Terrorism Prevention and Investigation Measures Bill

David Winnick Excerpts

Tuesday 7th June 2011 Commons Chamber

[Paul Goggins]

Considerable consideration was always given to those issues. As the Home Secretary said earlier, prosecutions should always be brought where possible. Those who engage in terrorist activity should feel the full force of the law and where possible—where the evidence is there—they should be convicted and go to prison for a very long time. The problem is that sometimes the evidence and information that the Home Secretary and other Ministers have is not enough to secure a prosecution because much of it is protected or secret information that could not, of itself, sustain a successful prosecution. That is the territory we are dealing with, but I assure my hon. Friend that that consideration was always at the foremost of Minister’s minds at that time.

[Mr David Winnick (Walsall North) (Lab)]

I have the highest respect for the work that my right hon. Friend undertook during his time at the Home Office. I have tried to get a parliamentary answer to my question, but I did not get anywhere. I understand that no one who has been subject to a control order has later been charged with a terrorist offence. That seems rather odd and, if I may say so, rather disturbing.

[Paul Goggins]

My hon. Friend has well-known views on this issue and has expressed them frequently in the Chamber from both the Government and Opposition sides over the years. He forms his own conclusions but my conclusions about such individuals is that they are a small group of people for whom it is necessary to have some form of control outside the normal judicial process because of the risks that they pose. My hon. Friend has put forward his point of view on this before and he has strong views—I respect that.

[Paul Goggins]

The hon. Lady speaks with great authority on this issue and I agree with every word she says. These powers—whether the control order powers that have been in place up to now or the new powers that the Home Secretary is bringing forward—should be used absolutely exceptionally and we should always bear in mind the risk that the hon. Lady mentions that their use can become a rallying point and can assist in the radicalisation of people whom we are trying desperately to keep in the mainstream of society. That should always be kept in mind. These powers should not be used generally; they are very specific powers to be used in very specific circumstances.

Let me deal with the circumstances in which the powers should be used. We are talking about a small group of individuals who are suspected of involvement in terrorist activities and who are either foreign nationals who cannot be deported because of a ruling of the European Court of Human Rights or they are individuals who cannot be prosecuted successfully because, as I said earlier, the compelling information about them is secret intelligence that could not alone sustain a successful prosecution. Over the past six years, control orders have been the best—some have used the expression “least worst”—set of powers to deal with that group of people.

As I have said before, we should always seek to gain consensus in the House on the important issue of counter-terrorism. The formation of the new Government last year gave us all an opportunity to reflect on the previous decade and see whether changes were required that would bring greater consensus and get an even better balance between individual liberty and collective security. I have changed my mind about pre-charge detention, having previously voted for 28 days and, indeed, for 42 days. I agree that the normal maximum should now be 14 days, provided that in exceptional circumstances it can be extended to 28 days. I am currently serving on the Joint Committee that is considering the emergency legislation that the Government have brought forward on this, and I have changed my mind on this issue.

[Mr Winnick]

Did I persuade you?

[Paul Goggins]

My hon. Friend is always very persuasive—one way or the other.

One area of policy on which I remain absolutely clear is the need to be able to control the activities of that small group of people who pose a serious threat and who cannot be deported or imprisoned, and I am pleased that the Government appear to have come to the same conclusion. We should seek consensus. There is much in the Bill that I can readily support. Conditions A to E, which are set out in clause 3, are welcome. They confirm the need for these TPIM notices to be focused on protection and prevention and they provide that the terrorism-related activity must be new activity. However, it is important that when a first application for a notice is made, that new activity can well predate the application.

A general time limit of two years is not unreasonable given the provisos that further notices can be made if there is new activity and that where a further notice is made, the older activity can be taken into account in addition to the new activity of which the Home Secretary has become aware. However, I caution her and her ministerial colleague against making that a general rule which can never be excepted. As I said about the maximum pre-charge detention period of 14 days, there might be exceptional circumstances. I hope that the Minister will be prepared, in Committee, to see whether some amendments can be framed to allow extensions beyond two years in specific and exceptional circumstances.

On making the powers permanent, I heard what my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) said about that reducing parliamentary oversight, but we could also see it as a positive development if Parliament can reach a consensus and settled view. Given the constant arguing and bickering on this issue year after year when we should be seeking consensus in the face of the terrible threats that terrorists bring, there is some merit in Parliament’s reaching a settled view. There is a balance to be struck.

I agree strongly with condition A, that the Secretary of State must have a reasonable belief

“that the individual is…involved in terrorism-related activity”.

That is a higher threshold than the reasonable suspicion threshold that has previously operated for control orders, but in reaching my conclusion I have referred to the opinion of Lord Carlile in his most recent report that the higher threshold of reasonable belief was, in practice, always achieved anyway for each control order that was taken out under the existing system. It is a standard that was already being met, and I see no problem in including that formally in legislation.

It is right, given that we have six years’ experience of operating control orders, to set out in more precise form the measures that can be imposed as part of the new TPIM notices. Schedule 1 includes a list of measures, including accommodation, travel, communications, association and so on. I urge the Minister to see whether there ought not to be a catch-all power, because there may be a condition that is not caught by schedule 1. It might be sensible to leave an opening so that the Home Secretary can impose such a condition if circumstances allow. It is not a power that I would expect to be used frequently, but if we do not have that power, and unusual circumstances occur, there is nothing we can do about it. Perhaps that is something that could be considered.

I have four serious difficulties with the Bill and in relation to other pertinent issues. The first was mentioned by my right hon. Friend—the overnight residence measure. She was right to point out that in schedule 1, which says that the Secretary of State may impose a requirement

“applicable overnight…for the individual to remain at a specified residence”,

there is no definition of “overnight”. It may be possible to go into that in Committee to see whether it is possible to include something a little clearer.

The really important issue is the specified residence itself. My right hon. Friend made a powerful argument in relation to that. Paragraph 1(3) says that the specified residence must be

“premises that are the individual’s own residence, or…other premises…that are situated in an appropriate locality or an agreed locality.”

An appropriate locality is one in which the individual has a pre-existing connection. In the case of CD, which my right hon. Friend mentioned, it would not be possible under the new legislation for the Home Secretary to impose the conditions that she rightly imposed on the control order governing that individual. If it is possible, I would welcome an explanation on that from the Minister in his winding-up speech.

Let us reflect on who CD is: a leading figure in a close group of Islamist extremists based in north London. That conspiracy of individuals was planning attacks and seeking to acquire weapons. He was a real threat, and the Home Secretary was quite right to take action, and to insist that he live in the west midlands. It is not just me who says so, as Mr Justice Simon supports her view. My right hon. Friend made it perfectly clear when reading from paragraph 53 of Mr Justice Simon’s judgment that the relocation obligation is a necessary and proportionate measure to protect the public from an immediate and real risk of a terrorism-related attack. The Bill as drafted would not allow the Home Secretary to force that individual to live outside London in the west midlands, and the people of London and elsewhere would be at much greater risk if she could not do so.

My second concern relates to electronic communication, which is dealt with in paragraph 7. Sub-paragraph (1) sounds quite tough, as the Secretary of State may impose

“restrictions on the individual’s possession or use of electronic communication devices”.

However, under sub-paragraph (3), each suspect may have

“a telephone operated by connection to a fixed line…a computer that provides access to the internet…a mobile telephone that does not provide access to the internet.”

To be honest, I am concerned that that demonstrates naivety about the sophisticated operations of international terrorists. They use multiple mobile phones, and will run rings round the measure, unless paragraph 7 is toughened up and made much more specific and much less confusing. There is a real job of work to be done by the Committee.