Terrorism Prevention and Investigation Measures Bill

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 particularly when the individuals concerned have not been charged with or convicted of any offence—and it is right and proper that they should be imposed by the courts. That is the purpose of the first amendment. There are a number of subsequent amendments dealing with the same point, but this debate will turn on the first amendment, and the position is very simple. 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, "““a well-established principle across our legal system of imposing””," preventive restrictions, "““to protect the public from criminal behaviour””." 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 Rights. That perhaps shows the extent to which the Government have had to scrape the barrel to find any precedent at all for Clause 2 of the Bill. 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: "““the Government do not believe that the courts should have the same role in asset freezing””," as they do in control orders, "““because the circumstances are clearly different. Asset freezes interfere with property rights but they do not impact on human rights to the same extent as control orders””.—[Official Report, 25/10/10; col. 1052.]" 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””. Next, I must touch on the case of MB, which the noble Lord relied on in Committee. He quoted a sentence to the effect that, "““the Home Secretary is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect””." 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 being the case that helps the Government, is as strong an authority as one could want in favour of the amendment. 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.