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In summary, no element of the amendment is necessary or has any practical benefit. The amendment as a whole is not just unnecessary, it is also undesirable and potentially damaging to the public interest. First, it undermines the purpose of Section 3 of the Human Rights Act. As noble Lords will know, Section 3 states:
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.
That is in contrast to Section 4 of the Human Rights Act, which provides courts with the power to declare primary legislation incompatible with convention rights.
By including Section 3 in the Human Rights Act 1998, it was clearly Parliament’s intention to give the courts the power to alter legislation where they felt that it was necessary and appropriate to do so in order to guarantee convention rights. No further corrective action is required by Parliament. Legislation that simply repeats a Section 3 read-down therefore has the potential to undermine the clear purpose behind Section 3 and is wholly unnecessary.
I emphasise that the Government’s general policy is that we do not legislate to reflect read-downs by the courts on any issue where the read-down is sufficiently clear and precise. There is no need to take a different approach in this case. The read-down in MB is sufficiently clear and precise, and noble Lords opposite clearly accept that, because their amendment tries to replicate it. That brings me back to my previous point. What is the purpose of the amendment? A shift of wording from case law to statute serves no beneficial purpose.
Secondly, the timing of the amendment is deeply unfortunate. There is ongoing litigation on whether controlled individuals have received a fair trial. The right to a fair trial is an autonomous concept in the European Convention on Human Rights, as is deprivation of liberty. It is subject to continued interpretation by the courts, and the concept goes far wider than simply control orders. Following the House of Lords judgment in MB, there has been ongoing litigation in the High Court and the Court of Appeal about how the court should assess compliance with the right to a fair trial in a number of different cases. The majority view in the Court of Appeal essentially supported the Government’s position.
As noble Lords will know, that judgment will be considered by the Law Lords, and the House of Lords has agreed to expedite those cases. I suggest that in these circumstances, it would be presumptuous and an unwarranted interference with the judicial process for Parliament to legislate further on the point at this time. Nor will domestic litigation be the end of the
11 Nov 2008 : Column 623
In conclusion, the Government do not agree that this amendment is necessary. It does not provide any greater legal certainty than is already provided by the 2005 Act and case law. It will not provide any practical benefit to controlees and has the potential to be damaging to the public interest. It is also badly timed, given the ongoing litigation on what constitutes a fair trial. I ask the noble Lord opposite to withdraw the amendment, and if he will not, I urge all noble Lords to reject it.
Lord Kingsland: My Lords, I thank the Minister once again for his very careful and thorough reply. I do not really understand his point as to its timing being unhelpful. The principle of a fair hearing has been established in R v MB. What a fair hearing is in the circumstances of any particular case is a matter for other courts to decide. The amendment does not seek to stipulate, in any particular circumstances, what a fair hearing is or is not. It simply reiterates the principle established by the Appellate Committee of your Lordships’ House. So, with respect to the Minister, the timing of the amendment cannot be in any way unfortunate.
The Minister seemed to say towards the end of his response that the amendment was an accurate reflection of what the Appellate Committee decided. All that the amendment seeks to do is to obtain clarity by enshrining the decision in the Bill. Since the law is as it is as a result of the case, the principle should not be hidden in the complexities of the judgment. I remind the noble Lord that there were five separate speeches. If the noble Lord is clear that the content of the amendment is an accurate reflection of what the Appellate Committee decided, surely, in the interests of legal certainty, it is desirable that the amendment should appear in the legislation. Once again, I wish to test the opinion of the House.
7.43 pm
On Question, Whether the said amendment (No. 48D) shall be agreed to?
Their Lordships divided: Contents, 100; Not-Contents, 104.
Addington, L.
Anelay of St Johns, B. [Teller]
Barker, B.
Bates, L.
Bradshaw, L.
Brougham and Vaux, L.
Burnett, L.
Chester, Bp.
Colwyn, L.
Craigavon, V.
Crathorne, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dundee, E.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elton, L.
Falkland, V.
Ferrers, E.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Garden of Frognal, B.
Gardner of Parkes, B.
11 Nov 2008 : Column 624
Greaves, L.
Hamwee, B.
Hanham, B.
Haskins, L.
Henley, L.
Higgins, L.
Howard of Rising, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Jenkin of Roding, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Lindsay, E.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
McAlpine of West Green, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Manningham-Buller, B.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Neill of Bladen, L.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Northesk, E.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Pannick, L.
Reay, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Sheikh, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Steel of Aikwood, L.
Stern, B.
Stoddart of Swindon, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tordoff, L.
Tyler, L.
Ullswater, V.
Verma, B.
Waddington, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warsi, B.
Williams of Crosby, B.
Adams of Craigielea, B.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.
Bew, L.
Billingham, B.
Borrie, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Corston, B.
Cox, B.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Donoughue, L.
Drayson, L.
Elystan-Morgan, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gould of Potternewton, B.
Grantchester, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Hoyle, L.
Hughes of Woodside, L.
Irvine of Lairg, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kilclooney, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Leitch, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maxton, L.
Moonie, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Myners, L.
O'Neill of Clackmannan, L.
11 Nov 2008 : Column 625
Pearson of Rannoch, L.
Pendry, L.
Quin, B.
Rea, L.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Smith of Leigh, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Triesman, L.
Tunnicliffe, L.
Vadera, B.
Warwick of Undercliffe, B.
West of Spithead, L.
Whitaker, B.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the negative, and amendment disagreed to accordingly.
7.53 pm
Baroness Neville-Jones moved Amendment No. 48E:
48E: After Clause 89, insert the following new Clause—
(1) The Secretary of State shall, within 3 months of Royal Assent, report on the progress of the implementation committee set up following the Privy Council Review of intercept as evidence.
(2) The Secretary of State shall, within 6 months of the report of the implementation committee, bring forward legislation to implement the recommendations of the Privy Council Review of intercept as evidence.”
The noble Baroness said: My Lords, this amendment is about intercept evidence and the Chilcot report. This morning, the Minister placed in the Library of the House—literally at the 11th hour—a copy of the work programme that we had requested on the work of the implementation team that has followed the Chilcot review. The Minister gave an undertaking in Committee to do that. I think that it is fair to say that we presupposed from that undertaking that it would be done in useful time. I do not think that 11 o’clock today is in useful time.
Because the document has come so late, we have not had a chance to study it properly, let alone develop any very detailed view on it. However, a perusal of it shows that we need to be rather more specific in requests that we make in future. The Government have interpreted the words “work programme” extraordinarily loosely. They have put forward a list of tasks; there is no assessment in that list of tasks of how the Government or those who are charged with studying implementation are getting on and there is no timetable for completion. When one reads that list of tasks, it is evident that allowing the use of intercept evidence does not appear to have any priority for the Government. There is no sense of urgency in the document. One is left with the impression, as one turns over the pages, that implementation study could go on for a very long time; indeed, I do not have confidence that there might ever be implementation.
I remind the House that the Chilcot report recommended in favour of the use of intercept as evidence and gave the Government the template of PII Plus. On the fourth day in Committee, I asked the Minister to confirm that there was a willingness and desire across government to use intercept as evidence. The Minister did not really respond to the point; instead, he made quite a lot of the difficulties.
11 Nov 2008 : Column 626
I remind the House of the nature of this amendment. It asks two simple things: that the Government should report on progress within three months of Royal Assent, which is not a very onerous task, and that, within six months, they should “bring forward legislation”. I do not think that it is unreasonable to expect that, 18 months after the Chilcot committee reported, the implementation committee should have been able to complete its work so that legislation could be brought forward.
I have two points. First, I am not reassured by the document that we have been given that work is progressing. We have not been told that it is progressing; as I said, we have been given a list—quite a long list—of tasks. Secondly, time is going on and my amendment would be very unconstraining on the Government—it is very reasonable. I very much hope that the Government will feel able to accept it. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, we on these Benches support this moderate amendment. In view of how little time we had to peruse the document that the Minister’s department sent through this morning, it would be helpful if the Minister could assure us that he will take the amendment away and consider returning to it at Third Reading if he is not able to agree to it today. In the document, there was not so much a list of tasks as a list of possible tasks. It was one of the vaguer documents that I have read. I would not have called it, even on an initial reading, an implementation document; it was more an aspirational document of where this might go. Given the importance that everybody around the House has attached to the use of intercept evidence, it is important that we get this right.
8 pm
Lord West of Spithead: My Lords, it is clear from what the noble Baroness, Lady Neville-Jones, said that she feels that the Government are not intent on meeting our commitment to push ahead with the Chilcot process. However, that is just not so. We are absolutely doing that. I am sure that if the noble Baroness talks to members of the Advisory Group of Privy Councillors—for example, the right honourable Michael Howard—she will find that that is the case and that we are pulling ahead and moving forward with this.
I reiterate my comment of 21 October that it remains very much our intention to update both Houses on progress against the first, design phase of the implementation work programme agreed by the AGPC, well within three months of Royal Assent. Indeed, we would hope to do so before the Christmas Recess because that would fit in with the programme agreed by the AGPC.
Equally, as I also made clear, the update report cannot form the basis of a final decision to proceed because of the further phases of work, as agreed by the Advisory Group of Privy Councillors, required to build and test the model prior to any implementation. However, the noble Baroness seems to be saying that, even if the Chilcot tests are not met, we should proceed with this. I absolutely disagree. I hope that she is not saying that, because we would be taking some very real risks. Clearly, we have to build and test, and that comes after the first phase.
11 Nov 2008 : Column 627
The noble Baroness mentioned the intercept as evidence work programme, a copy of which I have put in the House Library. I apologise for its not having been there earlier but, as I am sure the House is aware, these things are highly complex; we had to be careful that we did not include anything in it which should not be seen but which would have been available for public view.
Turning to the second part of the proposed new clause, I strongly reiterate my previous comments. Most important, as was made clear in the cross-party Chilcot report, hasty or ill considered legislation could do real damage to our national security. There have been seven attempts to introduce this over the past few years and it is interesting to note that, whichever party has been in power, it has found it extremely difficult to do so. It is not easy or straightforward. We have to ensure that the tests are met.
However, it is fair to say that my right honourable friend, the then Minister with responsibility for counterterrorism, Tony McNulty, said before the Counter-Terrorism Bill Committee on 15 May that we would hope, subject to the necessary issues having been resolved—that is, the tests having been done—to legislate for this in 2009-10. That is still our intention if we can meet those tests. If we do not meet the tests, it will be a different matter, but we have to go through the necessary steps.
We believe that the amendment represents pre-emptive legislation that risks doing real damage to the confidence of the communication service providers—the CSPs—and of our international partners. The Chilcot report underlines the importance of CSPs to our strategic intelligence capability and ability to combat serious crime and terrorism. It also points out how any increased risk of disclosure could harm our international relationships. These issues are highly complex. That is why the matter has been looked at so many times and is so difficult. It is what lies behind the strong emphasis in the Chilcot report of the need to create, and not undermine, that confidence. Therefore, the Government remain unable to accept the amendment.
I hope that the House will continue to back the implementation process recommended by the Chilcot report, which is working forward steadily. We are committed to fulfilling it so that our intelligence capability and public protection are safeguarded and so that, if we are able to do so, we can use intercept as evidence, but we have to have those safeguards in place. This process is underpinned by the cross-party Advisory Group of Privy Councillors, which is ensuring that it is moving forward correctly. On that basis, I ask the noble Baroness to withdraw her amendment.
Baroness Neville-Jones: My Lords, I wish that I felt happier with the answer that the House has had from the Minister. Once again, he has emphasised the difficulties rather than the will of the Government to find a way to implement the report’s recommendation, which is that a way should be found to move forward with this on the basis of PII Plus. It is already between nine and 10 months since the committee reported and I confess that it would have been reassuring if, in the report that the Minister put before the House, he had given an
11 Nov 2008 : Column 628
I consider our amendment to be extremely reasonable. It is not constraining and is in the spirit of the Government’s undertaking to find a way through with this legislation. Had there been time, I might have strengthened the amendment; as it is, I am minded to test the opinion of the House.
8.05 pm
On Question, Whether the said amendment (No. 48E) shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 109.
Addington, L.
Anelay of St Johns, B. [Teller]
Barker, B.
Bates, L.
Brougham and Vaux, L.
Burnett, L.
Carnegy of Lour, B.
Colwyn, L.
Craigavon, V.
Crathorne, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Eccles, V.
Eccles of Moulton, B.
Falkland, V.
Ferrers, E.
Fookes, B.
Garden of Frognal, B.
Gardner of Parkes, B.
Garel-Jones, L.
Greaves, L.
Hamwee, B.
Hanham, B.
Haskins, L.
Henley, L.
Higgins, L.
Howard of Rising, L.
Hunt of Wirral, L.
Jenkin of Roding, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Lindsay, E.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Luke, L.
Maclennan of Rogart, L.
Maddock, B.
Mar and Kellie, E.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Neville-Jones, B.
Newby, L.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Roberts of Llandudno, L.
Rogan, L.
Roper, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Sheikh, L.
Shutt of Greetland, L.
Skelmersdale, L.
Steel of Aikwood, L.
Stern, B.
Taylor of Holbeach, L.
Thomas of Gresford, L.
Tordoff, L.
Ullswater, V.
Verma, B.
Waddington, L.
Walmsley, B.
Walpole, L.
Warsi, B.
Williams of Crosby, B.
Adams of Craigielea, B.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.
Bew, L.
Billingham, B.
Bilston, L.
Borrie, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Corston, B.
Cox, B.
Crawley, B.
11 Nov 2008 : Column 629
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Donoughue, L.
Drayson, L.
D'Souza, B.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Grantchester, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Irvine of Lairg, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Leitch, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Manningham-Buller, B.
Maxton, L.
Moonie, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Myners, L.
O'Neill of Clackmannan, L.
Patel of Bradford, L.
Pearson of Rannoch, L.
Pendry, L.
Pitkeathley, B.
Quin, B.
Rea, L.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Smith of Leigh, L.
Snape, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Triesman, L.
Tunnicliffe, L.
Vadera, B.
Warner, L.
Warwick of Undercliffe, B.
West of Spithead, L.
Whitaker, B.
Wilson of Tillyorn, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the negative, and amendment disagreed to accordingly.
8.15 pm
Lord West of Spithead moved Amendment No. 49A:
49A: Clause 98, page 64, line 1, leave out from beginning to “into” and insert “Section (Terrorist financing and money laundering) and Schedule (Terrorist financing and money laundering) (terrorist financing and money laundering) and Part 5 (financial restrictions proceedings) come”
On Question, amendment agreed to.
Schedule 4 [Notification orders]:
Lord West of Spithead moved Amendment No. 50:
50: Schedule 4, page 72, line 35, at end insert—
“( ) This condition is not met if there was a flagrant denial of the person’s right to a fair trial.”
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