Terrorism Prevention and Investigation Measures Bill
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The Minister of State, Home Office (Lord Henley)
My Lords, I thank the noble Baroness, Lady Hamwee, for bringing forward these amendments, which are all essentially probing amendments. I commend her for so doing, as this is what the House does very well. I hope I can respond to and answer most of the points she has made in her four amendments—in fact, there are five, but they are in four batches.
If I start with Amendment 54, which is about the meaning of “appropriate”, I must first describe what subsection (9) does. It provides that a temporary enhanced TPIM order,
“may make appropriate provision (including appropriate variations from the provision contained in the relevant provisions of this Act) in consequence of, or in connection with, the creation, in accordance with this section, of the enhanced TPIM power”.
We believe that subsection (9) is essential to the clause. It allows the Secretary of State to make the consequent provisions to make sure that the enhanced TPIM regime functions properly, and it allows for equivalent provision to be made, to occur in paragraph 7 of Schedule 2 to the draft enhanced TPIM Bill.
This specifies that the operation of Schedule 6 to the TPIM Bill, which relates to the retention of DNA, is modified in order to accommodate the ETPIM regime. In particular, it takes account of the fact that the same individual may, at a different time, be subject to both an enhanced TPIM notice and the standard TPIM notice. I hope that my noble friend will accept that.
Amendment 55 would insert a new clause after subsection (10). The provisions of Clauses 26 and 27 already ensure that the order will apply the provisions of the Bill to the enhanced TPIM regime to the extent that it is appropriate. This includes all the nuts and bolts of the TPIM regime; for example the role of the court, and the way in which the TPIM notices are varied or revoked. The provisions that are not applied to the order are those which are not yet relevant. For example, an enhanced TPIM notice may not be extended for a year under the order, as the order, unlike the enhanced TPIM Bill, only lasts for 90 days and cannot be renewed.
Amendment 56 would delete the provision allowing the Secretary of State to amend any enactment under the order-making power. The noble Baroness stated that the amendment was not quite as elegant as it ought to be. She may have raised a point that we will certainly consider. At this stage, we want to see whether that provision is necessary; we will come back to the noble Baroness, have discussions with her, and possibly bring forward an amendment on Report.
Amendments 59 and 63, which are to be taken together, relate to commencement. I think the noble Baroness was really asking not so much about commencement but rather consideration of the draft legislation of the enhanced Bill. Obviously, it must be for the usual channels to decide what is appropriate, which committees are available, and so on. However, I am sure that with discussions between the usual channels—between the Government, the Opposition and others—we will come to the right solution as to how the enhanced TPIM Bill should be considered by this House and another place, or perhaps both together, while bearing in mind the resources available to both Houses. Different noble Lords will have different views on this, to which we will listen in due course, as will the usual channels, as always. I hope those explanations are sufficient for the noble Baroness but if they are not we can discuss them further. However, with that, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I thank the Minister for all of that. With regard to his reply on my first amendment, I shall have to take his word for it. That is my failure of concentration, not his failure of explanation. It is certainly a reply that deserves to be read in Hansard as it was quite technical.
On Clauses 26 and 27 applying to the extent that is appropriate and what is not appropriate, the Minister seemed to give examples rather than a complete reply. I am sure that his brief includes examples for him to give, which is fair enough, but it would be helpful to understand the extent of the point. May I ask him to let me have a complete answer in writing after Committee stage? These clauses are quite difficult to follow. I think I said on the previous day in Committee that a flow chart would be helpful in some cases. Given the powers that the Secretary of State would be granted, it would be appropriate to have as extensive an understanding of what is meant as possible.
Lord Henley
My Lords, whether I can provide a flow chart is one thing but I certainly promise to write to my noble friend so that we can sort these things out between now and Report. At this stage I will just give a commitment to write to her but that commitment does not necessarily extend to providing a flow chart.
Baroness Hamwee
My Lords, I do not think I was asking for a flow chart but I share the Minister’s wish to get this sorted out before Report. These issues do not lend themselves terribly easily to debate across the Floor of the Chamber. As regards the enhanced Bill, I hear what the Minister has to say. I thought it was worth continuing to ask the question. I beg leave to withdraw the amendment.
Lord Henley
I thank the noble Lord, Lord Pannick, for that comment. Yes, we are satisfied and it would be very troubling if we were not. Perhaps I may also deal with the brief point made by my noble friend Lady Hamwee about the terrorism co-ordinator. I am assuming that by that term used in the amendment the noble Lord, Lord Hunt, means a senior national co-ordinator for counterterrorism, but I shall let him address that in due course.
I am grateful for the intervention of my noble friend Lady Hamwee. She emphasised, first, the point of the role of Home Secretary and, secondly, a point that the noble Lord, Lord Hunt, himself addressed—that we should look not just at the Bill on its own but at the Bill plus the additional resources that have been promised. That is the most important matter before the House at this stage. It is not just the Bill that we are talking about, but the whole package that the Government have put forward.
I thank the noble Lord for his clear explanation of the concerns that lie behind his amendments. I appreciate that he raised the subject of relocation and the case of CD, in which, on that occasion, my right honourable friend the Home Secretary used relocation. However, as I have said, we must look at the package; and it is because the package will be in operation that we believe that relocation will not be so necessary in the future. As the House will be aware, there has been considerable debate over the past few weeks, here and in another place, about the arrangement for the transition from control orders to the new system of TPIMs. These amendments are an attempt to return to the issues raised by amendments tabled in another place and debated at some length on Commons Report.
The Opposition have been consistent in expressing their concern that the police and the Security Service may not be ready for the commencement of the Bill when the time comes. These amendments, in common with those tabled in another place, are intended to provide reassurance on that point by delaying commencement of the Bill or by making it subject to agreement with the police on the readiness of the significant additional resources that we are providing. However, as my noble friend Lady Hamwee said, that must, in the end, be a matter for the Home Secretary.
I accept that such concerns, particularly in the run-up to the Olympic Games, are well intended and are born of a concern to deal with matters that relate to the safety of the public. However, I am happy to confirm that I do not believe that they are necessary. As I said in response to the noble Lord, Lord Pannick, the public will be protected by the Bill because we are satisfied that there are sufficient resources available, including in relation to the date on which the Bill comes into force. We believe that the Bill plus the robust package provide the appropriate measures to protect the public, and alongside it there will be considerably increased resources to strengthen covert investigative capacity. We have repeatedly made it clear that for obvious reasons we are not able to provide details of that additional funding or its deployment, and that remains clear. However, we have also been clear—and I am pleased to confirm this again—that we have been in discussion with the police and the Security Service for some months on this matter, and arrangements will be in place to manage effectively the transition from control orders to TPIMs.
I hope that those assurances are sufficient for the noble Lord. If they are not, we will obviously come back to this matter on Report. However, I hope he will accept that we obviously cannot go into detail on what the resources are, and he would not expect me to do so. However, what I have said should be sufficient to allay his fears and I hope that he will therefore be prepared to withdraw his amendment.
Lord Hunt of Kings Heath
My Lords, I am grateful to the Minister, although I am disappointed by his response. I just refer the noble Baroness, Lady Hamwee, to the evidence given by Deputy Assistant Commissioner Stuart Osborne to the Public Bill Committee when he was asked about the effectiveness or not of relocation orders. He said:
“The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 21/6/11; col. 5.]
I agree with the noble Lord, Lord Henley, that it is a question of the Bill plus resources. He said that he is confident that, alongside the provisions of the Bill, sufficient resources are being made available to the police and security forces. Of course, I can only accept the assurance that the noble Lord has given but I simply wonder whether he is wise to move to a new system within a very short period of the Olympics coming to this country. I wonder whether there is not a case for the implementation of this measure being delayed until after the Olympics. That really is the intention behind my amendment, which is meant to be helpful, and I hope that the Government will give it further consideration between now and Report. I beg leave to withdraw the amendment.
Baroness Butler-Sloss
I strongly support the speech of the noble Baroness, Lady Hayman. It seems to be highly desirable, to put it at its very least, that, as problems change, there should be an annual review of the existing law dealing with terrorism. Like all previous speakers, I, too, support the amendment.
Lord Henley
My Lords, I am grateful to all noble Lords who have spoken in this debate. I have three brief points to make, which will take me a little time, about why we do not accept the amendment moved by the noble Lord, Lord Rosser. First, we believe that renewal every five years strikes the right balance—a word I have used on many occasions; secondly, I believe that annual renewal is unnecessary, and I shall return to that in more detail; and, thirdly, there are other means by which the Bill can be amended or repealed.
First, I thank my noble friend Lord Faulks for his comments reminding the House that the provisions that face us follow a very lengthy review of all our counterterrorism provisions by the Government, with the announcements earlier in the year and consideration of this Bill, in due course, in both Houses. This is very different from what happened with the 2005 Act. We believe that renewal every five years strikes the right balance and reflects the need to build in effective safeguards to ensure that the powers do not remain in force longer than necessary. It also reflects the competence of Parliament to apply intense scrutiny to legislation and to arrive at a position when it will not need to be reviewed annually. We are moving to a position where we hope that each Parliament will last five years, so each new Parliament will have the opportunity to debate this in the context of the situation at the time and take its own view. That is in line with the length of Parliaments, as I have said, provided by the Fixed-term Parliaments Act.
Secondly, I believe that annual review is unnecessary. I listened to the noble and learned Lord, Lord Lloyd, say that he was wasting his breath. He never wastes his breath in this House. I have been here for many years and I have listened to him with great devotion on many occasions. I do not always agree with him, but he is not wasting his breath. I appreciate that the noble Lord, Lord Pannick, is more optimistic and feels that an annual debate provides a better opportunity for these things, as do the noble Baroness, Lady Hayman, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Kennedy, a copy of whose book Just Law—however you pronounce it—sits in my room in the Home Office to this day, and I will always have it there to be reminded about how I should go about my duties. However, I have to say that I do not agree with her, or with others, on this occasion about whether annual renewal is necessary.
The important thing is to distinguish the process we are going through on this occasion from the process we went through following the 2005 Act. This Bill will be subjected to full parliamentary scrutiny with the usual timetable—we still have not completed it in this House—allowing for a settled position to be reached. In contrast, the 2005 legislation was, as the noble Lord will remember, rushed through with very little opportunity for debate. The noble Baroness, Lady Hayman, reminded the House of her role in that. We believe that that makes annual renewal an appropriate safeguard for the 2005 Act, but one that we do not think is necessary for this Act.
My third point is that there are also other means by which the Bill can be amended or replaced. The noble Lord, Lord Rosser, stressed that these powers seem to be permanent, but I ask him to look very carefully at Clause 21(2) which states that:
“The Secretary of State may, by order made by statutory instrument … repeal the Secretary of State’s TPIM powers”.
It is unusual to give the Secretary of State the power to repeal something, but that provision allows her, if she feels they are no longer necessary, at any stage to repeal and take away the powers that she has given herself. Again, I make this point in terms of how, if it becomes clear that the powers should be changed, the legislation can be amended by Parliament at any time in the usual way.
I appreciate that many noble Lords feel that an annual debate would be preferable to one every five years. It happens on other occasions. I think there is some financial Motion that we debate once a year under EU rules following some vote in this House, and I have noticed, and I think other noble Lords will have noticed, that the number of participants in that debate seems to decline each year as time goes past, so I wonder whether a debate every year is necessary, given the fact that this Bill has been given full coverage in both Houses.
I appreciate that others may feel differently but, at this stage, I think that what we are offering and have brought forward as a concession in another place—a debate once each Parliament—is appropriate and will be sufficient, given the other safeguards in the Bill. I hope therefore that the noble Lord, Lord Rosser, will feel that on this occasion he can withdraw his amendment.
Lord Rosser
My Lords, I thank the Minister for his response. I also thank all noble Lords who have taken part in this debate for the contributions they have made based, I have to say, on considerably more experience and knowledge of the issues involved than I can claim to possess. Perhaps I should also congratulate the noble Baroness, Lady Hayman, on her determination on this point with the previous Government.
There is no disagreement that this amendment raises a key issue of real significance. It is about parliamentary oversight of extraordinary and exceptional executive powers which directly affect to a considerable degree the freedom and liberty of a small number of individuals whom the Secretary of State reasonably believes are or have been involved in terrorist activity. That oversight, involving human rights and civil liberties, cannot be properly exercised if done only once every five years. In reality, the Bill would be amended or dropped in the intervening years only if it were the Government, not Parliament, that wanted to change the legislation. That is surely a fact of life.