Draft Enhanced Terrorism Prevention and Investigation Measures Bill: Joint Committee Report
(11 years, 8 months ago)
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Lord Plant of Highfield
That the Grand Committee takes note of the report of the Joint Committee on the draft Enhanced Terrorism Prevention and Investigation Measures Bill (HL Paper 70).
Lord Plant of Highfield
My Lords, I think it has fallen to me, as the longest serving Peer on the Joint Committee, to introduce its report on the ETPIMs Bill. This creates the final part of the architecture of the arrangements to replace control orders. We need only look around today to see that the atmosphere around this is somewhat less feverish than it was when control orders were introduced in 2005, when both Houses of Parliament sat throughout two days and one night. Indeed, we acted as Time Lords, turning the Friday into a Thursday to preserve the continuity of the Sitting of the House.
It is very important that this Bill had detailed pre-legislative scrutiny because it is a draft Bill that may never be introduced into Parliament. It is designed to provide arrangements for preventive measures to be used in a situation of emergency, which of course may never arise, in circumstances in which the provisions of the 2011 TPIMs Act are judged to be insufficient. The Bill will, by definition, be introduced at a tense and worrying time, and would be expected to pass through Parliament as an emergency measure in double-quick time. In these circumstances scrutiny will be very limited, so pre-legislative scrutiny is all the more important as the Bill is not likely to receive intense scrutiny in the emergency situation that will provide the context for the Bill’s legislative career in both Houses. It is an unusual approach, to say the least. It has been called by one person—I have forgotten who—a “back pocket” Bill; it is a Bill that the Government have in their back pocket, which has been scrutinised by this process and will be brought to the House, if necessary, in emergency circumstances.
I have to say that the Joint Committee was not convinced that it would be necessary to proceed in this way. The 2011 Act could have been extended. Extra powers could have been incorporated into it, which could then be activated by laying an order. This would have meant that the powers themselves would have been scrutinised properly in both Houses of Parliament prior to such a different Bill passing through the Houses. One can appreciate the political difficulties in having something on the statute book that quite a few well informed commentators regard as being a version of control orders. I do not think that myself, but it is politically difficult. I shall come to the relationship between the provisions of this Bill and control orders in a few minutes.
However, we are where we are and pre-legislative scrutiny is now the only real scrutiny to which the Bill will be subjected, so this process is of utmost importance. The Joint Committee would still like to see the TPIMs Act and the ETPIMs Bill consolidated into one piece of legislation at the earliest opportunity, although the Government seem to have rejected that in their response to our report.
Control orders, introduced by the previous Government, were always rather controversial. The TPIMs and ETPIMs regimes are intended to succeed control orders and produce a new regime that is more compatible with individual liberty—to be “more liberal”, in the words of the Joint Committee’s report. How, in fact, do ETPIMs differ from control orders and, indeed, from TPIMs? There is no doubt that there is an overlap of purpose, and some overlap of provision, with control orders. However I will stress the differences between the ETPIMs arrangements and control orders.
The first difference is very significant: control orders could be imposed on the basis of the Secretary of State having “reasonable suspicion” that the suspect was engaged in terrorist activity. In the case of TPIMs, it is based on “reasonable belief”. In the case of ETPIMs, it is based on the balance of probabilities, and this is regarded as a more objective test. However, we have received contrasting and somewhat contradictory evidence about how significant this change is. It is represented as raising the threshold by two notches: from reasonable suspicion through reasonable belief to the balance of probabilities. The police evidence from Deputy Assistant Commissioner Osborne certainly regarded it as a significant and real change.
However, the evidence we have had from lawyers on this point has been a bit more guarded. They have taken the view that it is a somewhat semantic distinction, since, in their view, in reviewing control orders judges have tended to use the higher standard, namely the balance of probabilities. So there is a disagreement about whether the threshold has in practice been raised. Certainly, in theory and rhetorically it has been raised, but there is this doubt. We should give quite a lot of credence to the view of the senior police officer about his own practice in evidence-gathering and so forth. He certainly saw the new standard as having some important consequences for police work.
Another significant difference between control orders and TPIMs is the range of restrictions an ETPIM order can impose on a suspect. Under control orders, the Secretary of State had extensive powers to impose relocation; under TPIMs, the Secretary of State could require residence overnight at a specific address. Under ETPIMs, the Secretary of State would have the power to impose a curfew of up to 16 hours—the point about the 16 hours being to make it ECHR-compliant. The court has ruled that more than 18 hours would be a deprivation of liberty. The Secretary of State would also have the power to require a suspect to take up residence in a facility provided by the Government. Under ETPIMs, there could be a complete ban on the use of electronic equipment, compared with a partial ban under TPIMs. Thus the Secretary of State would have the power to prohibit someone subject to a control order from associating with specific individuals without the consent of the Secretary of State.
It seemed to the committee that the differences between ETPIMs and control orders were significant in terms of the evidential basis. DAC Osborne argued that they had led to a change in police practices to meet the requirements of the more rigorous standard and the various impositions I just mentioned. The requirement about hours of curfew had been, as I mentioned earlier, devised to make the ETPIMs arrangements ECHR-compliant, and the Joint Committee certainly welcomed this. Furthermore, the requirements of an order under ETPIMs are limited to those set out in Schedule 1 to the Bill.
This is a big advance on control orders because the 2005 Act just gave a list of potential impositions on suspects or controlees. This is rather burnt into my soul, since I had quite an altercation with the then Home Secretary about it. However, the list that was given was for illustrative purposes only and the Secretary of State could in fact impose any constraint on the situation of a controlee so as to disrupt the attempt by that person to engage in terrorism, whereas under ETPIMs the Secretary of State will be able only to impose those constraints actually set out in Schedule 1.
There is another difference from control orders in that an individual ETPIMs order lasts at most for two years. It can of course be imposed again if the potential controlee has been engaged in “new” terrorist activities or terrorist-related activity. “New” is given a definition in the Bill that is rather different from conventional and ordinary uses of that word, but it is important that it is defined because it is new terrorist activity that provides the justification once the two-year deadline has been reached for reimposing an ETPIMs order on a controlee. These are substantial differences from control orders and it is important to recognise that.
As with TPIMs, as soon as an order under the ETPIM regime is imposed on an individual it would immediately trigger an automatic review hearing of the Secretary of State’s decision to impose the notice. The purpose of the review is to determine whether the circumstances in Clause 2 had been met by applying the principles of judicial review, such as rationality, proportionality, legality and so forth. There would be an immediate review, using judicial review principles, of the imposition of an ETPIM order.
However, since the advent of the Human Rights Act there has been a strong emphasis in the courts on proportionality in the assessment of executive action that impinges on rights. Proportionality has now become the central strand in judicial review. Some jurists certainly take the view that it is very difficult to distinguish between a judicial review that puts proportionality in a central position and a merits review, the reason being that if a court can quash one or more of the individual restrictions on a person under an ETPIM order because it is regarded as disproportionate in relation to a legitimate goal, it is very difficult to see how that judgment can be anything other than a merits sort of judgment about the order.
The committee favoured that idea of a full merits review because proportionality is central to the sort of jurisprudence that flows from the ECHR and it is then very difficult to distinguish between a proportionality review and a merits review. The noble Lord, Lord Carlile, said in his evidence to us that the difference between the two forms of review—a judicial review and a merits review—was a distinction without a difference. I suppose that as a previous reviewer of terrorism legislation he is one of the two most experienced people in this area, along with David Anderson, the current reviewer. I think that we agreed with that and we favoured the Government just facing up to reality—that there would be what added up to a merits review, and not just emphasising proportionality, legality and the other criteria of judicial review.
Reference to the ECHR is important because Article 6—this also relates to the role of the judges in scrutinising ETPIMs—requires a right to a fair hearing. Satisfying that right has been the problem with control orders and with TPIMs and will be a problem again with ETPIMs, if one accepts that a right to a fair hearing requires that the individual has some knowledge of the case against him or her. Of course, this is not just a matter of the ECHR; it is a matter of common-law principles to do with a fair trial and fair process.
Both TPIMs and ETPIMs rely on the closed material procedure. In the AF case in 2009, it was argued in judgment that a person subject to a control order must be given sufficient information about the allegations against him or her so that effective instruction can be given by that person to their lawyers. The controlee must be given the gist of the case against him for the regime to be Article 6-compliant. That was a judgment in the UK courts. It is a big defect that the Bill does not require the Secretary of State to furnish such a gist as a right but that she will consider doing so only if requested by the court. That puts the Secretary of State between a rock and a hard place. She will have either to supply the gist if ordered to do so by a court or to drop the action, as happened once or twice under control orders.
Therefore, there is a question about the legality of the ETPIMs order itself, never mind prosecution: whether the person does or does not have the gist of the case against him or her provided by the Secretary of State. The Bill is clear that there is no right on the part of the controlee to receive such a gist. The Joint Committee believes strongly that the Government should be prepared to let the controlee have knowledge of the gist of the case against him or her and that that would provide for making the Bill not only Article 6-compliant but also compatible with common law—particularly, English common-law doctrines.
There remains the question of what happens when the ETPIM order has expired. It expires after two years unless the Secretary of State determines that the person has been engaged in new terrorist activities and imposes a new ETPIM regime based on the balance of probabilities. If there is still suspicion about the person being engaged in terrorist activities but not such that can satisfy the requirements of the balance of probabilities, someone is let off the ETPIM regime. What happens next? The Bill is more or less silent about this. The assumption has to be that the controlee will be kept under surveillance by the security services. It would certainly be useful to know from the Minister how public protection will be ensured after the expiration of an ETPIM order—a problem that did not arise under the control order regime, which could be continued subject to periodic review and so forth.
Two further points have become more salient recently. One issue explored by the committee was whether the security situation necessitating the introduction of an ETPIM Bill could be made worse by public sector cuts and a reduction in funds to the police and MI5. This issue was touched on by DAC Osborne. The security situation can be changed by an increased threat both because more people are engaged in this sort of activity and because the police and security services lack the resources to monitor the individuals concerned. The Minister, Mr Brokenshire, rejected this view in his evidence. However, the Times suggested today on its front page that the heads of MI5 and MI6 had made representations to the Government prior to the spending review suggesting that further budget reductions put security at risk. If they do, it might have an effect on whether an ETPIM Bill is introduced. The security threat would have increased not because there were more people engaged in terrorism but because fewer people were engaged in monitoring it. That is an important issue, which was crystallised by the Times today.
Secondly, I would like to know how the requirements of ETPIM orders will be implemented and compliance monitored. Will it be done by the police or by private security companies? We are dealing with people who, on the balance of probabilities and according to an objective threshold of judgment, are regarded as being among the most dangerous people in the country. If their compliance with an ETPIM regime is to be monitored by a private company such as G4S, what confidence does the Minister have that such firms will be up to the job after the debacle over the Olympics? This is very important. We need to know, if not in detail, how the Government see the implementation of this working.
My final point is about prosecution. Paragraph 15 of the Government’s response to the Joint Committee’s report states that the Crown Prosecution Service, in consultation with the police, will decide whether to bring a prosecution. I am not at all sure how this rather bald statement is compatible with the role of government in determining the public interest. Surely it cannot be the case that the police and the CPS will be able to authorise prosecution, with the disclosures that such a prosecution would bring, without getting guidance from the Government about what is in the national interest. If the Government have to have a view about whether a prosecution should be proceeded with, it cannot be the case that only the CPS and the police should decide on a prosecution. I would like some clarification over that. It was certainly the case under the control order regime that the Government abandoned one or two prosecutions because they regarded the disclosures required as being against the public interest. The Government have to make that judgment about the national interest, and, if so, then they are involved in the judgment about whether or not to prosecute. I beg to move.
Baroness Doocey
My Lords, as a member of the Joint Committee that considered the draft ETPIMs Bill, I seek clarification from the Government on three points. The first is emergency legislation. The committee considered the draft Bill in the context of recently enacted TPIMs legislation and accepted it to be a positive move away from control orders. However, I entirely agree with the comments made by the noble Lord, Lord Plant: the progress of TPIMs legislation could have included the option for such powers in the 2011 Act, but instead there was talk of emergency legislation should such a need for extra powers arise. The suggestion of emergency legislation for an ETPIMs Bill strikes me as unacceptable to the principles of parliamentary scrutiny. I urge the Government to think again on this point.
The noble Lord has suggested, and the committee is very much in agreement with this, consolidating TPIMs and ETPIMs legislation without the pressure of time or security threat. By its very nature, emergency legislation requires enactment in a very short time—perhaps just a few days. The committee heard that in such exceptional circumstances the Home Secretary would be severely restricted in what information he or she would be able to share with Parliament. One of our witnesses said that the Home Secretary would almost be in a position of saying:
“‘Trust me, or don’t trust me, if you dare’”.
It is essential that a credible process of briefing and scrutiny takes place in the event that ETPIMs legislation is brought forward. It is our duty to scrutinise; it would not do to reply on trust or indeed to offer private briefings to select Members. The formal government response to our report acknowledges that one way to achieve this would be to brief the Intelligence and Security Committee and for it to report to Parliament. Such a structured approach is far preferable to the informal “trust me” option.
My second area of concern is the definition of “exceptional circumstances”. I encourage the Government to be clearer about the rare and exceptional nature of the circumstances that might require the additional powers covered by the draft ETPIMs Bill. There was consensus on the committee that such circumstances were at the rarer end of the spectrum of seriousness, but we heard a call for ETPIMs to be enacted ahead of the 2012 Olympic Games. This was sensibly rejected, but it indicates to me that more clarity is needed.
The Government’s response was that exceptional circumstances were those in which a serious terrorist threat required the additional ETPIMs powers. However, such a definition sheds little light beyond the dictionary meaning of the word “exceptional”. I ask the Minister to reflect on this because our discussions today may well be examined in years to come to see what we intended. The Government must be clearer on this matter.
I welcome, as did the committee, the assurance from the Government that they will establish a formal review group for any ETPIMs orders mirroring those operated for existing TPIMs orders. This would be an important safeguard to ensure that each ETPIMs order goes no further than absolutely necessary in its demands on the person involved.
My third concern is about judicial process. We are all agreed that where possible we must always prosecute those involved in terrorism. A fair and open trial must be the ultimate aim in all cases. To introduce administrative orders restricting liberty stretches the principle of justice that we hold dear. That is why it is right that, unlike control orders, TPIMs and ETPIMs are time-limited measures. However, such time limits mean that we must be ready to answer the question: what happens when the time is up? The Government must take real steps to develop TPIMs exit strategies based around deradicalisation and judicial processes. I recognise that the use of intercept evidence in court will not, in itself, remove the need for TPIMs or ETPIMs, but it may help in later judicial processes. That means that the Government must continue to examine ways to make intercept evidence admissible in our courts, as it is elsewhere in the world.
The Joint Committee was clear that exit strategies from TPIMs and possible ETPIMs must be developed in every case. From my reading of the Government’s response, this is a recommendation that has been accepted. However, will the Minister confirm that clear exit strategies are currently in place for each TPIMs order? What is proposed for those higher-risk cases where neither prosecution nor deportation is considered possible? I look forward to the Minister’s response but I retain the hope that the circumstances requiring the introduction of ETPIMs legislation will not come about.
Lord Rosser
My Lords, I add my thanks to the Joint Committee for its report on the draft Enhanced Terrorism Prevention and Investigation Measures Bill and express my thanks for the comprehensive and informative speech introducing the report from my noble friend Lord Plant of Highfield.
In a nutshell, the coalition Government decided that they did not like the control orders introduced in the interests of national security by the Prevention of Terrorism Act 2005. They therefore brought in the Terrorism Prevention and Investigation Measures Act 2011, which replaced control orders with something that was very similar in many respects, namely TPIMs or “control orders-lite”, but which had the key advantage from the Government’s point of view of having a different name.
However, the Government had to recognise that no longer having the full powers under the control orders, as provided for in the Prevention of Terrorism Act 2005, represented a potential threat to national security. As has been said, they were not prepared to address this reality in the original TPIMs Act because politically that would have weakened even further their argument that control orders should cease to exist. Instead they have prepared a separate Bill, the Enhanced Terrorism Prevention and Investigation Measures Bill, which has been the subject of consideration by the Joint Committee, and which the Government would seek to pass through Parliament as emergency legislation providing for additional restrictive measures in an ETPIM if they deemed that the circumstances demanded it.
The Minister will no doubt claim that ETPIMs are not the same as the control orders under the Prevention of Terrorism Act 2005, but frankly there is not a lot of difference. The words of the ACPO representative in giving evidence to the committee have already been quoted but he told the committee that, with ETPIMs,
“essentially we go back to the old control order regime ... the old regime was bedded in, and it worked very well”.
Those were apparently his words.
The Joint Committee gave its firm view on the Government’s approach to the draft Bill when it said:
“We can find no compelling reason for the decision to introduce these measures as a separate Bill at some unspecified time in unspecified circumstances. We find it odd that these measures were not included as an order-making power in the original TPIMs Bill where they could be subjected to fuller scrutiny in the course of normal Parliamentary business … The Government’s position that it will introduce this legislation at some future date in response to some unspecified emergency is an unfortunate and unwelcome decision”.
That issue has already been raised with the Minister, particularly by the noble Baroness, Lady Doocey.
In their response to the Joint Committee report, the Government have replied to the Joint Committee’s proposal for briefing a select group of properly vetted Members on the reasons for introducing this emergency legislation if the Government decided that had become necessary. Can the Minister say whether there has been any firming up of the Government’s position on that point, as set out in paragraph 5 of their response to the Joint Committee report?
The Joint Committee report states that in November last year there were nine people subject to TPIMs. It also quotes the Association of Chief Police Officers representative as telling the Joint Committee that,
“given the resource currently available”,
and the changes made to policing, the police,
“are adequately managing the risk posed by people subject to TPIMs at the moment”.
That is hardly a ringing endorsement of how things are working, bearing in mind that we are talking about people—the subjects of TPIMs—who are a threat to national security. The use of the phrase,
“given the resource currently available”,
suggests that ACPO thinks the resource currently available to undertake the job in the way it feels appropriate and needed is not all it might be. That is followed by the phrase,
“adequately managing the risk posed by people subject to TPIMs at the moment”.
In a Government who feel that schools deemed “satisfactory” by inspectors are not doing as well as they should, one must ask the Minister whether the Government feel that adequately managing the risk is good enough when national security is at stake? Why did the ACPO representative not feel able to say that they were either properly or fully managing the risk? Indeed, why did he not simply say they were managing the risk, without the less than enthusiastic addition of the word “adequately”?
As I understand it, an individual subject to a TPIM absconded at Christmas, allegedly in a black cab, and has not been caught. If that is broadly accurate, and the Minister may tell me otherwise, was that individual under surveillance, and was what happened an example of what is meant by “adequately” managing the risk? Until control orders were replaced by TPIMs, the individual in question had been the subject of a control order, and had been relocated outside London. Under the TPIM, the person was free to move to London, and it now appears he has absconded.
Would the noble Lord also say something about the cost of TPIMs? Is it true that a TPIM costs many times more than a control order to enforce? Is up to £18 million per annum per TPIM, a figure mentioned by the noble Lord, Lord Carlile, in his evidence to the committee, anywhere near the mark? If that figure is anywhere near the mark, has it been provided to the Metropolitan Police and does the money appear in their budget?
Enhanced terrorism prevention and investigation measures as provided for in this draft Bill are, as has been said, distinct from TPIMs, with the conditions the Government can impose being more stringent than under a TPIM. The independent reviewer of terrorism legislation said that “in most respects” the ETPIM Bill appeared to,
“replicate what was possible and generally imposed under control orders”.
It is intended that ETPIMs are introduced only in exceptional circumstances. It is clear from their response to the report that clarity on what is meant by “exceptional circumstances”—I think that was a point made by the noble Baroness, Lady Doocey, although she would not have used my words—will not be forthcoming from the Government. However, will the Minister say whether, under the draft Bill and in exceptional circumstances, an ETPIM could be deemed necessary if, at the end of the maximum period of two years for which a TPIM could be enforced, an individual covered by that TPIM was still regarded as a serious threat to national security? In those circumstances, could an ETPIM be imposed under the legislation being taken through Parliament? Would that be deemed “exceptional circumstances”?
I think that I am also right in saying that at least some, if not all, of those covered by TPIMs will cease to be so covered at the beginning of next year because the maximum period for which an individual can be subject to the terms of a TPIM, namely two years, will have come to an end for some, if not all, of those currently covered. What do the Government intend to do when the TPIMs in respect of those individuals cease by law to have effect. Presumably, if the Government no longer considered them a threat, the TPIMs would no longer be effective, so the fact that the TPIMs are still effective suggests that the Government still consider these individuals to be a threat to national security.
Are the Government saying that, by a happy coincidence, these individuals will cease to be a threat to national security on precisely the same day the TPIM ceases by law to have effect? If not, what do the Government intend to do? The Government must have made up their mind what action they would take, or what the options would be when the TPIM expired, when they made the decision that TPIMs in respect of an individual could not be effective for more than two years. If the Government are not prepared to answer that question today, when will they give an answer?
Coming back to what the Government mean when they say that an ETPIM would be introduced only in exceptional circumstances, the government Minister who gave evidence to the Joint Committee identified “multiple attacks” or a “really exceptional incident” as possible triggers for the ETPIMs Bill to be introduced. If that is the case, does it mean that an incident actually has to have occurred, with possible injuries or loss of life, before the emergency Bill would be introduced? Could the ETPIMs Bill be introduced in respect of an individual where there was activity which suggested an incident might be about to be perpetrated, or will we have to wait either until we are sure an incident is about to be perpetrated, or wait for someone to be quite possibly killed or injured in an incident before it was deemed that there were “exceptional circumstances” which justified the Bill being introduced? Apparently the independent reviewer of terrorism legislation told the Joint Committee that there would be no question of imposing an ETPIM on anybody unless the Home Secretary were persuaded that they,
“have been involved in terrorism”,
which could be interpreted as shutting the gate only after the horse has bolted. It would be helpful if the Minister could clarify this point and also how, if there are emergency “exceptional circumstances”, there will always be time to go through even a truncated parliamentary process—assuming Parliament was sitting—without putting national security at risk.
Clause 2 of the draft Bill sets out the conditions on which the Secretary of State must satisfy herself before imposing an ETPIM. One of those conditions is that the individual is, or has been, involved in terrorism-related activity, and that some or all of this activity is “new”. The definition of “new” is addressed in the Joint Committee’s report, but it would be helpful if the Minister could give us some examples from a government perspective of what would or would not constitute “new” terrorism-related activity in relation to the conditions on which the Secretary of State must be satisfied before imposing an ETPIM. It could presumably be the ETPIM itself and the conditions attached to it that were preventing the individual concerned from embarking on “new” terrorist-related activity. Could the reference to “new” activity mean that the ETPIM could not be extended or renewed because there was no evidence of new activity even though the reason there was no “new” activity was the existence and conditions already attached to the ETPIM? Perhaps the Minister could respond to this point, and the following comment in the Joint Committee report:
“As such, it is possible that under this legislation, at the end of a maximum two-year period, an allegedly dangerous, radicalised individual will be released without direct restrictions on their behaviour”.
What is the Government’s response to this point in view of the fact that it directly relates to national security?
The Government’s written response to the Joint Committee report did not do justice to all the serious points raised, and questions asked, in the report. My noble friend Lord Plant of Highfield and the noble Baroness, Lady Doocey, have raised a number of points and questions today, as have I. I hope that all these questions will receive a considered and thoughtful response from the Minister, since the House has a duty to challenge, question and hold to account the Government, in particular on matters that impact on national security.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I will conclude this interesting if intimate debate by thanking the noble Lord, Lord Plant, for introducing it. The way in which he did so informed the Committee of the background in a very thorough fashion. In some ways, that makes it easier for me to demonstrate the Government’s thinking on this issue. I thank all noble Lords, and all honourable Members, who participated in the Joint Committee, in particular the noble Lord, Lord Plant, and my noble friend Lady Doocey. Despite what the noble Lord, Lord Rosser, said, the Government take the scrutiny of this committee extremely seriously.
As the noble Lord, Lord Plant, described, an enhanced TPIM Bill would be introduced only in exceptional circumstances that necessitate the use of more restrictive powers than those normally available in the TPIM Act 2011. The noble Lord, Lord Rosser, rather pushed me to go into more detail about what those exceptional circumstances might be. I do not think that I can genuinely do that. However, the Government will never put national security at risk. Protecting the British public will always be our top priority, and prosecution and conviction will always be the best option for dealing with terrorists.
As the noble Lord, Lord Plant, said, TPIMs were introduced following the counterterrorism powers review. They provide a better balance than control orders between controlling people who are engaged in terrorism-related activity and ensuring that if they re-engage in that activity we can collect evidence that can lead to their conviction. TPIMs assist the police and the Security Service by providing effective powers to manage the risk posed by a small number of terror suspects who pose a threat to our security but who cannot be prosecuted or, in the case of foreign nationals, deported.
TPIMs allow the Home Secretary to impose a powerful range of measures to protect the public. We have also provided substantial extra resources for the police and Security Service to help them manage the risk that such individuals pose, and to maximise the opportunities to put them on trial in open court. TPIM powers give the police and the Security Service a range of powers that, along with additional resources, will be adequate to protect the public from terrorism in all but exceptional circumstances. We made clear when legislating for TPIMs that in future exceptional circumstances may necessitate the use of more restrictive measures. This would be in the event of a very serious terrorism-related risk that the Home Secretary, on the advice of the Security Service, judges cannot be managed by any other means. We maintain that these more stringent measures should be available only in exceptional circumstances.
The example of the Olympics was raised in this debate by my noble friend Lady Doocey. That we did not introduce these powers speculatively in advance of a significant event shows our commitment to do so only in response to specific circumstances that warrant them being on the statute book. As noble Lords will know, we were commended by David Anderson, the Independent Reviewer of Terrorism Legislation, on the restraint shown in the run-up to the Games.
The Government agree that it is right that this legislation receives proper parliamentary scrutiny. That is why we published the draft ETPIM Bill over 18 months ago, in September 2011. We did this so that it was clear what enhanced measures would be introduced and to enable the draft Bill to receive the detailed scrutiny of both Houses through pre-legislative scrutiny. I welcome this opportunity further to debate the draft Bill today, and am grateful that the noble Lord, Lord Plant, has tabled this debate.
In his introduction, the noble Lord carefully analysed the Government’s position and whether ETPIM powers should be in the 2011 Act, and my noble friend Lady Doocey shared his concern. Perhaps I can clarify. We consider that these powers will not be routinely needed, and that the 2011 Act will provide robust powers to protect the public in almost all circumstances. We consider that the enhanced powers should be introduced only if they are needed, and should be specifically agreed by Parliament. Our view is that they should not be routinely available on the statute book. That is why we have prepared, but do not intend to introduce until needed, the ETPIM Bill. If we introduced that Bill, we would consider whether to incorporate the enhanced powers into the TPIM Act when the renewal of that Act comes before Parliament at its five-year renewal point, taking into account the circumstances at that time.
Should this legislation ever need to be introduced, the Government will seek to brief Members appropriately. This will need to be done in the context of the as yet unknown circumstances in which it would be introduced, which may well mean that only a limited number of suitably cleared people could be briefed. It would be for both Houses to decide whether those circumstances were exceptional enough to justify the introduction of these enhanced powers.
I say to the noble Lord, Lord Rosser, that the Home Secretary has discussed with the ISC its potential role in an emergency legislation situation and the need to assure the House. The exact most appropriate mechanism to assist Parliament will depend on the precise circumstances involved, but noble Lords will know that we have recently debated a Bill that sets out the role of the ISC clearly as a committee of Parliament.
As I have said before, I do not think that it is appropriate to prescribe the circumstances in which the Home Secretary would seek to introduce the ETPIM regime. This is draft emergency legislation to deal with a potential threat that is, by its very nature, unknown. It would be difficult and unwise to attempt an exhaustive hypothetical definition. However, situations in which the draft enhanced TPIM Bill might be introduced are if there was credible reporting pointing to a series of concurrent attack plots, all of which appeared imminent, or in the wake of a major terrorist attack where there was a potential prospect that there may be further attacks. I say to the noble Lord, Lord Rosser, that an individual may pose a particular threat to national security such that it is necessary to introduce the ETPIM Bill.
The enhanced TPIM Bill makes available a range of more stringent powers that are not available under TPIMs. These include relocation to another part of the UK without consent; the requirement to be in a named residence for up to 16 hours; geographical boundaries beyond which they may travel only with permission; a total ban on access to communications equipment such as computers and mobile phones; and further restrictions on association. The noble Lord, Lord Plant, went into those in his introductory remarks. As the noble Lord identified, there are clear differences between control orders and ETPIMs, and I thank him for setting them out so clearly. They include the higher legal test, the limit on restrictions that can be imposed and the two-year limit.
The noble Lord asked how ETPIM notices would be enforced, and specifically what confidence I would have in a private contractor performing this role. Of course we hope that the ETPIM Bill never comes into force, but if we had to impose an ETPIM notice, enforcement, as with TPIMs, would be a matter for the police, and I am confident that they would not take a step that put public safety at risk. They would make a judgment that conformed to the seriousness of the situation and the national security risk involved.
The ETPIM Bill also includes some important safeguards. First, the enhanced powers will be available only if Parliament believes that they are necessary. The enhanced measures will also be subject to a higher legal test, as I said, in order to impose them. The Secretary of State must be satisfied that the person is or has been involved in terrorism-related activity on the balance of probabilities. That is a higher threshold than “reasonable belief”, which is the test for a standard TPIM notice. I reassure the noble Lord, Lord Rosser that the ETPIM Bill is clear that new terrorist-related activity is that which has been committed after the imposition of an ETPIM notice. That is quite clear in the draft Bill.
The Government agree with my noble friend Lady Doocey that it is important to develop a clear exit strategy for each TPIM subject. Noble Lords will appreciate that I cannot go into detail on this work, but I confirm that there is a multiagency approach to ensure that all options are considered. We continue to believe that prosecution and conviction is the best approach to combat the risk of terrorism, and that the best place for a terrorist is in a prison cell. In addition, the police and Crown Prosecution Service continue to keep under review whether a successful prosecution could be brought against those subject to a TPIM notice. We will also continue to keep under review whether further tools are required to enable the prosecution of terrorists.
I say to the noble Lord, Lord Plant, that the Government maintain the fully independent Crown Prosecution Service to apply the public interest test. It is a two-stage test, as it is in all prosecutions: first, that there is a realistic prospect of conviction based on the evidence available; and, secondly, that it is in the public interest to prosecute. To apply this test, it considers the evidence that can be put forward in an individual case, including where there may be any national security concerns. This is why the Government are conducting an extensive and detailed review to assess the benefits, costs and risks of introducing intercept as evidence. This work continues under the guidance of the cross-party group of privy counsellors and will report in due course. The former and current independent reviewers of counterterrorism legislation and my noble friend Lady Doocey have said that IAE would not remove the need for TPIMs.
Lord Rosser
If the Minister is about to close, is he able to address the question that I asked about what happens to those who are on TPIMs at present? I understand that at least some, if not all, TPIMs will come to an end at the beginning of next year. What is going to happen to them? I asked whether, if those people were still considered a threat to national security, the Government could seek an ETPIM in respect of them or whether they would fail to meet the criteria if they had not committed any “new” terrorist activity. I also asked whether, if someone is subject to an ETPIM, the Government envisage renewing it or extending it in any form because presumably, under their own definition, they could do so only if the individual had committed some “new” terrorist activity while under the EPTIM which, if the EPTIM was being effective, the individual would not have done.
Lord Taylor of Holbeach
I think that I can answer the noble Lord best by saying that all cases are reviewed properly. I gave a description in response to my noble friend Lady Doocey’s question about the disengagement of subjects from a TPIM order. The future conduct of individuals who have been subject to a TPIM or an ETPIM will be subject to review regarding the nature of the threat that they present to national security. That is how this legislation works in relation to the individuals who are subject to it.
I was going on to say, about the introduction of this draft Bill and the exceptional circumstances that might lead to its presentation to Parliament, that I am sure noble Lords will say that they hope that such circumstances never arise, that this diligent work conducted by noble Lords may not be necessary and that we do not face the exceptional circumstances that would mean that the Government were forced to present the Bill to Parliament. I thank noble Lords.
Lord Plant of Highfield
My Lords, I will not detain colleagues for more than a minute or two, but there are one or two issues that I would like to leave in colleagues’ minds. I was grateful for the Minister’s speech. However, perhaps it is my suspicious mind but I thought that his response on private security firms was possibly a little oversubtle. I do not know whether he meant that it would still be down to each police force that was responsible for an ETPIMs controlee to decide for themselves, in the light of the national security position, whether or not they should contract out the supervision and the way of imposing the ETPIM order on an individual. Is there any prohibition on that, or is it up to each police service?
Lord Taylor of Holbeach
I think that I made it clear that it is up to the police to make that judgment and that they would do so on the grounds of national security. There may of course be some elements of the TPIM that might well be most effectively done by a contractor and not a police force, but that is up to the police to decide. It is not for us to discuss in detail here because I do not think that that is particularly appropriate. The police are charged with implementing these orders, and they will do so in the most effective way. That is how the police carry out their duties.
Lord Plant of Highfield
I thank the noble Lord for that clarification. I am not sure that I am entirely reassured, but at least I now know exactly what he meant.
The Minister spoke eloquently and correctly about the role of the CPS and the police in deciding whether or not to prosecute. The response of the Government is:
“It is for the Crown Prosecution Service, in consultation with the police, to decide whether to bring a prosecution, not the Government”.
I am sure that that is constitutionally right. I am just a bit worried, though; certainly, evidence that was given to us said fairly baldly that the previous Government had abandoned two prosecutions because of the way in which the disclosure of information would affect national security. According to the evidence—and it may be wrong; I do not know—the Government had made that decision, rather than the CPS or the police acting on their own. If that is right, it is not the case, as stated in the Government’s response, that:
“It is for the Crown Prosecution Service, in consultation with the police, to decide whether to bring a prosecution, not the Government”.
We will just leave that hanging in the air unless the Minister has further information.
Lord Taylor of Holbeach
All I can say is that it is obviously for the Government to decide whether it would be in the public interest to present that evidence within a prosecution. That could influence the decision of the Crown Prosecution Service on whether or not to pursue a prosecution. As noble Lords will know, we have recently passed some legislation that has perhaps made this decision slightly easier for the Government.
Lord Plant of Highfield
I thank the noble Lord for that, because I thought that it was a rather bald statement and I just did not think that it could be true concerning the role of the Government in abrogating a judgment about what disclosures were in the national interest to the CPS and/or the police. I am grateful for that clarification.
I am slightly bothered about the scrutiny of the Bill. We have come to the end of our time and effort today, but we have not really discussed, except in procedural terms, the extent to which the ETPIMs regime will provide an incentive for prosecution. Given that they last for only two years, you might say that there is an incentive; on the other hand, though, as my noble friend Lord Rosser said, other things within the ETPIMs may militate against the capacity to bring a prosecution. Anyway, we have not dealt with that this afternoon but we have had a good discussion. No doubt at some point we will return to many of these issues. I thank noble Lords for contributing and the Minister for his response.