Counter-Terrorism and Border Security Bill - Committee (4th Day)

Part of the debate – in the House of Lords at 5:15 pm on 14th November 2018.

Alert me about debates like this

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 5:15 pm, 14th November 2018

My Lords, this amendment is also in the name of my noble friend Lord Paddick and the noble Lords, Lord Rosser and Lord Kennedy of Southwark. It would amend Schedule 8 to the Terrorism Act to protect the right of a person detained or questioned under Section 41—on suspicion of being a terrorist—or Schedule 7 of that Act, which is concerned with questioning at ports and borders, to consult a solicitor and to do so without delay and in private.

The first and third parts of our amendment, in proposed new subsections (2) and (4), would amend paragraph 7(1) and omit paragraph 9 of Schedule 8. Paragraph 7(1) presently provides, subject to two exceptions to which I will turn in a moment, that a person so detained,

“shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time”.

The two exceptions to the entitlement under paragraph 7(1) are, first, the power to delay a consultation with a solicitor. Under paragraph 8, an officer of the rank of superintendent or higher may authorise a delay in permitting the detained person to consult a solicitor in certain prescribed circumstances; the second is a restriction on the right to consult in private, which we suggest is central to the right to confidential advice. Under paragraph 9(1), a direction by a police officer of the rank of commander or assistant chief constable or above may in certain circumstances provide that a detained person who wishes to consult a solicitor may only do so,

“in the sight and hearing of a qualified officer”.

The specified circumstances for the application of both exceptions are—I paraphrase—where the lack of such a direction may lead to any of a number of risks. They include damage to evidence of a serious offence, interference with or physical injury to any person, alerting other suspects, hindering the recovery of property obtained as a result of a serious offence, hindering information gathering or investigation, alerting someone to an investigation so as to make it more difficult to prevent an act of terrorism, and alerting someone so as to make it more difficult to apprehend, prosecute or convict a person of the commission, preparation or instigation of an act of terrorism.

Our amendment would, significantly, leave the exception under paragraph 8 relating to the power to delay a consultation in the specified circumstances but would remove the exception under paragraph 9—that is, the denial of the right to a consultation in private. We are clear in our view that it is fundamental to the right to consult a solicitor that the consultation should indeed be in private. The Joint Committee on Human Rights considered this question in its second report. It said in the section on access to a lawyer, in respect of Schedule 3 to this Bill, at paragraph 55 and 56:

“In some cases, the detainee may only consult a solicitor in the sight and hearing of a ‘qualified officer’. The Government explains that this restriction exists to disrupt and deter a detainee who seeks to use their legal privilege to pass on instructions to a third party, either through intimidating their solicitor or passing on a coded message … We recognise these concerns, but consider that there are more proportionate ways of mitigating these risks, such as pre-approval of vetted panels of lawyers. We suggest further consideration be given to alternative options so that timely and confidential legal advice can be given to all persons stopped and detained under these powers”.

It is profoundly regrettable that the Government seem to have fallen into a habit of cavalier disregard of the recommendations of that very distinguished and largely consensual cross-party committee of both Houses. I echo the regret expressed by my noble friend Lady Hamwee at Second Reading at some of the disparaging remarks made by the Security Minister Ben Wallace MP in the House of Commons about that committee. In objecting to the proposals in the Bill on this point, the Law Society said:

“Legal professional privilege … is a cornerstone of the constitution and the rule of law in this country. It guarantees that individuals can consult a legal representative in confidence, underpinning the right to a fair trial and access to justice. This privilege belongs to clients not lawyers. Not only is legal privilege central to the protection of the rights of individuals, the ability to access a fair and efficient legal system is the reason why our law and jurisdiction are used throughout the world”.

The second part of our amendment in sub-paragraph (3) would amend paragraph 7(a) of Schedule 8 of the Terrorism Act, which prevents questioning of a person detained at ports or borders,

“until the person has consulted a solicitor (or no longer wishes to do so)”.

That consultation must generally be a consultation in person. These protections are subject to two exceptions. The first is that the entitlement to consult a solicitor does not apply if,

“the examining officer reasonably believes that postponing the questioning until”,

a solicitor has been consulted,

“would be likely to prejudice determination”,

of the matters under investigation. The second is that the consultation need not be in person if,

“the examining officer reasonably believes that the time it would take to consult a solicitor in person would be likely to prejudice”,

that determination.

Our amendment would remove the exception for reasonable suspicion that consulting a solicitor might risk the determination of the matters under investigation. It is far too easy for an officer to come to that view, and the right to consult a solicitor is too fundamental to natural justice, to allow a suspicion of possible prejudice to an investigation to displace it. One must remember that this paragraph is concerned only with questioning at ports and borders where no suspicion of terrorism is necessary. It is not an investigation under Section 41, where there is suspicion of terrorism.

In relation to the right for a consultation to be in person, our amendment would remove the general and very broad exception for likely prejudice to the investigation but would permit an exception in a more limited class of case where the examining officer reasonably believes that the delay involved in arranging a personal consultation would create an immediate risk of physical injury to any person.

Finally, in relation to this amendment, the exception to the right to a consultation in person permits the examining officer in a case where the exception applies to require the consultation to take place in another way. Our amendment would add the proviso that such a requirement must ensure that the consultation will be in private.

Before closing, I add my support to Amendments 83 to 88 in this group in the names of my noble friends Lord Paddick and Lady Hamwee, and the noble Lords, Lord Rosser and Lord Kennedy of Southwark. These amendments intend to protect the right of a person detained under Schedule 3 at a port or border area. They are recommended in exact terms by the Joint Committee on Human Rights and I repeat my observations about the respect that ought to be accorded to that committee’s recommendations. We should always remember when considering counterterrorism legislation that a central aim of it is to defend our democracy. Human rights, including the right to take timely and confidential legal advice, are fundamental to our democracy and should be limited only where the case is overwhelming. That is one of the reasons why we have a Joint Committee on Human Rights, otherwise the terrorists gain what they wish.

My noble friend Lady Hamwee will explain these amendments in more detail. Amendment 83 would confer a right on detained persons to be informed of their right to consult a solicitor when first detained. Amendment 84 would remove the right to delay a consultation with a solicitor. Amendment 85 would remove the exception to the right to have a consultation with a solicitor in private in circumstances parallel to those that apply under the Terrorism Act by committing consultations in the sight and hearing of a qualified officer. Amendment 86, as an alternative, would substitute a consultation in the sight of a qualified officer but not in his or her hearing.

We firmly suggest that the Government place a higher value on the importance to human rights of timely access to confidential legal advice from a solicitor in person. The restrictions in the Terrorism Act and in this Bill are disproportionate and should, I suggest, be amended in the ways we propose. I beg to move.