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

Baroness Hamwee Excerpts

Thursday 24th November 2016 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

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

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

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

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

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

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

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

[Baroness Hamwee (LD)]

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

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

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

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

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

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

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