Terrorism Prevention and Investigation Measures Bill

Debate between Lord Lloyd of Berwick and Lord Rosser

Tuesday 15th November 2011 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, very briefly, Clause 5 enables the Secretary of State to renew measures for a further year if conditions A, C and D are satisfied. He does not need to be satisfied of condition B, that there has been fresh terrorist activity during the first year. Amendment 39 has two separate purposes. First, it requires the Secretary of State to be satisfied of fresh terrorist activity during the first year before he automatically renews for the second year. Secondly, it places an absolute limit on renewal of two years. It cannot go beyond that.

Curiously enough, this amendment might have received some support from the noble Lord, Lord Carlile of Berriew. If I remember correctly, it was his view that somebody who had been subject to a control order for two years would have little further potential use as a terrorist. He was rather minded to pose—or had some sympathy with posing—a limit of two years on the extent to which these measures can be renewed.

The Minister said at an earlier stage that it is not the Government’s intention to use measures of this kind to warehouse individuals who are suspected of being terrorists. Yet, as we know, they have been warehoused—if that is the right word—for periods of three, four and five years without ever having been charged or tried. That is happening now. The purpose of this amendment is to ensure that that does not happen in future. There should be a final limit of two years. I beg to move.

[Lord Rosser]

My Lords, very briefly, this amendment seems to provide for a TPIM to remain in force for no more than a year or a lesser period determined by the court. It also provides that the measures may be renewed for a period of no more than one further year if, on application to the court, the court is satisfied on the civil burden of proof that the individual has been involved in terrorist-related activity since the imposition of the original measures. If that is correct, our view is that those considered to be engaged in serious terrorist activity are not often likely to have so changed their intentions within a period of 12 months. For that reason, it would not be appropriate to end the order. The amendment suggests that it would be, unless there was evidence of further terrorist-related activity. If we understand the amendment correctly, our view is that it would detract from the ability to protect the public. We are not inclined to support it.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Lloyd of Berwick and Lord Rosser

Tuesday 1st November 2011 Lords Chamber

[Lord Rosser]

My Lords, the purpose of this amendment is to ensure that the Bill and the TPIMs that it sets up require annual renewal, as is the case with the present control order legislation. That legislation is clear in its temporary nature and it has a sunset clause, which requires an annual vote in Parliament to consider whether the powers are still required. The Bill before us makes no provision for a yearly sunset clause but provides for a five-year limit, not requiring a first vote until the end of 2016 or early 2017 if its operative provisions are to continue and not expire.

Both your Lordships’ Constitution Committee and the Joint Committee on Human Rights have queried this provision in the Bill. The Constitution Committee questioned whether it was constitutionally appropriate for the extraordinary executive powers involved in TPIMs to remain in being for a lengthy period of time. The Joint Committee on Human Rights said that it was disappointed by the Government’s reluctance to expose their proposed replacement regime for control orders to the rigours of formal and post-legislative scrutiny, which annual renewal would entail. The Joint Committee was of the view that the TPIMs regime was less severe than the control orders regime but still felt that TPIMs remain,

“an extraordinary departure from ordinary principles of criminal due process”.

The Joint Committee also noted that the UN special rapporteur on the protection of human rights and fundamental freedoms while countering terrorism, in a recent report to the UN Human Rights Council, had observed:

“Regular review and the use of sunset clauses are best practices helping to ensure that special powers relating to the countering of terrorism are effective and continue to be required, and to help avoid the ‘Normalisation’ or de facto permanent existence of extraordinary measures”.

The Joint Committee recommended that the Bill should also,

“require annual renewal and so ensure that there is an annual opportunity for Parliament to scrutinise and debate the continued necessity for such exceptional measures and the way in which they are working in practice”.

In a recent letter responding to your Lordships’ Constitution Committee, the Minister in the other place claimed that five-yearly rather than annual renewal would allow the system to operate in a stable and considered way and would allow proper and detailed consideration to take place on whether the legislation was still required. Annual renewal also allows for proper and detailed consideration, and rather more frequently than once every five years. As for the assertion that five-yearly renewal will allow the system to operate in a stable and considered way, that rather suggests that the Government see TPIMs as not far short of a permanent arrangement, despite the exceptional executive powers, including the profound impact they can have on the liberty of some individuals. That is a key reason why annual renewal is necessary—precisely to ensure that these are regarded as temporary and not permanent measures.

We agree with the Joint Committee on Human Rights. Annual renewal is required for the current control order regime because of the considerable and exceptional executive power that it confers, most of which remains in the current Bill in respect of TPIMs. In addition, we now have the draft enhanced terrorism prevention and investigation measures Bill, which could be brought into being at short notice and which provides further extraordinary executive powers.

This Bill, like the control orders legislation, covers difficult issues relating to the rule of law. It provides powers to act in cases where prosecution is not possible but where, nevertheless, security concerns about the activities of a small number of individuals are such that it is felt that executive action has to be taken, which considerably restricts liberty through control orders, or in future through TPIMs, when the Secretary of State reasonably believes that the individual is or has been involved in terrorism-related activity. Whatever one’s views on the need for control orders or TPIMs, these are considerable and exceptional measures, and for that reason alone it is surely only right and appropriate that Parliament should have the opportunity and the duty to decide each year whether or not the situation remains such that these measures and the associated powers should continue in being or, instead, be allowed to expire. It is surely not appropriate, in view of the profound impact on the liberty of individuals of these exceptional measures and powers—the Minister accepted on Second Reading that they were exceptional—that an important check by Parliament on the exercise of those executive powers, and the continuing necessity for them, should be almost eliminated by permitting Parliament that opportunity to decide whether the situation remains such that they should continue, or be allowed to expire, only once every five years. I beg to move.

[Lord Lloyd of Berwick]

My Lords, I support the amendment, but I do not hold out much hope that it will do any good. It was different six years ago when the Conservative Party, and Lord Kingsland in particular, were in favour of relaxing, rather than strengthening, the 2005 Bill. Despite that, we argued the toss on renewal every year for six years and achieved precisely nothing. Now the Official Opposition are in favour of strengthening the Bill, and I see no reason to suppose that the Government will themselves be of that view—I hope not. I, therefore, suspect that in debating this matter every year for the next five years we will largely be wasting our breath, though I support the amendment for its symbolic value.