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

Lord Plant of Highfield Excerpts

Tuesday 23rd April 2013 Grand Committee

Moved by

[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.

--- Later in debate ---

[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.

Motion agreed.