Terrorism Prevention and Investigation Measures Bill

Baroness Stowell of Beeston Excerpts

Wednesday 19th October 2011 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, I hope I can give some reassurance to my noble friend on the issues that she has raised in her amendments today.

My noble friend’s first amendment relates to Clause 5 and the power to extend a TPIM notice for a further year. As Clause 5 makes clear, a TPIM notice can be extended only if conditions A, C and D are met at the time and the TPIM notice would otherwise expire. In particular, the notice and the measures specified in it must be considered necessary at that point. The Secretary of State cannot reasonably make a decision to extend until shortly before the notice would expire. If she attempted to do so, I am sure that the courts would not uphold her decision. My noble friend might also like to know that decisions on whether to renew control orders have been taken only relatively close to what would otherwise be the expiry date. However, I can also assure my noble friend that any subsequent change in relation to ongoing necessity will be reflected as soon as is practical, by either the relaxation of particular measures or the revocation of the notice as a whole. This is because necessity must continue to be made clear at all stages while the notice remains in place.

My noble friend has also tabled several amendments to Clause 6 and Schedule 1 in respect of the word “obviously”. These are Amendments 28, 30, 31 and 33 to 35. She seeks to clarify the word “obviously” and proposes deleting it from the phrase “obviously flawed” where it occurs. I can confirm that, in essence, this language is intended to mean much the same as prima facie in the context of what will normally be an ex parte application. In other words, her assumption on this matter is correct.

At the permission stage, the court will normally consider the application in the absence of the individual who is to have measures imposed on him. This is to ensure that the individual is not given advance warning that he is to be made the subject of a TPIM notice. The judge therefore undertakes an initial check at this early stage to ensure that there is nothing in the material presented to him to indicate that the Secretary of State is clearly wrong to think that the statutory test is satisfied, either in relation to having reasonable grounds to believe in terrorism-related activity or the need to impose a notice, or in relation to one or more of the proposed measures. It is a preliminary hearing that in essence ensures that the Secretary of State is not using her powers in an obviously inappropriate way, and therefore is very different to the further stages when the courts would review the actual decision.

The language of “obviously flawed” is well understood and applied by the courts as it is the language that is used in the control orders legislation—it is already there. The Government therefore consider that it is appropriate to continue to use this language. The full court review will, of course, be undertaken after the measures have been imposed. The procedures for that are set out in Clauses 8 and 9.

Finally, my noble friend’s other amendment in this group relates to what would happen in a circumstance where the court determined that only the Secretary of State’s conclusion that condition D is satisfied is obviously flawed—therefore, A and C had been met but D was flawed. This is likely to be where the court identifies that one or more of the individual measures specified in the proposed TPIM notice clearly does not meet the test that it is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. In these circumstances the court may give permission to impose a TPIM notice, but may in doing so give directions to the Secretary of State in relation to the measures to be imposed.

The amendment would amplify Clause 6(9) by adding the words,

“including the variation or cancellation of specified measures”.

As my noble friend has explained, she is seeking an assurance from me that this is already the case. She is seeking further information than that which was provided during the passage of the Bill in another place. I can confirm that, as drafted, Clause 6(9) would allow the court to give directions in relation to the variation of the proposed measures set out in the draft TPIM notice. Equally, it would allow the court to direct that a particular measure should not be included in the notice. It should be noted that while the court may give directions in this regard, it will remain the duty of the Secretary of State actually to draft the terms of the measure as this role falls not to the court but to the Secretary of State, with her recognised expertise and responsibility in matters of national security and the measures that are required in order to protect the public. But when doing so following the directions of the court, she will clearly be very constrained in how she conducts that drafting exercise.

I hope that I have provided sufficient assurance to my noble friend and that she will withdraw the amendment.

[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.