Draft Terrorism Prevention and Investigation Measures Act 2011 (Continuation) order 2016

Ben Wallace Excerpts

Wednesday 26th October 2016 General Committees

[The Minister for Security (Mr Ben Wallace)]

I beg to move,

That the Committee has considered the draft Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016.

It is a pleasure to serve under your chairmanship, Mr Flello. I hope that the Committee approves the draft order, which will extend the Secretary of State’s powers in 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 my hon. Friends will be more than aware, the threat from terrorism is ever 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.

My right hon. Friend the Home Secretary and I are absolutely clear that the police and security services should have the powers that they need to disrupt terrorists. Of course we should 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. However, in a very small number of cases, that is not possible, so the police and security services need alternative powers to disrupt terrorist-related activity. That is why I am here today seeking parliamentary agreement to extend for a further five years the powers available to the Secretary of State under the 2011 Act.

The TPIM Act first came into force on 14 December 2011. The Act introduced a new framework for placing restrictions on individuals where it is 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 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. Those measures include 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; and requirements to be photographed as required and to wear an electronic tag.

[Keith Vaz (Leicester East) (Lab)]

I fully support what the Minister is proposing. These are very important measures. However, in the past couple of years, a number of individuals have gone missing while on these orders, and statements have been made to the House by the Minister’s predecessor about the individuals who have gone missing. Can the Minister update the Committee on how many of those individuals have now been apprehended?

[Mr Wallace]

After the absconsion of two individuals—I think that that was the number—a review was done, looking at the operational failures that perhaps allowed that to happen, and that review was submitted to David Anderson, the reviewer of terrorism legislation. It would not be appropriate to give the details of the review, because obviously that might expose vulnerabilities in our capability, but certainly the lessons have been learned and addressed.

[Keith Vaz]

It is always good to learn lessons when mistakes occur, and obviously I do not blame the Minister—the system clearly let us down—but my question was whether those two individuals have been apprehended, or are they still out there in the public space?

[Mr Wallace]

The right hon. Gentleman may not understand, but we do not comment on individual TPIM cases, for reasons, obviously, of operational security. However, he should take some comfort from the fact that the lessons from what led to those individuals absconding have been learned and measures are in place to do so. I can point him to the statistics for the number of people on TPIMs: there was one, and now we are at six for this year. I can certainly say that, where possible, we use them. We certainly do so as a last resort, but where we need to use them, we will. I think that we are in a better place than we were with control orders.

Under part 2 of the Counter-Terrorism and Security Act 2015, a TPIM notice can require the individual to reside in a property up to 200 miles away from their own 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 TPIM Act was to introduce a more focused regime that 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. There are several differences between the TPIM Act and the previous control order regime, including the strengthening of the legal threshold required to impose an order from “reasonable suspicion” under the control order legislation to “reasonable belief” for TPIMs. That threshold was strengthened even further to “the balance of probabilities” under the Counter-Terrorism and Security Act 2015. Additionally, control orders lasted for a maximum of 12 months, but there was no limit to how many times they could be extended. In a small number of cases, they lasted for more than four years. Under the TPIM Act, notices last for a maximum of 12 months and are extendable only for a further year. Evidence of new terrorism-related activity is required to justify a new TPIM notice.

An automatic right of appeal is built into the TPIM legislation. That allows individuals who are subject to TPIM notices to challenge through the courts the Home Secretary’s decision to impose them. However, unlike the previous control order regime, no TPIM has been quashed by the courts. In accordance with section 21 of the TPIM Act, the director general of MI5, the independent reviewer of terrorism legislation and the intelligence services commissioner have all been consulted, and they all recommend the continuation of the Secretary of State’s powers. I commend the draft order to the Committee.

--- Later in debate ---

[Dr Huq]

I thank the hon. Gentleman for his intervention. That is why, had he listened, he would have heard me use the caveat that non-sensitive advice with bits redacted could be published. One of the virtues of having an independent reviewer—not a Labour party person—is that it allows a degree of transparency and scrutiny in counter-terrorism legislation that is not otherwise possible in areas that concern national security. That builds public and parliamentary confidence in our laws. When the Government can be transparent, they should be transparent—the previous Prime Minister was always saying that sunlight is the best disinfectant.

Therefore, although we support the draft order, I have a couple of questions for the Minister about the effectiveness of TPIMs. The security forces have been using TPIMs on fewer and fewer occasions. Between the first quarter of 2012 and the last quarter of 2013, between eight and 10 individuals were controlled by TPIMs at any one point, whereas three people at most have been controlled by them since 2013. In the last written statement to the House, the Minister revealed that there is now just one individual subject to a TPIM. I wish that I could say that that is a result of the terrorist threat having disappeared or receded, but throughout that time we have all seen the annunciator screens in our offices that say the threat level is severe. We have also seen a new wave of Islamist attacks on the continent. The Minister listed Nice and Brussels; there are loads of them, including Paris. The list goes on.

There is a danger that the security forces are using TPIMs on fewer occasions because they do not find them to be a useful tool for tackling terrorism. The previous independent reviewer of terrorism legislation, Lord Carlile, said:

“It is surprising and worrying that we are down to just one T-Pim given the situation appertaining all over Europe. We know that there is a severe risk of a terror attack. I hope that the Government is examining the possibility of increasing the use of T-Pims or toughening them up.”

As we have already heard, TPIMs have already been toughened up in the Counter-Terrorism and Security Act 2015—in particular, the security forces can now restrict where an individual resides. In the impact assessment that accompanied that Act, the Government anticipated that their changes to the TPIM regime would lead to an increase in the use of TPIMs. In fact, they estimated that there would be an

“additional five to 15 TPIM cases per year”.

At the time, there were two TPIMs in use; here we are a year later and there is actually one fewer.

[Mr Wallace]

There are six now.

[Dr Huq]

Are there six at the moment, not one? [Interruption.]

--- Later in debate ---

[Mr Wallace]

We should all recognise that we do not take TPIMs lightly and that they are not our first preference. Our first preference is to achieve a prosecution, but very often in counter-terrorism it is necessary to make a decision about the prosecution and, if that is not possible, the disruption of individuals who place a threat. Sometimes TPIMs are placed on people released from prison, and sometimes that they are placed on people about whom we have intelligence to indicate they pose a threat but we do not have the criminal prosecution level that we require at that time. It is not easy for either this Government or the Government who bought in control orders to decide to go down that path. Nevertheless, it is something we have all felt that we have to do as the threat has increased over the past 15 years.

As long as safeguards are in place and as long as people can appeal to the court and test the case that is put before them, the courts will uphold the legislation. I think that, in the change from control orders to TPIMs, it was right to have a higher threshold. Good counter-terrorism action has to keep communities onside. We cannot look like we are bending the law for a specific group of people. We have to keep people onside to ensure their support.

TPIMs serve a role in counter-terrorism in this country and they are successful in a number of areas. Size does not matter. The number of TPIMs is not necessarily the issue. What matters is that they are one of the tools in the toolbox that we can use to ensure that we protect the public. We cannot decide whether the policy is successful based on the number of TPIMs issued a year. One individual subject to a TPIM could wreak large amounts of damage to the community if we did not have some level of supervision. Six is the current figure, and that was released today. Two reports—a written ministerial statement and a memorandum to the Home Affairs Committee—were published at 1 o’clock today, and they indicate that there are between one and six active TPIMs. We cannot grade the total number with the threat posed.

[Richard Arkless]

I accept what the Minister is saying. My point was that if orders are not granted, one has to assume that it is not necessary and proportionate in those circumstances. If six orders have been granted, the inference is that it has only been necessary and proportionate to do that in six cases. I am trying to get an outline of the effectiveness and whether the number is justifiable in terms of effectiveness. It all boils down to necessity and proportionality.

[Mr Wallace]

If we look at the toolbox to stop someone making or being a threat to the public, there is a broad range of tools—it does not just have to be TPIMs. For example, if someone was trying to leave the country and we suspected that they were going to fight with ISIS in Syria, we could remove their passport. Legislation is in place for a Minister to remove that individual’s passport and prevent them from travelling. That is an alternative that could be used. We use a range of powers and tools to disrupt and deter and, if necessary, to restrict people’s ability to threaten society.

Moving to the points raised by the shadow Minister, the hon. Member for Ealing Central and Acton, and the right hon. Member for Leicester East, the former Chair of the Home Affairs Committee, I agree that the independent reviewer of terrorism legislation has been a good post. They have done a tremendous number of reports—both open reports and reports that are more sensitive. They inform Government, along with the Intelligence and Security Committee, which is a cross-party, independent committee. They challenge Government policy and inform us of changes. The post has been a great success. It has also been successful in providing reassurance that people are not too quickly interpreting intelligence into evidence. I am perfectly open to the hon. Lady’s suggestion about whether we should have an independent reviewer for counter-extremism. There is an open consultation on counter-extremism, and I recommend that she and her Front-Bench colleagues contribute to that and put forward her ideas. Discussion will take place once consultation is closed.

Do I anticipate an increase to more than six TPIMs? We should not forget that we have approximately 850 people who we think have gone to fight in Syria. Some of them will come home and it may be a challenge to deal with some of them in another way, so we may see an increase in TPIMs. We may, however, use other tools to ensure that we deal with such individuals. We are pragmatic. The professionals who deal with this issue—the security services and the police—should be free to make those decisions and recommendations. I will not interfere with their professionalism in deciding the appropriate measure or power to use.

On whether we would publish the advice to Ministers from the director-general of MI5, the police and other people, I will certainly reflect on the hon. Lady’s point. I would have to satisfy myself that that would not undermine or threaten national security. I suspect that the Intelligence and Security Committee—it could request to see that advice; it has much more powers thanks to the legislation we passed a few years ago—would have the ability to look at the advice. I would not dare to anticipate the Chair of the ISC, but the ability is there. I am open to the point that the hon. Lady made, but I have to check whether we can do that.

I was asked why we will not tell, say, reveal or publish what has happened to those two individuals who absconded from TPIMs. It is an ongoing police investigation, and we have to be careful when commenting on such things. Let me outline some possible scenarios that are not in any way linked to those individuals: they could have been found, and be abroad or under surveillance; they could have already been dealt with and relocated; or they may not have been found at all. However, publishing that information may threaten our operational capability. If we had people under surveillance abroad, we would want to know who they were mixing with and talking to, and we might not be able to go and get them. If I were to start doing a running commentary on the operational nature of a police investigation, it would seriously undermine the point.

We do not publish the names of individuals who are subject to TPIMs and we do not say if they have relocated or where they have relocated to. The TPIM is as much a tool for us to disrupt terrorist activity as it is about ensuring that we put a protective shield around certain individuals to protect the public from the threat that they may pose. It is easier said than done to say, “Let’s tell you what has happened.” I am not informing the Committee of what we know; I am just giving some scenarios to show that it may not be in the best interest of the police and the people charged with investigation to make those details public.

Overall, I am grateful for the Scottish National party and Labour party Front-Bench support for the measures, which are not done lightly. They are an important tool in our toolbox to ensure that we deal with the threats posed by terrorism, and they are constantly reviewed. All I can say is that we take such matters very seriously. The Home Secretary and I get advice from the professionals who are out there every day on the frontline, dealing with the dangers that many of us are often a long way from. I take the professionals’ views seriously, as do many around the House. That is why TPIMs should be extended, so I urge the Committee to support the order. The measures will be reviewed again as the legislation requires.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016.