5 Oct 2011 : Column 1125

5 Oct 2011 : Column 1125

House of Lords

Wednesday, 5 October 2011.

3 pm

Prayers-read by the Lord Bishop of Oxford.



3.06 pm

Asked by Baroness Turner of Camden

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, no decision has been made on the future strategy for Remploy. The Government are currently consulting on the recommendations of the Sayce report. This consultation closes on 17 October 2011.

Baroness Turner of Camden: I thank the Minister for that response, but is he aware that hundreds of disabled people who rely on Remploy to provide them with employment are very worried about the continuation of their employment prospects? Remploy has a reputation for, and experience of, providing supportive work for people who want to work but who otherwise have difficulty in doing so. Would the Government please give support to this worthwhile enterprise?

Lord Freud: My Lords, we are aiming to support disabled people in employment, and we have to do that in the most cost-effective way that we can find. There is a remarkable difference emerging between the support to get disabled people into mainstream employment, which, when Remploy Employment Services does it, costs £3,600 a time on a one-off basis-the company is now getting 20,000 people in a year-and the cost of more than £25,000, year on year on year, to keep them employed in the factory services.

Baroness Sharples: Will the Minister tell us what Remploy produces now? I am lucky; I have a torn ligament and I have a super belt for it that came from Remploy.

Lord Freud: My Lords, Remploy has about 54 different factory outlets doing various things, including packaging, logistics and CCTV-a wide variety of endeavours. That is exactly the point: what a Remploy factory operation needs to be successful is to be run as a profitable entrepreneurial unit. At the moment many of them are loss-making, and indeed across the piece only 50 per cent of people are doing productive work.

Baroness Howe of Idlicote: Bearing in mind what the Minister has said, would he also please take into account the fact that Remploy is very flexible with the needs of some disabled people and those who have

5 Oct 2011 : Column 1126

difficulties with learning? It can accommodate them, which makes a huge difference. I hope that that will be put into the decision that is taken.

Lord Freud: My Lords, I must emphasise that what Remploy Employment Services has done in the past few years is genuinely remarkable. In the latest financial year, it has put 20,000 disabled people into mainstream jobs and it is aiming to do that for 30,000 next year. This signifies real change for these people, and that is something on which we must congratulate Remploy.

Lord McConnell of Glenscorrodale: My Lords, will the Minister join me in congratulating Ian Russell and the board of Remploy on their terrific achievement in ensuring that thousands more disabled people go into mainstream employment and get the support they need in order to do that? However, does he also recognise the importance for some disabled people of stable factory-based employment which gives them continuity in their lives that they have perhaps enjoyed for 10 or 20 years, and that it would be helpful for them and for society generally to be able to enjoy that in future? A mixed programme of investment to help these people into mainstream employment but also to provide some factory-based employment for those who need it is the best way forward. The Government should continue to support the strategy that the board has followed over recent years.

Lord Freud: My Lords, I must repeat that no decisions have yet been taken on the Sayce review. We are in consultation until later this month. However, I must point out that it is vital that the work is real. We are looking at the Sayce recommendations to see whether those factories can be turned into social enterprises where there is real and genuine long-lasting work. Make-work jobs are no solution for anyone.

Lord Campbell of Alloway: My Lords, speaking from this Bench, may I respectfully ask my noble friend whether he will take this Question back for further consideration as it does imply amendments to employment law which may cause considerable inhibition as regards the recovery of the economy?

Lord Freud: My Lords, clearly, that is a mixed question from my noble friend. I will look very closely at the optimal way of getting disabled people to take a full part in the economy of this country. I will certainly look very hard at that issue.

Lord Morgan: My Lords-

Lord Addington: My Lords-

Lord McNally: The noble Lord has given way. There is plenty of time.

Lord Addington: My Lords, I draw the House's attention to my declaration of interests. Can the Minister give us some idea how successful Remploy has been in making sure that people who work in its factories find

5 Oct 2011 : Column 1127

jobs in the outside world, as this is probably the ultimate test of how good it is? If he can give us an assurance in that regard, many of these problems will be seen in the correct light.

Lord Freud: Yes, my Lords, I have the up-to-date data for the voluntary redundancy programme which took place in 2008. Of the people who chose to look for re-employment, there was a 90 per cent success rate in getting them jobs.

Lord Morgan: My Lords, we have been considering this properly from the point of view of the workers in Remploy. The other side, of course, is the advantages to business and productive industry. I have in mind industries, particularly printing and the industries connected with publishing, where Remploy workers have unique skills. Should we not seek to retain them?

Lord Freud: My Lords, that is precisely the point. Where there is a viable business proposition we would expect social enterprise or other forms of enterprise to pick up those units, make them viable and keep them viable into the long term on a sustainable basis.

Media: S4C


3.14 pm

Asked by Lord Wigley

Baroness Rawlings: My Lords, I know and understand the conviction and intense interest that the noble Lord, Lord Wigley, and other noble Lords have in S4C. Officials in DCMS held discussions with the BBC in July and August regarding the future of S4C, and those discussions are continuing-as the noble Lord will be aware from all this summer's Written Questions.

Lord Wigley: My Lords, as the Secretary of State has recently laid an amendment to the BBC framework agreements stating that after 2015 it will be a matter for the BBC to determine how much funding it will give to S4C from the licence fee, and as the Government have also recently tabled an amendment to the Public Bodies Bill putting responsibility on to the Secretary of State to ensure that S4C is adequately funded after 2015, will the Minister confirm that after 2015 the Government will determine year-on-year how much funding S4C needs and will make up any shortfall in the money provided by the BBC?

Baroness Rawlings: My Lords, the noble Lord, Lord Wigley, wrote to the Secretary of State on 14 September on these and similar points. As the noble Lord knows, the next Committee sitting on the Public Bodies Bill in

5 Oct 2011 : Column 1128

the other place will be on 11 October, and that will cover S4C. We understand and appreciate the noble Lord's concerns about the financial provisions of S4C and its ministerial independence. I can reassure him that following the government amendment in the other place which he mentioned, the Bill now places a duty on the Secretary of State to make certain that S4C is funded at a level sufficient to meet its statutory remit. This provision will provide security for S4C's long-term future.

Lord Stevenson of Balmacara: My Lords, does the Minister agree that our understanding about the relationship between S4C and the BBC has been greatly undermined by the comments of David Heath in the other place? Does she also agree that an S4C authority with equal representation by the BBC and S4C would be unworkable, result in deadlock and could endanger the new partnership that we are all keen to see succeed?

Baroness Rawlings: My Lords, I can confirm that the BBC will not have a majority on either the S4C board or the S4C executive, and the relationship between S4C and the BBC will be on the basis of a partnership and not of a BBC subsidiary. The partnership will start, as the noble Lord knows, from April 2013. I know how important this is to several noble Lords.

Lord Roberts of Conwy: My Lords, is the noble Baroness aware that the BBC appears to have been flexing its financial muscle in these recent negotiations? It is of course seeking to exercise domination over the governance of S4C, which might end up with a BBC satellite service as opposed to the independent service that we all want and have agreed upon. Will the same kind of behaviour on the part of the BBC be allowed to happen to the local television stations that are also to be financed from licence fee sources?

Baroness Rawlings: My Lords, I understand my noble friend Lord Roberts' concern about S4C, as he was its original founder, but I should like to reassure him that the amended BBC agreement which has been laid in Parliament states that there will be new governance arrangements. This will happen only when they have been agreed by S4C, the BBC and DCMS. Naturally, there will be a balance and it will not be dominated by the BBC.

Lord Morris of Aberavon: Does the Minister understand that there is immense concern in Wales about the delay over so many months in reaching an arrangement between the BBC and S4C? The chairman has been appointed; I welcome the appointment very much. Ministers have stressed the need for independence of S4C. Is the BBC using its muscle, as the noble Lord, Lord Roberts, said, and putting too much pressure on S4C in the discussions? When they reach a point of agreement, will it be with the personal approval of the Secretary of State?

Baroness Rawlings: The noble and learned Lord is absolutely right on that point, but the Government are not delaying. The officials at DCMS are working with

5 Oct 2011 : Column 1129

S4C and the BBC Trust on the governance structure of their new partnership. The new chairman has been appointed and the appointment has gone down very well. Mr Heath said in the other place that he hoped that the negotiations will be completed by Report in the other place.

Lord Roberts of Llandudno: Has discussion taken place between the Welsh Assembly Government, DCMS here, S4C and the BBC? It is so important that all sides involved in the fourth channel, the Welsh language channel, are brought into those discussions to ensure that we have no problems whatever of funding or independence in future.

Baroness Rawlings: My Lords, my noble friend makes a very valid point. The Government are fully aware and have set out the funding levels for the period of the spending review, subject to the passage of the Bill, and are committed to making certain that S4C receives sufficient funding for the future. The Government have made clear that that 100 per cent of S4C's commissioning budget will be spent in the independent sector, as now.

Lord Touhig: Do the Government understand that the statutory funding formula for S4C is not simply important in maintaining Welsh language television, it is very important to sustaining the creative industries in Wales?

Baroness Rawlings: The noble Lord is absolutely right. The Government understand that and are committed to the future of Welsh language programming and of S4C as a strong, independent Welsh television service. The best way to make certain that S4C has a strong and lasting future is through partnership with the BBC.

Commonwealth Heads of Government Meeting


3.22 pm

Asked by Lord Kennedy of Southwark

Lord Wallace of Saltaire: My Lords, the Commonwealth Heads of Government Meeting in 2009 decided that Sri Lanka should host in 2013. We, together with other Commonwealth members, urge Sri Lanka, as host, to demonstrate its commitment to upholding the Commonwealth values of human rights, good governance and the rule of law. A key part of that will be to address long-standing issues about accountability and reconciliation after the recent conflict. We have made that clear, and we expect to see progress by the end of the year.

5 Oct 2011 : Column 1130

Lord Kennedy of Southwark: I thank the noble Lord for his response. Given the devastating UN report on the final days of the war which has been submitted to the Human Rights Council of the UN, alleging that war crimes were committed, does he accept that the British Government should go to Perth and state clearly that, until those matters are looked into properly and investigated independently, it would be wrong for Sri Lanka to host the Commonwealth Heads of Government Meeting in 2013?

Lord Wallace of Saltaire: My Lords, I am aware that the Canadian Prime Minister has been reported as saying that Canada will not go. I have looked carefully at what he said, and he actually said that if there was not an improvement, it was unlikely that he would go. We all have to be concerned that at this stage with doing everything we can to ensure that the process of reconciliation within Sri Lanka continues to move forward.

Lord Dholakia: My Lords, does the Minister agree that it would do a lot of good for the Commonwealth Heads of Government to meet in Sri Lanka, particularly when countries such as Britain and South Africa have a lot to offer when there are serious allegations of excesses during a war? Should we not recommend the peace process in Northern Ireland or the Truth and Reconciliation Commission in South Africa as a means of bringing peace to that troubled island?

Lord Wallace of Saltaire: We are all aware that some atrocities were committed on both sides during the conflict in Sri Lanka, and it would be extremely good to have an independent investigation of them. The Sri Lankan Government have set up their own investigation into this-I forget its full name-although there are some doubts about how independent it is. We continue to press for a thorough and independent investigation.



3.25 pm

Asked by Lord Avebury

Lord Wallace of Saltaire: My Lords, we are greatly concerned at the ongoing violence in Blue Nile state since hostilities started on 2 September. We continue to work closely with our international partners to push for an immediate cessation of hostilities, including through the UN Security Council, where we will again underline our concerns tomorrow, 6 October.

Lord Avebury: My Lords, President al-Bashir has launched a full-scale onslaught against the people in the area of Kurmuk using armour, artillery and helicopter

5 Oct 2011 : Column 1131

gunships, and has refused UN offers of mediation, effectively tearing up the framework agreement on which the Security Council relied in its last resolution of 1997. Does my noble friend not agree that it is therefore necessary for the UN to adopt new measures to prevent this conflict escalating into a cross-border war between the peoples of north and south and to protect the people of the Blue Nile and South Kordofan from incipient genocide?

Lord Wallace of Saltaire: My Lords, there were several questions in there, but I think it would be premature to make such a strong statement on whether this is incipient genocide. We recognise that it has taken a very long time to negotiate an end to the conflict between South Sudan and Sudan and that it has left a number of unresolved conflicts in the border region in Abyei, South Kordofan and Blue Nile. We are extremely concerned that conflict has broken out in a violent form since Sudanese troops deposed the governor of Blue Nile province on 2 September. The noble Lord will be well aware that it is extremely difficult to arrange humanitarian access into the region or, indeed, for outsiders to discover exactly what is going on within the region, but we are doing our best.

Baroness Kinnock of Holyhead: My Lords, is the Minister aware that there are three UN missions in Sudan and South Sudan, with over 38,000 military and police personnel? The mission of those forces is of course to take the UN's responsibility to protect into consideration, yet we see aerial bombardment, mass graves, extrajudicial killings and a denial of access to humanitarian aid. Against that background, why, as we have just heard today, do we hear only expressions of concern from the United Nations, the African Union, the EU and the British Government? Will the UK at least call for a monitoring mission charged with securing a ceasefire and ensuring essential humanitarian access for the suffering people of South Kordofan and Blue Nile?

Lord Wallace of Saltaire: My Lords, the noble Baroness knows better than I do just how large Sudan is and how complicated it is for others to influence what goes on there. South Sudan, a new state, is one of the least developed states in the world. I am told that it has about 150 kilometres of paved road in a country that is roughly the same size as Nigeria. Therefore, a tremendous amount of assistance needs to be provided for South Sudan. With regard to the UN, the noble Baroness will also be aware that there are severe problems in getting consensus within the Security Council because Russia is not entirely persuaded that the level of intervention she is proposing is something in which the international community should engage.

Baroness Cox: My Lords, is the Minister aware that I was in South Sudan last week, when I had the opportunity to meet some of the many thousands of civilians who have had to flee from the continuing offensives by al-Bashir's regime in Blue Nile, South Kordofan and Abyei? As has already been said, the Sudanese Government are denying access by aid

5 Oct 2011 : Column 1132

organisations to the people whom they have displaced, and thousands of them have been forced to flee into South Sudan, which is already facing crises and an impending food shortage recognised by the UN. Can the Minister indicate what help Her Majesty's Government might give to those displaced people, many of whom have already died of hunger?

Lord Wallace of Saltaire: My Lords, I am well aware of the situation. A member of my family was working at a food station in South Sudan and saw children dying in front of her, so I am very well aware of what is going on. Apparently some 400,000 people have been displaced from South Kordofan and Blue Nile, some from Blue Nile into South Sudan and some into Ethiopia. It is very difficult to get NGOs into Blue Nile or to get food into Blue Nile. Various agencies-some governmental, some non-governmental and some international-are doing their best. The Government of Sudan have protested that there are cross-border efforts to provide food into the region. This is not an easy situation; we are doing all that we can.

Lord Chidgey: Given his earlier remarks, is the Minister aware that Edward Luck and Francis Deng, the UN advisers on genocide prevention, have highlighted the grave concerns about the air attacks made by the Sudanese air force on civilians? Is he also aware that the International Crisis Group reports that conflict in the Blue Nile region could well trigger a renewed civil war-a war in which everyone would be losers, but most particularly the Sudanese people? Given the failure of the international community to resolve these conflict issues in the CPA, does not the United Kingdom have a particular responsibility to take the initiative and mobilise international political intervention as a matter of extreme urgency?

Lord Wallace of Saltaire: My Lords, perhaps I should say that China has a particular responsibility in trying to improve relations between Sudan and South Sudan. Oil has been part of the cause of the long conflict-60 per cent of Sudanese oil is exported to China. We need the assistance of the Chinese in bringing pressure to bear on Khartoum to stop using its forces for what to some looks very much like ethnic conflict, but which is certainly an attempt to impose order on these border regions without consideration for local conflicts and to override local wishes and local governments.

The Earl of Sandwich: Does the Minister recall that back in February President al-Bashir and his Ministers were all in favour of the Arab spring, the awakening in north Africa and the necessity of speaking to their opposition parties and bringing them into government where necessary? What has happened to that aspiration and why cannot the Government here have more influence on the process of democracy? Hundreds of thousands of southerners are locked into the north; they have no representation; there is a political party, but he is not talking to them.

5 Oct 2011 : Column 1133

Lord Wallace of Saltaire: The statement that hundreds of thousands of southerners are locked into the north is part of the problem. The borders having been drawn, those who live north of the border are formally Sudanese and not South Sudanese. This is a very large and ethnically diverse country and it needs governing with a great deal more delicacy than a highly authoritarian centralised Government in Khartoum appear to wish for. One should certainly mention, among others who should be playing an active role, the Arab League. Qatar has been very helpful in attempting to provide a structure of negotiation in Darfur, unfortunately not involving all the rebel forces in Darfur. Britain is willing to work with all others-the Ethiopian Government, the Qatari Government, the Arab League, the Chinese as far as we can and the Russians, as far as we can again, to bring all pressures we can to stop this fighting.

Lord Avebury: My Lords, since the UN Security Council is meeting tomorrow in any case to consider the situation in Abyei, could my noble friend ask for this problem to be placed on the agenda so that it can at least consider the evidence that is available, such as the 25,000 refugees who have fled across the border into Ethiopia, the Satellite Sentinel project evidence concerning the movement of large forces on the ground, and the evidence that my noble friend Lady Cox talked about of people fleeing from the Blue Nile into the south?

Lord Wallace of Saltaire: My Lords, I in no way underestimate the threats to personal safety across this large region. Members of the APPG for Sudan will know that there have also been stories of fairly large-scale conflict across South Sudan. Cattle-raiding now takes place in South Sudan with AK-47s as part of what is happening. There are some complicated issues, and it is certainly the case that the comprehensive peace agreement might break down. Her Majesty's Government are well aware of that and we are talking with other Governments within the UN and other international contexts to see what help we can provide.

Terrorism Prevention and Investigation Measures Bill

Bill Main Page
Copy of the Bill
Explantory Notes
19th Report from the Constitution Committee
16th Report from the JCHR

Second Reading

3.35 pm

Moved By Lord Henley

The Minister of State, Home Office (Lord Henley): My Lords, protecting the public from terrorism will always be the top priority of the Government and we will do nothing to jeopardise the safety of our citizens. We are committed to ensuring that the police and others have the powers they need to tackle terrorism, but we are also committed to ensuring that there is a correct balance between state powers and the civil liberties of individual citizens. One does not preclude the other. Public safety is enhanced, not diminished, by having appropriate and proportionate powers.

We believe that the previous Government got that balance wrong and introduced laws that were unnecessary, ineffective and damaging to the long-held traditions of

5 Oct 2011 : Column 1134

liberty in this country. That is why one of the first things we did was to carry out a comprehensive review of the most controversial counterterrorism and security powers. The outcome of the review was announced in January of this year. The review benefited considerably from the independent oversight provided by my noble friend Lord Macdonald and from the input of a wide range of organisations and individuals, including my noble friend Lord Carlile. Both noble Lords will speak later in the debate. As a result of the review, we reduced the maximum period that terrorist suspects can be held before charge from 28 to 14 days, and we replaced the stop and search powers in Section 44 of the Terrorism Act 2000 with a significantly more circumscribed regime. We are making other important changes as part of the Protection of Freedoms Bill that is currently in another place.

The Government have already done much to deliver on their commitment to restore the balance between civil liberties and state powers, but we are also clear that we have an overriding duty to protect the public and to uphold their values and defend their way of life. That is why the most difficult issue faced by the review was what to do with control orders. It is clear that the current threat from terrorism remains serious and will not diminish in the foreseeable future. It is also clear that in this country there are, and will continue to be, a small number of people who pose a real and immediate terrorist threat but who cannot be successfully prosecuted or deported. The difficulty for the review was how we could protect the public from the threat posed by these individuals while ensuring that they can lead as normal a life as possible. The results of our deliberations are reflected in the Bill before us.

The Terrorism Prevention and Investigation Measures Bill will repeal the control order regime contained in the Prevention of Terrorism Act 2005 and replace it with more focused and targeted terrorism prevention and investigation measures. The so-called TPIMs will be supported by significant extra resources for the police and security services to increase their covert investigative capabilities. This approach mitigates the risk we face in a more balanced way than control orders, but does not undermine the protection provided to the public. The prosecution and conviction of those involved in terrorism will always be our top priority. However, where prosecution is not possible, we cannot allow such individuals to continue with their activities. That is why the TPIM Bill will enable us to place restrictions on the individuals involved.

I turn now to some key measures in the Bill. In Clause 1, the Bill abolishes control orders and establishes the new TPIM regime. This enables the Secretary of State to impose specified measures on an individual by means of a TPIM notice. The details of the requirements and restrictions that can be specified are set out in the first schedule to the Bill.

Setting out in detail the nature of the measures that will be able to be imposed-including clear limits on those measures-is central to our approach. Under control orders there are very few limits on what types of measures can be imposed. Now, there will be a very specific list of the potential measures available, which

5 Oct 2011 : Column 1135

is a more transparent approach. It also means that the types of measures that are available will have been specifically approved by Parliament. This is right-it should be for Parliament, not the Executive, to decide what types of measures can be imposed.

The Bill establishes 12 types of measures that can be imposed. These include: an overnight residence requirement; a travel measure, primarily to prevent travel outside the United Kingdom; an exclusion measure, to prevent individuals entering specified areas or places; a financial services measure; an electronic communication device measure; an association measure; a reporting measure; and a monitoring measure.

The overnight residence requirement is not the same as the curfew requirement that is available under control orders. Such curfews can be for up to 16 hours a day and can cover any point in the day. Our intention is not to force individuals to remain in their homes during the day, when they would normally go out to work or to study, but to ensure that they are in their homes overnight. The Bill makes clear the limits of the restrictions that can be imposed-for example there is no power in the Bill to relocate an individual to another part of the country without their consent; and under the electronic communication device measure, it is clear that the individual must be allowed to possess and use certain communications equipment.

The Bill also sets out the conditions that must be satisfied before the Secretary of State may impose a TPIM notice. A key change from the current control order regime is in the first of these conditions, which requires that the Secretary of State must reasonably believe-rather than reasonably suspect-that the individual is, or has been, involved in terrorism-related activity. We think that this is an appropriate raising of the bar for imposing such preventive measures. In each case, the Secretary of State must also reasonably consider that it is necessary to impose measures on an individual, both in relation to the TPIM notice as a whole and the specific restrictions it contains. A further condition is that, except in the most urgent cases, the court has given permission for the proposed TPIM notice to be imposed.

TPIMs are intended to be a short-term tool to protect the public. They are not a long-term solution. A TPIM notice can therefore only be extended once. This means that a person can only be subject to a TPIM notice for a total of two years. This is a significant change from the current control order arrangements.

While TPIM notices will be imposed by the Secretary of State, the Bill sets out the significant involvement that the courts will have in the process. We are clear that the primary decision-maker in these cases must be the Secretary of State, as she is the person responsible for national security. However, we are also clear that the High Court should have full oversight of the process. The courts will, in all but the most urgent cases, give prior permission for the notice to be imposed. At this stage the court must determine whether the Secretary of State's decision to impose a TPIM notice on the basis of the evidence available is obviously flawed.

5 Oct 2011 : Column 1136

If the court gives permission and the Secretary of State then imposes a TPIM notice, the process for a full review of the decision must begin. This happens automatically without the need for an appeal to be lodged by the individual subject to the TPIM notice. The full review will be heard by a High Court judge. The judge will consider the Secretary of State's decisions that both the conditions for imposing a TPIM notice were met at the time the notice was first imposed, and that those conditions continue to be met at the date of the hearing. The judge may quash the whole notice or specific measures within it as appropriate.

The reviews of TPIM notices will take place within the context of the relevant case law on control orders that has been developed in recent years. This means that the court will exercise intense scrutiny over the Secretary of State's decisions and that individuals will know the key elements of the case against them even if it is not possible for them to see all the underlying intelligence.

In addition to the rigorous consideration of the Secretary of State's decisions by the courts, the Bill also builds in a formal statutory requirement for the Secretary of State to keep under review whether each TPIM notice remains necessary to protect the public from a risk of terrorism and that each of the measures in those notices remains necessary. The Bill also makes provision for a number of additional safeguards.

First, we listened carefully to the debates in another place about the need for renewal of the TPIM legislation by Parliament. We have accepted the arguments that TPIM notices should be seen as exceptional measures and that, as such, some form of regular review of the powers by Parliament is appropriate. We therefore amended the Bill in another place so that the operative powers under the Bill will expire after five years unless they are renewed by affirmative order; that is, with the approval of Parliament. This means that each new Parliament will have the opportunity to consider the legislation, how it has operated and whether it is still necessary. I hope that the House agrees that that represents a significant safeguard.

As well as this renewal by Parliament, the Secretary of State will be required to make a quarterly report to Parliament on the exercise of the powers under this legislation. The Secretary of State must also appoint an independent person to review the operation of the Act. As the House will be aware, David Anderson QC is now the independent reviewer of terrorism legislation, a role which was previously undertaken with great distinction for many years by my noble friend Lord Carlile.

Finally, I should like to bring Clauses 26 and 27 to the attention of the House. On 1 September, the Government published a draft enhanced TPIM Bill for pre-legislative scrutiny. This reflects the conclusion of our review that additional restrictive measures may-I stress may-be required in exceptional circumstances and that we would produce draft legislation to cover such a situation. We do not believe that it is necessary to have these additional measures in the TPIM Bill as we sincerely hope that they will never be required-and here I stress we sincerely hope that they will never be required. However, we think that it is right to have the

5 Oct 2011 : Column 1137

draft legislation available and that Parliament should have the chance to consider it in detail now through pre-legislative scrutiny. The TPIM Bill, however, makes provision for the Secretary of State to introduce by order the enhanced TPIM regime during periods when Parliament is dissolved.

I look forward to our debate today and to the further debates that we will have in Committee, on Report and as the Bill otherwise proceeds through the House. As always, I am sure that our debates will be characterised by the thoughtful and expert contributions that are a mark of this House. It is with some humility that I look at the experience and expertise of all those who are speaking today, compared with my lack of experience in this new brief which I have taken on from my noble friend Lady Browning, whose resignation we all very much regret. I rather wish that she was here in this place rather than me but I will do my best, as is my duty, and I look forward to hearing from all those who are speaking today. Having said that, I believe that this Bill, together with the extra resources that we are providing, will protect the security of the British public and ensure that, in doing so, we go no further than is absolutely necessary. I believe that the Bill strikes the right balance between protecting us all from terrorism and upholding the civil liberties that all of us cherish. The approach set out in the Bill is the right one, and I commend the Bill to the House. I beg to move.

3.48 pm

Lord Hunt of Kings Heath: My Lords, first, I thank the Minister for his careful explanation of the Bill. I would very much like to welcome him to his new portfolio and well deserved promotion, and I look forward to working with him. I echo his tribute to the noble Baroness, Lady Browning, for her stewardship of the Home Office brief. I very much enjoyed debating the-perhaps I may say-unlamented police Bill as it went through your Lordships' House. She was a very good debater and listener who will be very much missed from the Front Bench.

The security of this country is of paramount importance and the Official Opposition would always wish, wherever possible, to support Her Majesty's Government in their counterterrorism policies. The introduction of control orders was controversial because they can impose intrusive restrictions on individuals who in most cases will not have been convicted of a terrorism offence on the basis of closed material. We would always prefer to prosecute terrorist offences through the courts. Control orders are not desirable but I believe that they were necessary to deal with a discrete number of individuals who for one reason or another could not be prosecuted but posed a terrorist threat. The decision to introduce control orders has been vindicated through the way that the public has been protected from the risk of terrorism, but also as evidenced by the vigorous judicial process undertaken in relation to control orders.

The parties opposite, when in opposition, made a great deal of their concerns over control orders. In government, I suspect that the Home Secretary has come up against reality, but still feels obliged to introduce

5 Oct 2011 : Column 1138

this Bill. It is a flawed Bill, it is a fudged Bill. It seems to owe as much to the needs of the coalition as it does to national security. Just as we see a faultline running between the two governing parties on European human rights legislation, so we see a faultline in the legislation in our debate today. On the one hand, we have the Bill, which the Government say-and the Minister repeated it this afternoon-provides greater safeguards for the civil rights of suspected terrorists. But we also have another Bill-the draft emergency Bill, which the Home Secretary will carry around in a back pocket for the inevitable moment when this Bill is found wanting. The problem with a faultline is that there can often be a gap. I hope that national security will not fall into it.

At the heart of my concern is the fear that the Home Secretary's powers to deal with the most difficult cases are being weakened. Nowhere is that more evident than in the central issue of relocation without consent. Relocation powers have proved to be extremely useful in disrupting terrorist activity and have been regularly described by the police as one of the most effective powers that they have. How many of the control orders in force have relocation as part of them? In evidence to the Public Bill Committee in another place, Deputy Assistant Commissioner Stuart Osborne said:

"The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult".-[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 5.]

The Home Secretary clearly thinks so. In May of this year, just five months ago, the Home Secretary argued in the case of CD that he needed to be removed from Greater London to protect the public from a terrorist attack. The judge in that case said:

"I have concluded that the relocation obligation is a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist attack."

In July of this year, the Home Secretary said in the case of BM that relocation outside London was "fundamental" to preventing terrorist activity. In that case, BM admitted that he was committed to terrorism. The Home Secretary believes that those powers, which were needed three and five months ago, are not needed now. What has really changed in that period?

Ministers claim that they will put more surveillance in place but again, the senior representative of the Metropolitan Police, in evidence to the Public Bill Committee, said this:

"To get the resources we anticipate we need will take more than a year in terms of being able to get people trained and to get the right equipment".-[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 9.]

It is simply not credible that the security environment has changed so substantially in the past three or five months that the powers needed then are not needed now. Are the Government really saying to this House-in Olympic year, of all years-that the powers are needed less in the coming year than they were last year, when the Home Secretary felt that she needed to use them five times?

5 Oct 2011 : Column 1139

Of course, Ministers have already conceded that additional powers may be needed, so they have published draft emergency legislation, as the noble Lord, Lord Henley, remarked at the end of his speech. That will give the Home Secretary powers to impose what have come to be known as enhanced TPIM notices which make it possible to impose stringent restrictions on individuals, including relocation without consent. We have the rather extraordinary position of the Government saying, "We do not like control orders so we are getting rid of them, but until we do that we are going to go to the courts and argue vigorously for their use, and we will keep emergency legislation just in case this Bill turns out to be inadequate". The Government want to go further: from a position of apparent opposition to control orders, remarkably, this Bill now contains in Clause 26 a provision that allows the Home Secretary to impose the enhanced TPIM notices which should be the subject of the emergency legislation during the period between the dissolution of Parliament and the first Queen's Speech of the new Parliament. I suggest that if extraordinary provision such as that is needed, the Home Secretary needs it now and it should be in this Bill.

Lord Phillips of Sudbury: My Lords, on the noble Lord's point about the absence of a relocation direction, does not the power to exclude a person subject to a TPIM notice from any area as specified provide a great deal of the protection that he wants? That is set out in paragraph 3 of Schedule 1.

Lord Hunt of Kings Heath: Why, then, my Lords, do the Government need a draft emergency Bill? It is because they consider that there may be circumstances in which the current Bill does not meet the security threat. My argument is that if the Government have to contemplate bringing in emergency legislation, it would be better to actually legislate for those provisions and allow Parliament its proper scrutiny rather than, at the time of an emergency or enhanced threat, seek to rush legislation through.

Lord Goodhart: Does the noble Lord accept that this deals with a particular problem, which is what is to be done during the period when Parliament does not exist? Surely special arrangements have to be made for dealing with that particular period of time.

Lord Hunt of Kings Heath: Then why on earth not put it into the Bill and allow the House to scrutinise and debate it thoroughly?

Lord Goodhart: This is something that is supposed to arise during the period when Parliament is dissolved. That is the problem. There is an interval of time, a month or perhaps six weeks, when no Parliament is in existence to deal with these notices. This is a perfectly legitimate provision meant to deal with that situation.

Lord Hunt of Kings Heath: My Lords, the noble Lord is a very good debater, particularly when he is defending a really impossible situation. The point is

5 Oct 2011 : Column 1140

this. We have the Government saying, "Here is our Bill. We are so confident that it will meet the circumstances that we are also preparing an emergency Bill. However, we are not going to let Parliament have full scrutiny of that emergency Bill because we are not going to bring it before Parliament, but just in case we do need it because a threat has arisen during the period of the dissolution of Parliament and the first Queen's Speech following a general election, we are going to provide in this Bill for the Home Secretary to be able to use it simply by executive diktat".

We see here the confusion at the heart of the Government's policy. The reality is that, in opposition, the parties opposite did not like control orders. They have come to power, had the advice and now realise that they need them but are stuck. They have produced the Bill as a way of proving that they are getting rid of control orders but they know that they will need the full panoply of the control regime so are going to have this emergency legislation as well.

A number of Select Committees have commented on the dangers of emergency legislation. First, it is bad constitutional practice. Secondly, the amount of information that will be given to Parliament in respect of an individual case will inevitably be very limited but might have an impact if those cases ever came to court. So this is not the right way to go.

There are of course a number of other features in the Bill and I will not detain the House. No doubt, we will come to the "alternative construct" of the noble Lord, Lord Macdonald, which has been heavily debated by the Joint Committee on Human Rights. We will have a great debate on that. I would be interested in the Minister's response to the Joint Committee on what are called the Lord Macdonald amendments, in particular on whether the judiciary has been consulted and whether there is deemed to be a risk of replacing Executive decisions-where, ultimately, the Executive is accountable to Parliament-with judicial decisions. The general view of the judiciary on whether it wishes to be drawn into such decisions would be highly relevant.

I have just one other point. Control orders legislation was heavily criticised but it had to be renewed annually by Parliament. As a result of the changes made in the other place, this legislation will only come to be renewed once every five years. This matter is important. It enables extensive Executive powers to be used. Parliament ought to be able to come to a judgment on this on an annual basis.

I hope that the Minister will be prepared to listen to these arguments. Ultimately, this is a bad Bill producing a very fudged situation. I really sympathise with those in the security and police forces who will have to operate in such a difficult and uncertain environment. I hope that the scrutiny that this House will give to the Bill will bring from the Government a willingness to listen, consider and accept constructive amendments. The Bill needs an awful lot of work.

4.03 pm

Baroness Hamwee: My Lords, I, too, thank the Minister for his introduction and welcome him to his position. If I were to say that I wished that my noble

5 Oct 2011 : Column 1141

friend Lady Browning was here, I would not want him to take that the wrong way, but I use this opportunity to pass on the House's good wishes to her.

I very much welcome the repeal of the 2005 Act. I hope that by the time this Bill leaves the House I shall be more enthusiastic about the whole of it, but I am already enthusiastic about Clause 1.

No one could envy a Home Secretary faced not just with specific decisions under that Act and this Bill, if enacted, but also with wider policy. I am very conscious of who is sitting immediately in front of me-the noble Lord, Lord Howard of Lympne-in saying this. Control orders always seemed offensive to me because of the impact on the individual and because of the inherent risk that, in using an order, or measure, to restrain a potential terrorist, the effect might be to drive that individual, or perhaps others who knew him and who knew about the restraint because they had been in the same community-however you define that-towards the very actions that one sought to avoid. That is quite the opposite of the intended effect.

I do not challenge the assessment of the risk of the threat of terrorism and am of course in no position to do so. As I have often said, there is no answer to, "If you knew what I know". But it is necessary to take risks in order to manage risks. It is really not possible for the public, which is almost all of us, to know how executive decision-making operates in this area. We have in this Bill the proposed safeguard of a role for the court to determine whether the Secretary of State's decisions are "obviously flawed", to use the term in the Bill. That will be impossible to assess without access to the evidence, which is why the judicial role is so important. These cases are pretty likely to reach the court sooner or later, so why not start them there? However, I take a point made, I think, by Liberty, that the judges' role must remain separate from that of the Executive, as there is a danger in a judge making a political decision.

In Committee, we will explore where the appropriate fit is within the judicial system. I know that my noble friends Lord Goodhart and Lord Phillips will address that matter. As has been said, the views of my noble friend Lord Macdonald are well known. I do not know whether he will use any of the amendments drafted by the Joint Committee on Human Rights on the basis of those views. I must say that it is pretty jammy to find that a Select Committee has drafted your amendments for you.

We will be debating later today the Terrorism Act 2000 (Remedial) Order. The Joint Committee made a number of points to the Secretary of State, one of which was that prior judicial authorisation of the power to stop and search, the subject of the remedial order, should be applied when stop and search was used without reasonable suspicion. The Secretary of State's answer was that the Government rejected that view because it would not be appropriate or helpful,

I disagree.

TPIMs will continue the use of the special advocate system. The idea of a lawyer representing a client but being unable to take instructions from that client,

5 Oct 2011 : Column 1142

because there is nothing on which to take instructions, is not something that I have been able to get my head around. Neither the individual nor his lawyers would have more than the gist of the case, if one can call it a case, against him. Believe me, my practice as a solicitor persuaded me after quite a short time that one needs to be able to test the material and test evidence to destruction with your own client in order to be able to represent him.

The whole regime of special advocates will, I believe, be the subject of a Green Paper, and I use this opportunity to ask the Minister whether he could give the House any information as to when we might see it. Under the Bill, the hurdle for the Secretary of State is slightly higher than reasonable suspicion, but reasonable belief is not so very high a hurdle. We have already had mention of the draft enhanced TPIMs Bill, and we have seen the recently added Clauses 26 and 27. On the draft Bill, perhaps the Minister can tell us the arrangements for the pre-legislative scrutiny that we are promised and which will distinguish that Bill from other emergency legislation that we have seen. But under both of those, the Secretary of State would have to be satisfied on a balance of probabilities that the individual is, or has been, involved in terrorism-related activity. That is, of course, a lower standard than the criminal standard of beyond reasonable doubt. As I understand it, the enhanced TPIMs will be brought into effect depending on circumstances at the time, not on the risk related to the individual. There seems to me no reason why the balance of probabilities should not apply to standard TPIMs as well as to enhanced ones. That seems to be the logic of the way the enhanced TPIMs would come into effect. So we have executive action on a low evidence threshold and something close to executive legislation, since the Bill includes the power for the Secretary of State to repeal, extend or revive by order the legislation.

The title of the Bill is significant. We need to look at the provisions through the lens of prevention and investigation. I have heard-it may be that I read it as comments during the Public Bill Committee debate in the Commons-that control orders and TPIMs can be compared with ASBOs, but we are not dealing with a sanction or penalty here. It is also difficult to see how there can be an investigation since the objective of the Bill is to prevent offences. It is certainly difficult to see how there can be evidence of new activity for a TPIM after the first one.

The Bill raises issues around many aspects and stages of the process. I was left standing by arguments made by other noble Lords on the distinction between appeal, judicial review and the application of the principles of judicial review when we dealt with terrorist asset-freezing legislation some months ago. That legislation also threw up issues around the last of the major areas that I wish to raise today: how one deals with an individual and those around that individual-close and extended family and friends. This is an individual who has not been charged with, let alone convicted of, an offence; someone who may have terrorism in mind, but who is also a human being. Put at its lowest, and as a simple matter of protecting society, it does not seem to me to be good tactics to treat someone in such a way that we drive or tip them into the very actions

5 Oct 2011 : Column 1143

that we seek to avoid. There are, of course, reputational issues for our country, too, but there is a basic moral code-common humanity-that must remain in play.

Several noble Lords attended a meeting yesterday when I asked someone who had been under a control order, which had been quashed, about the impact of particular measures. I did so wondering whether something similar to the licences that the Treasury is able to grant in the asset-freezing regime might be applied here, both general-for instance, spending on basic living costs-and case by case. The answer that the gentleman gave me was that it was the prevention from taking part in ordinary, mundane activities that was the most destructive thing. He was banned from meeting-or associating with, in the jargon-his oldest friend. Of course, both the family life of the individual and the life of his family are affected. How can they not be?

I have been thinking about the need for access to a doctor of that individual's own choice. It is difficult to believe that control orders and these proposed measures could have no effect on mental health. Those in the know say that all the individuals under control orders whom they have encountered have been significantly damaged. It is simply not adequate to say, "Go to the local GP".

The Minister may say that the measures will be humane and proportionate, and that that is implicit in the revised arrangement. We will want to explore that in Committee. I suspect that much will depend on how the measures are applied by the Home Secretary and others. For instance, the time of day when someone under a control order is required to report to a police station can make the difference between whether or not they are able to work or study. By the end of this process, I would like to be assured that we have made the legislation as good as it can be in what is, I acknowledge, a very difficult situation.

If we forget that there is a human being at the centre of all this, we will overlook the normal reactions to restrictions. There is the risk of driving a person into breach of a measure and thus criminalising someone who was not a criminal before. If we dehumanise someone in our own minds-the human being who is still there at the end of the process-and forget that he will have profound needs, then, whether or not there is more or less of a threat, we will not have done well. These are difficult issues. I find it quite difficult even to find the language to discuss them, but discuss them we must.

Finally, I have some rather more discrete questions to the Minister. In evidence to the Public Bill Committee in the Commons, the Metropolitan Police said that it had put in a business plan regarding the resources that it would require for surveillance. Can the Minister give me any news as to whether the Metropolitan Police has been satisfied with the response to that? Can he give the House any information about the number of prosecutions for terrorism that there have been of those under control orders? Inevitably, I also have to ask him about any news of dealing with intercept evidence.

My noble friends bring different experiences-some high profile, some lower profile but very key-and I hope that they and I, and the House as a whole, can

5 Oct 2011 : Column 1144

help make this legislation intellectually coherent and satisfactorily based in the rule of law. As our own Constitution Committee has said, it has only an indirect relationship with the criminal justice system. It should be HR-compliant and obviously so-not just assessed as technically compliant, but something with which we, in our hearts as well as our minds, can live.

4.17 pm

Lord Bew: My Lords, I, too, welcome the noble Lord, Lord Henley, to his position. However, I speak in this Second Reading with a certain degree of unease. Speaking on these matters in your Lordships' House on 8 March, I welcomed the projected liberalisations which it was already fairly clear the Government were likely to be proposing in the control orders regime. In particular, I welcomed what was and is being said about relocation, which is almost the heart of the matter with respect to the working of any new legislation. I also welcomed what was and is being said about access to the internet, mobile phones and so on. As the debate has unfolded over the past few months, I am now not quite so sure that I was right to do so.

As far as relocation is concerned, I think I was influenced, as many people from Northern Ireland are, by the jealousy of both sections of the community and irritation about any concept of internal exile, or anything that smacks even remotely of such a concept. For that reason, I still am sympathetic to what the Government are trying to do here, and I respect that it is a very remote connection indeed. While I accept that, even the remotest connotation is something that a modern liberal society should be somewhat afraid of.

However, as the debate has unfolded, I have been struck by some of the evidence that has entered the public domain, particularly that of Deputy Assistant Commissioner Osborne to the Public Bill Committee, as others were. He made the point there that the power of relocation was probably the most effective aspect of the existing control orders regime. I also understand the concern of many others that the police and security services may not be quite ready to cope fully with a deliberate decision to take an increased risk, because that is part of what we are doing here, and we should face up to that. It may be the right judgment, but it is a deliberate decision to take an increased risk.

Partly in response to these concerns, as the debate has unfolded over the past few months, I have been comforted by the Government's decision to make provision for what the Minister called "additional restrictive measures"-emergency provisions and draft legislation-and their willingness to have pre-legislative scrutiny of them. I fully accept that in some ways, logistically, this is a nightmare-I understand the mockery that the noble Lord, Lord Hunt, indulged in regarding this point-but it at least shows me that the Government have a serious concern for public security, which I find reassuring. Although it is hard to imagine the circumstances now being described in which this new legislative activity might take place, I suspect that Parliament can find a way through. I am willing to trust Parliament's capacities regarding what is quite a difficult situation to imagine. I suspect that in all likely

5 Oct 2011 : Column 1145

circumstances Parliament would find a way through, if we came unhappily-and it would be very unhappily and unluckily-to the moment when we had to look at a further ramping up of restrictive measures.

I have a concluding but, I hope, reasonable point about the general tone of public debate about these matters in our country and a rhetoric that assumes that we have a problem with the secret state and that there is a natural unchecked tendency towards authoritarianism, with a particular focus on the fact that Ministers receive advice to which the rest of us are not privy, which creates a major problem or difficulty of trust. It is true that Ministers will receive advice to which the rest of us are not privy, but it seems fundamentally to misrecognise the nature of modern Britain to presume anything other than a commitment to democratic liberal behaviour on the part of Ministers of any party and on the part of those who advise them. I know that this goes against a thousand television scripts and a hundred Guardian articles, but the presumption of guilt is not yet proven.

As an illustration of that, I also make the point that when we discuss these cases-while undoubtedly mistakes are made, because human beings always make mistakes, and of course the control order regime has applied only to small numbers of people-we tend to do so not only without reference to secret advice that we could not have heard or reasonably expect to hear but also while ignoring what is in open-source information about many of these cases, such as High Court documentation. It is remarkable the degree to which, in terms of this civil liberties debate, there is no engagement with what is already in the public domain about many cases.

I shall take one dramatic example of that, a case from the past two years that was taken up by many lobbyists and written about sympathetically in the Guardian and the Independent. It is the case of Mahmoud Abu Rideh, whose control order was revoked in 2009, when he left the country for Syria. There was much discussion in the papers about the mental anguish suffered by this man when he was the subject of a control order and, quite rightly, a human concern about these matters. It is none the less not without significance that in December 2009 an al-Qaeda website announced his death in Afghanistan, saying that sadly he had been martyred. A case of that sort is not without relevance to the whole debate about the level of the threat to public order that we face.

The Bill is a difficult balancing act, you could argue, between different parts of Article 8 of the European Convention on Human Rights. We simply have to accept that. I just hope that the Government have successfully achieved a balancing act between our traditional civil liberties and the needs of public safety.

4.25 pm

The Lord Bishop of Oxford: My Lords, the Church of England is sometimes accused of being unclear or indecisive in its public pronouncements, so it is worth noting that on 14 February 2008 the General Synod voted by 235 votes to two for a motion that expressed its grave concern that the proposal to extend the

5 Oct 2011 : Column 1146

maximum period of pre-charge detention of terrorist suspects from 28 to 42 days would "unacceptably disturb the balance" between individual liberty and national security. The motion went on to call on the Government to review the restrictions and obligations imposed on individuals under the Prevention of Terrorism Act 2005 and the use of undisclosed material in control order proceedings. I therefore welcome the order that will shortly be placed before your Lordships and the fact that the Government have produced the Bill as a result of their review of the control order system.

We are all indebted to the noble Lord, Lord Macdonald, for the review of counterterrorism and security powers. As Director of Public Prosecutions in 2008, his clarity and level-headedness were a great help to many of us who were non-experts as we tried to sort the wheat from the chaff over 42 days. Those qualities have also informed his conduct in the review.

It is increasingly clear from the debates that have followed the report of the Newton committee and the Lords judgments on detaining foreign nationals under the Special Immigration Appeals Commission that control orders were an attempt to solve a very difficult, if not insoluble, problem; that is, what to do about people who are suspected of terrorist activity but can be neither deported nor prosecuted. Therefore, I sympathise with successive Governments as they have struggled with this issue, which is rather like trying to square a circle. In these circumstances, it is very difficult to find a way forward that satisfies both the needs of national security and public safety and the rights of individuals under the rule of law.

The central objection to control orders was that they restricted the liberty of suspects without due process of law. However, it is hard to see how the prediction of the future behaviour of terrorist suspects could ever be subject to legal action in the way that past conduct could be. The judgment that the liberty of individuals needs to be restricted because there is well founded intelligence that they pose a threat to national security is essentially an executive decision. How far that can be subject to any normal effective judicial review is a difficult issue.

On the other side, if there is a system of restrictions, it needs to be as limited as possible and subject to legal safeguards that are as robust as they can be made. This, I take it, is the Government's intention in the Bill. It is all very well to dismiss TPIMs as "control orders light" but, unless they have found a viable alternative to dealing with the problem, light is better than heavy, provided that the measures are likely to achieve their objectives.

I welcome the clarity of the conditions on the imposition of measures set out in Clause 3, although I leave it to the lawyers to argue whether reasonable belief is a higher threshold than reasonable suspicion of terrorism-related activity. The defined list of powers is preferable to the non-exhaustive list of obligations in the 2005 Act. It is good that the possibility of imposing derogating orders has gone, along with the requirement for relocation, although I understand the points well made by noble Lords earlier. I also welcome the two-year limit for TPIM notices. Taken together,

5 Oct 2011 : Column 1147

these provisions go a long way to alleviating many of the most objectionable features of the control order regime.

The other outstanding issue is the nature of the judicial process adopted. The use of closed hearings, non-disclosure of evidence to suspects and the employment of special advocates all raise serious issues about the right to a fair trial, which is guaranteed under Article 6 of the European convention. I am reassured that the Home Office has taken note of the House of Lords decision in the case of AF by suggesting in its European Convention on Human Rights memorandum that suspects will,

Whether and how far this will be feasible remains to be seen.

Finally, it is important that the Bill links prevention and investigation. Under the old regime, there was a worry that control orders were being used as a substitute for investigation and prosecution. Now it is clear that the two can be carried on in tandem, and that underlines the fact that prosecution and conviction is the preferred option and that TPIMs are very much a second-best resort for a small number of suspects. Although in an ideal world I would prefer not to have any such measures, I accept that in the circumstances we now face they are both necessary and proportionate, and I am content to support the Bill.

4.30 pm

Lord Howard of Lympne: My Lords, I congratulate the Minister on his promotion. As I am sure he has already found out, the Home Office poses challenges of an entirely different order from those of other departments. I wish him well in his responsibilities. I join in the tributes paid to my noble friend Lady Browning, who performed her ministerial duties in this House, as she did in the other place, with very great distinction.

It is common ground in all parts of the Chamber that the best thing to do in respect of those who are suspected of involvement in terrorist activity is to prosecute them. We would all like that to happen. I welcome the fact that the Government are going some way towards making the process of prosecution easier by introducing post-charge questioning, which is something which I have advocated for some time. My noble friend Lady Hamwee mentioned at the end of her remarks the possibility of introducing intercept material as evidence in terrorist cases. Later in the debate the House will have the great benefit of hearing the wisdom of the noble and learned Lord, Lord Lloyd of Berwick. Although I am not privy to what he is going to say, and I anticipate it at my peril, I should be astonished if he did not make at least some passing reference to the desirability of introducing intercept material as evidence.

I have the dubious privilege of being a member of the advisory committee of privy counsellors charged with overseeing the work being carried out by Home Office officials in an attempt to achieve that objective.

5 Oct 2011 : Column 1148

I was appointed to that committee by the previous Administration and reappointed by the present Administration. I joined the committee with a strong predisposition to making that evidence admissible. I had read the speeches of the noble and learned Lord, Lord Lloyd of Berwick, been impressed by them and largely agreed with them. I was extremely keen to see that the law was changed to make this possible. It may still be the case that that goal can be achieved, but I must tell the House that the difficulties in the way of achieving that objective are enormously greater than those that I had appreciated before I joined the advisory committee. Although I hope that we will be able to overcome those difficulties, I cannot pretend that I have enormous confidence that we will be able to do so. Therefore, the question the House has to consider, and the question which gives rise to the Bill, is: what do a Government and a society do in respect of people suspected of being involved in terrorist activity on the basis of material which is not admissible evidence in a court of law? I do not imagine that many people would suggest that that material can be ignored and that that society can be left at risk from those whom that material identifies as posing that risk.

Of course, this is not a dilemma which is particular or special to our country; other countries face it as well. The President of the United States campaigned three years ago on a promise to close Guantanamo Bay within a year. Those who are detained in Guantanamo Bay are there because they cannot be prosecuted under the ordinary laws of the United States of America. Three years later, Guantanamo Bay has not been closed, not, I am quite certain, because of any lack of good faith on the part of President Obama, or because of any lack of desire on his part to make good his campaign promise, but because of the very real difficulties of the dilemma that I have identified, which, indeed, was posed aptly and eloquently by the right reverend Prelate the Bishop of Oxford.

Therefore, what every Government have to do in the face of that dilemma is to strike a balance between the need to protect the public from the risk that these people pose while at the same time minimising the extent to which there is any interference with the individual liberty of those who have not been prosecuted and convicted in a court of law, which is the course of action that we would all desire, were it possible. To that question of striking the balance, there is no single absolutely correct answer. It is a question of judgment, and that judgment is always the outcome of discussion, debate and argument.

That is why I was not as impressed as perhaps he would have liked me to be by the suggestion by the noble Lord, Lord Hunt of Kings Heath, that the Bill is in some way to be regarded as less than ideal because it is the product of the coalition Government. The truth is that there will be in any Government-whether they be a single-party Government or a coalition-arguments, debates and discussions between different members of that Government as to where the balance should be struck. I was obviously not privy to the debates and discussions around the Cabinet table that led to the production of this Bill, but I would be very surprised if there were arguments simply between the Conservative members of the coalition on one side

5 Oct 2011 : Column 1149

and the Liberal Democrat members on the other. I would suspect that there was a difference of view on both sides. That is the way in which our Government work, it is the way in which they should work and decisions emerge as a result of those debates, discussions and arguments. Those decisions are frequently compromises between the different positions, and they are none the worse for that. So there is no merit in the point that the Bill should in any way be criticised because it is the outcome of the debates, discussions and arguments that took place within the coalition.

Lord Hunt of Kings Heath: My Lords, I cannot resist. The point that I am making is that, as a result of the clear divisions, we have come up with a flawed process of a Bill with emergency legislation as a potential back-up because I am sure that there is an understanding among some members of the Government, and certainly in the security and police forces, that the Bill as it stands may not be sufficient. It is extraordinary legislation that gives the Home Secretary power, during a certain period, to use the enhanced provisions. The problem is the product of those discussions.

Lord Howard of Lympne: The noble Lord is, of course, perfectly entitled to criticise particular provisions in the Bill. What I am saying is that those provisions should be dealt with on their merits. It really should be no part of the argument that the Bill in its present form should be regarded as inferior or unsatisfactory because it is the outcome of the processes that took place within the coalition. As to the emergency provisions to which the noble Lord referred, an emergency gives rise to special needs and special circumstances, and it does not seem entirely unreasonable that the Bill should provide for those circumstances in the way in which it does.

I believe that on balance, and with one important reservation that may give some comfort to the noble Lord, the Government have got the Bill right and have struck the right balance between the various competing needs that have to be considered.

Lord Lloyd of Berwick: Is the noble Lord aware of any other country in the world which has control orders or anything like them? He referred to Guantanamo Bay, but that, of course, is not part of the United States.

Lord Howard of Lympne: Of course it is technically not part of the United States, and that is why it can exist as it does, but it is a product of the Government of the United States. It is the Government of the United States who have put in place the regime which exists in Guantanamo Bay, and I do not imagine for one moment that the noble and learned Lord would suggest that we should establish a regime similar to that in Guantanamo Bay in place of the measures contained in the Bill. The trouble is that you have to have something. It is true that every country proposes different ways to deal with the matter, but I do not think that ours is in any way the most draconian.

5 Oct 2011 : Column 1150

Lord Carlile of Berriew: In answering the question asked by the noble and learned Lord, Lord Lloyd, perhaps my noble friend would be mindful of the power in the United States to impose executive witness detention, never mind executive suspect detention. He might also be mindful of the arbitrary powers used in a number of other countries, for example, Pakistan and Sri Lanka, to detain people without any proper legal process and of the power, for example, in France, to charge people with association de malfaiteurs, something we are probably all doing in this House this afternoon, and then hold them in custody for months and months, quietly releasing them without charge.

Lord Howard of Lympne: I hope that my noble friend in that intervention has not exhausted the number of examples of that kind that I am sure he is able to give to illuminate the House. The truth is, I suspect, that if one conducted an extensive examination of the way in which other countries have faced up to this dilemma, one would find that the measures contained in the Bill are less draconian than those that exist virtually anywhere else in the world.

As I said, I believe that the Government have struck the right balance, with one not insignificant exception. When I gave evidence to the Public Bill Committee, I said that in my personal view the Bill would be better if it contained the relocation provisions, and I do not resile from that view. I believe that the relocation provisions would make it easier for the Security Service to carry out its responsibilities and would enhance the protection of the public. On that single point, I agree with the noble Lord, Lord Hunt, but for the rest of it, I believe that the Government have struck the right balance and that the Bill should be supported.

4.43 pm

Lord Harris of Haringey: My Lords, I declare an interest as a member of the Metropolitan Police Authority, with particular responsibility for overseeing the Met's work on security and counterterrorism.

Earlier this week, I went to a meeting with Carie Lamack. Her mother was killed on American Airlines flight 11, which crashed into the World Trade Center 10 years ago. She went on to co-found Families of September 11 and, later, the Global Survivors Network, which brings together survivors of terrorist attacks across the world and their family members. Her testimony is an international reminder about why the fight to combat terrorism is so important. Families are destroyed, individuals are left bereft and the effects last a lifetime.

I am sure that no one in your Lordships' House wants to see repeated the suffering of those terribly injured in the London transport attacks or the grief felt by those bereaved. That is why it is the paramount duty of Governments to protect the security of their citizens, to protect those citizens' right to life and to protect all of us against terrorism.

The problem that government faces is simple to state but not easy to resolve. In essence, it is this: what does the Home Secretary do about those individuals who pose a serious risk to the lives of British citizens but against whom there is insufficient evidence to bring them before a court charged with a terrorist offence? The evidence may not be admissible in British courts or it may rely on material gathered by UK

5 Oct 2011 : Column 1151

intelligence agencies that would compromise the safety and security of others if it were publicly disclosed, or it is derived from intelligence from overseas agencies provided on the basis that it must not be disclosed. Yet a responsible Home Secretary cannot ignore that those individuals pose a significant risk, cannot turn a blind eye to the threat that is there and cannot fail to take some action to protect the rest of us. To do nothing would be a dereliction of that responsibility to protect the public. Control orders were an attempt to provide us with that protection in the very small number of cases where no other action is possible, and it is a power that has been rarely used, despite the dire warnings that were issued when it was first proposed.

This Bill, however, is nothing more than a shoddy compromise which weakens our security, yet does nothing to satisfy those with concerns about civil liberties. Despite what the noble Lord, Lord Howard, has just said, I think that it is a compromise that demonstrates the weakness of the Government as they try to square the circle between the two wings of the coalition, epitomised by a Liberal Democrat Deputy Prime Minister and a Conservative Home Secretary-trying to reconcile the irreconcilable. The current control order regime is not, of course, satisfactory-it is already a compromise. No one has ever seriously tried to pretend that it was satisfactory. However, it was an honest attempt by the previous Government to reach that compromise-to balance the free and liberal tradition of this country with the need for security.

The present Government were formed with an explicit commitment to replace the control order regime. It was a commitment made in the coalition agreement and the Deputy Prime Minister was voluble in his promises about what this would mean, telling us that it would "give people's freedom back". However, let us be quite clear. The Bill does not do anything like enough to satisfy those who have reservations about the previous control order regime and its implications for the civil liberties of those subject to that regime. Shami Chakrabarti, the director of Liberty, has said that control orders have simply been rebranded, albeit in a slightly "lower-fat" form, or, as Liberty's briefing puts it,

Indeed, I suspect that the Bill must be something of an embarrassment for those Liberal Democrats who spent so long in this House criticising the previous Government for introducing and using control orders. There is silence today from the noble Lord, Lord Thomas of Gresford, who in 2005, when the control order legislation was going through your Lordships' House, said on behalf of the Liberal Democrats that control orders would constitute,

There is silence today, too, from the noble Lord, Lord Dholakia, who also spoke out unequivocally from the Liberal Democrat Front Bench. He said:

"The first and fundamental issue, which is central to all the arguments advanced in this debate, is who should be responsible for the decision to make control orders. On these Benches, it is clear that the proposals made in the Bill are not acceptable".-[Official Report, 1/3/05; col. 206.]

5 Oct 2011 : Column 1152

Those issues remain central to the proposed legislation and what we have is the silence of the Lib Dem lambs. I should say that I absolve from the accusation of silence the noble Lord, Lord Goodhart, whom we will be hearing from in a moment. In 2005 he was equally trenchant but I have faith that he at least will be consistent when he speaks.

So this Bill does not satisfy-it cannot satisfy-those who feel that the current arrangements are disproportionate, draconian and destructive of our liberties. But, none the less, the Bill does water down the control order regime. It raises the threshold, from reasonable suspicion of involvement in terrorism to reasonable belief that the individual is or has been involved, before action can be taken. It limits what conditions can be placed on those individuals and, crucially, it removes the power to relocate individuals away from those localities where they may mix and conspire with others.

For those of us who believe that sometimes Governments must take unpalatable measures to protect us, those are crucial changes. They leave us all vulnerable. Let no one pretend that the threat has gone away. The recent arrests of seven individuals-now charged-in Birmingham as the Liberal Democrats gathered there for their conference are a reminder that we must continue to be vigilant against that threat.

The Home Secretary has had to acknowledge how critical all of this is. Within days of taking office and within days of the coalition agreement being signed, she was presented with information that persuaded her-a rational and responsible individual-that despite the coalition rhetoric about control orders and the need for them to be abolished, she should personally approve the imposition on a number of people of precisely the same orders as the Government are now abolishing.

Only in February, after the Government had announced their proposals, the Home Secretary agreed a control order on a British-Nigerian terror suspect who apparently, according to MI5, is a leading figure in a close group of Islamic extremists in north London. He was banned from living in London under the terms of that control order. In May, according to the Guardian, the High Court dismissed an appeal by the man, saying that his removal to an undisclosed address "in a Midlands city" was necessary to protect the public from the "immediate and real" risk of a terrorist-related attack. So, in February, it was necessary to place restrictions on that individual as to where he could live-effectively relocating him from north London to the Midlands, something which would not be possible under this Bill.

If this Bill becomes law, that individual will be free to move back to London in the new year, just weeks before the Olympics, to renew the associations that only a few months ago were deemed by that rational and responsible Home Secretary to be so dangerous that a control order was needed along with the relocation of that individual. I ask the Minister: what will have changed between the time when the Home Secretary approved that order and the time when the individual concerned is to be allowed to move back to London?

5 Oct 2011 : Column 1153

Lord Phillips of Sudbury: I am grateful to the noble Lord for giving way, but I must ask him the same question as I asked the noble Lord, Lord Hunt. Paragraph 3 of Schedule 1 states:

"The Secretary of State may impose restrictions on the individual entering ... a specified area".

The Minister can prevent someone entering London -so what is the noble Lord on about?

Lord Harris of Haringey: I am of course delighted to try to defend the Bill on behalf of the Minister, although I suspect that the Minister will do a very good job of that in a moment. However, my interpretation of the provision is that it is about very specific locations and particular areas-for example the Olympic park, or whatever else it might be. It is not clear that it will permit the prevention of that individual living in the city that had previously been his home. That is the point that needs to be made.

Lord Howard of Lympne: Is not the point that there is an enormous gap between preventing someone entering a particular area, which is what the schedule permits, and requiring them to live in a particular area where the Security Service can maintain constant surveillance of them? That is the difference between the two, is it not?

Lord Harris of Haringey: My Lords, as ever I am grateful to the noble Lord, Lord Howard, for his helpful intervention. My point is simple. This was a power that previous Home Secretaries and the current Home Secretary found necessary. It is one that the security services and police said was necessary. However, we are now told that the fresh air of the West Midlands conurbation and its bucolic atmosphere have so changed this individual's personality that he now poses much less of a threat. That is frankly implausible. The reality is that this power was necessary. The present Home Secretary, knowing of the proposal that she would bring before Parliament, chose to exercise the power. The power remains necessary.

Baroness Hamwee: Would the noble Lord like to say anything about the development of technology? He may be overlooking the fact that individuals who are subject to these measures will almost undoubtedly be tagged. I do not know much about it, but I am sure that the technology is developing as we speak, and that it is possible to know where people who are tagged are going, and whether they are going where they should not be going. Surely that needs to be taken into account.

Lord Harris of Haringey:As I understand it, people who are subject to control orders are in many instances already tagged. Tagging is a useful technique. Tags can be removed, though the best tags are supposed to tell you if they have been-and I am sure that only the best tags will be purchased for this purpose. However, the problem is the risk of association. If somebody lives in a particular area and it is deemed that the danger of association is there, a tag will not tell you who comes to see that individual. Nor will it tell you

5 Oct 2011 : Column 1154

where they go in their immediate vicinity, which could be precisely where those associations take place. The point of relocation is to minimise the risk of those associations, or to enable them to be monitored.

Just eight months ago, the rational and responsible Home Secretary, on the information presented to her, felt that the individual concerned was so dangerous that not only did he need to be subject to a control order but he should be relocated miles away from his previous environment. She made the judgment knowing that the Bill would remove that option and tie her hands in future. The rational and responsible Home Secretary made that judgment knowing that however much of a danger the person was thought to be, such an outcome would be taken away. The Minister needs to tell us why the judgment that the Home Secretary made then will no longer apply to this individual when the Bill becomes law.

Perhaps we should not expect the Minister to go through such contortions to provide an explanation. Perhaps all he needs to do is concede that the Home Secretary made that judgment in the interests of our nation's security but that this shabby, tawdry compromise of a Bill would prevent her making the same judgment in future. This compromise is not just between the two wings of an uneasy and unhappy coalition, but a compromise with the nation's security.

4.58 pm

Lord Goodhart: My Lords, as we all know, the Bill replaces the Prevention of Terrorism Act 2005. It substitutes TPIM notices for control orders. Of course, control orders are a highly contentious subject. They have led to a great deal of legislation going before the Supreme Court and before its predecessors in your Lordships' House-two of whom I see in their place this afternoon. Differences between TPIM notices in the Bill and control orders under the 2005 Act are not great. Where they exist, the Bill is in some respects an improvement. For example, under the 2005 Act it was necessary only for the Secretary of State to show reasonable grounds for suspicion that the defendant was or had been involved in terrorism. Under Clause 3 of this Bill, the Secretary of State must reasonably believe that the defendant is or has been involved in terrorism. Of course, belief is a stronger matter than suspicion. Again, under Schedule 1 to this Bill, there is a specific list of all measures that can be imposed on the defendant under the 2005 Act. It is a list of examples but it is not exclusive.

However, this Bill retains the controversial provision in the 2005 Act under which defendants may be excluded from information about the case and may not be allowed to attend the hearing, and must be represented by a special advocate who cannot tell them what is happening in court. Whether this is in breach of human rights is a difficult matter, taking into account decisions of courts that have interpreted the 2005 Act. I am prepared to accept that special proceedings of the kind that happen in this country are not necessarily in breach of human rights, having regard to the decision of the Supreme Court on these issues, though in some cases the Supreme Court, as in the AF case, may come to the conclusion that human rights are not satisfied.

5 Oct 2011 : Column 1155

However, there is one matter I want to concentrate on, where this Bill has not gone far enough. This matter was fought over strongly in the debate in your Lordships' House during the 2005 Act but does not seem to have been taken up during debates on this Bill; that is, whether a control order or a TPIM notice should be imposed by the Secretary of State or by a court. Many Members of your Lordships' House will remember a debate in March 2005, the final stage of ping-pong of the 2005 Act, which began at 11.30 am on 10 March and ended at about 7.30 pm on 11 March. Anybody who took part in that will be only too reminiscent of it. The amendment proposed by my noble friend Lord Thomas of Gresford, who I am very glad to see here now, and by myself on behalf of the Liberal Democrats, and the late and greatly regretted Lord Kingsland on behalf of the Conservatives, proposed that control orders should be made by judges, not by the Home Secretary, and that the standard of proof should be on the balance of probabilities. I point out that this was the joint view of the Conservatives and my own party and that it was opposed by the Labour Party.

That amendment eventually failed when the Conservatives surrendered, for reasons that I find understandable, but I regret that the Government are not acting now on the principles that both we and the Conservatives pressed for in 2005. The amendment contained two requirements. The second of these-that the balance of probabilities should be a basis for a control order-seems to have been, to some extent, accepted by this Bill, although I am less than satisfied that that is what is actually meant by condition A in Clause 3. The first requirement-that orders restricting activities of defendants should be made by judges and not by Ministers-was refused in 2005 and is being refused again.

The power for Ministers to make TPIM notices is, I believe, a fundamental breach of the rule of law. That is the case even if the courts can set aside, as they could under this Bill, a TPIM notice if they were satisfied, as in Clause 6(7), that the Minister's notice is "obviously flawed", whatever that expression may mean.

I will explain why there is a breach of the rule of law. If there is proof beyond reasonable doubt that the defendant has committed an act of terrorism, he will be charged, prosecuted by lawyers and convicted by the judge and jury. Ministers will play no part in this because prosecution and conviction of individuals is not within their duty. This is a central rule of English law but it is not limited to cases which are simply beyond reasonable doubt.

What happens under the 2005 Act, and will happen again if this Bill is passed in its present form, is that the Minister will be responsible for the prosecution and the sentence of those who are believed to be-not proved to be-involved in terrorism. Of course, a TPIM notice is not a criminal sentence but it is quite plainly a civil penalty. The penalties here are severe and are surely a matter for a court to decide and not for a Minister.

The Secretary of State may consider that a penalty should be imposed and begin proceedings for that purpose. But it must be for the court and not for the

5 Oct 2011 : Column 1156

Secretary of State to decide that a penalty should be imposed. To give the courts the power to cancel the penalty only if they are satisfied that the Secretary of State's decision to do so is obviously faulty is simply not enough. That is doubly important in a case where the defendant cannot have presented his own case before the penalty was imposed.

In the Bill as it stands, we have an intrusion of Ministers on what should be the powers only of the law and the courts. For centuries, we have been proud in this country about the rule of law. One can only recommend that everybody reads the short book The Rule of Law by the late, great Tom Bingham. This is something that goes back to Magna Carta. But this Bill, like the 2005 Act, breaches the rule of law.

5.07 pm

Baroness Stern: My Lords, I welcome very much the way in which the Minister presented this Bill to the House and I look forward to working with him. I must declare an interest as a trustee of the Civil Liberties Trust. It is a privilege to speak after the noble Lord, Lord Goodhart, who is a veteran of the Prevention of Terrorism Act 2005 and its subsequent annual renewal debates. The amount of attention we have paid to this matter in this House has been very worth while and productive. As the years and the renewal debates have gone by, the regime was modified and its least palatable aspects brought more within the rule of law. The fact that the Government had to report to Parliament and Parliament had an opportunity to look at the measure in detail was very valuable and should continue. I hope very much that we will return to this issue in Committee.

As someone who occasionally visits other countries-some with rather dubious human rights records-to talk about human rights and the rule of law, I must say that I would prefer it if we were not discussing this today and if we did not have to have measures that severely restrict people's liberty without due process. There is no doubt that the threat is very real. Certainly, the numbers controlled in this way are small. Efforts are made to ensure safeguards. But the regime still goes beyond what we as a country believe in and what we advocate to others. As the noble Baroness, Lady Hamwee, has said, it does reputational damage to our country in this respect. However, I accept entirely that this Bill is an improvement. In the words of the right reverend Prelate, light is better than heavy, and no compulsory relocation or daytime curfews are welcome developments.

I wish to probe the Minister a little further on the restrictions. When I first read the list of those that could be imposed under the 2005 Act, I found it very chilling. The experiences of those under control orders and, by extension, their family members, seemed to be moving well beyond prevention and protecting society from danger into the arena of punishment, but punishment without a trial or a conviction.

It was most helpful to have the reports of the noble Lord, Lord Carlile, which put into the public domain much valuable information on what a control order meant. This was a combination of electronic tagging, curfew for up to 16 hours a day, daily reporting by telephone, restrictions on visitors except for family

5 Oct 2011 : Column 1157

members, getting approval to meet anyone outside the house, being forbidden to meet certain people at all, giving the police free access to enter at any time, restrictions on communications equipment, needing approval to send anything abroad apart from personal letters, not being allowed to go to a port or a railway station, daily reporting to a police station and having to get prior approval to study.

Further light on what actually happened to people was shed by the noble Lord, Lord Carlile, in 2009 when he reported that a controlee was:

"No longer required to report by telephone to a police station in the early hours of the morning; nor to obtain prior approval for female visitors to his family at home".

Presumably before this, the controlee had to set an alarm clock for some time in the middle of the night, wake up, ring the police and then try to go back to sleep. His wife had to submit requests to the Home Office if she wanted her mother, for example, to visit her.

According to the noble Lord, Lord Carlile, another controlee was not allowed to attend AS-level science courses because,

One report said that women in the family went to bed fully clothed in case there was an unannounced visit from the monitoring company in the middle of the night. One controlee was not allowed to go into the garden.

Can the Minister tell the House a little more about the restrictions available under this new measure and how they will be decided? I appreciate that they are more tightly drawn than under the 2005 Act, but I have read Schedule 1 quite carefully more than once and it seems to give the Secretary of State considerable leeway to impose a wide range of requirements. They are better than those I described, but they are still very stringent. I welcome the fact that the person can have a landline, a computer with access to the internet and a mobile phone, but there are considerable powers in Schedule 1 to restrict and control their use. These include specifying the manner in which a telephone, computer or mobile phone may be used and the times when they can be used. Work and study will be allowed, which is also a welcome development, but the Secretary of State must be notified of work or study and may impose any,

Can the Minister tell the House a little more about how these conditions will be applied to each person subject to them? Will they be regularly reviewed, and by whom? Will there be a review group or committee that looks at each case on a regular basis? Will persons subject to these orders and their family members be able to ask for modifications? Will they, as the noble Lord, Lord Carlile, recommended, have a phone number that will always be answered if they need to talk to someone about an emergency? An example would be if a child is ill and they need to call the doctor, but the doctor is not on the list of permitted visitors.

I have no doubt that the Minister intends these measures to be more just and humane than those they

5 Oct 2011 : Column 1158

are to replace; they should indeed be so. But how does he envisage ensuring that that is actually the case when it comes to the detail of what happens to each controlled person and his or her family?

5.15 pm

Lord Freeman: My Lords, from the Government Back Benches perhaps I may pay tribute to the work of my noble friend Lady Browning in your Lordships' House in taking through the police Bill. Not everyone may have agreed with the arguments, but we shall miss her patience, skill and courtesy. I hope that noble Lords will join with me in extending our best wishes to her and hope that her health allows her to return as quickly as possible.

I shall be brief because there is no point in repeating arguments that have already been made much more eloquently. The right reverend Prelate the Bishop of Oxford, who is not in his place at the moment but has attended all the proceedings so far, was exactly right in arguing for the Bill and for what he described as light being "preferable to heavy". It is time to amend the control order legislation and I agree with 90 per cent, or perhaps even 95 per cent, of what my noble friend Lord Howard argued and explained. I have some differences as to controlling movement outside, for example, the metropolis.

I should like to advance very briefly two reasons, from a business standpoint and drawing on my commercial background, why it is sensible to agree with a reduction in the nature of control legislation. It is time to move on from the 2005 Bill to a lighter regime. The first reason was referred to by my noble friend Lady Hamwee in her speech. Technology has improved enormously in terms of electronic intercept. It is now possible to track where people are moving, the telephone calls they make and their electronic communications, in a manner that seven years ago would have been absolutely unthinkable. With that tremendous improvement in technology, I feel much more relaxed about amending the original legislation by what is by all accounts quite a modest measure.

The second reason is the additional resources that MI5, MI6 and the police service in the United Kingdom now have. The £600 million available for cybersecurity being spent wisely on research at GCHQ in Cheltenham will enable us not only to track overseas terrorist threats, but more particularly where terrorists are in the United Kingdom and the communications between them. This is a complete revolution and these extra resources give me every confidence in backing the Bill. I look forward to the Committee stage.

5.18 pm

Lord Dubs: My Lords, I welcome the noble Lord, Lord Henley, as the Minister and pay tribute to the noble Baroness, Lady Browning. I hope that she will get better soon and will be with us again before too long. I was talking to her only yesterday to commiserate on her health. She said that she really enjoyed the job, and the fact that she did so was obvious in how she dealt with the business of the House. It was a pleasure for us all, even if we disagreed with her.

5 Oct 2011 : Column 1159

I am a member of the Joint Committee on Human Rights and I want to develop one or two arguments. At the outset, however, I should say that if I were speaking later in the debate, I would probably be saying to the noble and learned Lord, Lord Lloyd, that I agreed with him on intercept evidence and to the noble Lord, Lord Macdonald of River Glaven, that I agreed with the thrust of his arguments. But given that I have not yet heard them speak, I shall have to say a word about that.

The noble Lord, Lord Howard, mentioned intercept evidence and the committee on which he serves. Those of us not privy to the sort of information that he now is-as presumably he also was when in the Cabinet-are not as aware as he is of the difficulties involved in the use of intercept evidence. It is a difficult point which affects the whole debate on terrorism that most of us do not have access to the information which determines how decisions are ultimately made by Ministers. We have to take it as an act of faith and there are limits to the amount of faith we can always have. I am very keen on the use of intercept evidence and would like to hear-I am not going to because it is all secret, of course-the arguments against the use of it, given that it is now normally used in many other countries which presumably have the same difficulties that the noble Lord referred to.

Lord Reid of Cardowan: Briefly, my noble friend raises a good point that he does not have access to the information on which sometimes the judgment is based. I merely commend to him a study: can he name one British Home Secretary who does not agree with the noble Lord, Lord Howard, in his estimate of the dangers and disadvantages of introducing what my noble friend proposes?

Lord Dubs: Of course, all Home Secretaries had access to this information which we do not have, so I cannot name a single Home Secretary in that regard. That does not mean that all Home Secretaries in history have always been right about everything. I say that with as much modesty as I can muster. Why is it that in many other countries intercept evidence is used when the same difficulties surely apply?

Lord Howard of Lympne: Can the noble Lord name a country with an adversarial system of evidence which is subject to the jurisdiction of the European Court of Human Rights? There are countries with adversarial systems that have allowed limited intercept evidence but are not subject to the jurisdiction of the European Court of Human Rights. There are countries that do not have an adversarial system but an entirely different system which have allowed limited admissibility of intercept evidence and are subject to the jurisdiction of the European Court of Human Rights. Can the noble Lord name a country that has both?

Lord Dubs: I am obviously well outside my comfort zone on this. I am not sure whether the Republic of Ireland meets the condition of the noble Lord. I believe that it uses intercept evidence, comes under the

5 Oct 2011 : Column 1160

European Court of Human Rights and has a legal system similar to ours. I put that forward without the certainty that I am absolutely right-but I do not think that I am wrong. Given the silence of the noble Lord when I said the Republic of Ireland, I think I have got him there.

I am sorry that I have taken so long in getting away from what was meant to be my main argument. Those were just some preliminary points. I had no idea that they would cause so much excitement.

The Joint Committee on Human Rights, of which I have been privileged to be a member, has consistently expressed doubts about the control order regime and whether it is compatible with human rights. That is clearly the starting point for considering the changes being brought forward in the Bill. In fairness, the Bill modifies some aspects of the control order regime, for example moving the threshold from reasonable suspicion to reasonable belief and imposing a maximum time limit of two years-although it could be renewed if further evidence came to light about terrorist involvement. The restrictions imposed are also a bit less severe than the previous ones and there is a renewed emphasis on investigation and prosecution, although I would argue that it does not go nearly far enough because very serious concerns remain.

A main concern is that the priority should be the criminal prosecution of those suspected of involvement in terrorism. When people are involved in terrorism, the bottom line must be an attempt to use the criminal justice system and go for prosecution. Clearly nobody says that we will not do that, but when we have a system of TPIMs there will be a temptation to say, "Let's go down that path rather than the more cumbersome process of getting the evidence and going for a prosecution". There could be such a temptation-and, clearly, because we would all want to use the criminal law rather than an administrative process, we have to be careful that we do not drift into using TPIMs more widely.

In recent years, there has been a significant fall in prosecutions for terrorist offences. I wonder why that is. Certainly, there have been some important ones, but I am told that there has been a fall. The noble Lord, Lord Macdonald, who will speak after me-and I do not want to jump the gun, because he is an expert-in his report on the Government's review of counterterrorism powers argued very clearly that restrictions on the freedom of those suspected of terrorism can be justified in constitutional and human rights terms only if they are part of a continuing criminal investigation. We are restricting individuals' rights very seriously even under this new TPIM regime. The noble Lord's fundamental criticism of the Bill, which I totally share, is that any replacement of control orders should be brought firmly within the criminal justice system. The Bill does not go nearly far enough in this respect.

It is true that the Government have restated their commitment to the priority of prosecution. However, as the Bill stands, the purpose of the new provisions seems to be more prevention than investigation and prosecution. I am confident that there will be a good debate on this in amendments to be brought forward in Committee.

5 Oct 2011 : Column 1161

I have one or two other points. Before imposing a TPIM, the DPP or the relevant prosecuting authority should be satisfied that a criminal investigation is justified and that investigation will not be impeded by any of the specified terrorism prevention and investigation measures. Clearly, if a TPIM is imposed on an individual, as was the case with control orders, that individual is totally alerted to what is going on. Even if surveillance is still carried on, that becomes much more difficult. So I can only assume that if we think that we have got somebody and there could be some evidence, we will not impose a TPIM because that would alert the individual and surveillance might be a better way in which to get the evidence-although, as we have discussed, intercept evidence would not be available.

I also believe that there should be judicial supervision in relation to any criminal investigation under this Bill. While the Bill provides that TPIMs can be imposed only with prior permission from the court and provides for an automatic review hearing, the Human Rights Committee recommended a widening of the court's powers to look at whether the conditions for imposing a TPIM had been met and, at a review hearing, whether they continued to be met. Those would be additional safeguards that the Bill does not have. The Human Rights Committee is also keen that the Secretary of State should be required to provide the individual subject to a TPIM notice,

I agree that there is a balance to be struck there, because one cannot give all information away without revealing how it has been obtained. But in terms of the balance I would be happier if a little bit more information could be provided to the individual. I think that we could go further in that direction.

It has already been mentioned that under the Bill TPIMs are not subject to annual renewal by Parliament, but will be permanent. I hope that during its passage the Bill will be amended to require annual renewal. We are still talking about a serious erosion of the liberties of an individual. That requires proper scrutiny at intervals and a debate on the continued necessity for such exceptional measures.

Finally, I share the concern that the Government have a draft Bill that will enable them to give effect to exceptional measures. While in theory it may be attractive to say, "We have some more legislation and if we need it we can ratchet up the powers", in practice we all know that it would be very difficult for Parliament to debate such a new measure at a time of national emergency-because there would have to be some crisis for this to happen. I am very nervous about the suggestion that, "We may need new powers and we will bring them forward to Parliament as and when they are necessary." It is a difficult thing to conceive Parliament dealing with in that way.

I finish as I started, on intercept evidence. I have urged it, but it is not a silver bullet. I just believe that it would be helpful. I do not know what to do about the argument put forward by my noble friend that I cannot name any Home Secretary who has gone down that path, except to say humbly that I still believe that there is a case for considering it further.

5 Oct 2011 : Column 1162

5.30 pm

Lord Macdonald of River Glaven: My Lords, while like other noble Lords I welcome the noble Lord, Lord Henley, to his new role and send my best wishes to the noble Baroness, Lady Browning, I also declare an interest as independent overseer of the Review of Counter-Terrorism and Security Powers. That review was intended, of course, by the Government to achieve a rebalancing between security and freedom where that rebalancing could be achieved in a manner that was consistent with public safety. In many respects, as I suggested to the House upon its publication, I believe the review succeeded in that aim. If its recommendations are implemented, I believe we shall indeed achieve a better balance.

Among the more controversial and pressing topics considered by the review was the question of control orders. It is very well known that these instruments came about not as a result of a predetermined, purposive government policy, but rather in reaction to a number of adverse court decisions outlawing the then Government's attempts to intern without trial in Belmarsh aliens who were thought to present a risk to national security. The Judicial Committee of this House was unequivocal in ruling this policy to be disproportionate and discriminatory. In relating this I do not seek to underestimate in any way the dilemmas that have faced successive Governments in security matters. I saw many of them very starkly during the five years that I was DPP.

The Government's response to the Belmarsh case was to create the control order regime. This applied to Britons as well as foreigners, so that it was no longer discriminatory. It fell short of inflicting full imprisonment without charge, prosecution or conviction, contenting itself instead with varying forms of house arrest and other restrictions on travel and association, and bans on the use of communications equipment, such as phones and computers.

Nevertheless, the scheme remained highly controversial, and this was for a number of reasons. First, the regime appeared to permit the state to order sanctions that looked explicitly penal but in the absence of any criminal due process and certainly without any trial ever having taken place. Secondly, these apparently penal sanctions could be imposed without the controlee and his lawyers knowing any more than the gist of the evidence relied upon by the state, and this evidence could be presented in their absence to the court. This seemed obviously and crudely to offend against traditional British norms of justice, precious to so many citizens of the United Kingdom. Thirdly, it was by no means apparent that control orders were actually in any sense entirely protective of the public. Many controlees simply absconded and only one, I think, was ever prosecuted with a substantive terrorist offence. In circumstances where it had apparently been the belief of successive Home Secretaries that all these men were engaged in serious terrorist activity, this omission seemed to represent a grave and continuing failure of public policy. Put simply, if the Home Secretaries were right, as I am sure they were, terrorists were routinely and scandalously escaping justice.

5 Oct 2011 : Column 1163

Lord Reid of Cardowan: The main reason people could abscond during control orders was not as a result of what the Home Secretaries wanted, which was 24-hour-a-day confinement; it was that, under the Human Rights Act and European Convention on Human Rights, the Home Secretaries were not allowed to authorise such confinement, but had to leave people eight hours to go about their normal business, whatever that was. That was an open invitation to undermine the very essence of the confinement under control and surveillance that was the essential requirement for control orders. It may be right or it may be wrong, but it was the main factor that allowed those under control orders to abscond.

Lord Macdonald of River Glaven:I entirely accept what the noble Lord says, and I am sure he is right about that. Of course, if the controlees had been confined for 24 hours in Belmarsh or even in their homes, it would have been far more difficult for them to abscond, but the control order system that we had existed largely as a result of decisions made by the courts. My point is that this control order system, as it came to be, may not in a serious sense have been protective of the public because it was so easy to abscond and because so many controlees did just that. My more substantial point is that I think that only one was ever prosecuted with a substantive terrorist offence so if the Home Secretaries were right that these people had been involved in terrorist activity, that would appear to be a failure of public policy in that terrorists in those circumstances were escaping justice.

My view is that, given the nature of the control order regime, this was not surprising. One clear finding of the review, accepted by all sides so far as I could tell, was that the control order regime was inimical to prosecution. That resulted from the reality of control orders, which amounted to the warehousing of suspects under the aegis of the Security Service and the consequent destruction of the normal routes and possibilities of evidence gathering. This was not the intention of the control order regime but it was one of its effects, and it was absolutely clear to me from material that I examined during the review that the process of building prosecutions against controlees was weak and had low priority. In fact, it almost never occurred.

For very understandable reasons, when a man was put under a control order the police would simply move on to other cases, satisfied that that individual was adequately quarantined under watchful eyes. That low prioritisation of prosecutions will always be evident so long as the system of restrictions is positioned outside criminal justice. If I am right about that-I shall expand a little in a moment-it means that to situate TPIMs outside criminal justice is not only possibly offensive to principle; it is also, finally, offensive to public safety because it lets people get away with terrorism and escape justice.

Let me say straight away that TPIMs appear to represent an improvement on what went before. The most offensive features of the previous regime from my perspective-those closest to house arrest-have gone. Relocation and long curfews will be a thing of the past. Individuals will be permitted to use electronic

5 Oct 2011 : Column 1164

communications, including computers and phones, and the orders themselves will be time-limited to two years. Yet in my view the Government have failed to grapple with the central issue: the nature of the orders themselves and the appropriate space for them to occupy within our constitutional arrangements. In my report on the review, presented to Parliament alongside the review, I called for TPIMs to be attached quite explicitly to criminal investigations. That would facilitate the prosecution of serious criminals and deal with the constitutional objections that have bedevilled control orders and will, I am sure, continue to bedevil TPIMs. This stance has since been supported by the JCHR and noted by the Constitution Committee of this House. It deserves more serious consideration than the Government have so far shown it.

I understand that it will not always suit the Security Service, for which I have the greatest respect, to have law enforcement authorities crawling all over suspects under its control. That no doubt explains in part the strong support that the Security Service has given to the control order regime but it is nothing to the point. The public interest is not always and inevitably to be equated with the policy of the Security Service. Sometimes, Governments need to stand back. It is patently absurd that individuals certified by the most senior figures in government to be active terrorists are not constantly and relentlessly under criminal investigation. I do not accept for one moment that because the material against an individual is presently inadmissible for one reason or another-many identified by my noble friend Lord Howard-the investigation should stop. On the contrary, it should be redoubled and have TPIM conditions attached to it for its duration. Let there be relentless investigation into people who are suspected of terrorist activity but let it be criminal investigation and let TPIMs be tied to that investigation-to facilitate and assist it so that no opportunity is lost to bring violent extremists to justice-in a manner consistent with our rule of law.

Lord Howard of Lympne: What would happen under the regime that my noble friend is suggesting if the police and prosecuting authorities came to the conclusion that there was simply no evidence that would justify the continuation of the criminal investigation? Under his proposals, would that mean that the restrictions currently under discussion would inevitably fall?

Lord Macdonald of River Glaven: If my noble friend does not mind my saying so, I am not sure that the example that he posits is one that I recollect from my period as DPP. Let us imagine the situation that would exist here: presumably the police or the Security Service would have in their possession something like an intercept that could not be used-for example, a suspect having a conversation with another individual about a plan to place a bomb on the Tube. With respect, that is not the end of an investigation; it is the beginning of one. The investigation that then takes place is into that individual, into the plan as described in the phone call, into the individual he has spoken to and into the associates of all.

5 Oct 2011 : Column 1165

The noble Lord will know from his time as Home Secretary that the sorts of powers and abilities that the law enforcement authorities in this country have, which we will not go into here, are considerable and significant. I do not recognise a situation in which a law enforcement investigation stops simply because the deeply incriminating material that you have until that time is the only material that you have and you do not anticipate discovering more.

Lord Carlile of Berriew: But my noble friend Lord Howard did not suggest that. Does not my noble friend Lord Macdonald, from his distinguished period of service as Director of Public Prosecutions, not recollect that cases were brought to him in which at that time there was no further prospect of a successful investigation? That is the question that my noble friend Lord Howard is asking. If that is the case, perhaps my noble friend Lord Macdonald would just tell us that the consequence of his view is that, if a TPIM exists after that time, it should cease.

Lord Macdonald of River Glaven: Of course one recognises that if an investigation, using all the powers available to the investigating authorities, has continued for a period of time and turned up nothing, under this scheme the TPIM will come to an end-but TPIMs are intended to be time-limited in any event. Under the terms of the Bill, TPIMs will come to an end after two years, so we are not talking about an open-ended system of restrictions. My point is that a system of restrictions applied to criminal investigations is not only more likely to be constitutional and develop broader public support than the system that is currently proposed, but such a system would have attached to it conditions that actively encourage and assist investigation.

Lord Hunt of Kings Heath: The noble Lord talked about broader public support, but what evidence does he have of major public concern about the use of control orders? Is there not in fact a great deal of public confidence in them because they protect our security?

Lord Macdonald of River Glaven: If the noble Lord does not mind my saying so, that is a somewhat complacent view. There is wide public concern. Obviously there are different views around the country and in different communities, but it would be complacent for the noble Lord to come to the conclusion that there is and has been no broader public concern about control orders.

Lord Reid of Cardowan: Would the noble Lord give us one piece of evidence to substantiate that?

Lord Macdonald of River Glaven: The level of public debate and discussion is pretty clear evidence. The review itself contains evidence of public meetings and discussions with people who are concerned about the control order regime. I caution noble Lords from the view that there is no concern in the country outside these Houses about these arrangements; I believe that there is.

5 Oct 2011 : Column 1166

Lord Reid of Cardowan: May I help the noble Lord? I was a Member of Parliament for 23 years. I held a surgery at least once a month and sometimes four times a month. I never had one person come to me and make representations for or against a control order. There is published concern and there are certainly lobby groups, but public concern is entirely different. All the evidence is that the public feel reasonably comfortable with this system as a matter of ensuring their security.

Lord Macdonald of River Glaven: I respect the noble Lord's experience. I am sure from my own experience, conversations and discussions with many people in different parts of the country and different communities when I was DPP that there is and was concern about the control order regime, as there was concern about the pre-charge detention regime. Frankly, noble Lords delude themselves if they seriously suggest that there was no broader concern about measures of this sort; I am sure that there was. Maybe we will not agree about this but, with great respect to noble Lords, I find that view somewhat complacent.

When this subject is debated, everybody agrees that the most important result of any investigation into terrorism is prosecution. If one is considering protecting the public, they are best protected by people being sent to prison for long terms. This is something that we became and are extremely good at in this jurisdiction. We have extremely skilled and able specialist counterterrorism police and prosecutors, and an outstanding record of putting people in prison.

Lord Gilbert: We all speak from our own experience; the noble Lord moves in his circles and I moved in mine. I have similar experience to my noble friend Lord Reid, having represented a Labour constituency for 27 years. The attitude there was one of concern over control orders; the noble Lord is absolutely right. The attitude was that they should be tightened up: "Lock them up and throw the key away".

Lord Macdonald of River Glaven: The noble Lord has his experience and I am grateful to him for sharing it with us. I find it very helpful and thank him. Most of the people I spoke to during those years wanted to see these men and women in prison for long terms. That is the answer and the way to protect the public. Find the evidence, prosecute these people and lock them up. The gravest disadvantage of the control order regime was that it presented an obstacle to that in the cases of those individuals who were subject to control orders. That is the purpose of a scheme that would link restrictions to criminal investigations that are more likely to result in criminal prosecutions and convictions.

5.47 pm

Lord Pannick: My Lords, we are debating the Bill at a particularly depressing time for civil liberties in this country. This country has long prided itself on the protection of fundamental freedoms, both here and in other parts of the world. However, we apparently now have a Home Secretary who believes that debate about human rights-an important and serious debate on

5 Oct 2011 : Column 1167

complex issues-should be so debased that the right to family life can seriously and usefully be addressed by a fable about a cat rather than by any serious analysis of the issues of law and policy. That is a matter of grave regret. I very much hope that the noble Lord, Lord Henley, who I welcome to his responsibilities, will be able to persuade the Home Secretary to take a more informed, reasonable and reasoned approach to the issues raised by the Bill, issues that, as he rightly said in opening the debate, depend on securing a correct balance between state powers and civil liberties.

The regime proposed by the Bill, like the regime under the control orders legislation, raises concerns about the rule of law in four respects, which we will need to address in Committee. I share the concerns already expressed by the noble Lord, Lord Goodhart. First, we must accept that the Bill allows for sanctions against alleged wrongdoers by an administrative procedure that is wholly outside the criminal process, which is the point that the noble Lord, Lord Macdonald of River Glaven, has just addressed. My response to the interventions is that, regrettably, one finds that constituents up and down the country do not share concerns about civil liberties when they relate not just to alleged terrorists but to alleged murderers and rapists. Nevertheless, they are important aspects of a civilised society which it is our responsibility to seek to protect. Let us remember that the fact that these matters are being addressed outside the criminal process-I understand why they need to be so addressed-arises in the context that over the past 10 years we have enacted a vast number of new criminal offences to deal with terrorist activity, many of them concerned with preparatory acts, such as possession of material for criminal purposes.

Lord Reid of Cardowan:It is important to clarify this. I do not think anyone was suggesting that the public view was right or wrong; what we were trying to ascertain was the public view. That was the matter of disagreement with the previous speaker: the contention that the public view was that these were very troublesome and difficult issues and that we should get rid of control orders. That was what was in dispute, not whether the public view was right or wrong.

Lord Pannick: I am very grateful. If the noble Lord accepts-I hope he does-that the public view on these issues is not determinative, although plainly it is important, we will not differ much, save that I suspect that in some sections of the community there is particularly grave concern about control orders. My concern is that that may well be undermining the extent to which those communities are prepared to co-operate with the police and the prosecution authorities in bringing forward evidence that is vital to secure the conviction of terrorists and information that can be used to implement the administrative process. That is my concern, and it is why I share the view of the noble Lord, Lord Macdonald, that we must not be complacent about these matters.

The noble Lord, Lord Henley, said in opening the debate that it is necessary to have the TPIM regime in those cases where prosecution is not possible. The

5 Oct 2011 : Column 1168

noble Lord, Lord Howard of Lympne, eloquently supported that approach. I, of course, understand the force of that point, but we must surely accept that it is nevertheless difficult to reconcile this approach with the rule of law. It is an exception to the rule of law. Because it is an exception-perhaps a justifiable exception-it is vital that we ensure that the detailed implementing provisions in the Bill satisfy the test which the noble Lord, Lord Henley, stated at the end of his speech, and which I was very pleased to hear from him. As I understood him, the test is that the provisions must go no further than is absolutely necessary. I commend that test to the House as the right one to adopt in testing the provisions of the Bill. That is the first concern.

The second rule of law concern is that the Bill allows for the sanctions-that is what they are-to be imposed by a Minister and not by a court, albeit that the court has a reviewing role. If a TPIM procedure is appropriate outside the criminal process-I understand why it is-the rule of law surely requires that Ministers do not themselves make the initial decision on such matters as who a person may associate with and where they may stay overnight with the court confined, as it is under Clause 6(3), to determining whether the initial decision of the Minister is "obviously flawed". Surely the role of the Minister should be to make an application to an independent judge. It should be for the Minister to produce the relevant evidence, perhaps in closed session with a special advocate, for the judge to assess. It should be for the court to decide whether the order should be made. In urgent cases, the court could no doubt apply a threshold test. We need to consider this seriously in Committee.

Lord Hunt of Kings Heath: My Lords, in relation to the point the noble Lord has just made, has he ascertained the view of the senior judiciary about whether they would wish to be drawn into making such decisions? There is a balance here as to whether it is more appropriate for the Home Secretary to make those initial decisions, subject to judicial scrutiny, because ultimately the Home Secretary is responsible for security issues and is accountable to Parliament. Does the noble Lord not think-and I think he is following the argument of the noble Lord, Lord Macdonald, on this-that there is a danger of moving responsibility from the Home Secretary to the courts? I wonder whether the judiciary would want to accept that responsibility.

Lord Pannick: The factual answer to the noble Lord's question is no. Of course I have not asked the Lord Chief Justice about this matter, but under the Bill, it is, in any event, the responsibility of the judge at the reviewing stage to decide whether the TPIM should be maintained. The Government accept in the Explanatory Notes that that should be akin to an appeal procedure, not just a judicial review test. The judges will have that responsibility at the end of the process. It seems to me that they should have that responsibility from the outset of this process. I would say to the noble Lord and to the judges, with genuine respect, that it really is not for judges to determine what responsibility they should have in relation to this fine balance between the public interest and civil liberties.

5 Oct 2011 : Column 1169

It is surely for Parliament to decide how the balance should be struck and for us to decide whether it is best struck by the courts having the role that I suggest.

There is a third respect in which the Bill offends against the rule of law. It allows for sanctions to be imposed without any proof of wrongdoing, even proof to the civil standard of the balance of probabilities. A TPIM notice may be issued by the Secretary of State where she,

When he winds up, will the Minister please explain why these sanctions should be imposed on a person if the Secretary of State is unable even to show that it is more likely than not that the wrongdoing has been committed or will be committed by the individual concerned? If the security services, with all their resources, and even with the use of evidence that could not be disclosed in a criminal court, cannot satisfy the judge on the balance of probabilities that the individual is involved in terrorist-related activities, there is surely no justification for taking these legal measures against that person. Of course, surveillance measures may well be appropriate against such persons, but that is not what we are discussing in this Bill.

There is a fourth respect in which the Bill departs from the rule of law: it allows for sanctions to be imposed although the individual has no right to see the material on which the allegation is based. In the AF case in 2009, which has already been mentioned, the Appellate Committee considered how the principle of fairness under the rule of law should apply in the context of control orders. I declare an interest: I represented AF in the Appellate Committee. The Law Lords decided that a control order is invalid unless sufficient of the case against the individual is disclosed to him personally to enable him, if he can, to give instructions to his lawyers to answer the allegations against him, and if the Home Secretary is not prepared to disclose that much, the control order cannot be maintained.

The TPIM, like the control order, involves severe restrictions on the personal liberty of the individual. Therefore, it seems to me that a TPIM will inevitably be unlawful unless the AF principle-you must disclose as much as enables the person to have a proper opportunity to answer the allegations-is satisfied. Does the Minister accept that? If so, does he agree that the Bill should be clarified by stating that point clearly?

I make one final point. Like the noble Lords, Lord Hunt of Kings Heath and Lord Dubs, I think that it is appropriate, given all the matters that I have mentioned, the sensitivity of the issue and the extent to which matters will develop from year to year, that this House and the other place have the opportunity to consider these important matters every year, not only at the expiry of another five years.

6.01 pm

Lord Faulks: My Lords, this Government, like the previous Government, have a duty to respond to the threat of terrorism in a way that strikes a balance between individual freedom and the security of those potentially affected by acts of terrorism. This is and

5 Oct 2011 : Column 1170

was no easy task. Control orders, introduced by the previous Government, were controversial, as were the various increases in pre-trial detention. However, the threat, principally from al-Qaeda, remains, and it calls now, as then, for extraordinary measures. On pre-trial detention, there is an acceptance that the previous Government probably went too far. However, I do not doubt for a moment the genuineness of their approach to pre-trial detention and the question of control orders, nor that they were reflecting concerns of the public and what they required the Government to do.

It is perhaps a little too easy to seem principled-even heroic-in deploying civil liberties as a trump card in this debate. Although I do not have the debating miles on the clock of some noble Lords, I have followed the debate from outside Parliament, and I never found in the rhetoric the comparisons with internment in the Second World War, control orders under the apartheid regime in South Africa or the regimes in Zimbabwe and Burma at all helpful.

However, as with pre-trial detention, modifications to the control order regime were needed. In bringing forward the Bill, the Government have made some important changes. Is the Bill simply control orders lite? The Secretary of State must now reasonably believe that the individual is or has been involved in terrorism-related activity and reasonably consider that the relevant measures are necessary. That is an important additional requirement. With great respect to my noble friend Lady Hamwee, it is a pretty high hurdle.

The menu of measures contained in Schedule 1 is varied and can be nuanced according to the particular situation where there is someone over whom the measures are appropriately directed. They exclude relocation measures, which previously existed. It is a fine judgment whether that is an appropriate exclusion, but there are sufficient measures to exercise the necessary degree of control without that. As I understand it, the Government were concerned, in so far as it was possible, to allow those who are the target of the measures to lead as normal a life as possible in the area with which they are familiar. Similarly, retaining the means of communication is important to allow them a modicum of a normal life.

Those and other changes may not alter fundamentally what the Secretary of State can do, but they are by no means trivial amendments. It is, of course, of paramount importance that safeguards are provided in a Bill of this sort. The primary one is the effective supervision of TPIMs by the courts. The High Court will consider whether to give the Home Secretary permission to impose a TPIM notice and will later review whether the notice and measures were in fact necessary. Is there any reason to think that the courts will not be rigorous in their approach to TPIMs? I think not. The existing case law about control orders shows how carefully the courts scrutinise measures of this sort. I agree with the noble Lord, Lord Hunt of Kings Heath, that that is the role of the judges, as opposed to the role of the Home Secretary.

In the other place, Hazel Blears said on 7 June 2011, citing a judge with whom she had spoken,

5 Oct 2011 : Column 1171

That was an observation of one judge, but my experience of the judiciary is wholly consistent with that observation.

The closed hearings which have to take place to maintain security are certainly unattractive at first sight. The use of special advocates who cannot communicate to their client the whole of the case raises the spectre of the target of one of these orders simply not knowing about the evidence against them. But those who act as special advocates are highly respected and principled lawyers who can be relied on to test the evidence with skill and care on their client's behalf.

The system is clearly far from perfect, but I think we can be satisfied with the courts, as they have shown hitherto in the considerable amount of litigation that has flowed from the predecessor measure, entitled control orders, whether under the auspices of Article 6 of the European convention or according to well established principles of English law.

Why do we need TPIMs at all? I wonder whether there is much dispute in your Lordships' House about the terrorist threat, but the situation is made worse by our inability to deport terrorists or potential terrorists because of the European Convention on Human Rights. Those who face torture or the threat of torture in their country are one thing-Article 3 provides them with protection-but the creative interpretation of Article 8 by the court in Strasbourg and thus in our courts has meant that it is all too easy for someone to resist deportation by raising arguments that they have established links here in a way which the courts have interpreted as their so-called right to family life. I say nothing about terrorists' liking or otherwise for cats.

Inevitably, this will be a compromise. The contribution of Liberty to the debate is something that one always looks at with great interest. I do not always agree with that organisation's observations, but it makes a highly valuable contribution to the debate. I was, however, disappointed with its conclusion and the one-sidedness of the report prepared for the Second Reading, which offered the view that TPIMs,

That seems to me to ignore the risk at which the legislation is directed: the risk from terrorism. The Government have responded by bringing forward the legislation, which represents a compromise. As my noble friend Lord Howard said, of course it is the product of compromise and, no doubt, of intense discussion, with different views within parties and within the coalition. Where matters of security and terrorism are concerned, one hopes that there can be a degree of consensus in your Lordships' House. I am sure that during these debates, some useful amendments may be proposed. I am particularly conscious of the fact that there should be no two-stage process: someone subject to TPIMs who is then to be prosecuted. The Bill does something to preserve the imperative of bringing those people to the courts if at all possible by the duty to consult with the police. Amendments and improvements there may be but I suggest to your Lordships that this represents a good compromise.

5 Oct 2011 : Column 1172

I welcome the noble Lord, Lord Henley, to his post and wish him good fortune in steering this Bill, which reflects a considered compromise. It has the benefit of some learnt experience and I suggest that it represents a balance between the protection of the realm and the liberty of the individual.

6.10 pm

Lord Desai: My Lords, as the previous two speakers have mentioned the cat, I, too, shall start with that. The cat in question was called Maya, which in Sanskrit means "illusion". I think that the Home Secretary was under some illusion if she thought that her example of a cat would get her any sympathy for trying to mess about with the ECHR. It is quite right that this Bill is before us, because the ECHR is a problem with which we have to deal and we cannot suddenly invent things which defy it. It is because control orders have been questioned again and again in courts of law that we now have the TPIM.

Next Section Back to Table of Contents Lords Hansard Home Page