Terrorism Prevention and Investigation Measures Bill

Lord Rosser Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord Neill of Bladen]

My Lords, I wish to add my view. I entirely agree with what the noble and learned Lord, Lord Lloyd of Berwick, moved by way of an amendment. I fully support that and I also support the amendment tabled by the noble Lord, Lord Pannick. The basic question is one of justice: where should the order be made that leads to these deprivations of liberty? I have been told that you would have to be in a particular residence for a long period of hours. All those things in orders of that type are grave deprivations of privilege. Here, I agree with what the noble and right reverend Lord, Lord Eames, said based on his experience, which is borne out by the material that we are reading now as to where the public place their confidence. Perhaps not surprisingly, journalists come at the bottom. I do not know where lawyers come in but it is somewhere not very high up. Yet the judges seem to have the backing of the public as being in the safest and soundest place for judgments to be made. If those judgments involve the liberty of the subject, as I believe they do in this case, that is where we should put our money.

[Lord Rosser]

My Lords, one of the attractions of these debates is that we get not one but many legal opinions—different opinions from distinguished legal practitioners, at no charge and expressed with some force. The effect of many of these amendments is to significantly alter the Bill. One set within the group we are talking about gives the power to impose specified terrorism prevention and investigation measures on an individual to a court, rather than to the Secretary of State. It also appears to require that before such measures can be imposed, the individual concerned has to be or has been involved in terrorism-related activity, which, if that is the case, sounds a bit like shutting the prevention of terrorism door after the horse has bolted. Most people would prefer to see action taken against the small minority minded to commit acts of terrorism before they carry out the deed, rather than afterwards.

The second set of amendments we are discussing continues to give the Secretary of State a role but appears to raise the bar that has to be cleared by the Secretary of State before he or she can impose specified terrorism prevention and investigation measures. As far as the Government are concerned, the bar has already been raised under this Bill from “reasonably suspect” to “reasonably believes”. Amendment 17 raises it higher to,

“is satisfied on the balance of probabilities”,

a term with which the judicial system is more familiar and with which, no doubt, its practitioners are more at ease.

The outcome of all these amendments is quite likely to be that the number of people subject to the renamed control orders is less than it would have been under either of the thresholds—the Government’s proposed “reasonably believes” or the current legislation’s “reasonably suspect”—for the Secretary of State to cross before imposing a TPIM. That may be one, but surely only one, of the intentions of these amendments, since their authors are clearly unhappy with both the present arrangements and the amended arrangements set out in the Bill—so unhappy, indeed, that the first set of amendments largely takes the Secretary of State out of the equation.

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[Lord Morgan]

Is my noble friend aware that the view he has expressed is totally contrary to those of such figures as Attlee and Aneurin Bevan, who were among the founders of the National Council for Civil Liberty, which discussed the rights of working men, including the right to demonstrate and the right to speak? He is taking a contrary view, which is very sad.

[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.

[The Minister of State, Home Office (Lord Henley)]

My Lords, this is a very big group of amendments before the Committee. I thank all noble Lords for their co-operation in agreeing that we should group together such a large number of amendments. However, I am afraid this means—I start with an apology—that I will have to answer this debate at some length because it is important to deal with the various points that have been raised.

The 20th report of the Joint Committee on Human Rights came out at 11 o’clock today, as the noble Lord, Lord Goodhart, reminded us. Obviously, the Government have not had time to consider it in detail. I will respond to a number of the points because the points it makes are similar to those put forward by the noble and learned Lord, Lord Lloyd, in his amendments, which have been supported by others. However, in due course—I hope that will be before we get to Report—the Government will want to make their formal response in the usual way. At this stage I will respond in part but noble Lords will understand that we are keen to give a fuller response in due course. I will endeavour to ensure that that appears before Report but I can give no guarantee at this stage.

I simply do not accept that the TPIM regime is outside the rule of law, as the noble Lord, Lord Goodhart, suggested. This Bill and its predecessor are and have been through the parliamentary process and are subject to review by the courts. To argue that this is beyond the rule of law is unfair and excessive. This large group—

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[Lord Rosser]

My Lords, the amendments of the noble Lord, Lord Pannick, which, as he said, are supported by the recent Joint Committee on Human Rights report, require the provision of information to the individual on whom the measures under the Bill are imposed, to enable that individual at the review hearing to give effective instructions to his or her representatives and to the special advocate about the allegations made against them.

In considering this issue, we are also considering national security. We are conscious of the need to protect people from further atrocities of the kind we have already seen in this country and elsewhere. We are talking about a small number of people whose activities are felt to pose a real threat to the public, but in respect of whom sufficient hard evidence cannot be put before a court in the public domain to enable a case to be made to the standard that has to be achieved for a successful prosecution.

We would not dissent from the provision of information to the individual, provided that it did not lead to the safety or security of any providers or sources of information being put at risk; provided that it did not mean that intelligence provided—perhaps from other countries—dried up, because that intelligence is provided only on the basis that it is not made public; and provided that the provision of the information did not jeopardise national security, including protection from acts of terrorism.

The chairman of the Joint Committee on Human Rights stated:

“We maintain our view that the priority in the Bill should be investigation and not prevention”.

We certainly support the view that investigation is important and that, where possible, people should be charged and their case dealt with through the courts in the normal way. However, we do not support the view that the Bill should have prevention of acts of terrorism as an issue of lesser importance. We will want to be satisfied that the effect of the amendments would not be to veer in that direction. We await with interest to hear the Government's position, particularly in the light of the House of Lords judgment in AF.

[Lord Henley]

My Lords, the noble Lord, Lord Pannick, asked two questions: first, do we accept that the AF principle applies to TPIMs as well as to control orders? I can give him that assurance. It is set out in our Explanatory Notes that we believe that previous court judgments will be binding on TPIMs, as they were on control orders. I do not have the ability to cite cases as authoritatively as my noble friend Lord Carlile or the noble Lord, Lord Pannick, both of whom obviously eat them for breakfast, but my understanding is that they will continue to bind us.

The second question is: do we think that it is necessary to get it on the face of the Bill? I hope that I can explain to the noble Lord why I do not think that that is necessary. We share the desire of all noble Lords to ensure that TPIM proceedings are compatible with Article 6 and we believe that the provisions currently contained in the Bill achieve that. As we explained in our response to the Joint Committee on Human Rights in its 19 July report—I think that today’s was its third report on this issue—the right to a fair trial of individuals subject to a TPIM notice is already fully protected by the provisions contained in the TPIM Bill and the application of existing case law, as appropriate, by the courts.

Paragraph 5 of Schedule 4 to the Bill reflects the read down of the Prevention of Terrorism Act 2005, effected by the 2007 judgment of the Law Lords in MB. As the noble Lord will be aware, the Law Lords read into that legislation, which obliged the courts to ensure the withholding of material from the individual where disclosure would be contrary to public interest, the words,

“except where to do so would be incompatible with the right of the controlled person to a fair trial”.

That has been reflected in the provision in paragraph 5 of Schedule 4 to the TPIM Bill, which provides that nothing in the rule-making power relating to closed proceedings or the rules of court made under it is to be read as requiring the court to act in a manner inconsistent with Article 6. The Law Lords in AF (No.3) confirmed the read down specified in MB and laid down what was required by Article 6 in the context of the stringent control orders before them. There is therefore already provision in the Bill which ensures that TPIM proceedings will be conducted compatibly with the individual’s Article 6 rights and, indeed, the Human Rights Act achieves the same effect.

That is all that I want to say at this stage to the noble Lord’s amendment. I appreciate that technically we are debating the amendment to the amendment tabled by my noble friend Lady Hamwee. It might be more appropriate for the noble Lord, Lord Pannick, to comment on that. I hope that he will accept my explanation on why we do not think it is necessary to include his amendment. I hope that the assurances that I have given from the Dispatch Box will be sufficient. I hope that my noble friend and then the noble Lord will withdraw their amendments.