Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016

Thursday 24th November 2016 Lords Chamber

Motion to Approve

17:09

Moved by

[Baroness Chisholm of Owlpen]

That the draft Order laid before the House on 4 July be approved.

Relevant document: 7th Report from the Secondary Legislation Scrutiny Committee

[Baroness Chisholm of Owlpen (Con)]

My Lords, this statutory instrument will extend the Secretary of State’s powers within the Terrorism Prevention and Investigation Measures Act 2011 for a further five years.

The first and foremost responsibility of the Home Secretary is to keep the people of this country safe. As noble Lords will be more than aware, the threat from terrorism is very much present. The events in France, Belgium and other parts of the world in recent years bring home to us the very real danger posed by terrorists who would seek to do us harm.

The Home Secretary is absolutely clear that the police and security services should have the powers they need to disrupt terrorists. We should, of course, always ensure that wherever possible we prosecute those individuals who would seek to harm the people of this country to ensure that they are brought to justice. In a very small number of cases, this is not possible, so the police and Security Service need alternative powers to disrupt terrorist-related activity.

This is why I am here today seeking parliamentary agreement to extend the powers available to the Secretary of State in the TPIM Act 2011 for a further five years. The Act first came into force on 14 December 2011. It introduced a new framework for placing restrictions on individuals where appropriate to do so. TPIMs are civil preventive measures intended for use only when the prosecution—or deportation in the case of foreign nationals—of individuals considered to be involved in terrorist-related activity is not possible.

The Act allows for the imposition of restrictive measures on an individual where the Secretary of State is satisfied, on the balance of probabilities, that the person is, or has been, involved in terrorism-related activity. Available measures under the original Schedule 1 to the TPIM Act 2011 are: an overnight residence requirement; a ban on overseas travel and holding travel documents; exclusion from specific places; restrictions on the use of financial services; restrictions on ownership or transfer of properties; limits on the use of telephones and computers, including the internet; limits on association; restrictions on the individual’s ability to work and/or study; police reporting; a requirement to be photographed as required; and a requirement to wear an electronic tag. Under Part 2 of the Counter-Terrorism and Security Act 2015, a TPIM notice can also: require the individual to reside in a property up to 200 miles away from their residence without their consent; ban the individual from possessing certain weapons; and require the individual to attend appointments arranged by the Secretary of State.

A key objective of the Act was to introduce a more focused regime which protected the public from the risk of terrorism but increased the safeguards in place to protect the civil liberties of those subject to the measures. Built into the legislation is an automatic right of appeal which allows individuals subject to TPIM notices to challenge through the courts the decision of the Home Secretary to impose the TPIM. However, unlike the previous control order regime, no TPIMs have been quashed by the courts.

In accordance with Section 21 of the Act, the director-general of MI5, the Independent Reviewer of Terrorism Legislation and the Intelligence Services Commissioner have all been consulted, and they all recommended the continuation of the Secretary of State’s powers. I commend the order to the House.

[Baroness Hamwee (LD)]

My Lords, from these Benches we thank the noble Baroness for explaining the order, and we will not oppose the continuation of TPIMs. In the current climate, I am not surprised that they are to be extended, but it is a shame that the extension is for five years—I will come back to that.

I note the Government’s assessment for the Home Affairs Select Committee that the Act as amended in 2015 met its objectives and that the amendments incorporated most of the changes recommended at the time by the Independent Reviewer of Terrorism Legislation. The amendments that were not included were changes the Liberal Democrats called for, so I will mention them briefly again.

The first change is the proposal that the Home Secretary should be required on review to persuade a court—I stress, a court—that, on the balance of probabilities, a TPIM subject was involved in terrorism. The independent reviewer, commenting on this, said:

“Both the Home Secretary’s decision to impose a TPIM notice and the review by the court will be considered on the balance of probabilities that the individual is or has been involved in terrorism-related activity”.

That is intriguing in the light of the Government’s comment that the court will ask whether the Home Secretary has acted reasonably and proportionately.

The second change is a statutory bar to the use as evidence of information given during compulsory deradicalisation interviews—appointment measures. In 2015, the Government considered that the existing power of the criminal courts to exclude evidence where it would have an adverse effect on the fairness of proceedings was a sufficient safeguard. Now, as then—again, this point was raised by the independent reviewer—as soon as there is sufficient evidence to prosecute, the judicial process should take its course and the TPIM be ended.

I do not know whether the noble Baroness has in her briefing evidence that having TPIMs in place has led to more prosecutions. At the time of the creation of these measures, the Joint Committee on Human Rights commented that the “I” in TPIM—for “Investigation”—might be something of a misnomer. The debate around the Prevent strategy, in which many noble Lords have taken part, and will take part, has been rightly concerned about alienating communities. I have expressed the same concern about TPIMs: that they may increase the risk of the very thing they seek to avert. The measures have been changed and they are lesser measures than control orders—although they crept towards them. A considerable impact was noted in connection with control orders on both the subject and his family.

17:15

The Liberty briefing, which noble Lords will have received, calls for the use of intercept as evidence as a different way of dealing with this problem. I shall not spend time on that this evening—we had a go at it during consideration of the Investigatory Powers Bill, and I am bound to acknowledge the intrinsic problems in using intercept as evidence, although it is not a subject that will go away.

The extension of five years is the maximum permitted by the primary legislation. It should not be the norm, in our view. We would have welcomed a shorter extension, so that the matter came back to Parliament in less than five years, to give it the opportunity to debate it again. Nor should it be the norm that every possible measure allowed under the legislation is applied in every case. I mentioned alienation and the impact on the subject’s family, as well as the subject himself. Relocation is one of the measures. We have seen what I will call evidence, although it is perhaps not evidence in the sense of evidence given to a court, but it is a compelling description. When a subject who is not thought by his community to be deserving of the measure is removed, the community itself is affected. A family whose head—usually—is moved up to 200 miles is bound to have difficulties; there will be different difficulties for the spouse, the children and so on.

In that connection, I quote the wise words of David Anderson from a recent event at the Council of Europe. He said:

“The threat of terrorism curtails normal activities, heightens suspicion and promotes prejudice. That is precisely what the terrorist intends. If the authorities are powerless to act against it, some will be tempted to vigilantism. By prevention and by punishment, strong laws can help reduce the fear and hatred that the terrorist seeks to generate … But at the same time, those laws must not alienate or render cynical the rest of the population, in particular the innocent and peace-loving millions in the communities from which terrorists seek their support. This matters particularly for Muslims, because as a minority group in most of our societies, they are especially liable to feel targeted by measures, however well-intended, that may seem to be designed more for them than for others”.

TPIMs will be extended today, but they are not the solution to the underlying phenomenon of terrorism. I do not think that noble Lords will disagree with my comment that we are treating the symptoms and not the cause.

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank the noble Baroness, Lady Chisholm of Owlpen, for presenting the order to the House this afternoon. It has the support of the Opposition. As the noble Baroness says, the first duty of government is to keep our people and our country safe, and the Government have our full support in that important work.

The order before us will renew the Secretary of State’s power to issue TPIM notices for a further five years, so long as the independent reviewer, the Intelligence Services Commissioner and the director-general of the Security Service have been consulted. I understand that they have been and that they have all consented. I note the point that the noble Baroness, Lady Hamwee, made about going for the maximum period of time. At present, I believe that that is the right decision. I also note that the Secondary Legislation Scrutiny Committee in considering the order did not raise that as an objection at all.

As noble Lords have heard, the notice has rarely been used, but it is an important measure of last resort to protect our security when it is not possible to prosecute or, in the case of foreign nationals, deport individuals believed to be involved in terrorist-related activity and when the Secretary of State has decided on the balance of probabilities that the person is or has been involved in terrorist-related activity and the restrictions that can be placed on an individual are both necessary and proportionate.

I am sure that the orders are not issued lightly and one would prefer to be in a position to mount a prosecution. It is welcome, on the other hand, that the orders can be challenged in the courts. As the noble Baroness, Lady Chisholm, said, when they have been challenged, not one has been quashed, which says much for the robustness of the system in place and the built-in checks and balances.

I seek confirmation from the noble Baroness that the Intelligence and Security Committee would be further involved in satisfying itself as to the robustness and operation of the TPIM orders. If that is the case, that provides a further level of parliamentary oversight but in an appropriate, confidential setting.

In conclusion, the order has my full support. It strikes the right balance between keeping the country safe, placing restrictions on individuals when no other option is appropriate and allowing those individuals to challenge them in the courts.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful for the comments that have been made on all sides. Let me just answer the questions that were raised. The noble Baroness, Lady Hamwee, asked whether TPIMs have led to an increase in prosecutions; I am afraid that I am not able to say, for reasons that she can understand. She also asked about judicial involvement in the process. The High Court considers whether the decision to impose a TPIM was obviously flawed and then a later hearing will determine whether the TPIM is necessary and proportionate. The noble Baroness also asked about the impact on communities of relocation. The potential impact that a relocation may have on a local community is always carefully considered. The noble Lord, Lord Kennedy, asked about the security services and the committee.

[Lord Kennedy of Southwark]

I asked whether the Intelligence and Security Committee is involved in the oversight of these orders.

[Baroness Chisholm of Owlpen]

I think that it is—inspiration is appearing over my left shoulder as we speak. No, it is not completely involved at the moment. We are happy to consider that further.

In conclusion, TPIMs have proved to be an essential tool to allow the police and the Security Service to manage the risk from terrorism and one that is required today as much as when the Act was introduced in 2011. This is a tool that is subject to a considerable level of court oversight, rightly, to ensure that it is used only where it is a proportionate response. I therefore ask the House to approve the order.

Motion agreed.

House adjourned at 5.26 pm.