To ask Her Majesty's Government what measures they will take to prevent journalists from citing the protection of sources as a means of avoiding prosecution for illegal activities such as phone hacking.
Baroness Rawlings: My Lords, protection of sources is not a defence against prosecution of any illegal act. If journalists, like anyone else, break the law, they should expect, like anyone else, to be prosecuted.
Lord Grantchester: Given that the Bribery Act, which places an obligation on companies to put procedures in place in relation to the actions of their employees, came into force in July this year, what steps do the Government intend to take so that it is possible to discover whether owners or editors of newspapers have authorised or paid third parties for illegal activity? Will the Government ensure, through regulation or otherwise, that owners and editors are required to disclose information relating to such authorisation of payments?
Baroness Rawlings: My Lords, the noble Lord, Lord Grantchester, makes a very valid point. The most important point is that bribery and corruption are extremely serious offences, which the Government believe should be punished with the full force of the law. Journalists see themselves as having an ethical duty to protect their sources, and that is enshrined in the PCC's code of practice. It is likely that anonymity is an important consideration for some people and that the provision of anonymity for the informant has led to stories that are in the public interest. Of course, journalists must also abide by other clauses of the code. Foremost among those is accuracy, and an editor must be sure that a story is accurate regardless of source.
Lord Fowler: My Lords, on phone hacking generally, has my noble friend noticed that there is now a campaign to deny the importance of the Leveson inquiry by some in the press who say that the matter should be left to the press to sort out for itself? Is it not the past failure of the press to take action that has led to this independent inquiry? Is its importance not further underlined by the mounting evidence that the phone hacking scandal extends beyond the News of the World to other papers?
Baroness Rawlings: My Lords, my noble friend is very expert in these matters and has gone to the core of the subject. The failure of some of the press to abide by the law has been evident. Regarding the Leveson inquiry, we all recognise the importance for our democratic process of a free and effective press that acts with integrity. That is what we all want. However, at the same time, we have to acknowledge that certain parts of the press have not abided by the law or the self-regulatory code to which they voluntarily signed up. As my noble friend says, it is the failures that the Leveson inquiry will seek to address.
Lord Collins of Highbury: My Lords, in view of the allegations in relation to unlawful payments made to serving police officers, can the Minister confirm that the Bribery Act 2010 applies with equal force to the proprietors and owners of newspapers, and indicate what steps, if any, Her Majesty's Government intend to take to ensure that adequate procedures are put in place to prevent corrupt practices?
Baroness Rawlings: My Lords, we are all against, obviously, corrupt practices, and the making of payments to police officers by journalists is a serious crime. These allegations are being investigated by the Independent Police Complaints Commission. The IPCC is experienced in investigating allegations of corrupt behaviour by police. These range from allegations of corrupt relationships, misuse of public funds and abuse of powers to inappropriate sexual relationships. This is the first time that the IPCC has overseen an investigation concerning allegations of police payments specifically from journalists.
Lord Stoneham of Droxford: Assuming that a strengthened Press Complaints Commission emerges from the current public debate, will the Government consider withdrawing the VAT exemption on those newspapers which do not join the new regulation process?
Baroness O'Cathain: My Lords, if there is any truth in the suggestion-I am sure that there is truth in the suggestion-by my noble friend Lord Fowler that there is a campaign against the Leveson inquiry, can
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Baroness Rawlings: My Lords, we are not aware of a campaign against Leveson or his inquiry, which started yesterday. We wish it the best passage, because it is very important, as will be the Communications Act that we will be discussing here.
Baroness Farrington of Ribbleton: My Lords, will the noble Baroness define the difference between public interest as a defence and prurient interest? The noble Baroness seemed to imply that public interest could be used as a defence against an allegation of breaking the law.
Baroness Rawlings: My Lords, regarding public interest, editors are responsible for the truth and for what is published in a newspaper, not the source of the story. If a story is not accurate, a range of options is available: the editor, the PPC or the courts, depending on the nature and the scale of the inaccuracy. We do not believe that additional safeguards on this point are necessary, but of course we will await the results of Lord Justice Leveson's inquiry into the wider ethics of the press.
Lord Inglewood: My Lords, I declare an interest as chairman of a local newspaper company. Would my noble friend the Minister not agree two things: first, that the bribery legislation applies equally to all citizens in this country, whether they are journalists or whether they are not; and secondly, that the decision whether to prosecute when evidence of a crime is available is something which is vested in the prosecution authorities?
Baroness Rawlings: My Lords, my noble friend goes really to the heart of the matter and brings out a very important point, which was stated clearly by my noble friend Lord Patten in his speech on Sunday, in which he said that the suggestion that a possible solution to the current crisis in confidence in the media today, which seems to be present as well in your Lordships' House, would be a form of the Hippocratic oath,
Earl Attlee: My Lords, the allocation of take-off and landing slots at Heathrow is governed by EU law. We recognise the economic importance of air services
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Lord Glentoran: My Lords, I thank the Minister for his reply. The background to this Question is that BMI is being sold. It is vital for the Northern Ireland economy to have a regular professional service from Heathrow to Belfast. Does not the Minister agree that the fortunes of a part of the United Kingdom should not be in the hands of an airline or its executives? What will Her Majesty's Government do to ensure that Northern Ireland is not deprived of Heathrow landing slots, which are vital for badly needed inward investment into the Province?
Earl Attlee: My Lords, the proposals for the sale of BMI are a commercial matter for its owner, Lufthansa. There is no indication that there will be any changes to the current level of BMI services from Belfast City Airport to London Heathrow. A number of other airlines also operate services between Northern Ireland's airports and London airports. Existing services also operate from Belfast International Airport to hub airports in northern Europe.
Lord Kilclooney: My Lords, does the Minister recall that there used to be two airlines flying from Belfast to Heathrow-British Airways and British Midland? However, British Airways withdrew that service and allocated the slots elsewhere. If it now takes over British Midland, will the Government do nothing to stop British Airways withdrawing those slots from the Belfast flight?
Earl Attlee: My Lords, at the moment we do not see a problem. However, it would be open to the Northern Ireland Assembly to apply to the Secretary of State for Transport to impose a public service obligation on an air route from Northern Ireland to London, should the Assembly feel that a case can be made which satisfies the EU regulations on PSOs. If approved, this would permit slots to be ring-fenced at a London airport. However, there is no other mechanism for the Government to intervene in the allocation of slots at Heathrow or other London airports. We do not see the need at the moment to impose a public service obligation.
Lord Kinnock: Does the Minister recognise that it is important to sustain the Heathrow slots for Northern Ireland simply because Heathrow is the most substantial hub? In the case of sustaining the economic interests of Northern Ireland, it is important that there is an absolutely dependable service from that hub into the Province. That is in the interests of the whole of the United Kingdom. Therefore, will the Minister maximise the use of public service obligations to ensure that when Lufthansa disposes of British Midland the slots will not disappear into a black hole as well?
Earl Attlee: The noble Lord is quite right in his initial analysis, with which I agree. However, at the moment we do not see a problem, and for that reason we would be unable to impose a public service obligation.
Lord Alderdice: My Lords, my noble friend may not see a problem, but will he take it from me that those of us from Northern Ireland who are users of the service do share the anxieties raised by the noble Lord about British Airways' previous treatment of Northern Ireland? This is not just a question of the economy of a company but the economy of a part of the United Kingdom. Having slots to other airports is simply not an adequate replacement. Economy flexible flights with British Midland now cost well in excess of £500 return. It is clear that it is making a profit. Therefore, it does not seem reasonable to assume other than that the Government should take some responsibility and assist the Northern Ireland Assembly rather than simply leave this matter to the Assembly to deal with on its own.
Earl Attlee: My Lords, I hear what my noble friend says. There is a further difficulty with the public service obligation, which is that one can be imposed only if there is a difficulty with services to London as a whole, as a region. If there is a problem with services to London as a hub airport, that would not justify imposing a public service obligation, so at the moment it is difficult to have the effect that the noble Lord seeks.
Lord Davies of Oldham: My Lords, the House should have taken solace from the fact that the Minister has added to his very negative response in his first Answer by indicating that the Government can act if it proves to be necessary. Will he recognise that of course the interests of Northern Ireland are very much involved in this issue, but that it is not just Northern Ireland and Belfast? Edinburgh, too, has its anxieties about this situation. Is he aware that Willie Walsh, the egregious head of IAG, in welcoming the potential opportunities from this purchase, stated that in fact the great business opportunities, of course, lay with using these slots for long-haul aircraft, not for serving parts of the United Kingdom?
Earl Attlee: My Lords, I can definitely feel the heat from your Lordships. The sale of these slots to BA will increase the share of BA's parent, IAG, of all Heathrow airport slots from 44 per cent to around 53 per cent, although IAG points out that even after the acquisition of BMI's slots, its percentage of Heathrow slots would still be smaller than Lufthansa's 60 per cent slot holding at Frankfurt.
Lord Forsyth of Drumlean: Will my noble friend give an undertaking to look at this issue more carefully? The noble Lord is perfectly correct that this is an issue not just for Northern Ireland but for Scotland, where the flights from Glasgow and Edinburgh have been greatly reduced, the fares are very substantial and it is undoubtedly the case that British Airways would use these slots for more lucrative transatlantic flights. It is no good looking at London as a whole. The point is that Heathrow is the hub from which it is possible to do business internationally.
Earl Attlee: My Lords, commercial aviation is a global business. This is reflected in the fact that airport slots in EC countries are managed within regulations that follow the worldwide slot guidelines determined by IATA. The EU slot regulations seek to ensure that non-discriminatory and transparent procedures for slot allocation exist across member states.
To ask Her Majesty's Government what evaluation they have made of the impact of the new student visa rules on the intake of overseas students in United Kingdom universities for the academic year 2011-12.
The Minister of State, Home Office (Lord Henley): My Lords, the Government's impact assessment concludes that the student visa reforms will have no impact on the number of visas issued to international students to attend UK universities either in the academic year 2011-12 or in subsequent years.
Lord Clement-Jones: My Lords, that shows that the impact assessment must be flawed. The early indications are that they are being heavily impacted, particularly from India, where the number of students is 20 per cent to 50 per cent down, as a result probably of the withdrawal of the post-study work route visa. Will the Government reconsider their policy before treating students as economic migrants and irreparable damage is done both to the finances and the reputation of UK universities?
Lord Henley: My Lords, I do not accept what my noble friend had to say, and I would refer him to the comments made by Universities UK about the reforms, saying that they will allow British universities to remain at the forefront of international student recruitment. I also refer my noble friend to the latest figures for non-EU university student applications for the 2012 academic year which are mostly for medical, dentistry, veterinary and Oxbridge courses, and those show an 8.8 per cent rise.
Baroness Prashar: My Lords, does the Minister agree that the Government should introduce a transitional measure for those students already in the UK whose colleges closed either as a result of action taken by the UK Border Agency or because many private and public sector providers voluntarily relinquished their licence because the system became too burdensome? It is estimated that there are some 5,000 internal students with no course, no sponsor and the majority have lost their fees. Would it not be more humane and less damaging for the reputation of the UK if those already here could retain their current visas and work entitlements
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Lord Henley: My Lords, we want to make sure that we continue to have high-quality students coming to the UK, and that is why I am very grateful for the support of Universities UK for the reforms that we are proposing. What we do not want are bogus students coming over for what might be called rather dubious or possibly non-existent institutions. As I have made clear, what we have done certainly has the support of Universities UK and will benefit universities in the UK, although it might not benefit what I would describe as the somewhat dubious institutions that have been acting in this field. We want to clamp down on the abuses of the immigration system that have crept in here.
The Lord Bishop of Norwich: My Lords, theological and bible colleges are generally small institutions but highly cross-cultural in character because of their international students. The chances of these international students abusing their immigration status seems tiny, yet these institutions have to go through the same procedures as large universities at a very high and unsustainable per capita cost. Can the Minister suggest how we might have a size-sensitive system which prevents these institutions operating with no international students at all?
Lord Henley: My Lords, I would hope, as I think would the whole House, that most theological colleges are reputable institutions. However, if some of them are facing problems because of their size, I will take away the right reverend Prelate's point and have a look at it. As I said, we want to make sure that we get the right students into the right institutions but get rid of the abuse that has crept into the system.
Lord Turnberg: My Lords, is the noble Lord aware of the particular problems faced by overseas medical students? There are more than 3,000 of them in the UK at the moment and they have problems when they want to bring a spouse or children here. That is to say nothing of the fact that we have included these 3,000 in the calculation of the number of doctors that we are likely to need. Is this not counterproductive?
Lord Henley: My Lords, we have tightened up on dependants coming in, but only dependants wishing to study for first degrees. Dependants will still be able to come in for postgraduate courses. I will look at the point that the noble Lord makes in relation to medical students but I am not aware of a fall in the number of medical applications. As I said in answer to the first supplementary question, we seem to have seen a rise over the past year.
Baroness Brinton: The UK Border Agency has recently decided that it will no longer accept guarantees from UK higher education institutions for UK-based packages, including part-time work and bursaries. We do not
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Lord Henley: My Lords, we accept that most of our universities are proper, reputable institutions, and that is why we have given universities additional flexibility in some matters. However, I will look at the specific point that my noble friend has raised. In the main, UK universities are fine on this; the abuse occurs elsewhere.
Lord Hunt of Kings Heath: My Lords, the new student visa rules have placed a further responsibility on the UK Border Agency at the same time as it has received a 20 per cent cut in its budget for a four-year period. Is the noble Lord confident that the UKBA has the resources to do the job that it has been given?
Lord Henley: My Lords, yet again the noble Lord seems to be denying the need to make cuts as a result of the profligacy of the party opposite. Yes, we are confident that the UKBA has, and will continue to have, sufficient resources to deal with the job that it has. No doubt I shall be dealing with these matters later when the noble Lord raises a somewhat spurious amendment to the terrorism Bill.
Lord Naseby: Is it not enormously welcome that Her Majesty's Government have taken action to close these bogus colleges, which defrauded young students and were useless so far as the UK was concerned? Perhaps I may suggest to my noble friend that he contacts the high commissioners for the genuine Indian sub-continent students to see whether over the next year we can help those genuine students to come here.
Lord Henley: I thank my noble friend for that contribution. I remind him that, as a result of this measure, we will see a reduction in net migration numbers of some 60,000 a year. We are committed to this and will want to go further in due course.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, this report from the International Atomic Energy Agency clearly indicates that Iran has worked on developing nuclear weapons and that some of this work is continuing. We support the production of this report by the agency and call on Iran to take the necessary steps to assure the international community that it is not pursuing a
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Lord Luce: My Lords, since, as the Minister indicated, there is growingly credible evidence that Iran is developing a capability to introduce and develop nuclear devices, and against the background of a dangerously volatile region in the Middle East, would the Minister agree that we should work extremely hard to persuade China, Russia, Israel, the Arab nations-all of us, in all our interest-to work in a concerted fashion to introduce tougher international sanctions that hurt Iran, but keeping literally as a last resort the possibility of military measures?
Lord Howell of Guildford: Yes, I would certainly agree. We are all-and "all" means the entire planet-threatened by nuclear proliferation and the flouting of the proliferation regime which Iran has constantly demonstrated. The noble Lord is absolutely right that although we have an unprecedented degree of sanctions, and are thinking of more sanctions and more targeted sanctions, as long as China tends to be undermining these-and, to some extent, Russia as well-those sanctions are obviously weakened in their effect. So, he is right that we all have to work together to halt a threat that is really to the entire pattern of humanity.
Lord Alton of Liverpool: My Lords, in considering the kind of sanctions that might be imposed on Iran, will the Minister say whether that will include surveillance technology-the sort which has been sold to Iran by the British company Creativity Software, and which has been used in the past against democracy activists and human rights campaigners, leading to their systematic torture? What pride does it bring to this nation that we have been selling such technology to Iran?
Lord Howell of Guildford: We are discouraging every kind of trade and business with Iran, not only those covered by sanctions but also investment by oil companies, for instance, and a whole range of others as well. The specific product that the noble Lord mentioned is one that I will certainly examine, but my overall understanding is that we are discouraging in every possible way all areas of trade with Iran, over and beyond both the EU and the US sanctions.
Baroness Falkner of Margravine: My Lords, does my noble friend agree that, alongside the 3+3 talks, it would be very useful for the UK to advocate re-examining the Turkey-Brazil option which was on the table some months ago in order to keep open the door for future negotiations? Does he accept that unilateral military action by any state in a pre-emptive fashion would be deeply dangerous to the region as it stands today?
Lord Howell of Guildford: My Lords, I certainly accept the second point. On the first point about the Turkey-Brazil initiative, that was an interesting initiative but it did not actually deal with the major problem, which we have here, of proliferation. It was focused, as my noble friend knows, on the enrichment processes
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Lord Triesman: My Lords, by an ironic twist of fate I now get to ask the noble Lord the very question that he asked me some short while ago. After I repeated the FCO brief on that occasion I tried to have an exchange that was of more use to the House. If there are to be further sanctions that are capable of having an impact on Iran's trajectory, what is the Government's view on the sort of sanctions they should be, the prospects for succeeding in achieving them at the UN, and the timeframe?
Lord Howell of Guildford: I hope that I can give as good an answer as the noble Lord did when I asked him the question. It might be even better. We are going to press for further sanctions but one has to be realistic, as I indicated in answering the noble Lord, Lord Luce. If the sanctions are undermined by trading activity and the import of products from China and other countries then they are bound to be limited in effect. However, we believe that sanctions of a financial kind can be tightened still further to make it ever harder for the mullahs and the Iranian Government to get the revenues for some of their oil and oil products. We also believe that more targeted sanctions can be developed and various loopholes can be closed. All these things can be done and probably will be done. However, the bigger issue is how the world unites as a whole to put pressure on the regime to cease to flout the non-proliferation regime and the rulings and the resolutions-six of them-of the UN Security Council.
Lord West of Spithead: My Lords, the elephant in the room seems to be the use of military force, as has been mentioned, though I quite understand why that has been left on the table. However, does the Minister agree that if you make a threat you have to have the willingness to carry it out? It seems to me that we are sleepwalking towards a situation where we may well find ourselves as a nation involved in military action the full implications of which we have not thought through. Does the Minister believe that that is a real risk?
Lord Howell of Guildford: The risks are there on all sides. The noble Lord says that we have not thought through the implications but one can think them through all too clearly. One has only to speculate for a moment on what would happen if Iran were to mine or threaten to mine the Straits of Hormuz: it would double the oil price straightaway. That is a major danger and there are many others as well. The implications have been thought through. As the noble Lord recognises, however, the message from Iran is that all options remain on the table. Meanwhile we concentrate on negotiations and ever tighter sanctions and we hope to achieve an effective outcome. However, the reality must be presented to Iran: the options, of all kinds, are on the table.
Lord Lloyd of Berwick: My Lords, we are all agreed that the measures which can be imposed by the Home Secretary under Clause 2 could place serious intrusions on personal freedom. On the second day in Committee the noble Lord, Lord Rosser, referred to the "profound impact" on the liberty of the individual of these exceptional measures. He was right. He might perhaps have added that these restrictions are by no means temporary. Of the 12 individuals currently subject to control orders, one is already in his fifth year of being subject to a control order and four have already been subject to control orders for between two and four years. It is my case that restrictions of that severity should not be imposed by the Home Secretary-more
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The amendment has already received strong support from the Joint Committee on Human Rights. That report came too late to be considered in Committee by the noble Lord, Lord Henley, as fully as he would have wished. As the report presumably contains the Government's best case for leaving Clause 2 as it stands, I shall deal with it in some detail. In their original response to the concerns of the Joint Committee on Human Rights, the Government relied upon,
They cited numerous examples of such preventive orders: serious crime prevention orders, anti-social behaviour orders, risk of sexual harm orders and many others of the same kind. In every one of those instances, the order is made by the court, as it should be, and not by the Executive. That particular principle, although certainly well established, does not help the Government in any way in relation to Clause 2 and this amendment; indeed, it favours the amendment because it illustrates the way in which preventive orders are habitually made.
In their more recent response, the Government rely upon a different well established principle, that in national security cases it is the Home Secretary who makes the decision and not the court. What is the evidence of this other, and more restricted, principle? With one exception, which I will of course come to, the only example given by the Government in their response was the power of the Home Secretary to deport individuals on national security grounds. That was the power to which the noble Lord, Lord Carlile, referred in Committee. I am sorry not to see him in his place today. When I asked him whether he would accept that there is a distinction between deporting foreigners and deporting British citizens, he described the distinction I was seeking to make as "casuistic", so I feel I had better make that distinction good.
The power to deport is contained in Section 3(5) of the Immigration Act 1971, an old and very familiar provision. It specifically excludes deportation of British subjects. One might ask: how could the Home Secretary claim the power to deport British subjects? Where would she deport them to? The same applies to the other example given by the noble Lord, Lord Carlile, that the Home Secretary has the power of deprivation of citizenship. That power, which is contained in Section 20 of the British Nationality Act 1948, applies only to those who have obtained British citizenship by fraud and other similar such cases. It has never applied-and could never have applied-to British citizens by birth. Therefore, we can forget about deportation orders and deprivation of citizenship orders made by the Home Secretary as being a valid precedent. I am somewhat surprised that that was even mentioned in the recent government response to the Joint Committee on Human
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That leaves only a single example of this so-called well established principle: the Terrorist Asset-Freezing etc. Act, which we passed only last year. Whatever else one might say about the principle, it can certainly not be described as well established. The House will remember that that Act enables a Treasury Minister to impose a freezing order on terrorist assets within the jurisdiction. I moved an amendment similar to-though not exactly the same as-the amendment that I have moved today because it was easy to foresee that, if the Terrorist Asset-Freezing etc. Act was passed, the argument would be used again when we reached control orders. So, of course, it has proved. I did not press the amendment on that occasion, as an earlier amendment that I had moved received an enormous defeat. Yet I received some comfort from what the noble Lord, Lord Sassoon, who was in charge of that Act, said in the course of proceedings. He said:
I say amen to that. Yet the Terrorist Asset-Freezing etc. Act is the only precedent which the Government have so far dug up. If I am right that it is the only precedent, we seem to have come a long way from those lines of Tennyson that I am sure your Lordships will remember. He described England as:"A land of settled government ...Where Freedom broadens slowly down,From precedent to precedent".
That quotation is repeated again in the recent Government response. On the face of it, that might seem to add some weight to the Government's case, but in truth the quotation has no relevance at all to the issue that we now discuss. It comes from a part of the judgment of the Court of Appeal in that case where the court dealt with policy questions such as those we find in Clauses 3(3) and 3(4) of the present Bill-that is, conditions C and D, which have to be satisfied before an order can be made. It has no relevance whatever to condition A, which is the critical condition, of whether there is evidence that the man has been involved in terrorist activity. The court had already dealt with that point higher up on the very same page. It decided that condition A, the critical condition, was a pure question of fact for the court. I cannot imagine any court deciding otherwise, but that is in fact what the court decided. I hope that the reading, which I had suggested is the correct reading of MB, will be in due course accepted by the Government. If so, MB, far from
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Finally, there is Section 4 of the Prevention of Terrorism Act 2005, the Act which we are repealing. It provides that in the case of derogation orders the application-not the order-is made by the Secretary of State, and the order is made by the court. To answer the point made by the noble Lord, Lord Carlile, that Section 4 applies only to derogation orders, of course it does. Section 4 is the existing law and if we were to derogate now as we did in 2001, Section 4 would be the applicable provision. Therefore, when it is said that it is not appropriate for the court to make the order when the safety of the nation is at stake, that simply does not tie up with the express provisions of Section 4. If it is appropriate for the court to make an order in a derogation case, why is it not appropriate here? If it is appropriate for the court to make an order when the restrictions are more oppressive-as they are in the case of a derogation order-why is it not appropriate when the restrictions are less oppressive? That simply does not make sense. I suggest that Section 4 of the 2005 Act is the complete answer to those who say that the Home Secretary should make the order because he is responsible for national security or because he is answerable to Parliament or because he has a broader knowledge of threats-all tired arguments that have been used over and over again. How can those arguments survive the express words of Section 4 of the 2005 Act, which provides specifically for the order to be made by the High Court and not the Secretary of State, when it could be said that the security of the state is most at risk?
I end on a personal note. I have been involved with matters of national security for many years, since I first became chairman of the Security Commission 25 years ago. I am therefore familiar with the sort of considerations which actuate Governments in these matters, but I cannot think of a single good reason why this order under Clause 2 should not be made by the court. If it is extremely urgent, then the order will be made ex parte by the judge and issued in the ordinary way pending the full hearing under Clause 9. I simply cannot see the difficulty in that. I cannot see the advantage of the order being made by the Secretary of State but I can see many disadvantages. I beg to move.
Lord Phillips of Sudbury: I am sorry that I did not give the noble and learned Lord leave of this question. I am entirely in sympathy with what he said in moving the amendment, but can he tell the House what happens if, as his amendment says, the court rather than the Secretary of State may,
Does that then mean that the court has to make the order, but it has to consider whether the Secretary of State reasonably believes-or should there ideally be a removal of "Secretary of State" in Clause 3(1) and replacement by "the court"? I hope that I have made myself reasonably clear.
Lord Lloyd of Berwick: The noble Lord has been very clear. I fully understand-and that is exactly what is provided in a subsequent amendment. I think that it is Amendment 3. You have to read Amendment 1 with an amendment that strikes out the words,
I agree that terrorism is a great threat to the United Kingdom and that steps must be taken to prevent it. I agree that those steps may include civil penalties that restrict the activities of those who are probably involved in terrorism. But there are conditions that should be applied to those requirements and included in this Bill. The most important of those conditions is that the rule of law must be applied and observed. A fundamental rule of the rule of law is that penalties must be imposed only by people who are independent-either judges or, in the case of serious criminal proceedings, by a jury. In particular, the prosecutor should not also be the judge. Under this Bill, that is exactly what happens. The Secretary of State is both the prosecutor and the judge. That is doubly objectionable, not only because the Secretary of State imposes the penalty but because the defendant cannot give his own story in defence of the prosecution being brought against him.
It is true that under Clause 6 the court must give permission to the Secretary of State to impose measures that she has decided to apply. But as is stated by Clause 6(6), the court is applying a judicial review, which is not the same thing as a trial of the evidence. This means that the court cannot, in effect, question evidence supplied by the Secretary of State; it must refuse permission to impose the measures that the Secretary of State proposes, if, as is said in Clause 6(3),
But what on earth does that mean? To whom must the flaw be obvious? I question the whole concept of something being obviously flawed, when more than one person may well be applied to in deciding whether the flaw is obvious or not. As I said, to whom must the flaw be obvious? Can counsel for a defendant argue that the flaws are obvious? I think probably not but one does not know. The fact is that the court has only a limited power over the imposition proposed by the Secretary of State. It is pretty clear that the court has no power to examine the facts of the case as presented by the Secretary of State.
This simply does not satisfy the rule of law. The rule of law is not wholly inflexible. We accept that, in certain circumstances, it is necessary in the interest of the nation to exclude relevant evidence from the presence of the defendant. But there is no justification for
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That is a statement with which I entirely agree and which I think those who were responsible for drafting this Bill should have taken into account. It does nothing to prevent procedures being taken up against the person who is understood to be involved in terrorism. It does not make the matter seriously more difficult for the Government. I do not think it does at all. The Secretary of State will clearly have come to a view that this person is liable to be prosecuted and made the subject of an order. I believe it is really a matter for the Secretary of State not to impose the measure herself but to present the evidence that she has to the member of the court who is in charge of this. It is for the member, or the members of the court, to take this up.
I will add one reason which might actually encourage the Government to accept the amendments. Having the judgment made by the court on the basis of an application by the Secretary of State-if the judgment is actually made by the court in all respects-would make the situation simpler or cheaper. In particular, since the court would not need to give itself permission to make the order which it wishes to make, the need for a directions hearing under Clause 8 would simply disappear. It would not only be a more justified and proper treatment of the evidence, it would also make it a simpler system for the Government.
Baroness Hayman: My Lords, I have added my name to these amendments and, given the speeches of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Goodhart, I can be relatively brief. I certainly will not challenge them in terms of legal expertise, having ended my legal career with a first degree in 1969, but I feel strongly on this issue because of my own experience as a parliamentarian. I had the honour to be a member of the Privy Council committee chaired by the noble Lord, Lord Newton of Braintree, who I am glad to see in his place, which reviewed the provisions of the Anti-terrorism, Crime and Security Act 2001, particularly Part 4 of that Act, which was considered by us and by many others to be unsatisfactory. The Government paid little heed to the results of that committee's deliberations until the courts made them do so. We ended up with the 2005 Act, in which I played some part on the duration of control orders, an issue to which we will return, mutatis mutandis, later in today's Report stage.
I came out of that experience, particularly the experience of the Privy Council review committee, with two clear views. One was that there was a problem that needed to be addressed and that there was some justification for going beyond the normal criminal legal procedures in terms of the threat of terrorism.
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The other thing that became clear to me was that we should, as legislators, try to make those extraordinary measures deviate as little as humanly possible from the fundamental principles that we normally apply, through the criminal justice system and the whole of our legal processes, to the deprivation of liberty and to constraints upon movement and actions-the fundamental human rights of those living within our country, particularly our citizens. I look at the provisions of the Bill, which I believe are an improvement on control orders-limited but an improvement-and ask myself whether we are deviating as little as humanly possible.
I believe there would be a great improvement, without a balanced increase in risk to security, if we transferred that initial decision on the imposition of such measures from the Secretary of State-the Home Secretary-to the courts. That is the fundamental and simple reason why I support these measures. I was emboldened to do so partly because of the comments made by the chairman of the Privy Council committee, the noble Lord, Lord Newton of Braintree, as I always pay great respect to those who have been my chairs on committees. Perhaps we will hear from him later. However, I remember that, when we were discussing the 2005 Act and talking about analogous issues and the role of the judiciary, one of my colleagues who was not in sympathy with the position that I was taking turned on me and asked, "What's so special about the judges?", to which I replied, "They're not the politicians". That fundamentally remains my position today, and it is why I added my name and give my support to this group of amendments.
Lord Newton of Braintree: My Lords, on this occasion I have not actually been tempted. I had hoped to come in anyway, although I was a little late getting here, and I apologise for that. I would like to say to the noble Baroness, Lady Hayman, that I much appreciate the remarks she has just made. I well remember the experience we had together and the hugely valuable contribution that she made to that committee. I can also say that I share her views on absolutely everything that she has said, so I will not speak at great length. I agree also with what I have heard since I came into the Chamber. The Minister ought to know-if he was in any doubt-that there was not complete unanimity on this point on the Benches immediately behind him, even though the voices so far have come from elsewhere.
The arguments adduced on the previous occasion in Committee to which the noble Baroness has referred were, frankly, unbelievably thin. I do not blame the Minister for that-I suspect that they are inherently thin, and unless they are a lot thicker this evening then I will find myself in some difficulty, and he needs to know that.
Lord Macdonald of River Glaven: My Lords, I support these amendments. I declare an interest as the independent reviewer of the counterterrorism review.
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Why should it be the court rather than the Home Secretary? In my brief analysis, there are four reasons. First, on any analysis, the measures in this Bill are an exception to our normal rule-of-law principles for reasons set out very clearly by my noble friend Lord Goodhart. Secondly, they constitute a very serious potential stigmatisation of those subjected to them: a declaration of belief on the part of the state that the individual is involved in acts of terrorism. In my estimation it can hardly get much worse. Of course, the orders are anonymised, but family, friends and no doubt, the wider community, quickly become aware of the fact. Thirdly, our courts are very well used to adjudicating issues of national security, and they do it time and time again-for example, every time a question of public interest immunity arises, and in many other situations too. I am not aware of any credible argument that they do so incompetently. They may of course embarrass the Government and one or more of the agencies from time to time, but that is an entirely different point. Fourthly, and finally, our courts are independent, and they therefore bring the vigour of their independence to their decision making. In this area, that becomes a question of important public confidence.
My analysis is that it is the exceptionality of these measures, their severity, and the damage that they may do to their subject-who after all has heard no more than the gist of the case against him, quite exceptionally-that demands that they should be orders of the court rather than punitive and potentially damning directions of the Home Secretary.
Lord Pannick: I, too, support the noble and learned Lord, Lord Lloyd of Berwick, on Amendment 1, and his proposal that the imposition of a TPIM should be a judicial and not an administrative act. If restrictions of this nature on basic liberty are to be imposed, they are to be imposed on British citizens, and imposed entirely outside the criminal law process. Surely it is necessary for the procedure to require that they be imposed by judges, particularly when they are being imposed by reason of serious allegations of wrongdoing on the part of the individuals concerned?
The Minister said at Second Reading-and I reminded your Lordships in Committee-that the Government's approach to this Bill was to try to balance civil liberties and security by ensuring that the Bill goes,
in limiting people's rights. Those were his words. Surely that test, that criterion-which must be the right criterion-requires that these restrictions be imposed only with judicial approval. If the security services, with all the information available to them, are unable to persuade a High Court judge in a closed session, where the material is not disclosed to the individual concerned, that the restrictions are needed, the restrictions should not be imposed at all.
If the Revenue requires a court order before it is able to raid a person's house in order to seize his documents, surely the Home Secretary should require a court order before she can require that same individual to remain in his house overnight, or not to contact other specified persons, or before she can impose any of the other specific restrictions under a TPIM order.
Your Lordships should have no doubt that for these orders to be imposed by a judge on application by the Home Secretary, and not to be imposed administratively by the Home Secretary herself, would substantially increase confidence in these orders in those sections of the community most suspicious of them.
The Archbishop of York: My Lords, this clause gives the Home Secretary power to impose measures for terrorism prevention-so in many ways she is acting like a judge-and investigation, so she is behaving like the DPP. That is not right. You cannot combine functions that belong to the courts and the Director of Public Prosecutions into one person. That is always going to be problematic.
In this country, one of the greatest joys is that no one is deprived of their liberty unless they have committed an offence defined in law, been investigated and gone before a court, which in the end imposes the deprivation of liberty. Of course, you tell me, "This is the United Kingdom; the Home Secretary could never be near this". In Uganda, if the President felt that you were committing treason, he made an order and you found yourself arrested, locked up and deprived of the possibility of any defence. Of course, you would say, "That is terrible; it should not be like that". Friends, it happened to me.
Therefore, I feel where you are going at the moment, if you are going to deprive and impose specific measures on a person, surely it should be by application to the courts, and it would be the duty of the Home Secretary to present evidence that persuades a judge. Of course, we will be told that the Home Secretary will act very quickly. As the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Lloyd of Berwick, said, it can be done ex parte, very quickly; there is no reason that cannot happen. For the sake of those of us who came to enjoy the separation of the Executive from the judiciary and still see it as the greatest defence for the liberties of people, I hope that the Government will accept that this will be an improvement to the Bill if this separation is made.
There should be no doctrinaire stuff about it. In the end, it cannot really be the same person who does all this. Thank God, I will never be Home Secretary. If I were, I would find this clause terrifying, because in my conscience I would not want to be the judge, jury and executioner all in the same place-and the DPP as well, all combined into one. For the sake, therefore, of keeping this fantastic balance of the Executive and the judiciary never meddling with one another, this legislature would do well to accept all of the amendments that have been tabled by the noble and learned Lord, Lord Lloyd of Berwick. This is what I rejoice about in this country-its liberty and its separation of powers.
Baroness Kennedy of The Shaws: My Lords, I, too, support this amendment. I want to thank the most reverend Primate for his remarks. It would be very easy for this to become a debate in which lawyers hold the floor, but it should not be, because this is so fundamental to who we are and what our system is here in Britain. We are talking about the rule of law and about liberty and the protections we provide for it.
I wanted to pick up what my noble friend Lady Hayman said when she answered the question: what is so special about judges? Her answer was that they are not politicians. It is more than that. Our judiciary is independent. We spend time-I certainly do-speaking to lawyers and judges in other jurisdictions about what the meaning of an independent judiciary really is, and how it protects our politics. As the most reverend Primate has said, it is a protection for the politicians and for our polity that we hand over issues to do with something as precious as liberty to judges-even in these exceptional circumstances-because that way we are adding weight to the importance of liberty's meaning in all of our lives.
Lord Phillips of Sudbury: My Lords, I support strongly the last point made by the noble Lord, Lord Pannick, which has been indirectly referred to by the noble Baronesses, Lady Kennedy and Lady Hayman, and by the noble Lord, Lord Macdonald of River Glaven. I hope that my noble friend will take full account of the political importance of this group of amendments. The psychology of extremism feeds on a sense of unfairness and oppression. The law as it stands, and indeed as it is improved in the Bill, will inadvertently provide to those who already feel hard done by, or the subject of extreme unfairness, a spur to yet further, potentially terrorist, activities. That will be the case if an important decision of this nature- which has, as other noble Lords have said, extreme repercussions-is not the decision of an independent judge but that of a politician. However good the politician is, the person who may be converted to extremism will view that politician as an agent of politics and not as an agent of justice. For that reason, among many others, I urge my noble friend to adopt these amendments.
Lord Condon: My Lords, I, too, support the amendment proposed by the noble and learned Lord, Lord Lloyd, on the grounds that have already been spoken of, but also on the very pragmatic grounds that, every time we as a country step beyond the normal bounds of the rule of law, or contemplate extra-judicial measures, or contemplate allowing the Executive to have powers in this area, we risk alienating young men and women who may be wavering around, or contemplating being drawn into, terrorism. We create war stories and martyrdom. Even though these are small in number, they can be used to recruit vulnerable young people into supporting or contemplating terrorism.
History tells us that every time Governments-here or abroad-have contemplated extra-judicial executive powers, in the long term those powers have tended to work against us. I understand the reasons why
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Baroness Hamwee: My Lords, the noble Lord, Lord Newton of Braintree, warned the Minister that those directly behind him were not unanimously supportive of the Government's position. I have previously warned the Minister that those at a bit of an angle to him are, similarly, not wholly with him.
I wish I had used the example given by the noble Baroness, Lady Hayman, when I recently brought some young cousins into the Chamber and attempted to explain the separation of powers. That is exactly what this is about. Recently the Government have sometimes responded to judgments of the courts as though the courts sought to usurp policy-making powers. They are not the first Government to do so. That very response demonstrates the importance of the role of the courts, and the need to demonstrate our integrity as a country for the reasons that the noble Lord, Lord Condon, has just explained.
Lord Faulks: My Lords, I have enormous respect for the noble and learned Lord, Lord Lloyd of Berwick, for his experience and the consistency of his approach to this issue. I also acknowledge how delicate the situation is, how important the liberty of the individual is and that any powers of this nature ought to be hedged by a great many safeguards. However, a decision of this nature is one that falls to the Home Secretary to take. So far, the judges who have these powers have exercised the right to scrutinise thoroughly in a way that we cannot feel is short of what might be desired. I respectfully submit that it is a power that should belong to the Home Secretary, who makes these decisions, no doubt with great anxiety and the consciousness that any decision that she makes will be looked at very carefully.
A judge will have an opportunity to look at a particular case on an ad hoc basis. However, we should not underestimate the strategic role of the Home Secretary to see an act or potential act of terrorism, or a terrorist, in the wider scope. Notwithstanding all the powerful speeches that have been made, I respectfully submit that this is a question that belongs to the Home Secretary and her alone.
Lord Rosser: My Lords, we do not feel moved to change our stance on the procedure that is associated with control orders. Therefore, we have a fundamental difference of view with those who have tabled the amendments that we are discussing and, indeed, with all noble Lords bar one who have so far spoken in this debate. The security of our citizens-protecting them from the risk of terrorism of the exceptional kind that we have seen and been under threat from in recent years-is the responsibility of an elected Government
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Lord Henley: My Lords, I thank the noble Lord, Lord Rosser, for those remarks, just as I thank my noble friend Lord Faulks for his remarks. I believe that we are not alone in objecting to the amendments put forward so ably by the noble and learned Lord, Lord Lloyd, for whom I have the utmost respect. We have been debating matters of this sort, sometimes on the same side, sometimes on different sides, for many years. I acknowledge his expertise, but I have to say that I do not agree with the gist behind this large group of amendments that he has tabled with support from my noble friend Lord Goodhart, the noble Baroness, Lady Hayman, and others.
Put simply, the key change under these amendments would be that TPIM notices would be imposed by a judge rather than by the Secretary of State. We have heard a great many legal arguments put forward by a great many extraordinary and eminent noble Lords-some learned, some not learned, but many are more learned than even the most learned of learned Lords. If we can take an Occam's razor to this point, the question is: do we think that this it right for the Home Secretary to make this decision or should it be a matter for the courts? It is as simple as that.
It is no secret that the Government take a different approach to that proposed by the noble and learned Lord and other noble Lords, be they learned or not. It is no secret that we take a different approach from that recommended by the Joint Committee on Human Rights and others who have spoken in this debate. These are matters that we have debated in the House during the Bill's passage and to which the Government have responded, in full, to the Joint Committee on Human Rights, including their response to the report of 19 October issued earlier this month.
The arguments are well rehearsed. I appreciate that noble Lords have again set out their views that such restrictions that may be imposed under this Bill-and which I emphasise are preventive, not necessarily punitive-should only ever be imposed by a judge. It is a respectful and principled decision. It has consistently been held by some in this House in relation to control orders in the past and now to TPIMs, but we cannot agree with it. We do not accept, as the noble and learned Lord, Lord Lloyd, would put it, that it is unprecedented for decisions of this sort, based on national security cases or on sensitive material, to be taken by the Executive. As he is aware, there are a number of occasions when executive decisions are made by the Home Secretary and others.
The noble and learned Lord was wrong to suggest that deprivation of British citizenship applies only to citizenship obtained by fraud. It can also be used on
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Lord Lloyd of Berwick: Does the noble Lord accept that the only precedents on which he relies, other than the very recent terrorist asset-freezing legislation, are immigration decisions which have nothing whatever to do with what is before us? They deal basically with foreigners, not with British-born subjects.
Lord Henley: It is still a matter of national security. That is why we believe that it is for the Home Secretary to make the appropriate decision and for that to be reviewed by the courts. The noble and learned Lord mentioned the 2010 Act, with which he did not agree and which he opposed. I mentioned that but I also mentioned the Counter-Terrorism Act 2008 and the financial restrictions under that. That is another example. I accept that the other matters concern immigration decisions but they are important. I also mentioned the fact that the Home Secretary has the power to proscribe organisations which she believes are involved in terrorism. Again, that matter can be reviewed by the courts, as can the one we are discussing. Therefore, it is irrelevant whether the earlier matters concerned only immigration, as the noble and learned Lord put it. These matters go beyond that. They involve national security. I will give way to the noble Baroness in a minute when I have finished this point. Therefore, I think it is right that my right honourable friend the Home Secretary should be involved in those decisions.
Baroness Hayman: I am grateful to the Minister for giving way. Until I listened to the speech of the noble and learned Lord, Lord Lloyd of Berwick, I had not been aware of the argument put forward by the noble Lord, Lord Sassoon, as regards the executive nature of the terrorist freezing orders to be made, that there was a distinction and that these were justifiable because they dealt with financial matters, not individual liberties. Will he comment on that argument?
Lord Henley: The noble Baroness is right to mention what my noble friend Lord Sassoon said on that occasion. He drew a distinction between financial
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Baroness Hayman: I would not wish the noble Lord, Lord Sassoon, to be tarred with the brush of having a socialist background because he seemed to distinguish between the two sorts of intrusions on individual liberty.
Lord Henley: There is obviously a distinction but both involve one's human rights. That is the importance. The noble Baroness may have noticed that when my noble friend Lord Sassoon noticed on the television that the noble and learned Lord was making these points, he came in to have a quick word with me to make clear what he had discussed, and I will try to convey those feelings to the House. I hope that I have understood what my noble friend whispered to me on the Front Bench, and I hope that the noble Baroness will accept it.
As we also made clear, we believe that it is not just the view of the Executive that is crucial in these matters. That is why I quoted earlier the view expressed by the courts. It is consistent with the view expressed by the Court of Appeal in the case of MB, which the noble and learned Lord also referred to, in which the court said that,
In the same judgment the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and by the European Court of Human Rights.
As I said at the beginning of my speech-in asking, as it were, for something approaching an Occam's razor to be put to this argument-it is just getting it down to the simple question: which do you think is the appropriate body to make this decision?
We believe that it is for the Home Secretary to make the decision, and for this decision to be subsequently reviewed, because the Home Secretary is a politician who is answerable to Parliament. I appreciate that some will knock the role of politicians but I would remind noble Lords of the very powerful speech made by the noble Lord, Lord Reid, at Second Reading, where he reminded us that most of our freedoms are the result of politicians and their acts, and not of the courts. The Home Secretary, as a politician answerable
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Lord Pannick: I am grateful to the noble Lord. I am puzzled by why he thinks that judicial control at the outset would undermine ministerial responsibility when he accepts that there should be judicial review on a merits approach at a later stage if the order is challenged. Why is the latter equally not an undermining of ministerial responsibility?
Lord Henley: Because my right honourable friend is responsible for security and, as I said, she is answerable to Parliament. We believe that she should make that initial decision and that later on it can be looked at by the courts. However, we think it right and proper that she should make it. That is the reason why, as I said, I am trying to strip this amendment down to its simplest point: do you want the decision made by my right honourable friend the Home Secretary or do you want it made by the courts? We believe it right that it should be made by my right honourable friend and then reviewed by the courts. For that reason I cannot support the amendment that the noble and learned Lord has moved.
Lord Lloyd of Berwick: The Minister has not dealt at all with the point on Section 4 of the 2005 Act. There is a clear case, as I am sure he realises, where the initial order is made by the court and not by the Secretary of State. Why should that not apply here? It is not an answer to say that that is a derogation order-or if that is an answer, why is it an answer?
Lord Henley: My Lords, if I had wanted to use up a great deal of the House's time, I could have answered a great many points, and indeed the House may wish me to answer them. I was trying to bring this matter down to a simple question for the House: who would be the appropriate person to make this decision?
Section 4 was raised. The Government's counter-terrorism review looked at that but did not consider that derogating control orders provided an appropriate parallel. No derogating control orders have ever been made and the context here would be different. Derogating control orders would impose obligations so stringent that the Government would, as I understand it, need to derogate from Article 5-that is, the right to liberty-of the European Convention on Human Rights before such orders could be imposed. Non-derogating control orders-the only kind ever used-can, by definition, impose only less restrictive obligations, and Parliament agreed that these should be made by the Secretary of State.
I go back to the very simple point that I want the House to address in the noble and learned Lord's amendment: who do you think is the right person to make this order? We believe that the right person is the Home Secretary because the Home Secretary is answerable to Parliament and is responsible for national security.
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Lord Lloyd of Berwick: My Lords, I regret that I find the noble Lord's reply to the debate pretty unsatisfactory. I have as great a respect for him as he says he has for me, and I just wish that he could have made a better case for the Government than he has. I think that the case is as weak as it could possibly be. I do not suppose that this amendment is likely to succeed, but it should and I therefore propose to divide the House.
Lord Hunt of Kings Heath: My Lords, I have a number of amendments in this group and I should like to start with Amendment 44A. At Questions, the noble Lord, Lord Henley, seemed to think that this was peripheral to our debates today but I do not think that it is. Surely the context in which we consider the Bill is in relation to the measures that are necessary to prevent terrorism. We were offered a Statement in lieu of a PNQ in the other place on the matter to which I am going to refer, but it is just as appropriate to discuss it here.
Amendment 44A essentially asks the Secretary of State to commission an independent review to report on the operational effectiveness of the terrorism prevention measures in place at our international borders. That is set in the context of serious concern about the operation and effectiveness of the terrorism prevention measures in place at our international borders and the Bill has to be seen in this context. Of course, one has to refer to the significant reduction in the levels of security in border checks at UK points of entry in the summer of 2011, which has been the subject of considerable parliamentary debate and concern over the past two to three weeks. The noble Lord will be aware that the Home Secretary has yet to answer some very serious questions, particularly in regard to the scale of the security breaches that have taken place.
The subject of the PNQ in the other place today concerned reports this morning that thousands of passengers arriving on private jets from all over the world were allowed into this country this summer without any passport checks as a matter of official policy, at least according to information that appears to have come from UK Border Agency e-mails. The internal UKBA documents show that immigration and customs staff were instructed not to meet passengers arriving on private charter flights, including executive jets, as part of a so-called light touch targeted approach to border checks that was adopted this summer without, as far as I am aware, the information being put into the public domain.
These e-mails from the UKBA also reveal the extent to which full passport checks on European passengers were scaled back under the limited pilot scheme authorised by the Home Secretary on 28 July. I have to say that this is a very worrying state of affairs. In the context of
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I return now to a group of amendments moved in Committee by the noble Lord, Lord Carlile. The noble Lord is not able to be with us this afternoon but I am grateful to him for putting his name to my amendments. Essentially, they propose keeping the existing control order provisions for relocation-which is the central point of many of our discussions on the Bill so far-until after the Olympic Games. From a chosen date after 1 January 2013, it would be open to the Government to come back to Parliament and replace the current relocation provisions with the provisions in the Bill, which would remove relocation subject to the emergency legislation that is also in the Bill.
The evidence given by the Deputy Assistant Commissioner to the Public Bill Committee in the other place was quite persuasive on the reason for and effectiveness of the use of control orders. The decision in the case of CD earlier this year was made after the Government argued, in the interest of national security, for a relocation component in CD's control order. I remind the noble Lord, Lord Henley, that in Committee the noble Lord, Lord Carlile, asked if the Government had changed their mind about CD and, if so, why. If they have not changed their mind, why are they bringing the Bill before us?
On timing, is it really sensible to remove the relocation provisions at the current time? The Olympics are almost upon us. The noble Lord will know of reports in the media of US concerns about Olympic security. I fully accept that the Government have stated that this has not been reported accurately, but there is no denying the challenge facing us. My amendment does not seek to detract from the essential point of this legislation. All it does is keep the existing exclusion order provisions until after the Olympics. At that point, if the Government are satisfied that they no longer need the provisions, they merely have to bring an order to Parliament and the provisions in the Bill will take over. If I may so, it is a pretty good offer. It allows the Government to continue with these provisions over a particularly challenging time but does not undermine what they are essentially seeking to do. The noble Lord was not very warm towards these amendments in Committee. Let us hope that he is a little warmer to them at Report. I beg to move.
Lord Pannick: I support the Government in their decision not to include the relocation power in the Bill. The speech of the noble Lord, Lord Hunt of Kings Heath, was notable for what he did not say about relocation powers. He did not mention the central feature of such a power, which makes it particularly intrusive and particularly damaging to the life of the individual who is the subject of it as well as to the lives
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Lord Faulks: I agree with what the noble Lord, Lord Pannick, said. I understand the reasons behind this change, yet I have some sympathy for what the noble Lord, Lord Hunt of Kings Heath, said. It is reasonable to ask for reassurance about what will be a massive event with security implications. I am sure that the Minister will answer that query. I wonder if there is also an issue in relation to the transition from control orders to TPIMs at the end of this year, as the 28-day transitional period will fall over Christmas and new year. I would be grateful if the Minister would provide some reassurance that the police will be able to manage this transition.
Lord Judd: I am grateful to the noble Lord, Lord Pannick. Of course, he is right. That is not the first time he has been right: nor, I imagine, will it be the last. I make one plea to my noble friend. I am concerned that, if the official position of the Opposition and the party which I support-and of which I am a member-is that it is not necessary, as was demonstrated on the last amendment, for action to originate with the courts and judges, this will extend still further the powers that will flow from an executive decision by the Secretary of State. To have such far-reaching powers-whether they are needed at all is a separate issue-without the action having originated in the courts becomes even more disturbing. I hope that my noble friend and his colleagues, in considering future policy over a longer period, will give this serious consideration.
The noble Lord, Lord Phillips, in the debate on the previous amendment, made what for me was the most powerful argument: that is, what are we trying to do? We are trying to promote the security and well-being of the British people. If we are going to do that we must have the maximum possible support for what is being done in all the communities that matter in this context. If that is to be the case, and if people are not to be prone to manipulation by extremists in the midst of their concern and anxiety, it is desperately important to demonstrate that when extensive powers are brought to bear, they have the authority of the courts and are part of the whole tradition of the administration of justice and the rule of law as we have understood it in this country.
Let us make no mistake. The objectives of the extremists are to undermine and destroy our commitment to the rule of law as we have understood it and to destroy the credibility of our claims about the rule of law. We must be careful that we do not play into the hands of the manipulative extremists and put the vulnerable and the impressionable under still more pressure to join their ranks.
Lord Newton of Braintree: My Lords, before I say anything else I had better warn my noble friends on the Front Bench that-to their surprise-I am about to support them, along with the noble Lord, Lord
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I will speak, but not at length, to the Labour Front Bench. This is a bit of a sad day for all of us except the 79 who formed a small group in the Lobby behind me. However, in the light of this debate, it is an even sadder day for the Labour Party-I suspect that the noble Lord, Lord Judd, would agree with me but I will not ask him to indicate that-when set against the background of much of what it has stood for over the years. One thing that pleased me when we got the coalition was that there were clear indications-and not just because it was a coalition-that the Conservative Party was occupying the freedom ground again rather than the authoritarian ground. There are now reasons to question that, but I will not go on down that line.
I want to conclude without repeating points that have already been made. Okay, there will be problems during the Olympics, but they will be a great showcase for our country: its values, qualities and abilities. Why do we want, in the course of the Games, to maintain a proposition that is, frankly, inimical to everything that most of the rest of the world thinks that this country stands for and to what most of us think is what our democracy stands for? That is my question and that is why I support the Minister.
Lord Macdonald of River Glaven: My Lords, I also support the Government's position on these amendments. The counterterrorism review gathered a great deal of evidence about relocation, as well as other measures applicable under the control order regime. The evidence was considered extremely carefully, as far as I could see. After all, the review was conducted by no less a division of the Home Office than the Office for Security and Counter-Terrorism, which is to be found in the deepest bowels of that department of state. Its conclusion, which I thought was certainly in accordance with the evidence, was that relocation was disproportionate and unnecessary in the face of other measures available under the TPIM legislation and particularly in the light of the Government's decision to increase the amount of funding for surveillance, which after all is the main technique used by countries like us around the world to deal with these sorts of issues. I agreed with the conclusions of the counterterrorism review, as I thought that they were clearly in line with the evidence, of which there is a great deal. I am sure that the Government's position on these amendments is the right one.
The Archbishop of York: I, too, as someone who supported the noble and learned Lord, Lord Lloyd of Berwick, in his amendment, believe that it is the duty
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Lord Bew: My Lords, I support the amendment in the name of the noble Lord, Lord Hunt. Coming as I do from Northern Ireland, I regard control orders with great suspicion and concern, as with anything that smacks of internal exile. That is one of the implications of control orders and it is quite right that the House should take an extremely sceptical view of them.
None the less, there are two important considerations, one already alluded to by the noble Lord, Lord Hunt, which is the evidence given by the deputy assistant commissioner about the efficacy of control orders. The other crucial point is the recent public debate over concern about security during the Olympics. There is a balance to be struck here, and it is very difficult for the Government to get this right; but this is a very modest request-a timing issue, focused fundamentally and purely on the question of security during the Olympics. For that reason, I favour the terms of the amendment in the name of the noble Lord, Lord Hunt.
Lord Harris of Haringey: My Lords, I am grateful to have the opportunity to follow the noble Lord, Lord Bew, who has summed up the argument about prudence on this amendment. This is not a new power-it is making available during the Olympics year the existing powers. That is all that it does. It does not create a new power, despite what my noble friend Lord Judd has said. I am very conscious-and I do not think that the Minister answered this point on Second Reading or in Committee-that the power of relocation has been used in a very small number of cases, and it has been used by the present Home Secretary. This is not some hangover from the days of the previous Administration in terms of its use; it has been used by the present Government and the present Home Secretary.
I would like to be satisfied on why the Government think that a power that was used earlier this year, because the Home Secretary considered it necessary on the basis of the information that she had received is no longer necessary in the period during the Olympics when we know that the threat will be extremely difficult. That is extremely important.
Lord Lloyd of Berwick: Is not the possible answer to that question that, at that stage, the Home Secretary was not aware that she had sufficient resources by way of surveillance to do without relocation?
Lord Harris of Haringey: I am sure that it is helpful to the noble Lord, Lord Henley, to have the noble and learned Lord, Lord Lloyd, putting his arguments in advance. That may well be the argument on which the noble Lord, Lord Henley, will rely.
That brings me to my next point: can the Minister assure us that all of those extra surveillance arrangements will in fact be fully available, including the technical measures, by the end of this calendar year? Can he assure us that all of those arrangements are in place, and will be in place, and where there are technical measures, whether they have been adequately tested? The last thing any of us in this House would want to see is a situation in which new measures turned out not to be fully functioning when the need was greatest.
This is an amendment about prudence. I think it was relevant that the noble Lord, Lord Faulks, raised the point about the transition period. Again, I would be interested to hear the Minister's response. It seems to me that the Minister has to satisfy the House today that not passing this amendment is a prudent, sensible and proportionate course of action. Those of us who are concerned about the security that will be available during the Olympics want to be satisfied that every necessary measure is available. Let us remember, this is not a mandatory obligation on the Secretary of State. Amendment 5 proposes that the Secretary of State "may impose restrictions". It would only kick in under the very small number of instances where the Home Secretary was convinced, on the basis of information received, that this was something that was appropriate and proportionate to do. It would not be used on a blanket basis, and the number of instances in which relocation has been used under the existing control order regime is, as I understand it, extremely small.
I turn to Amendment 44A and the report on border controls to prevent terrorism. While I am not quite sure I understand the logic of the grouping which puts this with the other amendments, I none the less think it is extremely important. We have to recognise that, irrespective of the discussions there have been in the last week or so, there are issues about the security of our borders. This is nothing to do with whether the UK Border Agency has or has not been doing its job properly; has or has not exceeded the instructions of the Home Secretary; has or has not relaxed controls over and beyond that. It is about whether or not the controls could ever work. Therefore I think this report would be extremely valuable.
Could the Minister tell us what work is being done about people who arrive in this country by train through the Channel Tunnel, but whose destination may not have involved them having to go through passport control in either Paris or Brussels? To what extent are the Government considering what is going to happen at the point at which Lille, I think it is, is connected to a greater number of major train lines within the continent of Europe? What steps are in place to ensure that our borders are secure under those circumstances?
Can the Minister also satisfy us-and this has been the subject of debate in the last few days-what steps are in place to ensure that people who arrive in this country by coach are also adequately screened and
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Baroness Hamwee: My Lords, on the amendment on relocation the noble Lord, Lord Hunt, said that it does not detract from the essential point of this Bill. I think it does because the change to the measures which can be imposed is the essence of this Bill. Relocation is an extensive measure and can be particularly damaging-the noble Lord, Lord Newton, referred to this. I would add to his examples not just that of taking children out of their school and replanting them somewhere quite different but that of separating the individual who is the subject of the measure from his family, which has happened with relocation in a number of instances. I do not need to explain the impact of that.
Reference has been made to the evidence given to the Public Bill Committee in the Commons on behalf of the Metropolitan Police. I read that evidence as the sort of thing that any good copper would say in seeking to defend the police's position and ensure that as much money as possible was allocated to the activity, making quite understandable caveats about limits. Before the noble and learned Lord, Lord Lloyd of Berwick, mentioned it my reaction, too, to what happened earlier this year was that-as I think the Minister's predecessor but one told the House on an earlier occasion-the extra surveillance measures were not then in force but would be, so the situation is changing.
I have always found a difficulty with pointing to the Olympic and Paralympic Games as a kind of watershed, not because I do not acknowledge that they could be a high-profile occasion for any terrorist to use but because we either are or are not equipped for dealing with terrorism. I cannot quite get my own head around whether, disregarding what the Americans may have said yesterday-they have always said that in relation to the Games-the Games are so very much more of a danger point. Indeed, is there not a danger for us in focusing on them as the critical time? It would be very damaging to the reputation of the Games and of this country if there was an attack earlier or later than that because we appeared to have relaxed our guard. I just find a difficulty in that.
Amendment 44A is exactly the opportunistic sort of amendment which I would entirely have expected the Opposition to table. Any Opposition would do so, but if the situation is as serious as they point out, then I, for one, do not want to wait a year. However, I am not sure whether this is in any way the right amendment. I would like to see an evaluation of the pilot that we have heard has been carried out, not to wait a year for that, but we are told that more dodgy people were picked up as a result of the pilot and it is important that we understand how that worked. This amendment, however, appears to go wider than the measures under this Bill because it does not use the term "measures", which is defined in the Bill. I wonder whether the amendment is even within the scope of the Bill but leaving that technical thing aside, this is about immigration and controlees. The subjects of TPIMs are or will be
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Lord Henley: My Lords, we have a curious group, as some noble Lords have put it, with the amendments relating to relocation, and Amendment 44A, put down by the noble Lord, Lord Hunt of Kings Heath, I believe late last night.
The noble Lord, Lord Harris of Haringey, who is a pretty experienced politician, curiously came over rather naïve about this and could not quite understand why these two amendments had been grouped together. That point was answered by my noble friend Lady Hamwee when she pointed out that it was possibly a somewhat opportunistic amendment to put down. I give way, as always, to the noble Lord.
My puzzlement was associated with the grouping. Had this been freestanding as Amendment 44A, we could have had a nice little debate about that and about its place in the Bill. I was puzzled that it was grouped with these other amendments on the relocation powers.
Lord Henley: Given that the noble Lord is quite an experienced Member of this House, he will know that the grouping is not a matter, sadly, that the Government have any control over, and that it would be a matter for the noble Lord, Lord Hunt of Kings Heath, to decide that he wished to have this amendment grouped with the other amendments. Of course, the Government are more than happy to go along with that.
If I may, I will deal with that amendment very briefly. It is an amendment that asks for yet another report and I have to say that it is not necessary. As the noble Lord, Lord Hunt of Kings Heath, knows, there is ample provision already in place for independent review. We have the independent reviewer of counter-terrorism, currently David Anderson QC, and for 10 years before him we had my noble friend Lord Carlile of Berriew, who did that job exceedingly well. The independent chief inspector of the United Kingdom Border Agency, currently John Vine, is also required to review the operation and effectiveness of the measures in place at our ports and airports. They both report annually to the Home Secretary and their findings and reports are laid in Parliament.
I will not go much further than that and I will not deal with the specific points that noble Lords have raised in relation to recent events, partly because John Vine has been asked by the Home Secretary to make a report into these matters. There are also two other internal reports that deal with these issues-again, which have been promised by my right honourable friend-that will be made available when they come out. It would therefore not be right or proper to deal with those matters.
Referring on to the question of private planes coming in and what controls we have there, as my honourable friend in another place, Damian Green, made clear, we have absolutely nothing to hide. We have in fact strengthened the procedures there compared to what they were pre-2010 and we have made sure that we prioritise and make appropriate risk-based assessments on any planes that come in. A Statement was offered to the party opposite but for reasons of its own it wished not to take it.
I turn to relocation. Again, I accept that this is an issue that has been debated extensively throughout the Bill's passage both in this House and in another place. Obviously there are strong views on all sides. We accept that relocation has proved effective in disrupting terrorism-related activities, but it does, as my noble friend Lord Macdonald made clear, raise particularly difficult questions of proportionality. The question is therefore, as I put it at Second Reading and which I repeat now, one of balance. Our review of counter-terrorism acknowledged these difficult questions and considered them carefully. The review concluded that the best balance lies in a more focused use of the robust restrictions that will be available under the Bill together with the increased resources that will be available for covert investigation. It concluded that it will be possible to protect the public without the powers of relocation being routinely available.
We must always remember not to look at this Bill on its own. It is part of that wider package of changes, including those in the counterterrorism review, aimed at striking a better balance across the whole range of counterterrorism and security powers, and it will be complemented by the significantly increased funding that we are providing for those purposes. We have also published the Draft Enhanced TPIM Bill, which will be introduced if necessary, in exceptional circumstances, after some degree of prelegislative scrutiny, as is found appropriate by the authorities in this House and another place. It would provide more stringent restrictions, including that power of relocation, if necessary.
I understand that the noble Lord, Lord Hunt, has concerns over timing, particularly in relation to the Olympics. Again, he ought to listen to what my noble friend Lord Newton had to say about that, and possibly the Olympics is the one occasion when we would not want to be showcasing to the world the fact that we have measures of this sort. However, I take his concerns about the Olympics. The Government have made very clear that arrangements will be in place to manage effectively the transition from control orders to TPIM notices. Security arrangements for the Olympics are being planned on the basis that the TPIM Bill, and the powers available under it, will be in force. These plans are also proceeding on the basis that the additional powers contained in the Draft Enhanced TPIM Bill will, we hope, not be needed or be necessary. As is right and proper, our planning for the Olympics is both flexible and risk-based, and we will continue to monitor the threat to ensure that we adopt the most appropriate response, including keeping this issue under review as necessary in the light of developments.
Finally, my noble friend Lord Faulks raised a detailed and very important question about the transition period when this Bill comes in, which will be over Christmas.
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Lord Hunt of Kings Heath: My Lords, I am very grateful to all noble Lords who have taken part in this short debate. I am disappointed that the noble Lord, Lord Henley, could not respond somewhat more positively to my Amendment 44A. My noble friend Lord Harris asked a number of pertinent questions. No doubt when the official inquiries report, we will get answers to them. There is an underlying concern about the security of our borders and the resources available to the UK Border Agency. I hope that we will have another opportunity to return to this in due course.
As for my other amendments, I say to the noble Lord, Lord Pannick, that at Second Reading I recognised the exceptional and intrusive measures that control orders imply and I do not at all detract from that. I just happen to think that they are one of the tools that should be open to the Government, with ample judicial review where they happen to be used.
I very rarely disagree with my noble friend. I was surprised at what the noble Lord, Lord Newton, said. After all, if the Opposition had indeed voted with the noble and learned Lord, Lord Lloyd, the Government would have been defeated. Government defeats are something that I usually rejoice in, but the fact is that I feel that it is right that we are consistent with the position that we took in Government and our view that, in the end, it is for the Home Secretary to make that judgment, rightly or wrongly. I do not think that it is a sad day for the Opposition. It would have been a sad day if we had taken an opportunist position.
The noble Lord, Lord Faulks, asked a very good question and I think that he got a very good answer. Forty-two days has a certain ring about it in the history of debating this legislation and I look forward to the debate at Third Reading when the noble Lord, Lord Henley, brings forward his amendment. At the end of the day, my noble friend Lord Harris and the noble Lord, Lord Bew, had it right: the amendments
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The noble Baroness, Lady Hamwee, said that we are either equipped or we are not equipped. That is the Government's position, to be either equipped or not equipped. They have made a great song and dance of getting rid of exclusion orders but have then said, "Just in case, we will have emergency legislation up our sleeve, and, by the way, there are certain circumstances when Parliament cannot be recalled, so we had better have it in this Bill as well". We can talk about being equipped or not equipped: it is absolutely clear that the Government know that they might need these provisions in the future. That is why they are legislating for them, either through the emergency legislation, which is going through pre-legislative scrutiny at some point, or in this Bill. They ought to have welcomed the flexibility that my amendments would give them.
However, the most reverend Primate the Archbishop of York has advised me not to move the amendment on this occasion. He was a wonderful Bishop of Birmingham when I first met him. In this case, I will take spiritual advice and will not seek to press the House on this any further. I beg leave to withdraw the amendment.
Lord Henley: My Lords, I beg to move Amendment 8, in my name. In doing so, I shall speak to Amendments 13, 30, 31, 45, 46, 47 and 48, all of which are in my name. Also in this group, I will touch upon Amendment 14, in the name of my noble friend Lady Hamwee, which is an amendment to my Amendment 13. These are a number of necessary technical amendments to the Bill. I hope that some noble Lords will have had the opportunity to read the letter that I sent last week explaining what each amendment achieves. However, for the benefit of the House and for the record, I should briefly explain why we need to make these amendments.
I shall start with Amendments 8 and 13. These amendments make two small but important changes to clarify the drafting of the residence and police reporting measures. The residence measure is intended to ensure that the individual can be required to reside at a specified address, and to remain there for specified periods overnight. The clear purpose of this is to manage risk. As part of this measure it may be necessary to require the individual to remain within the residence
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Amendment 8 is, therefore, essentially a drafting amendment to remove this uncertainty and make clear the policy intentions. It will put beyond doubt that the individual may be required to remain within the residence-that is, essentially, behind their front door during the specified overnight period. I should make clear that where individuals are confined to their residence and electronically monitored in other contexts, they will normally be required to remain in the house or flat and will not be allowed out into their garden. The particular requirements imposed by the Secretary of State in each case must always be necessary and proportionate. The court will subsequently consider the proportionality of each measure as part of its review of the notice.
Amendment 13 relates to the police reporting measure and makes clear that, in addition to requiring the individual to report to a police station at specified times and in a specified manner, the Secretary of State may require him to comply with directions given by the police in relation to such reporting. This is necessary to ensure that the individual can be required to co-operate with the practicalities of reporting-for example, requiring him to report to the front desk of a police station, speak to the officer there and sign to confirm his attendance. This has always been the intention behind this measure and is the current practice in relation to control orders. It is necessary to ensure that the provision reflects the reality of how the measure will operate. It is also in line with the general procedures for individuals required to report to a police station for any reason-for example, individuals on police or court bail.
My noble friend's Amendment 14 would amend Amendment 13 to specify that any directions given by a police officer must be consistent with the requirements imposed by the Secretary of State under the police reporting measure. I can say to my noble friend that the amendment is unnecessary. The police will legitimately be able to give only directions consistent with the overarching requirements imposed by the Secretary of State. Such directions must be reasonable. If a police officer gives unreasonable directions, the individual will be able to draw the Secretary of State's attention to the matter and/or challenge this in the courts. In any event, there is no advantage in the police giving directions that are inconsistent with what has been specified by the Secretary of State. The provision is to ease the process of reporting at the police station. As I have already outlined, it would be used to provide more detailed requirements, such as signing a particular document.
Amendments 30 and 31 make a small but necessary change to Clause 8. The clause provides that the court must, when granting permission to impose a TPIM
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Amendments 45 and 46 are essential technical amendments and do not reflect a change in the policy behind this Bill. Rather, they are necessary in consequence of changes to other legislation currently before the House. Section 154(1) of the Criminal Justice Act 2003, which has not been commenced, increases the maximum sentence on summary conviction in England and Wales from six months to 12 months. When the TPIM Bill was drafted, the intention was that this provision would be repealed by the Legal Aid, Sentencing and Punishment of Offenders Bill. Because of this, Clause 23 provides that the maximum sentence on summary conviction for contravening a measure specified in a TPIM notice is six months. However, Section 154(1) of the Criminal Justice Act 2003 will not now be repealed. On that basis, these amendments are needed to revert to the previous practice when legislating in relation to offences tried summarily. They provide for a maximum 12-month term in England and Wales, but include a transitional provision limiting the sentencing power to six months, pending commencement of Section 154(1) of the 2003 Act.
The final changes, Amendments 47 and 48, are technical amendments to Clause 26. The first returns to a matter helpfully raised in the amendment tabled at Committee by my noble friend Lady Hamwee. The noble Baroness's amendment would have deleted Clause 26(11)(a), which makes a provision allowing a temporary enhanced TPIM order to amend any enactment. The subsection of the clause was drafted on the basis that the temporary enhanced TPIM order would need to amend other legislation to ensure that the enhanced TPIM system would function correctly. I undertook to consider the point further and, having done so, have concluded that the subsection is not necessary for this purpose. I am therefore pleased to bring forward government Amendment 47, which will remove paragraph (a), and I thank the noble Baroness for her suggestion in this respect.
Amendment 48 is necessary to ensure that the order-making power does not inappropriately impinge on devolved matters in Scotland. The amendment provides that a temporary enhanced TPIM order may not make any provision relating to devolved matters
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Baroness Hamwee: My Lords, I have Amendment 14 which is an amendment to the Minister's Amendment 13. I am grateful for his confirmation that the wording that I have proposed is not necessary. I did not think that it was. I was relying on the word "and" at the end of the new paragraph (a), but I am glad to have that on the record.
Will it be open to an officer to direct reporting times? That presumably will be the case if the Secretary of State does not give a notice covering the matter. Will it always be the Secretary of State who gives that notice? The Minister will recall my concern that reporting should be required at a time which in general terms is reasonable and would particularly allow for the individual to carry out a course of study or to undertake work. As I probably said on the last occasion, one could not quite envisage applying for a job and saying to a prospective employer, "I am sorry, I am going to have to take two and half hours off three times a week in order to report in to a rather inconveniently located police station". That was the reason for my amendment and if he can give any further assurances I will welcome them.
I welcome his amendment generally, because I think that it is helpful, and I also welcome Amendment 47. I did not have the technical considerations in my mind when I tabled this amendment at Committee stage. It was a much broader matter, but whatever the reason I am glad to see the paragraph going.
Can I ask the Minister a little more about Amendment 8? In the letter that he sent to your Lordships following the last stage giving the thinking behind all these amendments, which was very helpful, he said that in providing that an individual must stay within the premises,
Can I ask what is meant by "disruption" in this context? I would have expected that surveillance would be adequate to cover an individual being in the back garden. Presumably surveillance is going to be done largely through technology rather than through a pair of binoculars. Is there not electronic surveillance? Is it a matter of disrupting communications? If he is able to add a little flesh to that I would welcome it.
Lord Henley: My Lords, I hope that I can deal with my noble friend's points. I am grateful to her for her comments. She asked whether it would be open to the police officer to direct reporting times. The point behind my amendments was that the Secretary of State would deal with such times. That would be in the order. Further directions may be given by the police in relation to someone coming to the police station but the times would be a matter for the Secretary of State.
As regards Amendment 8, we need to be able to disrupt any potential terrorist activities. For that reason one would not wish the individual to be able to leave
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Baroness Hamwee: My Lords, in moving Amendment 9, I wish to speak also to Amendments 10, 11, 12, 20, 40, 42, 43 and 44. All these amendments, which stand in my name and that of the noble Baroness, Lady Stern, follow on from debates held in Committee. None challenges what I think is fashionably called the architecture of the Bill. All seek to ensure that within the framework of the Bill, and without harming the effectiveness of measures, TPIMs have regard to their impact on the individual, who has not been charged, let alone found guilty of any offence-in other words, under our legal system, he is innocent-and on his family.
I have spoken previously about the need to recognise the individual person at the centre of any proposed measure. This is a matter of human responsibility. The restrictions imposed through control orders have been very considerable and in some cases very damaging. I acknowledge and welcome the Government's efforts to reduce the restrictions and to write legislation in a different way, spelling out the limits of restrictions, but there is still potential for a lot of damage. I suspect that, to an extent, this may depend on how a particular measure is applied. I welcome the assurances that the Minister gave at the previous stage but wish to pursue a number of matters a little further.
I mentioned the individual but, of course-the noble Lord, Lord Newton of Braintree, mentioned this-it is also a question of the individual's family. It is difficult to imagine the impact of such a measure on children, wives-I have heard of at least one wife who has attempted suicide more than once-and the community in the widest sense. This aspect is in my mind directed also at the effectiveness of TPIMs in avoiding taking measures that may tip the individual, his more extended family, friends, acquaintances and associates into the very sort of action which the Bill seeks to prevent. There are restrictions on association and communication and I worry that they could have that effect.
Amendment 9, which would leave out the words "or area", is to probe what might be an area of a specified description. Presumably it is not a place specified by geographical co-ordinates, nor somewhere like Manchester city centre, as they will be covered elsewhere in paragraph 3(1)(a). Nor is it somewhere like an internet café or an airport which one could
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Can the Minister also give an assurance that the exclusion would not be of a huge geographical scope? I welcome an exclusion measure which is this way round, instead of listing the places at which an individual can visit and excluding the rest, but nevertheless I would like to be a little clearer about this provision.
This was an amendment which I tabled in Committee but I think both the Minister and I overlooked the fact that it had not had an answer, and I am grateful to him for contacting me in the interim. However I think that an explanation of the term should be on the record, and that what I have understood as being measures specified under this Act is in fact what is meant.
In Amendment 11 there is an exception for a financial adviser. It occurred to me that other professionals might hold funds belonging to the individual-a solicitor might hold money in a client account-so can the Minister tell the House how this will be dealt with? There is a provision for a specified value threshold so I suppose that could be used to cover moneys held by a professional such as a solicitor, but again I would welcome an explanation.
Finally in this group, Amendment 12 probes what is meant by "specified descriptions of persons". The more I thought about it, the less clear I was as to who these might be. They could be members of a proscribed organisation but they would be covered by other legislation. Presumably we are not talking about worshippers at a particular place of worship, nor would we be talking about people outside the UK, because as I read in paragraphs 8(2)(b) and 8(2)(c) of Schedule 1, they would be covered elsewhere. Can the Minister help me as to that provision?
I apologise to noble Lords that there is quite a lot a detail, which comes of large groupings, but the Whips always encourage us to group robustly. Amendment 20 would seek an assurance that all the circumstances to which the amendment applies are implicit in the Bill as drafted. We are dealing here with Condition D in which I say there should be,
Condition D is about specified measures and I would like to be assured that what is necessary within the condition means that there will be proper consideration of the individual and his family circumstances and his likely reaction. I do not mean just irritation, I mean reaction in a much more substantial sense.
Following on from my amendment at the last stage about mental health review, I turn to a different approach. Amendment 40 provides for a general review group. In Committee, the Minister referred to the current Control Order Review Group which he said,
I think it should be a statutory provision, and I hope that the Minister can take the opportunity to explain what is planned. I have assumed that the review group will be responsible to the Secretary of State with a regular reporting function. I have not attempted to spell out its remit other than to assist in the Secretary of State's functions, because I think those functions are clear. Clause 11 requires her to keep Conditions C and D under review, but I would welcome an assurance about monitoring the impact of TPIMs to ensure they remain necessary and in proportion to the assessments, both of the individual and of the intelligence as to the security situation in general.
I have seen the terms of reference for the current Control Order Review Group which includes having to consider whether the orders are effectively disrupting an individual's terrorism-related behaviour and the risk posed by that individual, and whether there are other options for managing or reducing the risk posed by the individual. I welcome those and I hope that those can be replicated under the new arrangements.
Finally-noble Lords may be relieved to know-Amendments 42, 43 and 44, which should be read together, will provide for independent oversight of individual measures. They are quite deliberately modelled on the Independent Police Complaints Commission because that seemed to the noble Baroness, Lady Stern, and me to be a good model for independent review. These provisions are actually lifted from the Police Reform Act 2002, although they are not as extensive. I decided not to test your Lordships' patience by adding the detailed schedules which will be needed for operation. The IPPC reacts to complaints but it is essentially established to review, and because of that power, to prevent potential abuses of power, hence this proposal.
Appointees would be independent. I have excluded particular current and past office holders, and most importantly would have experience as well as appropriate formal qualifications, specifically in the care of persons deprived of their liberty and their families. There is a body of experience in how someone behaves in such circumstances. We should be aware that individuals may have been deprived of their liberty and indeed may have been tortured before the TPIM is applied. Controlees have included people who have been subjected to very extreme treatment overseas and that can result, to give one example, in an inability to engage in a discussion and to articulate the problems suffered by that individual.
Amendment 43 deals with the functions of such a commission. It would provide for treatment and specialist services, because this is a special category of people. I do not believe that an ordinary GP or indeed a psychologist or psychiatrist without such a specialism would have the necessary skills or experience.
During debate on the predecessor amendment at the last stage, the Minister said that case law on control orders and the duty of the Secretary of State to act within the convention rights mean that the impact of measures will be given appropriate consideration. I believe that we should look for something specific
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Baroness Stern: My Lords, I support these amendments so ably spoken to by the noble Baroness, Lady Hamwee, and I express my gratitude to her for the tremendous amount of detailed work that she has done on this issue.
As I made clear at Second Reading and wish to make clear again, I very much appreciate the approach that the Minister is taking to the Bill and the improvements to the current regime that have been introduced. However, the noble Baroness, Lady Hamwee, has reminded us very usefully that at the centre of this is indeed a human being, and his family, who is subject to very demanding requirements to go at certain times to certain places, not to go into the garden, as the Minister has just explained, and to be subject possibly to 12 months' imprisonment for failing to conform.
Perhaps I may concentrate solely on Amendments 40 and 42 to 44. Amendment 40 expresses the wish for a continuation of-and, I hope, improvement to-the Control Orders Review Group, which arose after many, many discussions in this House on the earlier regime. I look forward very much to hearing some reassurance from the Minister on a review group for TPIMs. Amendments 42 to 44, which concern oversight and review, go further than a projected review group. The measures that we are discussing here clearly will not lead to a complete deprivation of liberty but they will undoubtedly have a profound effect on the day-to-day life of the person who is subject to them and the family of that person. They are not compatible with living a normal life as we know it. Although, as the Minister made clear earlier, they are indeed preventive, they will feel-to use the word chosen by the noble and learned Lord, Lord Lloyd of Berwick-punitive. Their effect is punitive, and that is why we need to consider the proposals in these amendments. The person who is subject to these measures will feel that he is being punished, and the people implementing the measure, who come from a law enforcement background and are familiar with punitive measures, will see that the person has had imposed on him measures that are, in effect, punitive. These measures will indeed affect the liberty of the person and they will also affect very directly the lives of that person's family members, so the family will also feel that they are being punished. In all cases where we punish, we have systems in place to ensure that the treatment of those undergoing sanctions and measures is subject to independent inspection and oversight.
As the Minister will know, the UK Government have, to their great credit, been in the lead in promoting the Optional Protocol to the Convention against Torture-OPCAT for short-which requires that everyone deprived of their liberty should have their detention open to inspection by national and international inspectors who are independent of government so as to prevent ill treatment. This principle has been widely accepted
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Accepting the principle that deprivation of liberty puts a human being in an environment where ill treatment is possible, health can suffer and urgent needs may not be met does not suggest for a moment that this always or regularly happens or that it will ever happen. However, it is an acceptance that that is always possible, and we want to ensure that it does not happen. It is an acceptance that deprivation of liberty puts an individual at risk of being at the receiving end of oppressive power. Here, I accept entirely that we are talking not about complete deprivation of liberty but about a substantial dose of it-enough to bring the measure within the purview of some independent oversight.
The Government would maintain their good record on OPCAT and on inspection of places of detention if they accepted these amendments. There is now independent oversight not only of prisons and immigration removal centres but of police cells, some military detention establishments, all places where children are detained and hospitals. These amendments extend that provision to people restricted by these measures, and I hope that the Minister will be able to consider this idea favourably.
Lord Henley: My Lords, I am grateful to my noble friend and the noble Baroness, Lady Stern, for speaking to this fairly varied group of amendments. My noble friend said that she had grouped them together because the Whips were very keen on that process. I think that the Government are often keen on grouping things together because that can speed up debate, particularly when the amendments are essentially probing.
The noble Baroness is quite rightly seeking some reassurances and statements from the Government on what certain things mean. I shall work through the amendments in the order that they are tabled and shall try to satisfy my noble friend and the noble Baroness, Lady Stern, about what is meant and shall try to deal with their concerns.
I start with Amendment 9. My noble friend asked for clarification on what is meant by an "area of a specified description". I confirm that allowing the Secretary of State-the Home Secretary-to impose restrictions in relation to both places and areas of a specified description is necessary to avoid unhelpful uncertainty about whether somewhere is most accurately defined as a place or an area. For example, it may be clear that airports qualify as places of a specified description, but it may be less clear that all the areas surrounding an airport, such as car parks, drop-off points or other areas connected to or adjacent to an airport, are captured. In conjunction with the rest of paragraph 3, the provision therefore gives the Secretary of State the required powers to restrict individuals entering places or areas where this is necessary for reasons of national security. Again, I can assure my noble friend that the scope of that area will not be what she described as a huge geographical area.
Turning to Amendment 10, I am happy to confirm that the power for a constable to give directions, as provided by the movement directions measure in
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In relation to Amendment 11, I can confirm that, for the purposes of the financial services measures in Schedule 1, "financial services" means any service of a financial nature. This includes banking and other financial services, but is not limited to them. Where paragraph 5 provides that the restriction on the possession of cash does not extend to cash held by a person providing financial services, it therefore includes financial services provided by members of other professions such as the noble Baroness herself, lawyers or estate agents. That would involve them holding money on behalf of an individual.
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