Terrorism Prevention and Investigation Measures Bill

My Lords, I have supported the statements of the noble and learned Lord, Lord Lloyd of Berwick, at Second Reading and in Committee. I will take the same position yet again on Report. 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), "““relevant decisions of the Secretary of State are obviously flawed””." 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 denying the court the right to consider the adequacy of that evidence. If it deals with this matter simply by a review process, that cannot happen. I refer again to the report of the Joint Committee on Human Rights, published on 19 October. Paragraph 1.6 of the report, which I quoted in Committee on that date, states that, "““the well-established principle is that executive restrictions on liberty are such a radical departure from our common law tradition that they always require prior judicial authorisation after proper legal process. It is for the Government to justify this Bill’s departure from that fundamental principle””." 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.