Terrorist Asset-Freezing etc. Bill [HL]

My Lords, I fear that it would be negligent if I did not take a little bit of the House’s time to comment on the amendment of the noble Lord, Lord Judd. I thank him for declaring my interest so generously—I mean that genuinely. Even if there are any implicit criticisms of the way in which I have conducted myself during my nine years and 25 days as independent reviewer of terrorism legislation, I have been around the political world long enough to take them on the chin and respond to them. I am slightly surprised that I was not asked to give evidence to the Joint Committee on Human Rights prior to its most recent report. Perhaps it thought that I might have disagreed with it far more than I do, because, basically, I do not disagree with what it has said. I remind the House how the process developed. There were a number of distinguished independent reviewers of terrorism legislation who dealt with Northern Ireland. That had become a significant but not particularly time-consuming role prior to 11 September 2001. By one of those extraordinary coincidences of life, I was approached on that very day, before the twin towers were hit in New York, and asked to carry out a function which I was told would take only a few days per year. Later during the day, after the twin towers had been hit, I asked the Home Secretary’s Private Secretary if the Government now wanted someone competent to do the job. The response was that they were happy for me to do it, and I have done it ever since. I tell that story because it is important to remember that the role of the independent reviewer has been evolving all the time, just as counterterrorism law has been evolving all the time. I am sure that the previous Government would acknowledge that, from time to time, they made mistakes about counterterrorism law. I, as independent reviewer, made mistakes in reviewing certain aspects of counterterrorism law. I suspect that the present Government—whom I support politically, at least, although I am neutral for this purpose—will also make mistakes. It is a very difficult area. The whole process of reviewing started in my case from a relatively unsophisticated position and has developed into a much more demanding role. On the question of independence, I should say that it really depends whom you speak to. I fear that I may have been cited on most sides of almost every argument about counterterrorism. If that is evidence of independence—and it may well be—I am satisfied with that position. About office and matters of that kind, I remind those who have spoken in this debate and may be interested in it that I have always conducted the role of independent reviewer of terrorism legislation from my chambers, which I have paid for allowing me to carry out the role there. I had better give them a plug —9-12 Bell Yard. My chambers, as one would expect of a good set of barristers’ chambers, has been prepared to put up with that inconvenience—possibly because I was head of chambers for six and a half years of the time that I have been doing it. I have had an office in the Home Office, and I am glad to see my noble friend Lord Thomas of Gresford here, because on one occasion he castigated me in this House for having an office in the Home Office. He was kind enough to acknowledge afterwards that he might have overlooked the fact that in my office in the Home Office, which is situated in the Office for Security and Counter-terrorism, I have a room, quite an ample room—it even has a sofa, which is quite hard to get these days in the Home Office—which I use only because I have to keep documents in a secure place. Keeping documents in my chambers or, even worse, in my home, is insufficiently secure. I confess to your Lordships that on my not-very-frequent visits to that office—perhaps, on average, I go there about once a fortnight—I hold meetings, but it is convenient to meet Home Office officials, police and others whom one needs to meet in a secure place in precisely that, a secure place. It would be far more expensive for government if such meetings were to take place elsewhere. Although I entirely support the notion of physical and intellectual independence being clear, it is not so easy in practice. The Bill proposes that there should be a reviewer of yet another aspect of counterterrorism law, of which there has not been an independent reviewer up to now. It makes sense that whoever succeeds me after the end of this year—my appointment having been extended, after three three-year terms, for a very short period so that a successor can be appointed and find his or her feet—should be able to carry on as independently as I believe that I have, although I recognise that not everybody would agree with that, and should have the secretariat with which to do so. In my most recent report on the operation of the Terrorism Act 2000, referring to the year 2009, I set out at the end a section intended to help the Government when they came to appoint my successor. I suggested that the job should become full-time, because it has taken up so much of my time that it has been difficult to do almost anything else; that it should have a proper secretariat; and that it should have an office which does not depend on the good will of, for example, the other tenants of that great institution, 9-12 Bell Yard. I believe, however, that the crucial independence is that of the reviewers, not that of the secretariat, for this reason. If an independent reviewer is to know what is going on in the Office for Security and Counter-Terrorism in the Home Office, it is necessary to have someone on hand who understands the OSCT not just as to its organisation but as to what flows through its arteries. Equally, an independent reviewer properly funded would have in his or her office a researcher who came either straight out of the academic world or from some other sphere entirely separate from government. Actually, that does not matter. What is vital is that the independent reviewer should be able to act independently, recognising what is good advice, bad advice, partial advice and impartial advice. That is the essence of the role carried out by the reviewer. My belief that the independent reviewer of terrorism legislation should become a full-time role with an office—which I fear would involve expenditure of further government resources at a rather bad time for acquiring greater government resources—is enhanced by the belief that when the counterterrorism review is published shortly, there may well be further aspects of counterterrorism that the independent reviewer will have to focus on, in a way which has not been incumbent on me. The case for a full-time, or near full-time, reviewer is becoming stronger, and the case for giving the reviewer permanent staff, wherever they come from, is now unanswerable, in my view. I suffered from the lack of permanent staff. I qualify that statement by saying that I could not have asked for greater support than I have had not just from Ministers of both Governments who have been in power in my time but, more particularly, from civil servants—senior, middle ranking and junior. It needs to be said from time to time that they have displayed a discipline of independence that is possibly unique to the Civil Service in the United Kingdom. I cannot praise them enough for the help that I have been given on that basis. If anyone thinks that they should say in a debate such as this that the Civil Service is partial to one Government or another, to one view or another, I can tell noble Lords that they would be completely wrong. As to the way in which the independent reviewer is appointed, I do not have any very strong views. Appointment by a Minister does not make the reviewer any less independent. Many public appointments have sprung surprises on government; for example, chief inspectors of prisons. Independence is in the way the person concerned operates. There are particular difficulties in this role because the independent reviewer of terrorism legislation sees things that other people do not see, including some people who claim to have seen things that they have not seen. Even worse, there are some people who claim to have seen things that do not exist; that poses difficulties when the press gives them the credibility it does. Indeed, there are one or two senior political figures who give themselves that kind of credibility, and it is completely bogus. Far more important than the appointment procedure—although I take everything that has been said about open appointments, which are obviously desirable, as absolutely genuine—the most important thing is that the person should be independent and properly supported. It would always be my preference that the independent reviewer’s reports should be submitted to Parliament. That is a logically neutral way of doing it, and there is an intellectual guarantee that if a reviewer reports to Parliament, Parliament will publish the reports and nobody can even attempt to suppress them. I have to say to your Lordships for the record that, although my reports have been submitted to the Home Secretary because of the way I was appointed, on no occasion has any draft report of mine been changed in any material particular, save where I was factually wrong, except once, and I should tell your Lordships about it because it is instructive about a flexible process. On one occasion, I was concerned that those who were arrested in Northern Ireland for terrorism offences under the now defunct Part 7 of the Terrorism Act 2000 were unable to obtain bail over a weekend because bail could be obtained from a High Court judge only, and the High Court in Belfast did not sit over a weekend. So I wrote a report that suggested that there should be a duty judge over the weekend, and I submitted it for factual correction if inaccurate by the Home Office. I am delighted to say that one afternoon I was required to go to a red telephone where I spoke, at his request, to the then Lord Chief Justice of Northern Ireland. As a result, I changed my report; I was able to say that I was delighted that the Lord Chief Justice of Northern Ireland had decided to appoint a duty judge for every weekend to deal with bail applications. That seems to be an effective use of the reporting procedure used at the moment and of the draft. I cannot imagine any circumstances in which any honourable person appointed to this role would be prepared to change their report at the behest of a Minister or civil servant for political reasons. It has never happened. It did not happen with any of the reviewers before I was appointed, it has not happened during my period of tenure, and I do not think it will happen with any successor I can foresee under the present or changed arrangements. The real purpose of what I want to say this afternoon in response to the amendment moved by the noble Lord, Lord Judd, is that what happens is much more important than the process. The process must have integrity, but there are practical aspects to a role such as this that mean that simply sitting in an ivory tower, sending out letters demanding responses on matters, some of which are extremely secret, is not an adequate way of getting the job done well. I think this may be my swansong in this role so far as this House is concerned, so I will say that I am grateful for the support and the constructive criticism that I have had from noble Lords, including some of my noble friends. I hope that we will not in future have to have a debate about something as basic as the way the appointment takes place.