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

Baroness Doocey Excerpts

Tuesday 23rd April 2013 Grand Committee

[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.