Draft Enhanced Terrorism Prevention and Investigation Measures Bill: Joint Committee Report
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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.