Terrorism Prevention and Investigation Measures Bill Debate
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Baroness Hamwee
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Terrorism Prevention and Investigation Measures Bill
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Lord Newton of Braintree
My Lords, having vigorously indicated to the noble Lord that I wanted him to speak before me, I am left rather regretting it because I now find myself caught in the crossfire between Members on the Liberal Democrat Benches and Members on the Cross Benches. I have the deepest regard for both groups. I ought to say, if no one has said it before, that the noble Lord, Lord Carlile, deserves a huge vote of thanks from all of us for the work he has performed over many years in the role to which he has just referred. If I arrive at what is possibly a slightly different conclusion that is closer to that of my former constituent and noble friend Lord Phillips of Sudbury, it will not be for want of admiration of the noble Lord, Lord Carlile.
My starting point is that 40 or 50 years ago, give or take Regulation 18B, no one in this Chamber would have thought that anything like the successive regimes we have had since the 2001 Act were desirable. They have been imposed on us by a change in the world that we have not been able to control and which we have had to cope with in the interests of our citizens. But it has led us into things that we would not have wished to do in other circumstances. If anyone wonders why I have an interest in this, as well as in too many other things going on in the House at the moment, it is that those with longish memories will know that the choice fell on me to chair the Privy Counsellor Review Committee of the Anti-terrorism, Crime and Security Act 2001 which contained the provisions under which people were basically locked up in Belmarsh without being found guilty of anything, and the key was being thrown away. The all-party committee found that deeply unsatisfactory. I notice that the noble Baroness, Lady Hayman, who was a member of that committee, is in her place. We said that something had to be done about it. The then Home Secretary went out of his way to rubbish our report as quickly as he could and nothing happened until the courts threw out the relevant part and said that it just could not stand.
We then got to the control orders under the 2005 Act, which in my view were an improvement. I share the view which has been expressed that these new proposals are an improvement on those orders—perhaps marginal, but somewhat better. So we are moving in the right direction and I would not want it to be thought that I was hostile to the Bill or to its fundamental aim and purpose. However, I do think—here I come to the position of my noble friend Lord Phillips, the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick—that this kind of thing is much better done as a court order rather than an executive act unless there are very strong reasons to the contrary. The noble Lord, Lord Carlile, adumbrated to great debating effect a list of things that are done as executive orders, and I do not want to debate all those with him, but the mere fact that we have done a lot of things by executive orders does not mean that it is desirable. If you do not have to do it, I do not think that you should. As far as I can see, the case has not been made that this should be an executive order rather than a court order. I therefore come down in sympathy with the general purpose of the amendments in this group.
Baroness Hamwee
My Lords, some of us are even closer to the crossfire.
I start with a question which perhaps picks up where my noble friend Lord Carlile left off. It concerns the time limit on the measures. I had intended to ask it later under some amendments which I have down, but I shall ask it now. I found it quite hard to follow the Bill at the points where it begins to refer to revival, revocation, expiry, and so on. I needed a flow chart to understand just what was available in terms of imposition of measures. Are there any circumstances in which an individual can be subject to a TPIM or a series of TPIMs lasting more than two years, and, if there is one episode of new terrorism-related activity, which is defined, how long in all can a series of TPIMs last?
I should make it clear that I very much support the amendments proposed by the noble and learned Lord, Lord Lloyd of Berwick, and supported by others. I also support the amendments of the noble Lord, Lord Pannick. On his Amendments 42 and 43, he quoted the conclusion today of the Joint Committee on Human Rights on the issue of a full merits review. It is perhaps worth reading into the record as part of this debate the comments that the committee made in leading up to that conclusion. It said that the Government in replying to its previous report had argued that,
“there is no reason to doubt that courts will continue to apply intense scrutiny in TPIMs cases, as they have in control order cases, and that ‘continued reliance on case law’ is the best way to deliver that intense scrutiny”.
That became part of the conclusion. It seems to me that that does not amount to an argument for the principles of judicial review and that intense scrutiny is not excluded by the approach which the noble Lord, Lord Pannick, has advocated and which I support. I have checked the Government’s response to the previous report by the JCHR. Nothing significant has been left out of the paragraph that I have just quoted.
On the “balance of probabilities”, I added my name to the amendment of the noble Lord, Lord Pannick. Can the Minister explain why under Clause 26, which introduces “enhanced” TPIMs, there is a higher standard of proof than for standard TPIMs? The same applies to the Draft Enhanced Terrorism Prevention and Investigation Measures Bill which is to have pre-legislative scrutiny. The memorandum from the Home Office to the JCHR regarding the draft Bill with the enhanced TPIMs, which, in particular, would provide for relocation, said that the higher test is because of the more stringent measures allowed by the draft Bill. Clearly it would apply the same argument to Clause 26. So called standard TPIMs are fairly stringent but, even apart from that, I do not follow the logic. The standard of proof as to the facts which permit a step to be taken is a different matter from the steps which are available. I regard those as closely related but logically separate issues. I am lost as to why the higher standard of proof, which, as my noble friend Lord Carlile has encouraged the House to think, would not be a risk to the Government in this context, cannot be applied.
Lord Macdonald of River Glaven
My Lords, I support the amendments. I can do so relatively briefly because I can quite easily and simply adopt many of the arguments that have been made.
Terrorism is the gravest and most dangerous kind of crime and TPIMs are a properly grave response to that threat. A consideration of what the imposition of a TPIM represents gives some clue as to what the correct process should be. The imposition of a TPIM represents a public finding that an individual is involved in acts of terrorism. Of course, the individual’s name is not publicised, but surely his friends and his wider community are aware of it. It is a grave step and a grave potential stigmatising of an individual with an association with the gravest kind of crime. It is in those circumstances that one is driven to the conclusion that, if a TPIM is to be imposed, it should be imposed not by a member of the Executive but rather by a court. It is in those circumstances that I support the amendments to that effect.
I have not yet heard an argument why it is better for these measures to be imposed by a member of the Executive. I have heard arguments from my noble and learned friend, whose advocacy I have heard many times in courts up and down the land and which never ceases to impress me, as to why it is not necessarily constitutionally inappropriate but not as to why it is positively better than the alternative. The argument that has been made by a number of my noble friends and other noble Lords is that, given what a TPIM represents and the gravity of the measure, if it can be done by a court it should be done by a court unless there is a very good reason why it should not. I have heard no such reason.
The same applies to the burden of proof. I agree entirely with the noble Lord, Lord Pannick: the balance of probabilities is a test which is tailor made, perfectly made, for the process which the court needs to go through in this situation. It is not the criminal standard of proof because these are, in essence, civil penalties, but a civil standard of proof which, as he said, is flexible, realistic, well understood by the judiciary and does justice in civil cases up and down the land, including in other civil preventive measures.
Again, I do not understand what the argument against this is. If it is that it should be easier to impose a TPIM—that we cannot trust a judge to come to a safe conclusion about whether something is more likely than not—that is a false argument. It is, if you like, a somewhat cowardly argument. We can trust the judges to apply a balance of probabilities test in TPIMs in a way that is both just and entirely capable of protecting the public.
Lord Faulks
What I endeavoured to say was that the balance of probabilities would be appropriate were the courts to be taking that initial decision in place of the Secretary of State, which I understand to be the burden of the amendment put forward by the noble and learned Lord, whereas I understand that the suggestion made by the noble Lord, Lord Pannick, is that the initial stage and the decision to be taken by the Secretary of State should be on the balance of probabilities, and there I suggest that the current test is more suitable.
Baroness Hamwee
Does the noble Lord have any comments on the provisions in Clause 26, which provide for the Secretary of State to take a decision based on the balance of probabilities in the position where the more stringent measures might be applied?
Lord Faulks
I have no immediate answer to that, but at this juncture I would suggest that the initial decision-making process is far better on that basis because that is the most important stage: whether or not you decide that it is appropriate to impose, or seek to impose, a TPIM—with the approval of the court, it must be said.
Lord Pannick
We will hear from the Minister in relation to that in a moment. I am satisfied that a sensible and fair way of dealing with what is a very difficult issue, because of the primacy of national security and the particularly intrusive nature of a relocation power, is for the Government to satisfy themselves, as I assume they have done, that relocation powers are not needed. However, given the importance of this power, they recognise that it is sensible to have reserve powers available which, God forbid they are ever needed, can be brought into force. I support the Government on this.
Baroness Hamwee
My Lords, I, too, support the Government and I am very much with the noble Lord, Lord Pannick. If my noble friend Lord Carlile succeeds in getting answers to his questions about evidence, I shall consider that there is a huge amount of favouritism going on. That is exactly the sort of thing that we have all asked for on many occasions, but inevitably we are not satisfied because we know that advice to the Government is advice to the Government, and we cannot read their heart as we are being asked to do.
I do not quite understand the distinction between politics and security. For all the reasons we have talked about and will continue to talk about, it is a much more nuanced and complicated—there is probably a geometric term for it that I do not know—picture than a simple polarisation as regards the impact of particular measures. Of course surveillance is going to be costly, but another balance that one must come to is where one puts one’s efforts and spends one’s money.
Lord Macdonald of River Glaven
My Lords, I, too, support the Government on this issue. It does not surprise me at all that if the Government presently have a power, they will seek to use it, and it does not surprise me at all that if the security services presently have a power, they will seek to retain it. But the question is, as the noble Lord, Lord Pannick, said: what is a fair balance? Noble Lords will know that the counterterrorism review considered these issues very anxiously and received a great deal of evidence. It came to the conclusion that public safety could be protected in the absence of the power of relocation but in the presence of additional surveillance, for which funding was indicated, and with the sort of measures that have now been brought forward in the TPIM Bill. That was the considered conclusion of the review and appears to be the conclusion of the Government. I must say, having scrutinised the evidence which was supplied to the counterterrorism review, it was also my conclusion. I therefore support the Government on this question.
Baroness Hamwee
My Lords, I think I heard the Minister refer—I hope I did—to plans for resources for the security services over a period which is longer than to the end of next year. If that is so, I welcome it. At the end of his speech he referred to the next four years. I welcome this because it would not be proper for this Chamber—most noble Lords not being privy to security information—to take a view as to what is required for up to the end of next year and it being something different beyond that. I am not trying to give my noble friend ammunition in favour of his argument but simply to put my concern that we should not be looking at the matter through that lens.
Lord Henley
My Lords, one is always very careful when one speaks on these matters with a Treasury Minister sitting at one’s side. However, I can give an assurance to my noble friend that we have agreed extra resources for the Security Service over the next four-year period.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendments 10 to 15. These are all amendments to the first schedule to the Bill which deals with measures—in other words, how the measures are administered. I am not seeking, and will not at any stage seek during the debate, to argue against the Government’s responsibility to protect their citizens, which is necessarily complex, nor indeed to disrupt activity—“disrupt” is the term the Minister used. However, I do argue that there may be different ways and means.
I wish to bring the Committee back to the issue of how one deals with the individual at the centre of all this and his or her family; to the possibility of tipping people, including in the wider community because these matters get known about, over into the very activity that we are seeking to prevent; and to the person that we will have at the end of the year or two years. I am well aware that my drafting if often more suited to a contract than a piece of legislation but I cannot help it. I was a solicitor in practice for even longer than I have been in the House. It may be that the answer to a number of my amendments is that the Human Rights Act deals with them but I will take a short time to raise the specific issues in the House.
Amendment 9 deals with the hours that an individual is required to be at his residence, suggesting that an overnight requirement should be for such reasonable hours as are specified. We know that a period of 16 hours is compliant with human rights but a requirement to be at homes for 16 hours—effectively, an early evening curfew—does not sit easily with the desirability of allowing the individual to work or study. An early evening curfew would, for instance, preclude working in the restaurant trade. Indeed, having to be at home for 16 hours would probably make it impossible to carry out any sort of normal work. Some people work from nine to five but we forget that they have to get there by nine and leave after five. That is more than the eight hours which is 24 minus 16. That is my first amendment.
Amendment 10 is on the question of location. The Secretary of State can require the individual to reside at a locality with which they have “a connection”. My amendment suggests changing that to “a substantial connection”. “A connection” could be a very slight one. Maybe “significant connection” would be better. That would be a slightly lower test than a substantial one. To take a deliberately absurd example, I would like to avoid sending an urban person off to the Yorkshire Dales, however beautiful, because Mrs Smith who used to work in his local shop has retired there. That would be a connection but not a very sensible one in this context.
Amendment 11 is on the terms of occupancy of a specified residence. Paragraph 1 in the schedule allows the Secretary of State to,
“require the individual to comply with any specified terms of occupancy of that residence”.
At first, I wondered whether this should be a third party’s terms of residence but the residence may be one provided by the Secretary of State. Pointing to a lease or tenancy agreement would be a more satisfactory way of doing that. That is alluded to but only as one of a number of possibilities. I assume that “specified” means specified by the Secretary of the State. Again, the Secretary of State might be tempted to go beyond the bounds of what one would naturally expect through this paragraph, but be permitted to do so.
Amendment 12 takes us to travel documents. As I have said, the documents—in particular the document referred to in paragraph 2(3)(d)—should be returned to the individual at his reasonable request. I am not proposing that a passport that has been surrendered should be handed back but, reading this, it occurred to me that a Freedom Pass, which allows an individual over a certain age to travel by bus for free throughout England, would fall within this category. Is it right to tell that individual that they cannot have their freedom pass which would allow them to get to, say, their niece’s wedding? Perhaps that is a bad example because attending a family wedding may raise other issues but I am not sure that this deals with that detailed sort of situation. I would like to see something put in place to permit for individual and very detailed requirements.
Lord Henley
I hope I can give my noble friend the appropriate assurances. I will just touch on the individual amendments one by one, before coming to the generality.
My noble friend’s first concern was whether the requirement to remain overnight at a specified residence for specified hours would be exercised in a way that is consistent with the ability to work. We have made it perfectly clear that the new provisions are intended to be compatible with work and study, provided these do not affect public safety. We are certainly clear that an overnight residence measure will allow an individual to work, since the hours involved will not equate to the lengthy curfew that was possible. The specified hours will also be able to take account of work commitments where appropriate, and that could include early morning or early evening shift patterns. The necessity and proportionality of each measure, including each overnight residence requirement, will be determined according to the circumstances of each individual case. The occupancy rules that may be imposed in instances where the Secretary of State provides an individual with accommodation will in essence be those that would normally apply to an individual in private rented accommodation; in other words, a standard letting agreement.
The noble Baroness has a whole list of amendments. She wants to be sure that the connection with the area an individual is sent to is substantial. I can give her that assurance from the Dispatch Box. I do not think the word is necessary but obviously we would not send, as in the example she gave, a person to the Yorkshire Dales merely because they had once visited one individual there. Yes, it has to be substantial. Wherever she uses the word “reasonable”, again, we would want to ensure that “reasonable” was understood to be part of the Secretary of State’s decision.
The noble Baroness touched on the police reporting requirement. It is always the case that, where such a requirement is in place, the Secretary of State will have to act reasonably in terms of the times and manner associated with the requirement to attend a police station. Changes can be made to take account of a new job or other changes in that individual’s lifestyle. Amendment 12 touches on the idea of being able to return travel documents to the individual; for example, something like a Freedom Pass. Obviously asking for the surrender of a passport might be very necessary and obviously we would want to keep that, but I can see occasions where it might be reasonable to allow the return of something of the order of a Freedom Pass. If I am wrong in that matter, I will write to the noble Baroness.
I understand the noble Baroness’s general concerns about the lack of the use of the word “reasonable”, but I can give the assurance that it is fundamental to administrative law that the Secretary of State, or any other public body, behaves reasonably when taking decisions in any capacity. That will certainly apply to the Home Secretary in exercising her powers under this Bill, as much as it does to any other Minister or public authority taking decisions in an entirely different context. Indeed, it is a requirement under Section 6 of the Human Rights Act that public authorities—that obviously includes the Home Secretary—act compatibly with convention rights. So there is the additional requirement that any interferences with individuals’ convention rights are not only reasonable but proportionate. If the Secretary of State fails to act reasonably and proportionately in imposing measures under a TPIM notice, obviously her decisions can be challenged and potentially overturned in the courts.
Noble Lords will be aware that Clause 3 of the Bill provides that each of the measures imposed by the Secretary of State must be reasonably considered by her to be necessary to prevent or restrict the individual’s involvement in terrorism-related activity. Clause 9, which we will return to in due course, provides that the court must review that decision, among others, by the Secretary of State and that the court may quash or give directions in relation to any measures imposed where it is not satisfied with the Secretary of State’s decision-making, including where she has acted unreasonably or disproportionately. Therefore, my noble friend’s amendments are unnecessary as their effect will be achieved without it being necessary to amend the Bill, and I hope she will feel able to withdraw them.
Baroness Hamwee
My Lords, I will certainly do so. I am very grateful to the Minister. Perhaps he is able to comment on two particular matters. First—and I am sorry, this is almost like trying to prove a negative—can he say how substantial or significant a connection there needs to be in requiring somebody to live at a particular residence? This may be something that you recognise when you see it so I may be asking him a question that cannot be answered in the abstract. I was obviously grateful for his response to my rather extreme example. I do not know whether it is possible to answer what is required.
Secondly, on reporting, I am sure that the Secretary of State would be reasonable; I am much less sure that officers on the ground at particular police stations will be quite as reasonable. Is the Minister able to help the Committee as to the role of the Secretary of State and the comparative role of those officers and whether, though the Secretary of State’s intentions are entirely reasonable—I use the word again—it may be possible on the ground locally for them to be distorted and life made close to impossible for the individual because an officer in a particular police station decides on what is actually an unreasonable time, for their convenience? Of course I take the point about being able to challenge through the courts but there is a limit to how many challenges there can be. This is the sort of thing that we should be able to sort out, if not to everybody’s satisfaction, then by at least answering their points, without having to go down that sort of route.
Lord Henley
The noble Baroness probably answered her own question, at least the first one, on what would be substantial. It is similar to the fact that we have put in “overnight” but have not defined what “overnight” is. We all know what “overnight” means; what we are saying is that we do not want that 16-hour curfew, we want people to be able to have a job, should that be necessary, but we need not be specific. This is where the reasonableness of the Secretary of State’s decision comes in. Similarly with the connection: obviously that connection is not just going to be that you have been on a day trip to Blackpool or went to the party conference there many years ago.
Lord Henley
We had better not comment on Blackpool. I suspect the noble Baroness probably understands what I am getting at and I hope the House will.
Secondly, regarding how the police act, the requirements will be set out in the TPIM notice and in that the Secretary of State obviously will have acted reasonably and set out what are reasonable requirements. It is then a matter for the police to make sure, if there is a reporting requirement, that they interpret that in the proper manner. Obviously if they do not, they will be in breach of whatever appropriate duty of care they have. Therefore, I hope that they will take notice of what that order says. I hope with that the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I do not expect a response from the Minister, but I will use this last opportunity to encourage the Secretary of State, in imposing reporting restrictions, to make the sort of considerations that I have referred to entirely clear rather than just leaving them to be implied. If the Secretary of State can make that sort of thing express rather than implied, it could be a very sensible move. However, having said that, I beg leave to withdraw the amendment.
Baroness Hamwee
“(b) conduct which is intended to encourage or assist conduct falling within paragraph (a);(c) conduct which is intended to assist individuals known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) or (b) evade lawful surveillance, investigation, or arrest.”
Baroness Hamwee
My Lords, my noble friend Lord Goodhart has put his name to Amendment 23, partly through his connection with Justice, which he will no doubt mention—the organisation Justice; I am not suggesting that other noble Lords do not have a connection with justice—and because of the intrinsic value of the amendment, which is one that Justice has suggested should be raised.
This amendment would delete a large part of the definition of terrorism-related activity, which came from the 2005 Act, and replace it with the words in my amendment. The current definition is broad and includes the facilitation of,
“the commission, preparation or instigation of acts of terrorism”.
That could embrace, for instance, innocent activities such as selling an ordinary household chemical that, unknown to the seller, is intended for use in bomb-making, or even perhaps acting as a legal representative for a terror suspect. The suggested amendment would restrict the definition to,
“the commission, preparation or instigation of acts of terrorism”,
“conduct … intended to encourage or assist”,
such acts and conduct intended to help,
“individuals … evade … surveillance, investigation, or arrest”.
The extent of the definition of terrorism-related activity has concerned people for some time. Of course, it has to be to defined adequately and appropriately, but I wonder whether we should not now be looking again at a tighter definition, which would not involve risk—that obviously has to be assessed—but that would not be so extensive that it could go well beyond what would be appropriate. I beg to move.
Lord Goodhart
My Lords, my name is put to this amendment and while I do not have a great deal to add to it, there is a certain difficulty here about how the existing text of Clause 4 is drafted. Clause 4(1) (b) states:
“conduct which facilitates the commission, preparation or instigation of such acts, or which is intended to do so”.
In other words, the provision covers somebody who has facilitated the commission, preparation or instigation of such acts but has not intended to do so. That is the possibility. It is perfectly possible, for instance, that someone in a shop may sell something that is, on the face of it and so far as that person knows, entirely harmless. Yet in fact it has a particular use to the person who is buying it. In Clause 4, this is conduct that facilitates the commission of an act of terrorism but that is never intended to do so.
It would be inappropriate to go ahead without some further amendment and the provision in Amendment 23 is perfectly appropriate for this purpose. It deals with,
“conduct which is intended to encourage or assist conduct falling within paragraph (a)”,
or,
“conduct which is intended to assist individuals known or believed by the individual concerned to be involved in conduct falling within paragraphs (a) or (b)”.
That provision seems to cover the effect of Clause 4 a good deal more accurately than its present formation does. It seems to me that it is necessary to change the drafting of Clause 4 and that Amendment 23 is an appropriate way of doing it. It may be that another one can be thought of that is even better.
Lord Henley
My Lords, Clause 4, as my noble friends have stated, provides the definition of the phrase,
“Involvement in terrorism-related activity”,
which comes from the 2005 Act. It obviously ought to be read in conjunction with Clause 30, the interpretation clause, which also refers us back, if noble Lords will bear with me, to the Terrorism Act 2000. The starting point of our response to my noble friend’s amendment is that it is unnecessary. The definition of terrorism-related activity included in the Bill is, as I said, identical to the one in the 2005 Act. We consider that to be the appropriate definition and we see no need to change it. It is settled, it has not proved problematic or objectionable and the courts have not, for once, disagreed with the assessment of successive Secretaries of State that individuals whose activity falls under it are committed terrorists.
Moreover, the Government’s approach to this clause is underpinned by other requirements in the Bill. Not only must the Secretary of State consider that the statutory test for the imposition of a TPIM notice is met, including,
“Condition A … that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity”,
but the court must review the Secretary of State's decision. As I said, that scrutiny will be rigorous and, as a result of relevant case law, it makes a finding of fact on the limb of the test relating to involvement in terrorism-related activity. It also gives “intense scrutiny” to the necessity of the notice and individual obligations.
I have looked very carefully at the amendment as set out by my noble friends. I have even produced a copy that I could share with the House, if it was necessary, showing how the clause would look after their amendment had been produced. However, I really do not think that on this occasion it is necessary. It would probably be safer and better to stick with the well-tried words that we have from the 2005 Act, with which the courts themselves have not had any problems, as I said. From the look on the face of the noble and learned Lord, Lord Lloyd, when I first mentioned that point, I certainly noticed a degree of agreement with me. If the courts are happy, I suspect we should leave well alone. I hope, therefore, that my noble friends will feel able to withdraw this amendment.
Baroness Hamwee
My Lords, my concern stems from the possible prospect of a less benign Home Secretary, who may misuse the clause. He—let us say he—might believe that an individual has been involved in terrorism-related activity because he, to use the example that we have given, has sold household chemicals that are to be used for something bad. I suspect that the courts have never had to face the position that I am putting forward and so have not been troubled by it. As ever, one tries to anticipate how legislation might be misused or abused, rather than used in what we would all regard as a proper fashion. However, I hear what my noble friend has said and beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving Amendment 24 I shall speak also to Amendments 28, 30 and 31 to 35 in my name. Amendment 24 would amend Clause 5(3), which provides that a TPIM notice,
“may be extended … only if conditions A, C and D are met”.
I am not sure whether my amendment is one of drafting or principle. It certainly does not go to the major principle of the structure of the periods or their limits. However, as Clause 5(3) is drawn, the conditions are to be met and that would allow for an extension of the notice. My amendment concerns when those conditions are met, saying that they should be met,
“at the date from which”—
the notice “is extended”. It is not likely that the Secretary of State would decide in the second week of a notice that it should, in effect, be a two-year notice. However, again, looking to a less sensible or benign Secretary of State, that should not be possible. That is why I have tabled this amendment.
My other amendments all deal with the term “obviously flawed”, although I realise that I have missed at least one instance of it somewhere in the Bill. As my noble friend Lord Goodhart said in speaking to the first group of amendments, what “obviously flawed” means is far from obvious. My amendments, which would take out “obviously”, probe the meaning of the term. The context, in every case, would in effect be an ex parte application. Does “obviously flawed” mean prima facie? When these questions were asked during the Public Bill Committee stage in the Commons, the Minister said:
“An appropriate test at the permission stage acts as a check on the Secretary of State’s exercise of his or her powers. At that stage, it is clearly not appropriate for the court to make the final determination … because it is … an ex parte process”.—[Official Report, Commons, Terrorism Prevention and Investigation Measures Bill Committee, 30/6/11; col. 212.]
I understand that but I am still not entirely clear about the term as distinct from the context; they may be inseparable. The Minister’s answer was that it reduced the hurdle that the Secretary of State must meet. I hope that the Minister will today give us some further sense of where in the hierarchy this comes.
Lord Hunt of Kings Heath
My Lords, before the noble Baroness agonises over whether she puts this to the vote, the final point made by the noble Baroness, Lady Stowell of Beeston, about the Secretary of State’s responsibilities is well taken. I congratulate her on what is probably her first appearance at the Dispatch Box, certainly in this Committee stage.
Baroness Hamwee
No, not as ever, sometimes we are shoulder to shoulder. However, I congratulate the noble Baroness and I am grateful for her reply. It will deserve reading. I take her point about the term being used in control order legislation but I have written down,
“much the same as prima facie”.
I, for one, would not like to tangle with her over whether there is any significance in the term “much the same”. If anybody reading Hansard who is better qualified than me thinks that one should take issue with,
“much the same as prima facie”,
I will come back to it on Report. As I say, I will read the noble Baroness’s response. I am grateful to her for the detail. I beg leave to withdraw the amendment.
Baroness Hamwee
“(1A) The application of subsection (1) extends to—
(a) a proposed extension under section 5,(b) a proposed variation under section 12(c), and(c) a proposed revival under section 13,of a TPIM notice.”
Baroness Hamwee
My Lords, Amendment 26 is grouped with Amendments 45 and 46, which also stand in my name. We touched on this matter when I asked the Minister a question about the length of TPIMs earlier this afternoon. I thank him for his response. Nevertheless, in case there is anything more to come out on this, I will speak to these amendments.
Amendment 26 to Clause 6 would provide that Clause 6(1), which makes the rest of the clause apply, extends to extensions, variations and revivals of a TPIM notice. As I said earlier, I had difficulty in following the procedures for the different decisions which are open to the Secretary of State. Therefore, I thought it best not to be too proud about my drafting as I do not have a professional reputation to be concerned about to the extent that other noble Lords who are very well established in their fields do. That is why I tabled that amendment.
Amendments 45 and 46, which seek to amend Clause 13, may already have been answered to an extent in the previous debate. Amendment 45 would provide that condition E—that is, the involvement of the court—would apply on revival of a TPIM. I am encouraged to think that a stopping or pausing of a TPIM might be possible—that is implied by the possibility of reviving one—but that this measure would apply after a TPIM had expired or been revoked. I hope to be told that this is provided elsewhere in the Bill. If it is not, it should apply. If a TPIM notice has expired or been revoked—no doubt, for good reason—all the conditions should then be tested again. I beg to move.
Lord Henley
My Lords, we seem to be moving at quite a speed. My noble friend need not worry too much about her drafting. We have all drafted amendments in the past that we knew were defective in many ways but they are often a useful way of getting the Government to the Dispatch Box to explain what is going on. It is worth going into detail on this issue.
I will deal first with the substantive amendment that the noble Baroness has proposed to Clause 6—to which Amendment 45 is consequential. As drafted, the Bill requires the Secretary of State to seek prior court permission to impose a TPIM notice, other than where the urgency procedure set out in Schedule 2 is relied on. This provides an important safeguard in relation to the initial imposition of TPIM notices by the Secretary of State. However, as my noble friend has identified, there is no subsequent requirement for the Secretary of State to seek the court’s prior permission before making any other decision in respect of the TPIM notice. Her amendment would require the Secretary of State to seek prior permission before making three particular decisions. The first is to extend a notice into a second year under Clause 5. The second is to vary the specified measures, on the grounds that this is necessary for preventing or restricting involvement in terrorism-related activity under Clause 12—that is, where the variation is not a reduction in the measures or one made with the consent of the individual. The third is a proposed revival of a TPIM notice under Clause 13. The Bill does not require court permission to take any of these decisions. However, it provides a right of appeal against the exercise of each of these powers.
Baroness Hamwee
My Lords, again I must read what has been said, but I believe that I am satisfied and will remain so. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
I absolutely support what the noble Lord, Lord Pannick, said. My amendments to both his amendments were partly in response to an earlier draft, which I think he changed before tabling them. However, the point remains the same: to tease out whether the words “if possible” are objective or subjective to the individual. I am not sure what “if possible” means in the context. I would certainly not want anything that the noble Lord has included to detract from the thrust of his important amendments and argument. I beg to move.
Baroness Kennedy of The Shaws
My Lords, I support the amendments in the name of the noble Lord, Lord Pannick. I disclose that I act from time to time in what have been control order cases and may be called on to act in future such cases. I reinforce the importance of having disclosure of the essence of the case. The reason for that is that from time to time I have seen that, when disclosure of the essence of the case takes place, it is possible to show that the inferences drawn from certain behaviour are not appropriate.
I give an example. The case involved a student living in a house with other students. We are always concerned that association can be an unfair way to judge someone. An assumption was made and disclosed in the essence of the case against him that a conspiratorial meeting took place at a particular time. It was possible for us to show that he must have been in his room using his computer because, during the period of the meeting, he was in direct contact with the department with which he was studying at university, drawing down the homework that he was required to do. Not only was the university able to confirm that but his computer, which was seized, showed that the timing coincided with when some others were involved in the meeting, when he was in his room studying. Just that allowed someone to show that an inference being drawn was incorrect.
Given that we are putting together a system which is in many ways a source of concern with regard to liberty, it is really important that opportunities are there for people to show that their actions are not the ones that the state is imagining. We must, in drawing up new proposals—some of which I am not completely happy with—draw on the decisions made by judges under the control order regime.
Lord Henley
My Lords, the noble Lord, Lord Pannick, asked two questions: first, do we accept that the AF principle applies to TPIMs as well as to control orders? I can give him that assurance. It is set out in our Explanatory Notes that we believe that previous court judgments will be binding on TPIMs, as they were on control orders. I do not have the ability to cite cases as authoritatively as my noble friend Lord Carlile or the noble Lord, Lord Pannick, both of whom obviously eat them for breakfast, but my understanding is that they will continue to bind us.
The second question is: do we think that it is necessary to get it on the face of the Bill? I hope that I can explain to the noble Lord why I do not think that that is necessary. We share the desire of all noble Lords to ensure that TPIM proceedings are compatible with Article 6 and we believe that the provisions currently contained in the Bill achieve that. As we explained in our response to the Joint Committee on Human Rights in its 19 July report—I think that today’s was its third report on this issue—the right to a fair trial of individuals subject to a TPIM notice is already fully protected by the provisions contained in the TPIM Bill and the application of existing case law, as appropriate, by the courts.
Paragraph 5 of Schedule 4 to the Bill reflects the read down of the Prevention of Terrorism Act 2005, effected by the 2007 judgment of the Law Lords in MB. As the noble Lord will be aware, the Law Lords read into that legislation, which obliged the courts to ensure the withholding of material from the individual where disclosure would be contrary to public interest, the words,
“except where to do so would be incompatible with the right of the controlled person to a fair trial”.
That has been reflected in the provision in paragraph 5 of Schedule 4 to the TPIM Bill, which provides that nothing in the rule-making power relating to closed proceedings or the rules of court made under it is to be read as requiring the court to act in a manner inconsistent with Article 6. The Law Lords in AF (No.3) confirmed the read down specified in MB and laid down what was required by Article 6 in the context of the stringent control orders before them. There is therefore already provision in the Bill which ensures that TPIM proceedings will be conducted compatibly with the individual’s Article 6 rights and, indeed, the Human Rights Act achieves the same effect.
That is all that I want to say at this stage to the noble Lord’s amendment. I appreciate that technically we are debating the amendment to the amendment tabled by my noble friend Lady Hamwee. It might be more appropriate for the noble Lord, Lord Pannick, to comment on that. I hope that he will accept my explanation on why we do not think it is necessary to include his amendment. I hope that the assurances that I have given from the Dispatch Box will be sufficient. I hope that my noble friend and then the noble Lord will withdraw their amendments.
Baroness Hamwee
Baroness Hamwee
My Lords, I beg to move Amendment 47, and will speak also to Amendments 48 and 51.
Amendment 47 concerns paragraph 1 of Schedule 3, which deals with appeals against convictions for breaches of measures. My amendment is to enable me to ask the Minister why appeals are limited in this way. A breach of a measure may turn into a criminal offence, but that is a separate matter from the measure itself. If an individual is convicted of that breach, there are consequences for the future, as there are with every criminal offence.
The Minister may say that the measure itself will have consequences. Of course it will. That is executive action without a criminal standard of proof, and so on, as we have discussed. The consequences will be social consequences, in a wider sense. If there is a conviction for a breach, that has other consequences, because of the record of the individual. Therefore, Amendment 47 is to ask the Government to explain the thinking behind that paragraph.
Amendment 48 would take out subsections (1) and (2) to Clause 18. These are about appeals against the measure, and again the amendment is to enable me to ask questions. Clause 18(1) says that there may be an appeal only on a question of law. I would be grateful if the Minister could help the Committee on how one distinguishes between fact and law in this context. How does this apply not just to the decision that there should be a TPIM order but to the detail of the measure? Is proportionality, which we have been talking about quite a lot, a matter of law? I hope to be told that it is.
My final amendment in the group is Amendment 51, which relates to Clause 19. Clause 19 provides for the Secretary of State to make three-monthly reports to Parliament, which is welcome. Clause 19(2)(a) provides that this includes and extends to the powers of a Secretary of State “to impose measures”. I am suggesting that we should add wording that makes it clear that this covers not just the fact that a TPIM order has been imposed but the detail of the measures within that TPIM order. I appreciate that it would not be proper to put every detail into the public domain. However, I do think it would be proper for the Secretary of State to spell out the sort of thing that she is doing, so that we may understand—better than we can if we are simply told that measures are being applied—just what the impact of those measures may be. I beg to move.
Lord Henley
I hope I can answer the noble Baroness’s three points on these three separate amendments, which we are taking together. I shall start with Amendment 47, which deals with Schedule 3. As the noble Baroness is aware, Schedule 3 provides that an individual who has been convicted of the offence contained in Clause 23 of the Bill—contravening, without reasonable excuse, a measure imposed under a terrorism prevention and investigation measures notice—has a right of appeal against that conviction if the notice or relevant measure is subsequently quashed, and if they could not have been convicted had the quashing occurred before they were prosecuted. Schedule 3 provides that the court must allow such appeals. This is obviously not a provision that we expect to be used on a frequent basis. However, its clear purpose is to provide an important safeguard, and to ensure that the person will be able to get a conviction overturned for contravening a measure that the court has subsequently quashed.
It is therefore important that the schedule be agreed to. I know that the noble Baroness is only suggesting removing paragraph 1, but that is the operative provision of the schedule, and without it the remainder of the provisions in the schedule are neutered. I hope she therefore accepts my explanation and can withdraw that particular amendment.
Amendment 48 deals with subsections (1) and (2) of Clause 18 and is really a question about why we are considering having appeals only on a point of law. We believe that the limitation is appropriate, because in cases such as this it is the court of first instance that is the appropriate fact-finding body. It is this court that has developed a particular expertise and body of knowledge in this area of national security, among a small and experienced body of judges who hear these cases. This makes it the right court to review all the material upon which the Secretary of State relies to make her decisions and make findings on that basis.
With regard to the appeal on a point of law, the noble Baroness asked us whether we thought proportionality would be a point of law. Dare I say it—I might have to be corrected—but I think she is probably correct, and it probably would be. If I am wrong, I will correct that in due course. I will certainly write to her and copy that letter to other noble Lords who have taken an interest in these matters.
Finally, I turn to Amendment 51, which deals with Clause 19. Clause 19, as the noble Baroness is well aware, places a duty on the Secretary of State to report to Parliament on a quarterly basis on the exercise of her powers under this Bill. These are specifically the powers to impose measures on a person by TPIM notice, extend a TPIM notice, vary the measures specified in a TPIM notice, and revoke or revive a TPIM notice.
Amendment 51 would amend Clause 19(2)(a) to add “and the measures imposed” at the end of the subsection. The relevant provision would thus state that the requirement was for the Secretary of State to report on her powers to impose measures on an individual via a TPIM notice under Section 2, and the measures imposed. As noble Lords will appreciate, the details of the operation of the system and the particular cases will necessarily be sensitive and could not be disclosed publicly. However, taken together, the list of matters on which the Secretary of State must report ensures that key information about the operation of the system will be in the public domain, and will be debated regularly. Crucially, this will include information about the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed.
We understand that there is interest in as much information as possible being made available about the operation of the system and about the cases of those individuals subject to the measures. That has certainly been the case in relation to control orders and it is likely to continue in relation to TPIMs. Having that information available will help to ensure that any debate about the powers is as informed as possible.
Lord Henley
The ingenuity of the noble Lord and others will find ways in which this House, which seems to have a more liberal approach in these matters, can debate these quarterly reports. There are Questions, Questions for Short Debate and all range of things, but it is not necessarily for the Government to offer those. As regards the debate next week, I look forward to it.
I hope that that deals with the points made by my noble friend. If not, perhaps we can discuss it further in due course, but I hope that today she will feel able to withdraw her amendments.
Baroness Hamwee
My Lords, I am grateful for the reassurance on my Amendment 49, which takes a stand on a question of law in this context, and I hope that the Minister and I are correct. On Amendment 51, I accept the sensitivity of the detail, which I acknowledged in introducing the amendment. However, I remain concerned that the type and extent of the measures being imposed are reported on. The clause is welcome and I want to make it work well for Parliament and others in the transparency for which we are all aiming. I might therefore like to take the opportunity to discuss with the Minister how one can meet the point without going over the top, which I am not trying to do. I beg leave to withdraw the amendment.
Baroness Hamwee
“Impact of measures
(1) Within 28 days after the imposition or variation of any measures, an assessment shall be made of the likely impact of the measures—
(a) on the individual on whom they are imposed, and(b) on the immediate family of the individual.(2) The assessment shall include an evaluation of the impact on mental health.
(3) Further assessments shall be made not less frequently than every three months and at the expiry, repeal or revocation of the measures, and thereafter during such period and at such intervals (but not more frequently than every six months) as the individual may request.
(4) The assessment shall be made by an independent person appointed by the Secretary of State who shall be appropriately qualified in conjunction with such persons as the individual may nominate and who shall be entitled to make separate reports.
(5) The costs of assessments made under this section shall be met by the Secretary of State.”
Baroness Hamwee
I shall speak also to Amendment 53. This would be a new clause dealing with a matter that I regard as of the utmost seriousness. It is addressed in particular to mental health issues.
The proposed new clause is by no means an opposition to mechanisms for addressing protection of the public and the prevention of terrorism. It is a separate issue about how measures are applied in practice and about the impact of those measures. I have mentioned the matter already today but it is important to repeat it as the context for the provision. It concerns in particular tipping the individual, his family and members of his community into the precise action that we are seeking to avoid; to avoid tipping an individual into breach of the restrictions on him, which is a criminal offence and may turn into a criminal someone who is not a criminal and has no criminal record; and to avoid our failure to recognise that at the centre of all this is a human being.
The moment my new clause was published I saw a drafting error, but I will speak to it as I intended it to be. It would provide for an assessment to be made on the likely impact—my drafting error is that I failed to refer to the actual impact—of the imposition of measures, or the variation of them on the individual and his immediate family every three months, when measures expire or are repealed or revoked, and thereafter at intervals which the individual may request. The assessment I talk of would include an evaluation of the impact on mental health. It should be made by an independent person appointed by the Secretary of State but not only by that person. I suggest that of course the person should be appropriately qualified, but shall work in conjunction with the nominees of the individual who can make separate reports. That is an important point because it is all too easy and obvious that independent experts appointed by the Secretary of State, as has happened with control orders, are perceived as agents of the Secretary of State being there to gather evidence and information.
I have proposed the new clause for the reasons I have already given and because one needs to increase the opportunity for transparency around this whole area. I have said that the costs should be met by the Secretary of State because I thought that someone might ask about that. It seems to me that the numbers of cases we are talking about are small and this would be entirely proper given that the measures applied are potentially so very stringent. Amendment 53 would bring these assessments within the remit of the independent reviewer.
The experience of control orders has been not only that in some cases they are very damaging but that the controlee is essentially broken. I want quickly to share with the Committee the story I heard earlier this week of a controlee who had failed to report to the police on time. I asked how late he had been and was told that it was one hour. His control order of course required him to report at a particular time and having failed to be there on time he was charged with a breach of his order. He found himself in Pentonville. The shocking part of the story is not just that: it is that the individual will not apply for bail. For him, being in Pentonville is preferable to being under a control order. That is what the state has done to some individuals. If that is what we are going to do to them in order to protect the rest of society, we should know what the impact is.
Lord Hunt of Kings Heath
I do not quite understand the noble Baroness. Presumably this person was in breach of the control order by not attending on time. I do not understand the issue.
Baroness Hamwee
The issue is that to this individual, being in prison is more acceptable than being in his place of residence under a control order, with the restrictions imposed by the system. I am sure that the noble Lord has heard, from people who had been under control orders that were quashed, the impact they had on them and their families. The interference with anything that any of us would recognise as a normal life has been literally intolerable. That is the point I make to the Committee. I beg to move.
Lord Carlile of Berriew
My Lords, I applaud and support the sentiment behind my noble friend's amendment, but I suggest that it is not only unnecessary but would replace a considerable amount of flexibility with something rather less. On the case history that she has just recounted, I say that nobody has been arrested and charged with breach of a control order for failing to turn up at a police station once, an hour late. In every case, there has been an immense degree of tolerance before anyone has been charged. It is only after a very serious breach, or persistent and repeated breaches, that people are charged.
Nor do I recognise the credibility of the account my noble friend was given. When I was the independent reviewer of terrorism legislation, on a relatively small number of occasions—but several—I was able to visit controlees in their own homes, alone, one to one. On some occasions I visited them in homes to which they had been relocated. The notion of a state-appointed psychiatrist, however independent, turning up unsolicited at their home would have been no more comforting than One Day in the Life of Ivan Denisovich. It is a pretty bad idea.
I ask the Minister to confirm that the following occurs and will occur. First, where there is any suspicion or indication of the poor mental health of the controlee or of any member of his or her family, medical facilities will be put in place, including, if necessary, psychiatrists and psychologists, to deal with the problem; and that such facilities will be flexible and will be provided at the cost of the Home Office. Secondly, will the Minister confirm that the Control Order Review Group has met regularly ever since control orders were brought in, that it includes various people involved in scrutinising and observing the person concerned, and that it has always discussed such issues where they have arisen? Will he further confirm that under TPIMs, some kind of review group—I hope it will not be called TPIMsORG —will continue to meet and carry out that function? There is no evidence whatever that controlees have been treated improperly in the way that my noble friend set out.
On one occasion I suggested to the Home Office that there were some difficulties from time to time in giving controlees a single point of contact—perhaps a local police officer—who was aware of the situation and whom they could telephone if they had a problem. I believe that that has been put right, that they do all have someone to contact, and that sympathetic consideration is given to all difficulties of the kind that my noble friend has in mind.
Lord Henley
My Lords, my noble friend has been consistent over the years in her concern about the impact of control order obligations on individuals and on their health, in particular on their mental health. My first point is that TPIM notices are intentionally more limited in nature than those that can be imposed under control orders. We will no longer have lengthy curfews, compulsory relocation to another part of the country and total bans on communication equipment. Therefore, whatever the result, one would hope that the effect on individuals would be less than under control orders.
Despite the limitations that should significantly reduce the impact on individuals subject to TPIMs, I appreciate that my noble friend remains concerned about these issues. I agree with my noble friend Lord Carlile that the amendment does not achieve what it sets out to do. The noble Lord put a series of questions to me about the current position and about what will be the position. He asked whether medical facilities would be provided by the Home Office for those with poor mental health. He then asked about the Control Order Review Group, and about whether something would follow it. He could not quite bring himself to work out the acronym, but no doubt something can be put in place that will have a similar role. I am sure that my noble friend asked those questions in a rhetorical manner and that he knows the answer certainly to the first two questions. Such things will be provided by the Home Office: CORG exists; and we will certainly consider something suitable to replace it in due course.
Although I cannot accept my noble friend’s amendments, I say that the Bill, together with the relevant control order case law and the duty of the Secretary of State to act within convention rights, already ensures that the Secretary of State will give the appropriate consideration to the impact of the measures on the individual and on their family, including the impact on their mental health, both before imposing a TPIM notice and during the year or however long it remains in force. With that, I hope that my noble friend will withdraw her amendment.
Baroness Hamwee
My Lords, I ought to take two minutes to withdraw the amendment—that might be obscure to anybody reading this—in order to take us to the agreed time of 8 pm. Of course I understand and accept that the measures proposed by the Bill are less severe than control orders. That is the point of the Bill. Not all of them are, because there is the possibility of enhanced TPIMs. I take the point, but it does not quite cover the ground.
I understand the point made by my noble friend Lord Carlile about a series of breaches. I talked earlier—I am not sure whether he was in his place—about the need not just for the Secretary of State to be reasonable about reporting requirements, but for police officers on the ground to be reasonable.
Of course, our experiences and what we hear are not the same, and I could never have the particular experience that he has had, but I hear of the danger of people who are under such orders becoming so despairing that they almost do not care if they breach.
The real thrust of this amendment is the importance of the involvement of professionals who are of the individual’s nomination, not just those who are provided by the Home Secretary. If I say “by the state” it may sound like One Day in the Life of Ivan Denisovich but I say “the state” quite deliberately because that is how it is perceived in this situation. My amendment suggests the formation of something akin to a case conference with the considerable involvement of an individual or organisation of the person’s choosing because of the interpretation or perception, which I suppose is inevitable in this situation, that anybody who is provided by the state is not going to be neutral, far less on the individual’s side. Having said that, I beg leave to withdraw the amendment.