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EnactedCounter-Terrorism Act 2008

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Committee stage in the Lords

21 Oct 2008105 speechesView in Hansard ↗
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    The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead)The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead)Labour
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    My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill. Moved accordingly, and, on Question, Motion agreed to. House in Committee accordingly. [The LORD SPEAKER in the Chair.]
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendment No. 105J:
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    In so far as these are technical amendments which bring the legislation into line in the way described by the Minister, we shall not challenge them. I shall save my more substantial remarks for the question of what should fall within the scope of this when I move Amendment No. 105NZA, which concerns definition. As we are content with the definition of what the Minister is talking about, we have no argument with the amendments.
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendment No. 105K:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendments Nos. 105L and 105M:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendment No. 105N:
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    moved Amendment No. 105NZA:
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    Lord GoodhartLord GoodhartLiberal Democrat
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    I would like to take a little further the argument that has just been put forward by my noble friend and look at the important question of how the courts would, or will, interpret Section 4 of the 2001 Act if the order relating to the Icelandic bank is brought forward. It is very difficult to read Section 4 of the 2001 Act as it stands as applying to purely economic matters. For example, if a foreign country, perfectly understandably and legitimately, bans the import of British beef on the grounds of foot and mouth disease or mad cow disease, that would unquestionably be an act to the detriment of the United Kingdom’s economy. I cannot imagine any court interpreting that order banning the export of British cattle as being within the operation of Section 4. The Government have to face the fact that if Section 4 in its present form comes in front of a court, there will be great difficulty in interpreting it. It is perfectly possible that that court might come to the conclusion that the use of these powers in the present circumstances against the Icelandic bank was not, in fact, a legitimate use of Section 4. The Government will have to consider not only what Section 4 should mean but what it in fact means now.
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    Lord Elystan-MorganLord Elystan-MorganCrossbench
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    I wonder whether I may raise a question which I respectfully suggest goes even deeper than those raised by the noble Lords, Lord Goodhart and Lord Kingsland. Does the golden rule of statutory interpretation which I was taught as a law student a very long time ago still hold good? That rule, as I understand it, is this. Where the language of an Act of Parliament is perfectly clear to understand, that is the meaning of that Act of Parliament, whatever Parliament intended. If, on the other hand, the language is in some way ambiguous, one is entitled to look behind the words of the Act and consider what the intention of Parliament was. It is a very old rule which is common not just to Acts of Parliament but to the interpretation of wills and documents. Is that golden rule still in existence? If it is, then even though there may be a moral obligation on the Government to think twice whether they should use that legislation in a context that may never have been intended in the first place, it does not affect the validity of that situation. I apologise to the Minister for raising that question, but it goes to the very root and foundation of this issue.
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    Lord West of SpitheadLord West of SpitheadLabour
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    I thank noble Lords for their input and the noble Baroness for her query and probing amendment. Although I was slightly surprised when I realised that the Anti-Terrorism, Crime and Security Act was being used to freeze the assets of a bank in Iceland, there is no doubt that Section 4 of the Act allows the Treasury to make freezing orders when an action is to the detriment of the UK economy or constitutes a threat to the life or property of a UK national.
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    Lord GoodhartLord GoodhartLiberal Democrat
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    The Minister said that there is no doubt. Does he accept that there is a real doubt whether the scope of Section 4 goes as far as authorising an order of this kind?
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    Lord West of SpitheadLord West of SpitheadLabour
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    As I understand it, it does allow that. The Defence (Armed Forces) Regulations 1939 used to allow it, and the Emergency Laws (Re-enactments and Repeals) Act 1964 contained the same abilities. Those were then subsumed by this Act to allow freezing action of this kind. The ATCSA was not intended to be a purely counter-terrorism Act. At the time, the noble Lord, Lord McIntosh, explained in this place that the power was intended to provide wide-ranging protections against threats to the national security. The noble Baroness has expressed a slightly different view. The legislation also addresses things such as pathogens, toxins and nuclear security. It addresses a raft of other issues. It is slightly unfortunate that the title of the Act begins with “anti-terrorism”, as the reaction of the Icelandic Government has demonstrated. In its previous incarnation, the power has been used twice before: in 1990, when Iraq invaded Kuwait, in order to protect Kuwaiti assets in the UK and prevent the Iraqis misapplying funds; and as a defensive measure to freeze the assets of Iraq. As has been pointed out, the power was used this month over the assets of Landsbanki. As noble Lords will know, any use of the ATCSA has to be debated and approved by both Houses. Without that approval, the freezing order will cease automatically after 28 days. The debate regarding this asset freeze is scheduled to take place later this month and will provide an opportunity for Members to raise concerns regarding use of the power. The noble Lord, Lord Goodhart, raised some interesting points and that debate will be a good opportunity to debate them. The amendment would limit the ability of the UK Government to act effectively in an emergency and protect the interests of our country. As the noble Lord, Lord Kingsland, said, it was absolutely right that we did so in this case. We need an ability to do this. That is the current position, and it will be an interesting debate. The Act was not intended to be confined to terrorist threats. Given that the amendment would have consequences outside the scope of the Bill, we do not consider it appropriate and would like it to be withdrawn. The noble Lord, Lord Elystan-Morgan, mentioned the golden rule. I am not sure how to address the point, as it is a little beyond my competence, but I could look at it. If the golden rule is that we need an ability to do this, and the ability lies somewhere in some Act, and if this is not the best way to do it, then we need to think about that. However, we certainly need the ability because we need to take this kind of action.
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    I thank all those who have spoken in this debate. There are some very important points of principle here, and I am glad that the House will have the opportunity to discuss them further when the order is debated. Noble Lords who are much more expert than me—my noble friend Lord Goodhart, the noble Lords, Lord Kingsland and Lord Elystan-Morgan—have all spoken about the courts’ interpretation of this provision. That is one angle to be debated when we debate the order. Of course, there is also quite a large issue about the economic angle. There will no doubt be some ripples throughout the financial world as a result of this situation, and it would be very unfortunate if there was not total confidence that our laws—and the interpretation of them—were firm. A knock-on consequence might easily be that other countries and Governments would choose not to leave their assets here, with a provision that could be open to wide interpretation. There is an awful lot more to debate here, but in the mean time I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 74 agreed to. Clause 75 [Initial exercise of powers by Lord Chancellor]: [Amendment No. 105NA not moved.] Clause 75 agreed to. Clause 76 [Interpretation of Part 5]:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendments Nos. 105P and 105Q:
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    Clause 77 and some of the following clauses propose that inquests could be held without a jury and with a specially appointed coroner, appointed by the Secretary of State. The Government proposed that this could happen in three cases: in the interests of national security; in the interests of a relationship between the UK and another country that might become embarrassing; and in the public interest—which is extremely wide. As the Minister has been kind enough to put his name to my opposition to clause stand part, I do not intend to make a very long speech on why the Government’s proposition is such a dangerous and undesirable one. However, the Minister said in his letter—for which I thank him—that the Government are withdrawing the proposal only so that they can bring it back in the more appropriate Coroners Bill. I therefore need to make a few substantial points on the Government’s thinking. We agree that the Coroners Bill is a far better place to debate the proposals, but we hope that the proposals will be far more focused and much narrower when they are brought back. The historical precedent for having coroners deal with deaths, particularly those that occur at the hands of the state, is extremely important, and one that we do not intend to see either diluted or given up. The office of coroner dates from 1194. Coroners investigate more than 200,000 deaths a year in this country and hold inquests into some 25,000. Very few of these cases involve deaths at the hands of the state and its agents, but it is especially these cases that need to be investigated and need an independent coroner and jury. How else can society maintain confidence in the state when people are, for example, shot by the police or die in custody? It is very important that the laws are followed and society’s interests are guarded. It is critical for maintaining the confidence of society that this is not seen as an executive decision followed by a secret executive inquest. Many Members of the Committee have a far greater knowledge of the 1988 SAS shootings in Gibraltar than I do. The state’s effort to keep that matter out of the public gaze—and the battle to allow screening of the “Death on the Rock” film which was won by my late and much lamented friend Lord Thomson of Monifieth—is a lesson that we should all take. The incident shook the public core, and there are important lessons to be drawn from it.
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    Lord MawhinneyLord MawhinneyConservative
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    I declare an interest in that I was one of the Northern Ireland Ministers at the time of this Gibraltar shooting. Perhaps the noble Baroness would care to tell the Committee a little more about the lessons she thinks should have been learnt from the incident.
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    As I mentioned, a number of Members of the Committee have more experience on this. I have already mentioned my noble friend, who was closely involved. The noble and learned Lord, Lord Howe, is another. The noble Lord, Lord Windlesham, with an eminent QC, produced a book on the case for allowing the media to cover the incident. The lesson that I have taken from it, from a greater historical distance, is that the attempt to keep it out of the public gaze only exacerbated an already very difficult situation. I hope the noble Lord will share his thoughts on the subject when I have finished speaking on clause stand part, because he clearly has some. I am sure that some of my noble friends will also speak. It is not clear why the national interest regarding inquests cannot continue to be covered by national interest immunity. This system allows the judiciary to make a judgment. It is for the courts to reconcile the potential conflict between two public interests—between the public interest in the administration of justice, which demands that the relevant materials are available to the parties; and the public interest in maintaining the confidentiality of certain documents whose disclosure would be damaging to the state. That balance is currently held by the judiciary. One of the questions we are asking is why that should not continue. Who should ultimately decide which of those interests should prevail in a particular case? The answer, as I said, has long been clear in law—it is a function of the courts. The Government were saying, before they put their name to my opposition to clause stand part, that they should in future make this judgment. We feel that that would be a drastic step. I note the comments of the Joint Committee on Human Rights, which was very exercised by the proposal. I look forward to hearing the views of noble Lords who have vast experience on this subject.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    I am a member of the Joint Committee on Human Rights, which has just been mentioned. I was perhaps the only person who spoke on this subject at Second Reading on 8 July; I shall not bore the Committee by repeating most of what I said then. I began by drawing attention to something that sounds immensely boring but is important: the Explanatory Notes on the Bill wholly failed to deal with the human rights implications of the radical proposals being made in Part 6 about coroners. The Minister was courteous enough to write to me, doing his best to explain that omission; I thank him for that. The Joint Committee on Human Rights explained in its report in October why it did not find that explanation satisfactory. In January 2008, shortly after the Bill was published, the committee made clear the nature of the human right concerns over the provisions. They do not rest on any claim that the convention requires inquests to be held with a jury. They concern the effect of the provisions on the ability of the UK to comply with the positive obligation in Article 2 of the convention to provide an adequate, effective and independent investigation, including sufficient public scrutiny and involvement of the next of kin where an individual has been killed as a result of the use of force, particularly by state agents. The committee said: “We find extremely regrettable the Government’s continuing failure to provide an accessible explanation, in the Explanatory Notes to the Bill, for its view that the provisions are compatible with Article 2 ECHR”. Why does that matter? It matters because there is a dedicated committee of both Houses whose job it is to monitor whether proposed legislation is or is not compatible with convention rights. That role cannot properly be performed unless the government department concerned plays with its cards face up on the table rather than concealing them. Otherwise, there is then a wholly unnecessary procedure in which the committee has to ask the Home Office and Ministers to deal with points that the Explanatory Notes could have dealt with perfectly well in the first place. This wastes time and resources, and hampers the role of both Houses of Parliament in scrutinising government legislation. Many departments are not guilty in this respect. I am not suggesting that the Home Office is alone in being guilty, but there was a deplorable lack of candour and thought by the department when the Explanatory Notes were first drafted. The committee takes a serious view of the matter. I am not suggesting that it is worth going into history any more, but the committee hopes that this will not happen again. We on the committee greatly welcome the fact that the Government have at last seen fit to take these provisions out of the Bill. Indeed, in my speech in July, I said that I hoped that sunset would come in October; it has done so, in the sense that we will now have these unsightly provisions excised. What is not good news is that the Home Office proposes to come back to them in a coroners Bill. We ask that there should be full public consultation on that proposal before that happens. I hope that the Minister will be able to assure us that there will be. The convention requirements—the positive obligations on all states—are clear. During the debate in the other place on 10 June, the admirable shadow Home Secretary—I hope he will not mind my saying that—Dominic Grieve QC MP and Mr Dismore MP, chair of the JCHR, explained that the convention imposes a positive obligation on the state to provide an adequate and effective investigation where someone has been killed as the result of the use of force, particularly by state agents. Those conducting the investigation have to be independent; there must be enough public scrutiny to secure accountability in practice as well as in theory; and the next of kin must be involved. The procedure imposed by the Bill would empower the Secretary of State to certify that the inquest should be conducted without a jury and with a special coroner if, in the Minister’s opinion, it is in the interests of national security or in the interests of the relationship between the UK and another country, or if it is otherwise in the public interest. Therefore, the Secretary of State seeks, or was seeking, sweepingly broad discretionary powers, going well beyond those needed to counter terrorism. I described the Government’s excuse for this as an example of what I called Home Office chutzpah, but most of your Lordships did not know what that meant. It means in Yiddish an infernal cheek, and that is what I think this was. Independence is essential and a system based on the special appointment of security-cleared coroners by the Minister would inevitably involve serious breaches of convention rights and obligations because it would be fatal to any appearance of independence. Dominic Grieve MP rightly asked: “What is the point of suddenly dispensing with juries? … it is possible to have specially vetted juries, to have public interest immunity certificates, and to treat these processes as ordinary hearings. … If … the Government came forward with other ideas and proposals … that would be a sensible approach. Legislating quickly and repenting at leisure is a big mistake”.—[Official Report, Commons, 10/6/08; col. 249.] I entirely agree with that and I agree with the Justice Committee in the other place, which called for the proposals to be withdrawn pending more detailed scrutiny and the proposed coroners Bill, as did the Joint Committee on Human Rights. So for all those reasons it is most welcome—
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    Lord Lloyd of BerwickLord Lloyd of BerwickCrossbench
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    I am very grateful to the noble Lord. I am not at all clear what the purpose of this now is. I thought there was common ground that these parts of the Bill will not be proceeded with now. If we are going to hear about them later under the fresh coroners Bill, why do we need to go into it now?
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    We do not need to go into it now and I am about to stop going into it at all. The reason I am making this short speech is to put up a marker because if, having rightly taken these provisions out, the Government are proposing to put them back in again without heeding the concerns about the convention rights—they have not dealt with the convention rights arguments—it is very important for the Joint Committee, myself and others to make it clear to the Home Office that we shall have exactly the same battle next time. Therefore, this is simply a way of welcoming the withdrawal of these provisions, which I now do, and indicating that enough is enough.
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    Lord Lloyd of BerwickLord Lloyd of BerwickCrossbench
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    But is this not the very point that the noble Lord made at Second Reading? Surely the Government must be given credit for listening to something of what the noble Lord says.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    As far as I am aware—but the Minister will explain this—what they have listened to is the desirability of removing it from the Counter-Terrorism Bill. But as I understand it, they are proposing to do exactly the same in another Bill, and that is what I am protesting about now.
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    Baroness Carnegy of LourBaroness Carnegy of LourConservative
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    When the Minister replies, I hope that he will tell me what the position is in Scotland. These clauses apply to England, Wales and Northern Ireland. Of course, the procedures are different in Scotland, but is there no risk of endangering national security there? I hope the Minister can tell me that. Perhaps I should know the answer, but I do not.
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    Lord West of SpitheadLord West of SpitheadLabour
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    I thank the noble Lord, Lord Kingsland, for his support and for his kind words. Both this House and the other place have expressed a strong desire to debate the inquest provisions in Part 6, and one got a flavour of that here today. That will now happen in the context of the wider reform of the coronial system; and that is probably the correct way of doing it. Consequently, that is why we are seeking to remove Clauses 77 to 79 and Clause 81 from the Bill and to have that debate when we go forward with the reform of the coroner system. That will provide both Houses with an appropriate context in which to consider all the issues that they are seeking to meet across the totality of the change. The noble Lord, Lord Lester, mentioned the JCHR points. If the Explanatory Notes are not up to speed in their coverage of some of the issues to do with human rights in Article 2, we will absolutely make sure that happens when it comes up for review in the totality of the coroners Bill. I was not aware that they were so poor; I will look into that to see what the problem was. The noble Baroness, Lady Carnegy, asked specifically about the position in Scotland, which apparently uses a system of fatal accident inquiries rather than coronial inquests. The noble and learned Lord, Lord Cullen, is currently reviewing the law and the greater use of those inquiries, and he is due to report next year. That is the position as I have had it reported to me from the Box, but I have no detailed knowledge of that. I oppose that Clauses 77 to 79 and 81 stand part of the Bill, but I should like to speak to Clause 80 standing as part of the Bill. This is a technical provision to correct an anomaly in the procedure established for inquiries under the Inquiries Act 2005. At present, Section 18(7) of the Regulation of Investigatory Powers Act—RIPA—permits intercept material to be disclosed to the panel of an inquiry alone only where the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference. Section 18(7) does not permit intercept material to be disclosed to the person appointed as counsel to the inquiry. That means that the panel can currently share all of the sensitive material that it receives with counsel to the inquiry, apart from intercept material, because the RIPA provision covering inquiry panels does not include their own counsel. Clause 80 is intended to correct that anomaly, so that the panel may order disclosure of intercept material to the person appointed as counsel to the inquiry where the exceptional circumstances of the case make the disclosure essential to enable the inquiry to fulfil its terms of reference. That will enable counsel to the inquiry to advise the panel on all sensitive material, rather than just all sensitive material other than intercept. The proposals will operate in a very limited number of cases and do not undermine the current level of secrecy around intercept material. As such secrecy is maintained, the proposal does not undermine in any way the current prohibition on the use of intercept material in prosecutions, which would of necessity require disclosure of the material to the defendant personally. Clause 80 will ensure that the panel and counsel to an inquiry can always have the information that they need to ensure that the inquiry can fulfil its role, whatever the source of that information on those very exceptional circumstances.
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    Lord Lloyd of BerwickLord Lloyd of BerwickCrossbench
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    I entirely support what the Minister just said about Clause 80. It seems to me that if the panel has access to the intercept communication, it must be obvious that the counsel to the panel must also have access to that intercept material. As he stated, it is a technical provision, which should be supported.
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    Can the Minister expand a little on why the public interest immunity system that stood the test of time for so long is not now viewed by the Government as adequate, which is why they want to bring these provisions back, I understand, in the coroners Bill? Or is there a different reason? I understand the frustration of the noble and learned Lord, Lord Lloyd of Berwick, that we are pursuing this matter in depth, but that is important if we are to be asked to look at it again in what could be only a couple of months from now.
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    Lord West of SpitheadLord West of SpitheadLabour
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    Perhaps the noble Baroness would allow me to give her the reasons in writing, rather than have a long debate now.
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    Lord West of SpitheadLord West of SpitheadLabour
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    Absolutely, but I thought that the noble Baroness had gone back to the coroners.
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    Lord West of SpitheadLord West of SpitheadLabour
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    The noble Lord, Lord Kingsland, is absolutely right that the clause relates to inquiries. It is confusing that it is included there. I thank the noble and learned Lord, Lord Lloyd, for supporting me. It makes absolute sense to do that. I thought that the noble Baroness was returning to the issue of coroners, and that is why I said that I would come back to her in writing on the public interest immunity system in relation to coroners. Clause 77 negatived. Clauses 78 and 79 negatived. Clause 80 agreed to.
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    moved Amendment No. 126A:
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  • Speaker
    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    I declare an interest: I recently appeared on behalf of the Association of Chief Police Officers in the judicial review challenge to the Independent Police Complaints Commission in relation to two tragic cases where men were killed as a result of shooting by police officers in unusual circumstances. My simple point, which I am sure is entirely well-known to the Minister, is that in the scheme of things it is vital, as the learned judge, Mr Justice Underhill, pointed out in giving judgment on the Saunders and Tucker cases—I think, last week—that Article 2 of the European Convention on Human Rights is fully satisfied not only by having a proper independent investigation by the IPCC, but by having an inquest which fully satisfies the requirements of the convention. One has to look at the whole process, not just the IPCC investigation, but also, ultimately, the adversarial process which takes place before a coroner. Therefore, anything which can be done to make inquests happen more speedily and in a way that wins the confidence of the public, the next of kin and so on is to be desired. Whether this or some other amendment achieves that, I am sure that that is the right objective.
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    Lord Lloyd of BerwickLord Lloyd of BerwickCrossbench
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    We are now back on to inquests as opposed to inquiries. As I understand it, it will be common ground that Clause 81 should not stand part. If that is so, it does not seem to me to make sense to accept Clause 80, which deals with intercept evidence at inquiries. Like everything else to do with inquiries, they must surely wait until we have the coroner's view.
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    Lord West of SpitheadLord West of SpitheadLabour
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    I thank the noble and learned Lord, Lord Lloyd of Berwick, because I absolutely agree with what he has said on that point. Amendment No. 126A would allow for the wide disclosure of very sensitive material, such as intercept, to juries and other interested parties. That creates a potential for public disclosure of all types of sensitive material, including intercept and other things, and undermines the very real need to protect such material, and the sources and techniques by which we get it, from public disclosure. Although Amendment No. 126A will allow the finder of fact to have access to all the relevant material, it does so at the expense of preserving the “ring of secrecy”, which, as I said, is necessary to protect sensitive techniques and capabilities. It is also unclear how the new clause would work in practice in the absence of any legislative mechanism to ensure that a High Court judge is appointed to hold inquests involving the consideration of such material. We recognise the importance of ensuring that bereaved relatives and other properly interested persons should be involved in as much of an inquest as possible, but it is necessary to strike a balance between the interests of families and the public interest when material central to the inquest cannot be disclosed publicly. It is much better to debate all these matters when we take it in the round of the new coroners legislation. We are confident that the measures we intend to bring forward—containing, as they do, the safeguards of a cadre of security-cleared coroners and arrangements for counsel—strike the right balance, but I do not think that there is much more to be gained by debating this further. On that basis, I resist the amendment.
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  • Speaker
    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    I am sorry that the Minister’s reply is quite so negative, because by the time that we have debated the Coroners Bill in both Houses and it receives Royal Assent, four years will have passed since the death of Azelle Rodney. I may be missing something here, but I do not think that I am. If a High Court judge was sitting as a coroner and decided that public interest immunity was served by nondisclosure of facts that were particularly sensitive in either that case or the other one to which I referred, I cannot understand why the inquest cannot go ahead. I would be very sorry if the Committee took the attitude that it is perfectly permissible, all right and something that we should not question that an inquest can take four years, or more, to come to pass. It does not matter whether the inquest is of someone who was undertaking criminal activity or not. We now have not just one but a second person who was shot by the police. They may have been taking part in criminal activity, but their deaths are still liable to be properly investigated by an inquest. They are not being investigated because the Government will not take them forward, prevent the coroner from undertaking them and then say, “You will have to wait until more legislation is in place”. That is not a satisfactory position for the Government to take. It is not only a question of natural justice for the families. When it was one case, it was really worrying. Now it is two cases; it seems that the Government are drifting into a habit on this. The Committee should be challenging that. I will withdraw this amendment in Committee, but the Minister should not feel confident that I will not bring it back on Report, because I shall. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 81 negatived. Clause 82 [Amendment of definition of “terrorism” etc]: On Question, Whether Clause 82 shall stand part of the Bill?
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  • Speaker
    Baroness Neville-JonesBaroness Neville-JonesConservative
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    This is a probing issue, and one to which we may return on Report. I am not clear why it is necessary to amend the definition of terrorism in the way proposed. Can the Minister conceive of a circumstance in which a “racial” cause is not already encompassed within the phrase “political, religious or ideological”? The term “racial” is not substantive with regard to motivation or end, as are the terms “political”, “religious” or “ideological”. I am aware that the noble Lord, Lord Carlile, who proposed the change in his report in March 2007, said that he believed that it was covered by current law, which, frankly, is good enough for me, but that it would “send a positive message” as well as achieve “some”—some—“increase in legal clarity”. I am not convinced of this. It is bad legislation to add unnecessary categories. Will the Minister say where he thinks he should take this added word? Finally, given that we do not yet have an internationally agreed definition of terrorism, will the Minister say what efforts the Government are making and what progress is being made to secure one?
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    Lord West of SpitheadLord West of SpitheadLabour
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    The noble Baroness has touched on an issue that is not of huge import, because, as she rightly says, we could probably catch terrorists who are involved in that sort of thing without having “racial” in the definition. As she said, the March 2007 report by the noble Lord, Lord Carlile, on the definition of terrorism brought this up to enhance clarity. We accepted this in our response to his report, which we published on 7 June 2007. As I say, we believe that any relevant acts or threats are likely to be committed for a political or ideological purpose. We also believe, however, that the specific inclusion of “religious” in the current definition could lead some to argue that racially motivated terrorism has been specifically excluded. We may be wrong, but that is why we have gone down this route, particularly because “racial” and “religious” are often tied together in other legislation as, for example, racial and religious hatred and racially and religiously aggravated offences. Clause 82 puts it beyond doubt that racially motivated terrorism is included in the definition. It will not widen the scope at all. It would not, for example, bring the activities of far-right groups within this definition. These are already covered where they meet the tests set out in the definition of terrorism in Section 1 of the Terrorism Act 2000. The clause is included for those reasons and for clarification, and should stand part of the Bill.
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    Lord Lloyd of BerwickLord Lloyd of BerwickCrossbench
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    Am I correct to read between the Minister’s lines in thinking that, having appointed the noble Lord, Lord Carlile, to carry out this quite lengthy investigation into a new definition of terrorism, it is really only polite to incorporate something in the Bill?
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    Lord West of SpitheadLord West of SpitheadLabour
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    I would not quite put it in those terms. I hope that my explanation that it should be there because it fits in with a number of other pieces of legislation can be taken at face value.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    Is the point that if terrorists say that they want to kill Jews not because they are a religion but because they are a race, they might somehow not be within the definition of terrorism, and that the advantage of bringing race into the definition is that it covers killing Jews, whether they are regarded as a race or a religion?
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    Lord West of SpitheadLord West of SpitheadLabour
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    We want to ensure that people do not argue that racially motivated terrorism has been specifically excluded. The reality is that “racial” encompasses people anyway. It is just for clarity and because some people might well argue that we are trying to exclude it for some reason. We are not. It simply makes sense to include it on that basis.
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    Baroness Falkner of MargravineBaroness Falkner of MargravineCrossbench
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    I did not intend to speak, although I was intrigued by the clause, as was the noble Baroness, Lady Neville-Jones. The Minister’s reply concerns me, because he has more or less said to the Committee that the word is there only because my noble friend Lord Carlile thought that it was appropriate to have it there. We do not know why the noble Lord wanted it there, and the Minister seems to think that it will reduce confusion because “racial” and “religious” have tended to go together in recent times. Many of us who have opposed the insertion into recent legislation of as much religion as there is would argue that it adds to confusion. It is completely erroneous to argue that adding “racial” because “religious” and “racial” have tended to go together for the past five years or so will reduce confusion. Ethnicity will be brought in, and there will be all sorts of other confusions, such as whether we consider Jewish people to be a religious group or a racial one. In case the Conservatives suggest that the opposition to the Question was only probing, I suggest that it may well turn out to be more and might come back on Report.
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    Lord West of SpitheadLord West of SpitheadLabour
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    I totally disagree with what the noble Baroness has said. The provision is for the avoidance of any doubt and is included on the basis that I explained. I do not believe that it will add to any of the issues she mentioned. It will stop arguments and debates being made on the basis that racial factors are excluded. It is quite a standard way of having things: we refer to racially and religiously aggravated offences, and so on. That is the sole basis on which the provision has been included.
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    Baroness Neville-JonesBaroness Neville-JonesConservative
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    I remain to be convinced, I must admit. The principle of simplicity seems better than complication, but I will reflect on what the Minister has said and may return on Report. Clause 82 agreed to.
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    Lord GoodhartLord GoodhartLiberal Democrat
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    moved Amendment No. 127:
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    Baroness HanhamBaroness HanhamConservative
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    I am afraid that we have some difficulties with this amendment. As I understand it, the Attorney-General would have to take into account what sort of Government were being preyed against by a terrorist offence. A despotic Government whom no one liked very much might be treated differently from a Government of a democratic regime. That appears to be the purpose of this amendment. We would say that terrorism is terrorism, whatever its nature. One should not refer to the motivation or political agenda of those who perpetrate an act of terrorism. There is no right to resort to terrorism under any circumstances. Therefore, we do not support the amendment.
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    Lord GoodhartLord GoodhartLiberal Democrat
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    Surely an Attorney-General would have to take into account a number of factors, one of which is the degree of despotism, when deciding whether to prosecute for terrorism. The whole point of requiring the approval of the Attorney-General is that it is not merely a matter of whether the act of a particular prospective defendant falls within the definition of terrorism, but whether in all the circumstances, which may and indeed should include the nature of the Government against whom the action is taken, it is appropriate to go ahead with the prosecution. Had this legislation been in force at the time, I wonder if the noble Baroness would have said that it was appropriate for the Government to prosecute those members of the ANC who from time to time were resident in London.
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    Baroness HanhamBaroness HanhamConservative
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    I imagine that the Attorney-General deals by and large with issues in this country, not whether in another country someone should be prosecuted. I think that I shall stick to my point that terrorism is terrorism.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    I support the amendment moved by my noble friend. The conspicuously moderate way in which he has moved it indicates that he would be content with an assurance from the Minister that the factors set out in his amendment would be regarded by any reasonable Attorney-General as the kind to be taken into account in acting as guardian of the public interest and deciding whether a prosecution should go forward. We have a system in which the Attorney-General remains a politician as well as chief legal adviser to the Government in deciding whether to prosecute for terrorist offences. The Attorney-General must consider the huge breadth of the offences—some of which involve barbaric and horrendous violence and others which are essentially political in nature. While I understand perfectly the point of the noble Baroness, Lady Hanham, that violence is violence in all circumstances, I nevertheless believe the need for the Attorney-General to consent to a prosecution is a vital safeguard that should be exercised not only on subjective, political grounds but also on objective ones. When the terrorist offence essentially comprises a speech crime, as in some acts of the glorification of terrorism through speaking or writing, there is a safeguard that the Attorney-General must act in accordance with the European Convention on Human Rights, including the guarantee of freedom of political expression. It is desirable to spell out objective criteria that do not fetter the discretion of the Attorney-General, which would be quite wrong in that there needs to be flexible discretion. But, as the amendment states, “the Attorney General or the Advocate General for Northern Ireland shall have regard to”, the factors that my noble friend Lord Goodhart has set out in paragraphs (a), (b) and (c). That does not mean that he or she is restricted to a rigid framework, only that these must be relevant factors. I suggest that my noble friend is perfectly right to point out that in law as elsewhere context is everything, and that there will be cases of the kind suggested in paragraphs (a), (b) and (c) which surely are the kind of factors to which any reasonable Attorney-General should have regard in deciding whether a prosecution should go forward. If one does not have something like this, we are in danger of having a legal system in which there are no sufficient safeguards against abuse and of the right to vindicate democratic principles internationally where one has a truly despotic and horrendous regime, provided that the individuals concerned have not been involved in acts of terrorism of a kind that paragraph (c) seeks to rule out. This is a balanced, sensible and pragmatic approach based on principle. I hope the Minister will at least say that these are the kinds of factors that the Attorney-General or the Advocate General for Northern Ireland would surely wish to take into account.
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    Lord West of SpitheadLord West of SpitheadLabour
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    We fully recognise the sensitive issues that arise in relation to international cases. As has been said, Clause 41 expands Section 19 of the Terrorism Act 2000 so that the Attorney-General or Advocate General for Northern Ireland has to consent to all prosecutions in the United Kingdom for terrorism offences committed outside the United Kingdom. In Scotland, the Lord Advocate is already responsible for all prosecutions and so there is no need for a consent mechanism. Clause 41 was drafted in response to one of the recommendations in the report of the noble Lord, Lord Carlile, on the definition of terrorism. This is not another sop being given to him; it is what it is based on. The decision of the Attorney-General, or the Advocate General for Northern Ireland, to prosecute is taken having regard to well-established principles of evidential sufficiency and public interest. Where Parliament provides for prosecutions to be commenced with the consent of the Attorney-General or the Advocate General for Northern Ireland, the decisions taken by those office holders will take account of all the relevant factors and should not be artificially fettered in the way proposed in the amendment. It would also be highly undesirable to create unnecessary opportunities for litigation regarding a decision to prosecute or not to prosecute. I agree with the noble Baroness, Lady Hanham, that there can be no justification for any acts of terrorism and that it is inappropriate to draw any moral distinction between the different causes which inspire such activity. Apart from it being amazingly difficult, it is inappropriate. The use of serious violence to terrorise and kill the public—to kill indiscriminately—is not acceptable regardless of motivation. There cannot be good and bad terrorists. There have been no cases of which we are aware where people have been inappropriately charged using offences provided for in terrorism legislation, or where the definition of terrorism has led to inappropriate use of specific counterterrorism powers. I therefore ask that the amendment be withdrawn.
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    Lord MonsonLord MonsonCrossbench
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    I had not intended to intervene but some interesting points have been raised. Surely terrorism which is geared not to kill civilians—or, indeed, to kill anyone—but is merely confined to the blowing up of electricity pylons and so on, is in a totally different category from terrorism which involves widespread, or even minimal, death and injury.
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    Lord West of SpitheadLord West of SpitheadLabour
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    We get into great difficulty when we focus on this. Is it all right, for example, to kill members of the Armed Forces in some countries? But, generally, terrorism—the threat to the public, the desire and willingness to kill members of the public, families and so on—is not acceptable no matter what the cause.
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    I have been struck during the debate by the European-centric view of this. I am sorry that the Conservative Benches will not join in supporting a moderate amendment; my noble friend requested only an assurance from the Minister. I refer, in particular, to that part of the amendment which relates to the Government of another country being involved in grave breaches of human rights, or where violence may have been committed which involved blowing up property. I am thinking of countries in Central America where some struggles may be caught by this legislation. So if people write magazine articles in support of a struggle that is happening there, are they really going to be prosecuted under our terrorism laws? I fail to see what right we have to judge their struggle, particularly where it has not involved any loss of life.
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    Lord GoodhartLord GoodhartLiberal Democrat
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    I regret that the Minister has not gone even so far as suggesting that these are matters that any reasonable Attorney-General would have to take into account, though I firmly believe that they are. The Government, in their reply to the report of my noble friend Lord Carlile, have recognised that the definition of terrorism under the 2000 Act may lead to the inclusion in that definition of people who would not in fact be regarded as terrorists. Paragraph 6 of that reply says: “The definition of terrorism is broad enough to ensure that all cases of what would generally be considered terrorism are caught. The definition does however contain a number of tests that need to be met”. It goes on to set out what those tests are, and concludes: “These tests mean that most of the actions which would generally be accepted as non-terrorist in nature fall outside the definition. It does not mean that non-terrorist activities will never fall within the definition but in such cases we rely on the police and Crown Prosecution Service in making sure that the definition is not inappropriately applied”. That is exactly what I am asking the Minister to confirm. Here is a case in which it is clear that the definition sometimes goes too wide. It is not an answer to say, “Terrorism is terrorism and should always be prosecuted”. With specific reference to African National Congress issues, no doubt the Minister will recall that during a time when the ANC was carrying out or planning what it described as its “armed struggle”, there were resident and active in the United Kingdom a number of exiled members of the ANC who were openly assisting their colleagues remaining in South Africa. No one suggested at that time that they ought to be prosecuted for what they were doing. Now that it is clear that the definition of terrorism extends to activity of that kind, that needs to be modified in line with what the Government said in making sure that the definition is not inappropriately applied. I shall withdraw my amendment this day, but we may well wish to consider bringing it back on Report. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 83 [Offences relating to information about members of armed forces etc]:
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    Baroness Falkner of MargravineBaroness Falkner of MargravineCrossbench
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    moved Amendment No. 128:
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    Baroness HanhamBaroness HanhamConservative
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    In contrast with the previous amendment, we support this one. As the noble Baroness has said, the clause needs tightening up if it is not to leave exposed to prosecution people who should not be exposed. I hope that the Minister will be able to say that he is treating this amendment sympathetically.
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    Lord Lloyd of BerwickLord Lloyd of BerwickCrossbench
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    I had not intended to speak on this amendment until I heard it moved, but I am bound to say that I have some sympathy with it. It is reminiscent of debates we have had on similar subjects. The publication of this information should surely be an offence only if it is intended to be of use in exactly the language which the amendment adopts, and this is something the Minister might consider.
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    Lord West of SpitheadLord West of SpitheadLabour
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    We are not in favour of the amendment because making such an action intended would undermine the effectiveness of the offence provided for in this new section. Section 5 of the Terrorism Act 2006 already caters for preparatory acts which are done with the intention of assisting others to commit terrorist acts. Section 58 of the Terrorism Act 2000 and the new offence provided for in proposed new Section 58A are wider offences aimed at combating the activities of those whose conduct is likely to assist terrorists but do not require the prosecution to prove an intention to assist those involved in preparing or committing an act of terrorism. Importantly, I am advised that in the case of R v K, the Court of Appeal held that to commit the offence under Section 58 of the 2000 Act, the information collected or possessed needs to be such as to raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism, and be of a kind that is likely to provide practical assistance to terrorist organisations. We believe that similar tests will apply for the new Section 58A offence. So there should not be any concerns that, for example, a journalist publishing the names of service chiefs which are already in the public domain would be caught by this offence. But if someone said, “Sergeant so-and-so lives in this house, normally gets such-and-such a bus between here and there and uses this pub”, we would be very concerned about such material. We should also remember that the range of information covered by the new offence is narrower than the information covered by the Section 58 offence, being restricted to information about specified groups of personnel working on the front line against terrorism. The noble Baroness, Lady Falkner, expressed concern, which I share, about young people, but the Bill has safeguards. Section 58 of the Terrorism Act and the new offence both include a statutory defence to protect those who have a reasonable excuse for their actions. To establish this defence, the defendant needs only to claim to have a reasonable excuse and it is then for the prosecution to prove, beyond reasonable doubt, that there was no such excuse. Further, the DPP must authorise prosecutions under Section 58A. Its decision will take account of the possibility of the person having a reasonable excuse for his or her actions. Therefore, safeguards are in place. It is clear that this is not information that people would normally have, but that, by putting it around, they would put someone at risk. I therefore ask the noble Baronesses to withdraw the amendment.
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    Baroness Falkner of MargravineBaroness Falkner of MargravineCrossbench
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    I am grateful to other noble Lords who have supported the amendment. I am disappointed that the Minister feels that no further clarification or tightening is needed, particularly in light of the examples that he gave, because they were precisely the kind of examples that we were concerned about in the first place; for instance, information that is published in newsletters of groups or communicated in writing—I was thinking not necessarily of journalists, but of more innocent groups and organisations that might, for example, have someone from the armed services come to speak at a social function. Before I withdraw the amendment, may I ask the Minister whether he believes that another form of words to express the same levels of intent would be satisfactory or whether he just believes that the clause as it stands under Section 58 is adequate?
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    Lord West of SpitheadLord West of SpitheadLabour
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    The safeguards that the noble Baroness seeks are in the Bill, but I am happy to have a dialogue outside the Committee to see whether some form of words would make her feel happier. I am content that the Bill aims only at people who produce information that is clearly intended to pinpoint somebody. However, I am happy to have a discussion outside the Chamber to see whether there is a form of words that would be acceptable. As it stands, I believe that the clause is quite secure.
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    Baroness Falkner of MargravineBaroness Falkner of MargravineCrossbench
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    I thank the Minister for that. I shall take him up on his offer. In the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 83 agreed to. Schedule 7 [Offences relating to information about members of armed forces etc: supplementary provisions]:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendment No. 129:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendment No. 130:
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    moved Amendment No. 130A:
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    Lord West of SpitheadLord West of SpitheadLabour
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    I understand the noble Baroness’s intention in moving this probing amendment. There was no intention whatever to allow the police to go into properties that someone had lived in years ago and which now belong to somebody else. However, if someone has a family home that he has been living in and then gets a flat and moves there and is using both places, the police need to be able to go into both places to see whether somebody has absconded and whether there is material relating to that absconding, or whatever. I was briefed that it was too difficult to come up with a form of words that captured the differences that the noble Baroness outlines. I assure her that we have absolutely no intention of granting the police an ability to search all sorts of premises that no longer have anything to do with them. However, on reflection, I should like to try again to see whether it is possible to find a form of words that captures that although, as it stands, it is quite clear—and we have put safeguards in place to ensure that the police will not do that. We could discuss the matter outside the Committee with my Bill team to see whether there is a different form of words. If there is not, I shall leave the drafting as it is, because I believe that it captures the essence of what we are trying to do—not to broaden the search to all sorts of premises but to allow police to go to the places that we know that the particular man or woman is using.
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    I am very grateful to the Minister for his willingness to look at this again, because there are safeguards that it might be useful to have in there. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 130B not moved.] Clause 85 agreed to. Clauses 86 to 88 agreed to.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    moved Amendment No. 131:
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    In supporting these amendments from our Front Bench, the Government should not think that that means we are coming round to supporting the entire regime of control orders, which we have consistently opposed, for reasons of which the Committee is well aware, which I shall not rehearse now. However, these are important amendments and, for the reasons spelt out by my noble friend Lord Lester, ably amplified by the noble Lord, Lord Kingsland, we look forward to the Minister’s response.
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    Lord West of SpitheadLord West of SpitheadLabour
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    I should make it clear that our preferred option with someone whom we suspect is a terrorist is always prosecution. If we cannot get a prosecution, because all we have is intelligence rather than pure evidence, we would go for deportation with assurances. This is the next case. Control orders are there to protect our citizens and only a very small number of them have ever been enacted. I understand why the noble Lords, Lord Lester and Lord Kingsland, approached this in a general sense, but it is probably not the way in which I should reply to the debate. I think I will have to go through these amendments in turn because clearly different lawyers have different views. The Government’s lawyers have drawn different inferences and conclusions from—
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    Perhaps it will help the Minister if I say that I propose to move each of the amendments to give him an opportunity to reply to each of them with complete clarity.
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    Lord West of SpitheadLord West of SpitheadLabour
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    I thank the noble Lord for that. I would much prefer that. I am stepping into dangerous territory here. For example, the noble Lord, Lord Lester, quoted only the dissenting judge regarding the Court of Appeal judgment and not the majority who disagreed. It is dangerous territory and I understand more and more why, when I was First Sea Lord and the Attorney-General gave the legality of war, I sought other opinion because, at times, there seem to be varying opinions within legal circles.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    Although Lord Justice Sedley was dissenting, he was not dissenting on the point that I quoted. All members of the Court of Appeal were of the basic fairness point of view, with different nuances. We do not have to go into that now.
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    Lord West of SpitheadLord West of SpitheadLabour
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    I apologise to the noble Lord if what I said was incorrect. I would love to go through them amendment by amendment. As we consider these to be very important issues, I have considerable responses to each one and it is important they go on the record.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    However, the Minister has not yet dealt with the first amendment. Does he propose to deal with that now before we reach the others later?
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    Lord West of SpitheadLord West of SpitheadLabour
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    Amendments Nos. 131 and 137 to 141 are all concerned with ensuring that a controlee has the right to a fair trial accorded to him under Article 6 of the European Convention on Human Rights. As noble Lords will be aware, this issue has been considered at length, including extensively by the courts. Indeed the House of Lords handed down a series of judgments on control orders in October 2007, one of which, MB, already referred to by the noble Lord, Lord Kingsland, dealt explicitly with the right to a fair trial. In MB, the Law Lords did not say that any control order case before them had breached the right to a fair trial. But the majority view was that, in rare cases, the provisions in the 2005 Act might lead to a breach of Article 6. The Law Lords therefore applied Section 3 of the Human Rights Act to make the 2005 Act compatible with Article 6 in all cases. The Law Lords also concluded that the High Court should consider compatibility with Article 6 on a case-by-case basis. The cases before the Law Lords on this issue were referred back to the High Court. As a result of the MB judgment, the 2005 Act is fully compatible with the European Convention on Human Rights. No further changes were required by the Law Lords. That sets the context for our discussion of these amendments. In broad terms, the Government do not think that second guessing or ignoring the Law Lords’ judgment, as this group of amendments seeks to do, is either necessary or desirable.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    I am sorry to interrupt, but I am very anxious that we have complete clarity across the Committee. The noble Lord, Lord Kingsland, with devastating effect, raised in his speech the issue of the principle of legal certainty: a common law principle that the citizen is entitled to know what the law is and what its limits are, especially where there is an adverse impact on the right to liberty. The noble Lord, Lord Kingsland, and the Joint Committee have said that it is not good enough to rely on a reading-in of safeguards by Law Lords in their judgments. On the face of the statute, the law should be sufficiently clear so that everyone knows what the law is and what its limits are. That is the thrust of the speech of the noble Lord, Lord Kingsland, with which I completely agree. It is a systemic problem; it is no use saying, “We do not need to make changes because the Law Lords did this, that, or the other”. The two opposition Benches are saying to the Government: “Please make sure that the statutory scheme is clear and gives effect to what the Law Lords have required as a matter of procedural fairness”. Forgetting the detail of the amendments, surely the Minister would like to go away to think about that and see what amendments he could bring back to ensure that what the Law Lords have ruled is reflected in statute. There is an ancient English, as well as European, principle that legal certainty should be provided when there is a deprivation of liberty of the kind involved here.
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    Lord West of SpitheadLord West of SpitheadLabour
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    As I understand it, we are talking here about giving the person details of what he is being charged with, why he is being charged and what is the case against him. Is that what we are talking about; is that legal certainty?
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    What we are talking about—I am dealing with the whole bunch of amendments in saying what I have—is ways of writing in the necessary procedural safeguards that the Law Lords have insisted on, using Section 3 of the Human Rights Act to do so. All that I am saying is that, as a matter of principle, surely the Government should now take away the JCHR’s suggestions and the Law Lords’ judgments and come back with amendments that will not be controversial, as they will reflect the law of the land as laid down by the Law Lords.
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    Lord KirkhillLord KirkhillLabour
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    Before my noble friend responds, I wonder whether the Committee agrees that fewer interventions from the noble Lord, Lord Lester of Herne Hill, might be more beneficial to the rest of us in Committee in trying to assess the Minister’s reply. We cannot get past the opening remarks from the Minister because of incessant interventions—in my view, too frequent.
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    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    For the clarity of these Benches, I do not agree at all with the noble Lord’s comments, because my noble friend has just drawn from the Minister the comment, “Will the persons who will be subject to the control order be charged?”. In my understanding of control orders, people are not even charged.
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    Lord West of SpitheadLord West of SpitheadLabour
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    I have just got into my opening remarks. As I said, I have a highly complex answer here and I went through it in detail before with those in the Box. I do not want to get into toing and froing because use of language is clearly extremely important, as the noble Baroness has just shown. Those people are not charged in the formal sense, although I hope that people understood what I was referring to. That highlights exactly why I have to follow very precisely what is written here. Some of these issues are fine points of law. If I may run through my preliminary remarks and then go through each amendment, at the end of that, I will be very happy to consider and debate particular points. There is ongoing litigation about what the judgment to which I referred means in practice, but that is about practical implementation. It does not mean that further substantive changes of principle are required. Noble Lords will be aware that in last week’s Court of Appeal judgment on the right to a fair trial in a number of different cases, the majority view essentially supported the Government’s position. Amendment No. 131 obliges the Secretary of State to give as full as possible an explanation of the reasons why the individual is reasonably suspected of involvement in terrorism-related activity and why a control order is necessary to protect the public from a risk of terrorism. Currently, a control order always explains that the Government suspect that the individual is or has been involved in terrorism-related activity, and that the control order is necessary to protect the public from a risk of terrorism. After service of a control order, the individual is provided with the open case against him. Even before the Law Lords’ judgment of October 2007, the starting point was that the open case must contain as much material as possible, subject only to legitimate public interest concerns. Special advocates can and do make submissions that further information should be disclosed to the individual. I should add that, subject to public interest and Article 6 considerations, the court rules underlying control order proceedings require disclosure of all relevant material. That effectively goes beyond providing reasons to providing underlying material. That includes providing any material that undermines the Secretary of State’s case or assists the controlees’ case, as well as material helpful to the Secretary of State. Moreover, the duty to disclose relevant material is a continuous obligation that remains in place throughout the hearings. Thus, the individual is already given as full an explanation as possible of the reasons for the imposition of a control order. Any requirement to place as full as possible reasons in the control order is an unnecessary bureaucratic duplication, given that existing material—in particular, the open case—already fulfils that function. In Article 6 terms, following the MB judgment, as part of the review of each control order, the High Court must consider compatibility with Article 6. A control order hearing could therefore never conclude in a way incompatible with Article 6, including in relation to disclosure of reasons for the making of the control order. To the extent that the amendment simply requires that existing practice continues, it is entirely nugatory. To the extent that the amendment is interpreted as requiring something beyond existing practice, it would be highly damaging to the public interest, reducing the Secretary of State’s ability to protect the public from terrorism. That is because the Secretary of State already puts in open court what she can. Anything further would require providing an explanation that would include disclosure of sensitive material against the public interest. In such cases, the Secretary of State, taking the advice of the agencies, would not agree to provide the material, and the case would have to be dropped. Amendment No. 137 amends the 2005 Act to reflect the read down by the Law Lords in MB. Subsections (2) and (3) add in the exact words already effectively added to the Act by the MB judgment and so are redundant. Subsection (1) was not part of the read-down by the House of Lords and is not necessary. As a result of the read-down, a judge will not be put in a position where he has to uphold a control order where the proceedings have not been compatible with Article 6. If the amendment is intended to go beyond the MB judgment, making it the court’s job to quash the order without first putting the Secretary of State to her election, the amendment would be undesirable as damaging to the public interest, not merely unnecessary. Subsection (4) reflects the wording included within the asset-freezing provisions of the Bill in Clause 71(6). This is also unnecessary. This provision in Clause 71(6) is included in the asset-freezing clauses instead of the words of the MB read-down to give effect to the MB judgment in legislation to which the judgment did not directly apply but which makes provision for a comparable situation. There is no need to include the wording of Clause 71(6) in the 2005 Act on top of the MB read down, which already makes the position clear for the 2005 Act. That would be unnecessary duplication. The amendment highlights one element of the Government’s response that is common to a number of amendments in the group, and to amendments in other groupings. As noble Lords will be well aware, we operate under a common law system. It is widely accepted that public authorities—among others—are bound not just by statute, but by case law. There is therefore no need to legislate to reflect judgments handed down by the courts. Indeed—and on a related point—as noble Lords will also know, it is considered bad practice to legislate unnecessarily. There is an additional reason why this amendment is unnecessary. It undermines the purpose of Section 3 of Human Rights Act. There would have been no need for the Government or Parliament to make provision for the courts to read-down legislation if the intention had been that any adverse court judgment on human rights would require legislative amendment. As an aside, even if one were minded to legislate—which, as I have already made clear, the Government are not—it would be odd to legislate at this stage, when there is ongoing litigation on the point. The Court of Appeal cases are likely to be considered by the Lords. Lastly, in general terms, legislating for a read-down also carries an unnecessary risk of unintended consequences, because the courts would then be required to interpret what was meant by the new legislation and operate to that. That is different from interpreting the existing Act as read down, and could lead to different outcomes. Although that outcome may not be likely in this context, it cannot be ruled out. Moreover, if it happened there would in effect be two systems in operation: one for new controlees, and one for existing controlees. The amendment is therefore not only unnecessary but potentially damaging to the public interest. It is simply wrong to suggest that legislating would automatically clarify the issue further. Amendment No. 138 would oblige the Secretary of State to provide a gist of all material to the controlee. This would be unnecessary and potentially damaging to the public interest for reasons that are similar to our objections to Amendment No. 131. As I explained, the individual is given as much material as possible, subject only to legitimate public interest concerns. If material could not be provided, consideration must be given to whether a summary of that material can be provided. The court, not the Secretary of State, determines whether material or a summary should be withheld. If the court considers that disclosure of material would be contrary to the public interest but that such material must in any event be disclosed in order for the controlee to have a sufficient measure of procedural protection, the Secretary of State will be put to her election. This means that the Secretary of State is given a choice whether to disclose the information or to withdraw it from the case. If the latter, the case proceeds without that material. Either way, the case continues in a manner compliant with Article 6. If the material is withdrawn from the case, the judge must consider whether it was so crucial to the Secretary of State’s case of reasonable suspicion or necessity that, in the absence of such evidence, the decision on the order is flawed and so should be quashed. Crucially, however, the final decision on whether to use the material remains with the Secretary of State. The rules governing control order proceedings are designed to ensure that the public interest is properly safeguarded. Introducing a requirement always to provide a summary is not appropriate. It would expose sensitive material, meaning that the Secretary of State, taking the advice of the agencies, would not agree to provide the material or reasons and the case would have to be dropped, thus exposing the public to an unnecessary risk of terrorism. Thus the judgment in MB did not require the provision of a gist to be necessary in every case to provide individuals with a substantial measure of procedural justice, despite this being the controlees’ explicit submission in the Law Lords hearing. Although litigation on this issue is ongoing, the majority conclusion in last week’s Court of Appeal judgment was that: “There is no principle that a hearing will be unfair in the absence of open disclosure to the controlee of an irreducible minimum of allegation or evidence. Alternatively, if there is, the irreducible minimum can, depending on the circumstances, be met by disclosure of as little information as was provided in AF, which is very little indeed”. In any case, compliance with Article 6 is exclusively concerned with disclosure. The proceedings as a whole must be assessed for compliance with Article 6. For example, proceedings could be Article 6-compliant because of the contribution of the special advocates, even where disclosure has been very limited. I should add that, on a practical level, an amendment along these lines would not necessarily further clarify Article 6. It could lead to further litigation on how a gist or a summary should be defined, and whether that definition had been met in any given case. Amendment No. 139 would make provision for special advocates to communicate with a controlee after the service of closed material without having to give notice to the Secretary of State. The current position allows the special advocate to receive written instructions from the individual after he has seen the closed material. A special advocate can also communicate with the individual after he has seen the material, provided that it is with the permission of the High Court. The special advocate must notify the Secretary of State when seeking permission, giving the Secretary of State time to object to the communication if she thinks it necessary to the public interest, although the final decision is that of the court. In a number of cases, the special advocate has obtained permission to communicate legal points and factual matters to the controlee and take instructions from the controlee on specific issues. The Government remain of the view that this change would be inappropriate and potentially damaging to the public interest. The current position, including giving notice to the Secretary of State, is an appropriate safeguard to ensure that sensitive sources are protected and the security of the UK is not compromised. The courts cannot safely determine the potential damage to national security without having heard any representations from the Secretary of State and from the originators of the material, who may be aware of wider material considerations that are not apparent on the face of the closed case. The problem becomes even more immediately obvious when considering circumstances in which judges new to national security matters are presiding. How would they sensibly take a decision without any advice from the owners of the material? Indeed, it would be unprecedented to have a procedure by which matters bearing on national security were to be decided in the absence of the relevant Secretary of State. No prejudice is caused by putting the Secretary of State on notice if permission is sought. The suggestion that the Secretary of State is at an advantage in seeing the questions that the special advocates wish to put to the controlled person is overstated. All that the questions will indicate is what will already be apparent to the Secretary of State; that is, areas of the closed case where the special advocates would be assisted by further information from the controlled person. I emphasise that if the court grants permission, the special advocate’s subsequent communication with the controlee remains confidential. There is no foundation to the claim that the Secretary of State might gain an advantage if a question was asked and no information was received in response and this was subsequently deployed in the proceedings. The courts have already it made clear that they will not draw a negative inference from a controlee’s silence.
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  • Speaker
    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    I am very grateful to the Minister and thank him for a full speech on all the amendments. It was much fuller than my opening speech, which, I am afraid, taxed the patience of at least one member of the Committee. They will have to bear just a few moments more of me before I sit down. The Joint Committee on Human Rights will need to carefully consider everything the Minister has said before deciding what to recommend to the House on Report. It is not normally appreciated that the Joint Committee gives both Houses independent legal advice on compatibility with the European Convention on Human Rights that is not available to Parliament in any other way. We hope, therefore, to do a proper job in responding to the Minister’s full account. I agree with the Minister’s summary of the majority decision of the Court of Appeal. What needs to be added, however, is that that court gave a postscript in paragraph 105 of the judgment, in which it said: “This court rarely gives permission to appeal to the House of Lords. However, the approach to be adopted to hearings under Section 3(10) where the SSHD seeks to avoid open disclosure of relevant material to a controlee under a non-derogating control order, is a matter of general public importance. While we have tried to interpret the views of the majority in NB and AF there is undoubted scope for argument on the question whether our interpretation is correct. While we will consider submissions to the contrary, we have concluded that it would be in the public interest to give permission to appeal to the House of Lords in AE, AF and AN on all Article 6 related issues but not otherwise”. I remind the Minister of that because it is perfectly clear that, whatever view the Home Office and Ministers may take of the complex legal position, even the majority in the Court of Appeal reached their decision with sufficient hesitation to invite the House of Lords to reconsider the whole of this. Although one could say “Let’s wait and see” and, no doubt, have yet another Bill once all that has been decided, I agree with the noble Lord, Lord Kingsland, that it would be very sensible for the Government to write into this Bill whatever procedural safeguards flow from the various decisions of the House of Lords, in the interests of reasonable legal certainty. I thank the noble Lord, Lord Kingsland, for his wholly brilliant speech, in which he made the points that I sought to make much better than I have done. The Minister’s response included the extraordinary suggestion that the approach put forward by the opposition parties and the Joint Committee on Human Rights was somehow incompatible with Section 3 of the Human Rights Act, which requires judges to read in safeguards where it is possible to do so to save a statute from being held to be incompatible with the European Convention on Human Rights. I think that I can say that I am one of the architects of the Human Rights Act. It is wholly wrong to think that, once the judges have done their interpretative job under Section 3, that is the end of the matter for Parliament. On the contrary, once the judges have done their job of reading in safeguards, it is the job of government and Parliament to see whether what the courts have done can be properly translated into statutory form for the benefit of users of the legal system. I very much hope that that particular heresy will not be repeated. We are concerned that the three branches of government—the judiciary, the executive and the legislature—should act in co-operation, in the sense that each has its own function but all strive to secure compatibility with our basic rights and freedoms. It is very important, however, that the Government should not, once the judges have read in safeguards, say that the matter is ended and that they will not consent to Parliament putting the legislation into proper form. That is my bad summary of one of the points that the noble Lord, Lord Kingsland, made. Having said all that, we will carefully consider the Minister’s speech and respond as soon as possible. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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  • Speaker
    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    moved Amendment No. 132:
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  • Speaker
    Lord West of SpitheadLord West of SpitheadLabour
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    I thank the noble Lord for his comments. Certainly I do not want to commit any heresies; I will talk to my team about that. During this debate I have learnt a great deal about areas of legal process that I did not think I would ever have to know about. I reinforce that we take the JCHR very seriously. I do not want anything to create the feeling that we do not. I know that there are very deep feelings about this. I have another very long speech on these amendments, which I am very happy to make. I could let noble Lords see the response so that they can consider it in terms of the JCHR, but I am very happy to make the speech, as I insisted with my Box that I had very detailed reasons for not accepting the amendments. I will take noble Lords’ views on this.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    I am about to say something extremely unpopular, but I think that I need to say it. It would be better if the Minister gave his speech, for the reason that we are not a club—well, not only a club—and it is quite important for it to go on the record so that those who cannot be here have the benefit of looking at it. I am sorry that I have to say that, but, since the Minister and his officials have taken the trouble to produce full answers, it is better that we hear them. Among the choice of evils, I am in favour of the control order regime. I fully understand, as I think does the Committee, the problems about closed hearings, public interest immunity, the need for secrecy and the special advocate procedure. We are not just taking an irresponsible position, which I know the Minister appreciates. However, I should be grateful if he would respond. Obviously, any Member of the Committee is free to leave during his response, but I will listen with great interest.
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  • Speaker
    Baroness Miller of Chilthorne DomerBaroness Miller of Chilthorne DomerLiberal Democrat
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    Although it may be wearying for the Committee, for those who are not experts or lawyers, interventions during the Minister’s long and complex reply, which may be hard to take on board, are sometimes very helpful. This is Committee stage, so I hope that Members of the Committee, with their particular expertise, will not feel constrained from elucidating certain points.
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  • Speaker
    Lord West of SpitheadLord West of SpitheadLabour
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    I thank the noble Lord, Lord Lester, for making those points. I am glad that he supports control orders, which I have to say are nowhere near a preferred option. The Government would be much happier if there was another way. I am probably paraphrasing when I say that it is the best of a bad job. It is not the option that one would like to use, but it is necessary for public safety. I also take the point about having something in the Bill to take into account an agreed view on some of these serious and major issues of law. If we look at that, perhaps it can be taken account of beyond here. Having asked my team to look at each amendment and to say why they felt that it was wrong, they have worked hard to do that. I have already said that our preferred approach is prosecution, but there are a number of robust safeguards. First, there is consideration of the prospects for prosecution before a control order is imposed. Under Section 8(2) of the 2005 Act, the Secretary of State must consult the police regarding the prospects of prosecution for a terrorism-related offence before making or applying for permission to make a control order. In turn, under Section 8(5) of the Act, the police must then consult the Crown Prosecution Service. I emphasise that this consultation process already goes beyond what is expected in many investigations where the police decide whether or when it is necessary to consult the CPS. The position is set out in a letter from the police to the Home Office. It is laid before the High Court as part of the court’s review of each order. The letter explains the conclusion that the police, in consultation with the relevant prosecuting authority, have reached and how it was arrived at. This information is available to the controlee. The second key safeguard concerns the ongoing consideration of prosecution. Under subsections (4) and (5) of Section 8 of the 2005 Act, the duty of keeping the prospects of prosecution under review is on the chief officer of the police force, who must consult the CPS as appropriate. The third key safeguard is fulfilled by the control order review group. This group, consisting of law enforcement and intelligence agencies and the Home Office, formally reviews the prospects of prosecution of controlees on a quarterly basis. Closed and open records of this consideration are laid before the High Court as part of the court’s review of each control order. The fourth key safeguard is the judicial review of each control order. If the public interest was demonstrably better served by prosecution of an individual, the order would be extremely likely to fail the test of necessity and so would be quashed by the High Court. This was reflected in the court judgments in the case of E, where the High Court concluded that it should quash a control order because the prospects of prosecution had not been kept properly under review, meaning that the test of necessity was not met. This was overturned by the Court of Appeal, but on the basis that in this case the failings in relation to review would not have made a practical difference—that is, in reality prosecution was still not possible—rather than because such a remedy was necessarily inappropriate if the failure would have made a difference. Those four key safeguards have been subject to extensive scrutiny by the courts. The current legislative provision and procedures have been accepted by the courts as adequate, including by the House of Lords in the E judgment, and ensure that, wherever possible, individuals who are or may become subject to control orders are prosecuted for terrorism-related offences. No changes to the legislation were required by the House of Lords. The absence of prosecutions of controlled individuals for terrorism-related offences, other than breaches of their control order, is not an indication that the current provisions have not been applied diligently. Rather, it demonstrates that at the time the control order was made there was, and continued to be, no realistic prospect of prosecution. Moreover, since control orders are designed to prevent, restrict or disrupt individuals’ involvement in terrorism-related activity, it also arguably indicates that the control order against them has been successful in disrupting their terrorism-related activity. Certainly, that assessment is made by the agencies. Amendment No. 132 proposes that non-urgent control orders could be imposed only if the DPP has certified that there is no reasonable prospect of successful prosecution. First, I want to query the basis on which the amendment is proposed. Successful conviction and imprisonment offers the best outcome for the protection of the public. For that reason, the strong preference of the Government, law enforcement agencies and the Crown Prosecution Service is to prosecute suspected terrorists. This amendment rather supposes that the opposite is the case, and that the Government and law enforcement agencies would rather put suspected terrorists on control orders than prosecute them. There is no basis for that assumption: indeed, more than that, it is counterintuitive. That in itself should lead Members of the Committee to question the necessity of this amendment. There are a number of reasons why the Government oppose this amendment. The Law Lords scrutinised this matter at length and concluded that no changes to Section 8 of the Prevention of Terrorism Act were required. Indeed, they considered that there were “strong practical reasons” for the current approach and that changes would have the, “potential to emasculate what is clearly intended to be an effective procedure”. As I explained earlier, the Secretary of State is already statutorily obliged to consult the police on the prospects of prosecution before an order is made or applied for. The police are obliged to consult the CPS, even where it is clear to them that there is not sufficient evidence to prosecute. However, this consultation, still less its results, is rightly not a condition precedent of making an order. There are good reasons for this. Providing certification by the DPP, as the amendment proposes, may not be practicable before the making of an order. Amendment No. 132 makes an exception for urgent control orders to try to address the urgency point. None the less, it is not appropriate to include certification on the prospects of prosecution as a condition precedent. There are principled and practical reasons for this, in addition to the issue of urgency. First, the amendment would undermine the constitutional position. It would effectively give the Director of Public Prosecutions a veto over the Secretary of State’s decision to impose a control order. This clearly is inappropriate, as such decisions are properly a national security matter. Secondly, it could damage other investigations, other prosecutions, or otherwise damage the public interest. For example, in rare circumstances the CPS may decide that a prosecution is not in the public interest, even if evidence is available that may be sufficient to prosecute; for example, a prosecution could bring into the public domain a valuable intelligence gathering technique, reducing its future efficacy. Another example might be that prosecution of a particular individual for a particular offence could damage a more complex, ongoing investigation of that individual and a wider group of individuals. If that individual is already aware of the law enforcement agencies’ interest in him, imposing a control order would not alert him to the wider investigation, and that information could be protected in control order proceedings. But a prosecution for a particular offence could well alert him and the wider group to the ongoing wider investigation. The information could not be protected as in control order proceedings as it would probably form the evidence on which he was charged. This is not an issue limited to control orders or terrorism. In every case that goes to the CPS, even if the CPS concludes that the evidential threshold is met, it must separately assess whether a prosecution is in the public interest. This amendment covers only the first element. Thirdly, it could leave a public protection gap. A control order may be necessary to protect the public from a risk of terrorism posed by an individual even though prosecution of that individual is possible. For example, an individual may be on bail pending trial for a relatively minor offence and so the risk posed by the individual is much greater than the bail conditions a judge would lawfully be able to impose on the individual. In those circumstances a control order might be required in the interim to manage that risk. Fourthly, it would be resource intensive, does not take account of operational realities and would likely have the presumably unintended effect of reducing the initial judicial scrutiny of control orders. Providing an answer to whether an individual can be prosecuted is a much longer and more complex task than simply beginning the process by consulting on the prospects of prosecution. Consequently, the amendment might well force the Government to use the urgency procedure more, in circumstances where the national security case meant that a certificate could not be waited for any longer. This would mean that the normal requirement for the Secretary of State to seek permission to make the control order from the High Court would not apply. Fifthly, and on a point of detail, specifying the DPP personally rather than the relevant prosecuting authority is inappropriate. It is unusual to do so, places an unnecessary resource burden on that post and creates an unnecessary potential bottleneck. Amendment No. 133 deals with the ongoing review of the prospects for prosecution. This amendment contains a combination of inappropriate and unnecessary elements. Proposed new subsection (6A)(a) provides that the Secretary of State should ensure that the prospects for prosecution are reviewed every quarter. This is inappropriate. It is important that we do not undermine the independent role of the CPS and the police. The CPS, not the Secretary of State, is responsible for considering whether a person should be charged with a criminal offence. Any shift in this responsibility could undermine its role. The Act reflects this constitutional position. Nor would it make organisational sense to require the Secretary of State to “ensure” the actions of a department not under her supervision or control—the CPS is independent of the Secretary of State. Under Section 8(4) and (5) of the 2005 Act there is already a statutory obligation on the chief officer of police to keep the possibility of prosecution under review throughout the period the control order is in force and to consult the CPS as appropriate. Proposed new subsection (6A)(a) is unnecessary, as are proposed new paragraphs (b) and (c). The statutory obligations of the Act, combined with court judgments, already deliver the intention behind the amendment. The courts have confirmed that the Secretary of State must periodically consult the police on the prospects of prosecution and do what she can to ensure that the police’s consideration is meaningful by providing any relevant information available to her to the police. This was described by the Court of Appeal as, “a duty to take reasonable steps to ensure that the prosecuting authorities are keeping the prospects of prosecution under review”. This, though, is not the same as a duty on the Secretary of State to ensure that the prospects of prosecution are kept under review. As I made clear in relation to the previous group of amendments on the right to a fair trial, we operate under a common-law system and it is widely accepted that public authorities, among others, are bound not just by statute, but by case law. There is therefore no need to legislate on these latter points. Indeed, it is considered bad practice to legislate unnecessarily. Moreover, the Home Office formally checks the position in relation to prosecution at the quarterly CORG meetings. Amendment No. 133 is therefore neither necessary nor desirable. The courts, including the House of Lords, have considered this point at length. They confirmed the extent of the Secretary of State’s responsibilities on this matter and that no changes to this section of the Act were required. Amendment No. 134 proposes that if there are no realistic prospects for prosecution of a controlee, the chief officer of police must provide reasons for this view both to the Secretary of State and, so far as is not contrary to the public interest, to the controlee. Neither of these proposals is appropriate or necessary. As I stated earlier, the Secretary of State is already statutorily obliged to consult the police on the prospects of prosecution, and the police are in turn obliged to consult the CPS. The police write a letter to the Home Office setting out the prospects for prosecution and explaining how decisions as to prosecution were arrived at. Following recommendations from the independent reviewer of counterterrorism legislation, the noble Lord, Lord Carlile of Berriew, the police and the CPS have reviewed the content of the letters sent to the Home Office by the police. The letters now include more detail than previously, but it would not be appropriate to go any further. There is no need to undermine the constitutional independence of the CPS and the police by requiring them to include further justification in the material sent to the Secretary of State. The CPS is an independent legal body. It is not appropriate for the advice given to be scrutinised or second-guessed by others, including the Secretary of State, because the decision whether to prosecute or not is an independent prosecutorial decision for the CPS. Nor is it necessary; what the High Court and indeed the Secretary of State and the individual need to know is that the prospect of prosecution has been considered. The letter is laid before the High Court as part of its review of the control order, and is thus available to the controlee as part of the court proceedings. Providing any further information on the reasons for not proceeding with the prosecution of a particular individual to that individual may well be against the public interest in all circumstances, rendering this element of the proposal nugatory. It would risk prejudicing future prosecutions because it would reveal the evidential gaps in the investigation to the controlee and could give that person an opportunity to frustrate the investigation so that no prosecution ensues. It would be inappropriate to disclose to the controlee advice given by the CPS to the police in these circumstances, and it may risk breaching current law if some of the information is based on intercept. It would also be highly unusual. In control order cases where there is ongoing review of the prospects of prosecution, it is perhaps slightly contradictory to require the giving of “definitive” reasons to the controlee as to why he has not been prosecuted. Lastly, again, the House of Lords judgment in E did not require any changes to this section. In short, robust safeguards are already in place to ensure that the prospects of prosecution for current or prospective controlees are kept under regular, rigorous review, with appropriate consultation. The reasons for each decision are laid before the court and are available to the controlled individual. Amendments Nos. 132 to 134 are therefore either unnecessary, as the proposals are already in place, or damaging, as they would undermine the independent role of the police and the CPS. None of the amendments is required by the House of Lords judgment in E. For these reasons, the Government are firmly against these amendments and I hope that the noble Lord will not press them.
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  • Speaker
    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    Along, I am sure, with the rest of the Committee, I am extremely grateful to the noble Lord for that extraordinarily full and interesting explanation. I learnt a great deal and I am sure that the whole of his speech will need to be carefully considered. I thank the Minister and I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 133 to 135 not moved.]
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    moved Amendment No. 136:
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  • Speaker
    Lord West of SpitheadLord West of SpitheadLabour
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    Amendment No. 136 poses a distinct threat to the ability of the Government to protect the public from terrorism. It seeks to impose a maximum 12-hour limit on a curfew that can be included in a control order. It is argued that this will make it less likely that control orders will be found to be in breach of Article 5. But the position in terms of the length of curfew that would be in breach of Article 5 is now clear following the House of Lords consideration of the issue. By a 3:2 majority, an 18-hour curfew was found to be in breach of Article 5. From our point of view, this was a disappointing outcome in terms of public protection. However, one Law Lord who found against 18 hours did provide helpful clarity on where the boundary actually lies. He explicitly said, “rather than leave the Secretary of State guessing as to the precise point at which control orders will be held vulnerable to Article 5 challenges, I state that for my part I would regard the acceptable limit to be 16 hours”. While I know that the Joint Committee regards this as a “slender legal basis” for imposing 16-hour curfews, the Government do not agree that that is a fair representation of the position, given that as two other judges believed that 18-hour curfews did not deprive individuals of their liberty, effectively three Law Lords gave clear support to 16 hours. In addition, their Lordships unanimously agreed that a 14-hour curfew did not represent a deprivation of liberty. The suggestion that a 12-hour curfew is the maximum that can be imposed without depriving an individual of his liberty is therefore not credible. It is inconsistent for noble Lords to argue the importance of judicial oversight but then to ignore the courts, and in this case the highest court of the land, where the judgment of the courts does not accord with their own view. What is clear is that the approach taken by the courts to interpreting deprivation of liberty is case-specific and carefully nuanced. In last week’s Court of Appeal judgment on various control order matters, a 16-hour curfew was upheld. However, there has also been a case where a 16-hour curfew was not upheld in the High Court in the context of the circumstances of that individual. The Government are appealing that decision. The concerns I outlined in addressing other amendments relating to the dangers of legislating with regard to what is meant by a deprivation of liberty are potentially relevant in relation to this amendment, too. The JCHR also suggests that the Government need to provide evidence of the significant damage done to the public’s protection against terrorism while shorter curfews were in place. That is unrealistic. In any event, it is not the right way of looking at the issue. The key is the degree of protection that the curfew provides. In some cases, a curfew of 12 hours or less is sufficient to meet the risk posed by the individual. That is reflected in the orders currently in place and in the most recent report of the noble Lord, Lord Carlile, on the operation of the 2005 Act. But in others a 12-hour curfew will not provide the necessary assurance. That is why we have in place a number of curfews set at 14 and 16 hours. These take account of the national security case against each individual concerned and the behaviour that the curfew is seeking to restrict. In short, the obligations imposed are rightly tailored to meet the risk posed by the individual. To restrict the ability of the Government to tailor obligations to the risk posed by individuals within the clear framework now established by our courts would certainly not be in the interests of security. On a common-sense level, it is clear that a 12-hour curfew is not as effective as a 16-hour curfew against someone who is, for example, trying to make a certain communication. Control orders are designed to help manage the risk posed by suspected terrorists but, as the Committee is well aware, they cannot eliminate that risk entirely.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    I am grateful to the Minister. I should like to say how helpful these answers are and what a good process this is. I cannot imagine any other legislative body in the world where this process would be carried out in this way. As I listen to the Minister praising and relying upon the approach of the courts to these problems, I look forward to his speeches and those of the Home Secretary in which they rebuke the red-top newspapers for constantly attacking both the Human Rights Act and the judiciary when we should be grateful to the judiciary for the careful way in which it has interpreted and applied the law. All of the points that have been made will be carefully considered. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    moved Amendment No. 137:
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    Lord West of SpitheadLord West of SpitheadLabour
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    I think I addressed Amendment No. 137 when I spoke to Amendments Nos. 138, 139, 140 and 141.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    The amendment has been addressed?
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    Lord West of SpitheadLord West of SpitheadLabour
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    Yes.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    In which case, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 138 to 141 not moved.]
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    moved Amendment No. 142:
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    Lord West of SpitheadLord West of SpitheadLabour
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    Amendment No. 142 proposes that no control order should be allowed to last for more than two years other than in exceptional circumstances. This was a recommendation originally made by the noble Lord, Lord Carlile. I appreciate the broad concern behind the amendment that control orders may be applied indefinitely. Clearly that is not something that one wants and is unfounded My first point in responding is that the Government agree that control orders should be imposed for as short a time as possible commensurate with the risk posed by each individual. There are a number of safeguards in place. First, the legislation requires that every control order renewed by the Home Secretary must remain necessary to protect the public from terrorism, and its obligations must be necessary for purposes connected with the preventing or restricting of involvement in terrorism-related activity. Secondly, the decision to renew a control order can be appealed by the controlee and the High Court must agree that these tests have been met. This is in addition to the automatic review of the original order. Each control order is therefore subject to extensive, rigorous judicial scrutiny. As the Committee will know, the courts are not afraid to quash control orders. It is a good thing that they are not. Thirdly, all control orders are subject to regular and rigorous internal assessment, including formal review every quarter by the control order review group. Consideration of exit strategies is an integral part of these quarterly reviews. These safeguards ensure that control orders remain in place only where it is necessary and proportionate to do so. The test of necessity is already a high hurdle for the renewal of an order and is a test that is well understood and rigorously applied. I hope the Committee will indulge me in repeating that point: a control order can be renewed only where it is necessary to do so. At any appeal against renewal of the control order by the controlee, the High Court will consider this issue. This provides sufficient protection to an individual on its own. A new provision that includes a test of exceptional circumstances does not add any value to the existing test and, in any case, would lead to greater legal uncertainty as there would be litigation over its meaning. The second broad point relates to the practical position, which is that the Government continue to work hard to identify exit strategies for every control order case. This consideration of exit strategies is not only a theoretical exercise. As we have made clear, exit strategies have been implemented for a number of individuals subject to control orders. In nine cases a control order was no longer necessary as it was possible to instigate deportation proceedings because of the development of a Memorandum of Understanding with the relevant country. For four individuals, the control order was revoked. In these cases the decision was taken because the necessity test could no longer be satisfied. This does not mean that there was no justification for making the order in the first place but acknowledges that the passage of time and the impact of obligations in the order on an individual may alter the position. For similar reasons, two further cases were not renewed. Since the control order legislation came into effect just over three years ago, only 38 individuals have ever been subject to control orders and there are currently 16 in force. Of those currently subject to a control order, one has been subject to an order for less than six months and another seven have not yet reached the 12-month point. At the other end of the spectrum, one individual has been subject to an order since the legislation took effect—just over three years. The third broad point relates to the national security implications of the amendment. While we think it right and proper that the case for renewing a control order should be looked at very carefully and be subject to judicial scrutiny as necessary, we do not accept that there should be an assumed arbitrary end date for each control order. In some cases a period of less than two years on a control order will be sufficient to mitigate the risk posed, but experience to date suggests that in other cases the arguments remain sufficiently compelling at the two-year point, and even the three-year point, to require renewal in the interests of protecting the public. That is our primary concern. The application of an exceptional-circumstances rule would not be helpful in this context. Indeed, we need to be careful about assuming that individuals no longer pose a threat after a defined and relatively short period. Each order addresses individual risk. If it is necessary and proportionate to extend a control order beyond two years to protect the public from terrorism, it is the Government’s responsibility to do so. A definite end date to every control order would also mean that the individuals subject to them could simply disengage from involvement in terrorism-related activity on the basis that they know they could re-engage at the end of that period. The near certainty of a two-year limitation would encourage such behaviour in a way that the current provisions do not. While I understand the concerns that have been expressed—and, indeed, to an extent, share them—I cannot agree with the amendment.
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    Lord Lester of Herne HillLord Lester of Herne HillNon-affiliated
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    This is the last of the amendments that have been tabled and moved on behalf of the Joint Committee on Human Rights. I thank the Minister for his answer. More than that, I thank him and his advisers for the outstanding care that has been taken to respond to the points raised by the Joint Committee on Human Rights. To return the compliment, I am sure that the committee will review what the Minister has said in response to this and the other amendments with the same care and respond, I hope, in a suitable way. I thank the Committee for its patience in allowing this procedure to take place in this way. Having heard the Minister, I believe that it is important that it was not dealt with by correspondence among a privileged few so that the wider public could not listen, read or understand all the arguments that have been put forward. On that basis, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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    Baroness Neville-JonesBaroness Neville-JonesConservative
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    moved Amendment No. 142A:
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    Lord West of SpitheadLord West of SpitheadLabour
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    When he met the Counter-Terrorism Bill Committee on 15 May 2008, my right honourable friend the then Minister with responsibility for counterterrorism, Tony McNulty, committed the Government to update Parliament at the appropriate time. It is very much our intention to update both Houses on progress against the first design phase of the implementation work programme agreed by the advisory group of privy counsellors, well before three months after the Bill becomes law. However, that update report cannot form the basis for a final decision to proceed because of the further phases of work, as agreed by the advisory group, required to build and test the model. I am sure I can put a copy of the work programme in the Library of the House. I assure the noble Baroness that I will try to ensure that that happens. We hope that the update on phase 1 progress will be before the Christmas Recess. The cross-party Chilcot report, published in February, concluded that it should be possible to find a way of using intercept material as evidence but, as has been said, it would need to meet key operational requirements or tests. That is fundamental; we have to meet those, because if we fail in any of those tests it could mean that we would lose these amazing intercept skills because there would be a risk to them. In doing so, the report clearly recognised both the public protection and law enforcement benefits achieved from the non-evidential regime at present and the real damage that could be done from hasty or ill-considered implementation of intercepted evidence. It concluded, for instance, that, “any material risk to the strategic capability of the UK’s intelligence agencies would be unacceptable”, and that: “Before legislation could be introduced … further extensive work would be required to develop a detailed regime”. The work programme currently under way is closely based on that recommended at paragraph 214 of the report, and will be consistent with legislation in the 2009-10 Session. Also consistent with the Chilcot report, however, the Government believe that in order to ensure that the regime is workable, and to protect vital national security and law enforcement interests, legislation should be introduced only when the necessary work has been completed and the operational requirements identified have been clearly met. Further, the Chilcot report underlines the importance of creating confidence in stakeholders, including communication service providers and international partners. Any departure from, or pre-emption of, the agreed Chilcot process would jeopardise that confidence and potentially damage national security and public protection, even if the Chilcot tests could be met. It is interesting to reflect on the fact that, while we are keen to make this happen, twice during the previous Conservative Administration and five times in this Labour Administration we have looked at this issue and each time, for whatever reason, the Government in power have decided that one could not ensure that safety. It is an important issue that a Government in power have to look at very closely. Reflecting that, the Government are unable to accept the proposed amendment, but I hope I am giving a feel for what lies behind it. I hope that noble Lords will continue to back the implementation process for change recommended by Chilcot and the work we and others are committed to doing to fulfil it. The process is underpinned by the cross-party advisory group of privy counsellors, so I think that all parties are aware of what is going on, reflecting the successful example of the original Privy Council review, in order to ensure that the key objectives of safeguarding intelligence capability and protecting the public are not harmed as this work develops and is progressed. On that basis, I ask the noble Baroness to withdraw the amendment.
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    Baroness Neville-JonesBaroness Neville-JonesConservative
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    I thank the Minister for that helpful reply. I am glad to hear that the design phase is coming to an end. It will be helpful to be able to see the work programme that he has agreed can be put in the Library. I hope that the further phase of work on what I would perhaps regard as the operational regime does not take too long. Any indication that the Minister can give us regarding the timetable for that would be helpful, as that is the key to bringing intercept evidence into use in court. We entirely agree with the Government about the need for care, but the admissibility of intercept evidence would help the legal process. As the Joint Committee on Human Rights has noted, its absence is, “the single biggest obstacle to bringing more prosecutions for terrorism”. The Crown Prosecution Service is clear that the use of intercept evidence would lead to more guilty pleas and fewer abortive trials. In addition, the Director of Public Prosecutions was told in Australia that prosecutors who do not use intercept evidence in terrorist cases are not being serious. I would not put it in quite those terms, but the point itself is serious, as this can assist the judicial process. The situation in this country is the more anomalous, given that intercept evidence is admissible in organised crime cases. Having said that, I am grateful to the Minister for his response and look forward to receiving further information on the timetable. For the moment, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clauses 98 and 99 agreed to.
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendments Nos. 143 and 144:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendments Nos. 145 and 146:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendment No. 147:
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    Lord West of SpitheadLord West of SpitheadLabour
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    moved Amendments Nos. 148 and 149:
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