Terrorism Prevention and Investigation Measures Bill

My Lords, it is always interesting to follow the noble Lord, Lord Desai, in debate. He has not disappointed us; he has used his usual capacity to place a cat among the pigeons. I should start by declaring an interest. Although I ceased to be the independent reviewer of terrorism legislation in February this year, I still hold two positions relating to security in Northern Ireland. I, too, welcome my noble friend Lord Henley to his ministerial place. I look forward to working with him on this important Bill and other significant issues. I know that he will agree with everyone who has said that we shall all miss his predecessor, my noble friend Lady Browning. She will be a hard act to follow, and we wish her the fullest of health as soon as possible. I approach this debate by reiterating the Burkean party conference mantra of the Deputy Prime Minister, Mr Clegg: we should do not what is merely easy; we should do what is right. That mantra has a particular resonance in relation to at least one aspect of this Bill: the question of relocation. I listened with interest to the noble Lord, Lord Reid, who was a distinguished Home Secretary, talking about representations from constituents. I can tell the House that in my nine and a quarter years as independent reviewer, I received but a handful of letters or e-mails from private citizens about control orders. They did not appear to raise particular public interest. I believe that the Government were absolutely right as a new Government to carry out a review of counterterrorism law, practice and policy. I congratulate them on many of the conclusions reached in the counterterrorism review. The two-year limit on TPIMs is something for which I long argued in relation to control orders. Raising the standard of proof is the right thing to do. Indeed, if we look at all the judgments in the cases, they all reached the highest standard of proof which is now to be included. Giving people who are subject to these orders mobile phones and some form of electronic media is the correct recognition of their rights. I listened to the comments of the noble Lord, Lord Pannick, and my noble friend Lord Goodhart with enormous respect. I think that my view is with the noble Lord, Lord Hunt: the nature of an order such as this is an executive act and the nature of review or appeal is a judicial act. If I may cite the example of deportation orders, there are at least two people in the House today who have made large numbers of deportation orders as an executive act and they have been robustly reviewed and appealed before the courts. That is a perfectly conventional and correct procedure. I am a little worried by the fact that my party entered government with an almost visceral opposition to any specialty legislation in connection with terrorism if there was any suspicion of an adjustment of human rights assumptions and norms against the interests of any individuals that might affect their freedom of action. Of course, since entering government, Ministers have seen the evidence, and the result of that evidence is seen to a great extent in the Bill. Nobody has yet mentioned the context in which this matter is being debated, and I remind the House of the threat level that was changed downwards by the Joint Terrorism Analysis Centre—JTAC, which is an independent body for this purpose—on 11 July this year. The threat level was changed on that day from severe to substantial. What does ““substantial”” mean? I do not believe this to be in dispute between any parties in this House. The threat level ““substantial”” means that a terrorist attack remains a strong possibility and may occur without warning. It means what it says. Further, the impending and very welcome Olympic and Paralympic Games mean that the threat level is most unlikely to be reduced until after those great festivals are over. What does the threat mean to the public whom the Government have a first duty to represent and protect? It means that there is a strong possibility—remember those words—of a single or multiple suicide bombing attack occurring entirely unpredictably, with consequent death and injury on at least the scale of the events in London in July 2005. I remind your Lordships that in the 7/7 attacks, not only were 52 people murdered by terrorists, but more than 770 people were injured, some extremely seriously. Further, it is worrying that violent jihadist terrorism techniques have become more varied since 2005, including the technique—if that be the right word—of massacre by the use of automatic weapons, as in Mumbai on 26 November 2008 and as elsewhere more recently. I have heard, and I think we have heard in this House, repeated suggestions that control orders breach the Human Rights Act 1998 and the European Convention on Human Rights. I invite the Minister to confirm that that issue has been litigated and that control orders have been held to be compliant with the European Convention on Human Rights. I ask the House to lay to rest what I regard as the canard of non-compliance. What we have in this Bill is close to control orders, with one material element removed: the power to order relocation of the individual in question. I am a little puzzled by the title of the Bill and the emphasis on investigation. There is an implication that this is something new, and it has been perpetuated by my noble friend Lord Macdonald. It is not. Investigation and prosecution have always been the aim before a control order was issued and as it continued. I have attended on a number of occasions a committee called the control orders review group—CORG—which is a multidisciplinary committee that sits in the Home Office and considers every control order in detail, regularly, person by person, with the police officers and others dealing with that controlee present at the meeting. Investigation is continuous. A control order or a TPIM is a tool to be used when for the time being investigation and prosecution can go no further. I apprehend that my noble friend, during his distinguished period as DPP, will have been consulted about such cases and on that basis. The whole basis was that at that time investigation could not be brought to fruition. Of course, the CORG process means that at a further time it will be considered, and it is. The Crown Prosecution Service’s admirable terrorism group, created by my noble friend to a very high quality, does exactly that. The noble Lord, Lord Freeman, spoke from his business perspective—I believe that he is, or was, chairman of one of the leading technology companies—about the technology that is now available. Of course we should welcome and use the technology. The Government have a responsibility that they do not always exercise—this applies not to any particular Government—to use the latest technology that will make fewer TPIMs or control orders necessary. However, technology is not necessarily the answer. Greater resources are welcome, but they are not necessarily the answer. We have been told that there will be higher levels of surveillance, but the reality is that you have to have somewhere to carry out surveillance from, and it is not always possible in relation to intelligence counterintuitive controlees. I agree with the table issued this morning by Liberty confirming the high degree of similarity between control orders and TPIMs, and I welcome the similarities. My noble friend Lord Macdonald mentioned that there have been absconds. There have been, but perhaps he should have mentioned that there has been none in the past five years and that the techniques of securing that there are no absconds have improved dramatically, not least through the use of better technology. With my experience from the beginning of control orders until early this year, I wonder why we are troubling to replace a functioning system with another that has almost entirely the same arms, body and legs, but I agree with my noble friend Lord Howard that, as I have already intimated, some of the changes are welcome. However, there is one leg missing from the Bill, and for now, in my view, it gives this legislation a distinct limp. It is the continuing power to order relocation, subject, of course, to the usual court procedures. On the evidence available, I am persuaded firmly—I choose my words carefully—to the view that it would be negligent to remove relocation from the main provisions. The noble Lord, Lord Harris of Haringey, and other noble Lords, have already referred to the open judgment given by Mr Justice Simon on 20 May 2011 in the case of CD and in other cases. In the CD case, a very detailed and succinct factual judgment was given by the learned judge. We have already been reminded that he said that the relocation obligation is a necessary and proportionate measure to protect the public from the real and immediate risk of a terrorist attack. I echo the words of the noble Lord, Lord Harris: who asked for that relocation provision? It was this Home Secretary. Why did she ask for it? Because she rightly judged it to be necessary. In what context did she ask for it? It was after the counterterrorism review, after my noble friend's independent scrutiny report and, presumably, after she had very carefully considered, on the advice of her extremely able officials, whether it was necessary and proportionate to do so. Why did she not say, ““We’re not going to ask for relocation because we believe it is not necessary any more””? The answer is that she believed that it was necessary in that case, which is but one example of several cases where the conclusion was reached that relocation was not merely proportionate but necessary in accordance with the evidence given by Deputy Assistant Commissioner Osborne. My conclusion from those cases is that the protection of the public will be diminished, I am afraid deliberately, by the removal of relocation from the main legislation. The current alternative proposed by the Government would allow relocation to be ordered in exceptional circumstances, subject to the enactment of a draft Bill. Generally, Parliament would be required to debate and vote on such measures before they came into force. It would therefore be required to determine whether the circumstances at the time merited such enhanced provisions. That is a clumsy proposal: it is the worst form of legislative disorder. It completely ignores the realities of operational activity against terrorism. The notion of meaningful parliamentary debate in such circumstances beggars belief and invites legal challenge. The Mad Hatter would await his invitation to any such debate with confidence that he would receive it. I hope that relocation will not be needed at all in due course. I favour a sunset clause in the Bill that would include relocation. Relocation should continue as an element of TPIMs until the end of 2012, after the Olympic Games, and should then be repealed, subject only to affirmative resolutions of each House of Parliament. This would mean that there would be further consideration by Parliament in less than 15 months from now, following proper protection of the public in the intervening period. I hope that the Government will accept that that is a sensible course and will table amendments to that effect. If not, I am prepared to do so myself, because this is a very important lacuna in the provision.