to be, a small number of people who pose a real and immediate terrorist threat but who cannot be successfully prosecuted or deported”.—[Official Report, 5/10/11; col. 1134.]

The current Secretary of State has been prepared to use control orders, including the relocation provision, and has received the clear backing of the courts.

We do not agree with much of this Bill, as we made clear at Second Reading. The Government have already made changes that weaken the current arrangements and risk having an adverse impact on the ability to protect the public from terrorism. We do not agree with these amendments that we are discussing, apart from the thrust of Amendments 42 and 43 tabled by the noble Lord, Lord Pannick, which is why we have given notice of our intention to oppose Clause 9. We wait to see whether the Minister will accept any or all of the amendments, which in our view water down the current arrangements even further.