Terrorism Prevention and Investigation Measures Bill

My Lords, these amendments fall into two main groups. The first includes Amendments 1 to 3, 7, 8, 25, 27, 29, 36, 37, 40 and 41. I start by referring to the restrictions set out in Schedule 1 to the Bill, which were so well described by the noble Baroness, Lady Stern, at Second Reading. It is wrong in principle for punitive restrictions of the kind set out there to be imposed on a British subject by a member of the Executive in time of peace. It is as simple as that. The Minister’s predecessors on both sides of the House have previously argued that such restrictions are not punitive—they are preventive. I suggest that that is playing with words. Looking at Schedule 1, any ordinary reader would say that these restrictions, whatever their purpose, are punitive in effect. In her response to the excellent report of the Joint Committee on Human Rights, the Home Secretary argued that prevention orders are now a common feature of our legal system. She cited anti-social behaviour orders, football banning orders, serious crime prevention orders, violent offender orders and so on. However, in all these cases the order is made by the court—either the High Court or the magistrates’ court—as it should be. Therefore, the purpose of the first group of amendments is simply to bring the Bill into line with the precedents on which the Home Secretary herself relies. In other words, it is for the Home Secretary to make the application for an order, but for the order to be made by the High Court. It may be said that we are dealing here not with ordinary crime but with terrorism, and, where the safety of the public is at issue, it is the Home Secretary who should make the order because it is the Home Secretary who is answerable to Parliament. There are two answers to that argument. One need look no further than Section 4 of the Prevention of Terrorism Act 2005—the very that Act that we are repealing. It provides that, in the case of derogating control orders, it is the High Court that makes the order, not the Home Secretary. That surely puts paid to the argument that in terrorist cases it is for the Home Secretary to make the order because it is she who is answerable to Parliament. There is a second answer. Clause 9 provides that the court must review the case as soon as practicable after notice has been served. The crucial question of fact on that review will be whether the individual is or has been involved in terrorist activity. In the leading case of the Secretary of State for the Home Department v MB—2007, Queen’s Bench, at page 415—the Court of Appeal held that, in considering that crucial question, the court must reach its own conclusion on the facts. If it disagrees with the Home Secretary, it must say so and quash the notice. It is the court’s decision on the facts which will prevail, not that of the Home Secretary. The Government have accepted that that should be so. However, if that is to be so, it is difficult to see what, if anything, is left of the argument that it is the Home Secretary who should make the order because the Home Secretary is answerable to Parliament. Later in this debate the noble Lord, Lord Goodhart, will argue that for the Home Secretary to make the order is contrary to the rule of law. I agree with that argument and will not anticipate it. My own contribution is on a lowlier level than that; it is based simply on common sense. It simply does not make sense for the Home Secretary to apply to the court for permission to impose restrictions under Clause 6 and then come back to the same court a week or so later in order to justify those restrictions. It is much too cumbersome a procedure, as one can see from the complexity of the drafting which it entailed. It is much better and simpler for the Home Secretary to apply for an interim order under Clause 6 and for the court to confirm or quash the order on the substantive hearing under Clause 9, after hearing representations by or on behalf of the individual. That is the usual procedure in our courts. It will be for the noble Lord to explain why it should not apply here. Before leaving that group of amendments I should like to add two short footnotes. First, the amendments, if accepted, will not affect in any way the underlying purpose of the Bill, which is to protect the public. Since the courts will have the last word anyway in the way that I have described, the risk to the public will remain exactly the same. Secondly, the noble Lord may refer to the undoubted power of the Home Secretary to make deportation orders under Section 3(5) of the Immigration Act 1971. But this power affects only those who are not British citizens. It is part of the ordinary law on immigration and has nothing whatever to do with this Bill. On the standard of proof, the relevant amendments are Amendments 16, 17, 19, 20, 27 and 41. That includes the amendment to be moved later by the noble Lord, Lord Pannick, and the noble Baroness, Lady Hamwee. As I have said, the crucial question to be decided under Clause 9 is whether the individual has been engaged in terrorist activity. That is an extremely serious finding to make about anyone—so serious, indeed, that it could well be argued that the standard of proof should be the criminal standard. However, these are civil proceedings and I accept that the civil standard should apply. But I do not accept that any lower standard should apply. I can see no justification whatever for rejecting the balance of probabilities in these civil proceedings and substituting reasonable belief, especially in a case involving the liberty of the subject. The balance of probabilities is the standard adopted in serious crime prevention orders, Section 4 of the Prevention of Terrorism Act 2005, Clause 2 of the Draft Enhanced Terrorism Prevention and Investigation Measures Bill, which will come before us in due course, and Clause 26 of this Bill. Why has it not been adopted in Clause 3? The whole point of having the balance of probabilities as the standard is that it is a flexible standard. It is relatively easy to discharge at the lower end of the spectrum and it approaches the criminal standard at the higher end of the spectrum The balance of probabilities is therefore the ideal standard in this case for Clause 3, where the restrictions are less severe, and for Clause 26, where the restrictions are more severe. The balance of probabilities is not only a flexible standard but is also well understood; reasonable belief is neither. I should say a word in conclusion on Amendment 44, also in this group—but no more than a word, given that it speaks for itself. There is much more that I might say but most of it is contained in the excellent report of the Joint Committee on Human Rights, published only this morning in the nick of time. No doubt, the Minister will have that report and will take it well to heart. I beg to move.