Terrorism Prevention and Investigation Measures Bill

Julian Huppert Excerpts

Tuesday 7th June 2011 Commons Chamber

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

The Home Secretary barely had time to draw breath between statement and debate, but that transition exposes again the gap between the Government’s rhetoric and reality in regard to counter-terrorism. On a day on which the Home Secretary has launched her review of the strategy to prevent terrorism, with tough talk about clamping down, she is simultaneously watering down measures proven to prevent terrorist activity.

The fact is that, for the most part, the Bill is a confusion and a con. It does not do what it says on the tin, and it does not fulfil the grand promises made by the Conservatives and the Liberal Democrats. In 27 clauses, it takes us in a circle and—almost—back to where we started. However, in a few areas it does make changes, and some of them are worrying.

[Dr Julian Huppert (Cambridge) (LD)]

Will the right hon. Lady confirm that Labour party policy favours a more authoritarian version of this Bill?

[Yvette Cooper]

If the hon. Gentleman persists with such simplistic soundbites, he will misunderstand the nature of the terrorist threat to Britain, and also the nature of the Bill that he is supporting, because this Bill represents a complete reversal of the promises he and his party made during the election, and does not abolish the control orders regime but simply renames it with a few minor amendments.

We on the Opposition Benches do not have access to the latest security assessments from the experts. We believe it is important to support the Government on counter-terrorism issues where we can, but in order to do so we will need more reassurances from the Home Secretary, and also some changes. The first duty of any Government is the protection of the people and the safeguarding of national security, yet the Home Secretary’s changes currently make it harder for the police and security services to limit the actions of a small number of dangerous people. We therefore need more reassurances on that.

Ideally, we would not have control orders because, ideally, we would not need them, but the Labour Government introduced them because we recognised that we needed to deal with a very small number of difficult cases, where prosecution was not possible for a range of reasons and where the public still needed to be protected from terrorist activity. In opposition, the Liberal Democrats and the Conservatives condemned control orders, but now they are in government they have changed their minds. Indeed, the Home Secretary has introduced six new control orders since she came to office, and renewed eight more, but rather than admit that, she is desperate to maintain the fiction that control orders need to be replaced by something fundamentally different and that this Bill does the trick.

Most of the Bill is a fudge, drawn up to meet promises made to the Deputy Prime Minister that control orders would be abolished. Clause 1 does exactly that, but clauses 2 to 27 just reinstate most of the elements of control orders. The Bill does not therefore meet the Liberal Democrats’ manifesto promise to scrap orders that use evidence in closed sessions of court, nor does it meet the Conservative pledge of

“eliminating the control order regime.”—[Official Report, House of Lords, 3 March 2010; Vol. 717, c. 1530.]

It certainly does not meet the grand claims of the Deputy Prime Minister in January, when The Sunday Times was briefed that he had

“won his Cabinet fight to scrap control orders”,

that suspects will no longer have to wear electronic tags or have a home curfew, and that they

“will also be allowed to travel wherever they want in Britain”.

As all Members now know, the Bill allows for tags, home curfews and restrictions on travel around Britain. Where control orders use closed proceedings and special advocates, so too do TPIMs. Where control orders are instigated by the Home Secretary with the permission of the High Court, so too are TPIMs. Where control orders are used when prosecution is not possible, so too are TPIMs. Where control orders can restrict people’s movements, communication, association, travel and bank accounts, so too can TPIMs.

Let me read out some extracts from the Government’s own explanatory notes to the Bill. Clause 1 abolishes control orders, and clauses 2 to 4 introduce TPIMs. On clauses 6 to 9 and schedule 2, the notes say:

“This replicates the position in relation to control orders”.

On clause 10, they say:

“The clause maintains all the existing requirements contained in the 2005 Act.”

On clauses 12 to 15 and schedule 3, they say:

“The clauses make provision—equivalent to that in the 2005 Act in relation to control orders”.

On clauses 16 to 18 and schedule 4, they say:

“This provides similar rights of appeal to those that exist in relation to control orders.”

They say that clauses 19 to 20

“place requirements—equivalent to those contained in the 2005 Act in relation to control orders”.

On clause 21, they say that

“this effectively recreates the main offence of the 2005 Act of contravening an obligation imposed under a control order”—

and they then add, in brackets—

“(including the same maximum penalty)”.

This Bill is one big set of square brackets which reads: insert control orders here.

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[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.

[Dr Huppert]

Does the right hon. Gentleman realise that one purpose of the measure is to enable more evidence to be gathered for prosecution? The point of allowing people to have that communication is partly for the sake of civil liberties but partly because it can be monitored. What we want to see is prosecution, not indefinite or even two-year detentions.

[Paul Goggins]

If the hon. Gentleman thinks that an international terrorist is sitting there thinking, “Thank goodness they have given me the internet so I can reveal all my contacts and conspiracies,” he is quite naive. We are talking about highly sophisticated people, and I am concerned that the provisions in paragraph 7(3) are not as sophisticated as they need to be to deal with the threat.

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[Paul Goggins]

My hon. Friend again makes his point with great care. Of course, these are exceptional powers that should be used sparingly. We have all this apparatus in relation to control orders to ensure that the suspect’s interests can be protected. That is why we have special advocates who can consider the information and argue on behalf of the suspect. [Interruption.] Does the hon. Member for Cambridge wish to intervene?

[Dr Huppert]

I should be delighted to do so, and I thank the right hon. Gentleman for giving way. The problem is that the special advocate is not allowed to communicate the nature of that evidence to the person involved. That fundamentally means that they cannot advocate fairly on behalf of their client.

[Paul Goggins]

It is true that special advocates cannot share the intelligence directly, but they are there to represent the interests of the individual. To the hon. Gentleman, that might not be a perfect solution, but it is better that the individual has somebody to speak for them than nobody to speak for them. That is why that system was introduced.

I say again to my hon. Friend the Member for Islington North (Jeremy Corbyn), who put his point very fairly, that these are exceptional mechanisms to assist in making sure that the rights and interests of the individual are protected, but in the end, the entire Bill is designed to ensure that the rest of us are protected against the threats that those individuals pose. We must not forget that. As we have these debates about the liberty of the individual, we must balance that against the need for the protection of the wider public. That is the dilemma that goes right through the debate. We should never lose sight of one or the other side of that argument.

My final point is whether the whole new TPIM system represents the same level of risk as we had with control orders or a greater level of risk. I can only assume that the Home Secretary believes there is an increased risk from the new TPIM system, otherwise why would she be committing a serious level of resource—whatever that level is—to the police and the Security Service to help them deal with the additional work and the additional pressures that will result from the new system?

I was somewhat concerned to hear the Home Secretary quote Jonathan Evans as saying that the additional money would—I think she said—mitigate against the additional risk. That is an interesting phrase worthy of further exploration. I am extremely concerned that new gaps will open up. The question is whether there will be sufficient resource to fill those gaps and whether those gaps will pose an additional risk. No one in the House should be complacent about the possibility of an increased risk. I know that the Intelligence and Security Committee on which my right hon. Friend the Member for Salford and Eccles (Hazel Blears) and I sit will take a very close interest in that.

I am sure that the last thing this Home Secretary would want to do is increase the risk to public safety. I mean that genuinely and sincerely, but Parliament must help her. One immediate way in which it can help is by tightening up the Bill in the way that I have suggested and as others will, I am sure, suggest, and then by monitoring closely what happens when the Bill and any amendments that are added to it are put into practice.

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[Hazel Blears]

Steady on, absolutely.

I also know how important it is to have a practical and workable system in place. We must ensure that those who pose a significant threat to ordinary people’s safety can be tracked and prevented from pursuing their plans to cause death and serious harm in pursuit of their warped political ideology.

We all want to achieve consensus where we can, but I have some serious concerns about some of the Bill’s proposals, with regard to their effectiveness, their ability to disrupt those who will be subject to TPIMs, as they are so elegantly called, and whether they will provide us with a proper level of security. Lord Carlile is always called in aid in these debates, and I want to place on the record my thanks to him for the fabulous job he has done over the years as the Government’s independent reviewer of terrorism legislation. He said just last year:

“In stark terms, the potential cost of losing control orders is that the UK would be more vulnerable to a successful terrorist attack.”

He does not say such things lightly. He has huge experience in trying to weigh the balance and get the judgment right. He also said:

“Unless control orders were replaced by some equally disruptive and practicable system… the repeal of control orders would create a worryingly higher level of public risk.”

We ought to have serious and close regard to what Lord Carlile has said and test the Bill against the concerns he has expressed.

In a powerful contribution, my right hon. Friend the shadow Home Secretary expressed her concerns about some of those issues, so I will not speak about them at length. The relocation issue is a genuine concern. It may be characterised as internal exile or a soviet-style imposition, but if it is necessary for someone to be located away from the networks that they have established in order to improve the safety of ordinary citizens, I do not think it should simply be ruled out on principle.

We have discussed whether access to mobile phones and computers might enable us to obtain further evidence for prosecution, but I am very doubtful that it will. I am concerned that people will have access not simply to one mobile phone: once they have one, it will be very easy indeed for experienced people not to dupe the security services, as I hope they are not capable of being duped, but to create the sense that it is normal to have access to a computer and a mobile phone. The prospect of a security risk is therefore higher than I would feel comfortable with, so I seek reassurance from the Minister on access to electronic equipment. We know how much terrorist business is done online and with technology. It is a massive issue for us, and this measure could present us with an increased risk.

[Dr Huppert]

Has the right hon. Lady spoken to the right hon. Member for Wythenshawe and Sale East (Paul Goggins)? He was concerned that those people simply would not use such equipment so we would not get any information. One cannot have it both ways. If those people are going to use such equipment and are capable of duping the security services, or whatever term the right hon. Lady wishes to use, they might be doing it now, just like those who abscond. Surely this is a more liberal measure that will also help with prosecutions.

[Hazel Blears]

But that is no reason to relax the powers. If there are fears that such activities could be happening now, I should be very concerned indeed and certainly would not want to go down the path of having less control over access to electronic equipment. I require further reassurance, as do the citizens of this country, that we are not going to give people access to mobile phones and computers so that they can maintain those relationships and networks that are the very reason they are subject to a control order or, indeed, will be subject to a TPIM. We require further reassurance on that issue.

I am very concerned about the inability to renew the TPIM after two years. In the case of AM in 2007, the control order lasted for more than two and a half years. When it came up for renewal Mr Justice Wilkie, confirming its renewal after two and a half years, said that AM was

“highly intelligent, calm, cautious beyond his years. He has replied and maintains this degree of calmness and self-confidence, which in my judgment is consistent with the view of the Security Service that he is a disciplined, trained and committed person whose commitment remains unimpaired, despite the length of the control order. He was and remains prepared to be a martyr in an attack designed to take many lives. He remains highly trained, security conscious and committed.”

I am therefore concerned that if there is a blanket prohibition, in any circumstances and without the addition of new evidence of involvement in terrorism such orders will come to an end. I require further assurance. If the reason for making the TPIM in the first place were of sufficient seriousness, I would be extremely concerned about our deciding simply to say that there is an arbitrary cut-off point, as the legislation does, irrespective of the threat that the person poses.

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[Dr Julian Huppert (Cambridge) (LD)]

It is a great pleasure to follow a number of today’s speeches, particularly the last two. I agree very much with what the hon. Member for Perth and North Perthshire (Pete Wishart) said, and it is a particular pleasure to follow him because I spent some of the recess cycling through his constituency. It is great to find his countryside, as well as most of his opinions, agreeable. The hon. Member for Newark (Patrick Mercer) also made a fantastic speech.

I am in sympathy with both hon. Members, because this is a disappointing Bill. It does not live up to the aspirations that many of us had that this Government would come in and clear away much more of the vestiges of what Labour had set up. There is of course a balance to be struck, and nobody would dispute the fact that there is a real terrorist threat. The question is how best to deal with it. If we go the way Labour did, we will make it much worse as well as sacrificing civil liberties. That is why the balance needs to be struck. The Bill is a step in the right direction, but it does not go as far as it should.

My interpretation is that Home Office Ministers did not manage to stand up to officials who continued the groupthink that we saw for many long years under Labour and that we have heard in a number of speeches. There are, of course, some honourable exceptions—the hon. Member for Islington North (Jeremy Corbyn) has been very clear on the subject—but most of the speeches that we have heard from Labour Members make it clear that they would like a more authoritarian approach. That is one of the problems that the new Home Office Ministers have had to deal with.

It is a shame that the shadow Home Secretary is not in her place, because I wanted to thank her for giving an excellent example of somebody trying to have their cake and eat it. She said at one point that there was a substantial difference between control orders and TPIMs, but then said they were essentially exactly the same. However, it was finally clear, although she would not admit it when I asked her, that it seems to be Labour party policy to keep control orders, with all the bad things about them. We have heard the arguments for relocation, secret evidence and further infringements of civil liberties.

I would like to go further in a liberal direction. As I have said, the Bill is disappointing, but it is not a disaster and can perhaps be saved. I hope that the Committee will do that. There is a new Minister responsible for security, who sadly is not in his place, and I am sure that he will be able to be very much more reasonable about issues such as this; he has been very reasonable about drugs policy in previous discussions.

Some of the Bill is great. I like clause 1, which is a really fantastic clause and one that I fought an election to try to achieve. However, the Bill goes downhill a bit after that. It keeps extra-judicial processes, which we should not wish to see. We have the rule of law for a reason. The Bill also keeps secrecy, as has been mentioned, with special advocates and secret evidence so that people do not know what they are accused of and cannot adequately brief a barrister to represent them.

Ultimately, the problem is that the Bill relies entirely on the good judgment of the Home Secretary. It contains a broad power allowing for anything that the Home Secretary reasonably believes to be necessary, which could be any of a long list. I have no doubt that the current Home Secretary is more liberal than some of the previous ones, but do we all have faith in all future Home Secretaries of whatever party making the right decisions? I am very concerned about that.

We expected some good bits in the Bill, and in her statement the Home Secretary talked about better focus and more targeted restrictions, which is a good step. She also talked about powers similar to those used in the civil justice system to prevent sexual offences and domestic violence, for example, and I would have liked to see those powers in the Bill. The Bill could have been much more like other parts of the law, but that opportunity was missed.

Another good part of the Bill that we expected to see is the idea that police will have a greater duty to look after prosecutions. One has to look carefully to find it: it is in clause 10(5)(a). However, the change is very little. We have heard that the police process has been very ineffective. Because the security services have looked after the case management of the people in question, the efforts to prosecute have been extremely weak. I have no faith that what is in the Bill at the moment will make a difference to that, so it absolutely must be strengthened.

It is very good to know that there will not be relocation. I am pleased to see that in the Bill. The change from curfews to an overnight residence requirement is a small step in the right direction, but it does not go far enough. I should like a residency requirement that reflects the situation of most people. Most people—I realise that MPs are not typical in this regard—have a home where they normally reside overnight. That does not mean that they are there every night, or that they are there for the same hours every night, but it provides a reasonable way to find somebody. That should be the standard approach if we must have restrictions of any kind.

There is another improvement in the Bill, which is the move from “reasonable suspicion” to “reasonable belief”. We have heard that it will probably have a minimal effect, but it is a bit better. However, I say again what I said in a debate earlier in the year about terrorist asset-freezing: it still means that there is a threshold below the balance of probabilities. We are not asking for evidence to be demonstrated to a level at which we can have even a 50:50 belief that somebody is involved in terrorist activity. Many of us would like a criminal standard and a criminal conviction, but under the Bill the evidence threshold is below the civil standard, which very much concerns me.

I am also concerned that we are losing the annual review. I agree with the comments that have been made about that. Control orders were introduced as emergency, temporary legislation, and I believe we are now past that emergency, temporary period. I would like us not to have an annual review, but only because we have got rid of control orders completely and their replacement does not arouse our concerns. However, I am worried about parliamentary scrutiny of the process.

I am also concerned about schedule 1. I am grateful to the Home Office for allowing me to have discussions about what might be in it, but it is much broader than I had ever anticipated. It mentions exclusions from particular areas, and the explanatory notes highlight that that could include a mosque. I hope the Minister will be able to tell me whether it could include an exclusion from all mosques, or from any other religious building for people from other backgrounds. It mentions association bans, on which there are very few constraints. Could they involve banning somebody from associating with their family? What safety is there in that measure? A long list of measures—I shall follow the direction of the hon. Member for Newark and not go through every single one of them—must be pulled out and dealt with in Committee.

The Bill is simply not good enough. The details need to change, but so do the principles. We can spend a lot of time haggling over phraseology, but the approach is wrong. Any alternative should be part of the normal legal process, and we must find a way to make that normal process work.

Effectively, there is a power for judicial review, but that is not the same as judicial oversight. That power relies on judges deciding that the Home Secretary has made obviously flawed decisions. That is quite a tough standard, and I would like the measures to be much more in the control of the courts. They should make decisions rather than have a weak power if the Home Secretary behaves excessively.

In 2010, the Select Committee on Home Affairs stated:

“It is our considered view that it is fundamentally wrong to deprive individuals of their liberty without revealing why.”

I hope all hon. Members agree with that. There should be more of a focus on prosecution. There are some measures on communications and extra money will be available for surveillance, but they are legislatively weak. We know that control orders acted against the interests of prosecutions. The Home Office counter-terror report stated that control orders can mean

“that prosecution and conviction…becomes less not more likely”.

Control orders make it harder to achieve what we want. If people have been involved in terrorist activities, we would like them to be convicted and put behind bars. The scheme is also expensive to run, because it interferes so badly with human rights and basic principles. Continuous wrangling over that leads to very large legal costs—about £13 million over a few years.

There are alternatives to control orders. Police bail, which has been discussed, is not a perfect system, but it fits much more with other measures that we use, which makes it a more normal and sensible way of running the system. We need to use much more evidence. If we have covert or intercept evidence, we should use it. We had an interesting discussion about people whom we know are terrorists but whom we cannot convict, even if we have evidence. Instead, we put them in limbo for a long period. The correct solution must be to change the system so that we can convict them.

In his evidence to the Joint Committee on Human Rights, on which I used to serve, Lord Macdonald of River Glaven, who has spent a long time analysing and reviewing such matters, was absolutely clear that intercepts should be used. He pointed out that one frequently uses informers, bugs and probes in respect of criminal offences, and that there are ways of managing and using such evidence. He said that he had

“never accepted the argument that its effect would be marginal.”

He continued:

“You simply have to raise that argument in Washington and see the reaction on people’s faces when you suggest that intercept would not be useful, or ask people in Canberra or Ottawa, or anywhere else. They simply cannot believe that people are making this argument.”

I, too, cannot believe it. We should ensure that we use intercept evidence.

We should also look again at other options that Lord Macdonald has proposed, such as giving the Director of Public Prosecutions the power to say, “We can prosecute, but not yet. We must hold this person for a while first.” That would give more control to the DPP. We should also give more control to the High Court. We could make the Bill better in a number of different ways to make it more a part of the legal system.

It has been said that the Government wish to have emergency legislation in case TPIMs are not enough. That worries me, because I think that TPIMs are too much anyway. What is that emergency legislation, when will we see it, and will it have pre-legislative scrutiny? I see no reason why the Opposition, whom we know are keen on stronger measures, should be the only parliamentarians to see it. All Members of Parliament should see it, so that it can be discussed. If there is ever a need to use something stronger than a TPIM, we should think about it carefully in advance, not at 4 o’clock in the morning in a panic. We should look at such a measure very carefully.

I can tolerate the Bill on Second Reading—I like clause 1 and am happy to live with it—and there is still time to improve the Bill in Committee. We should not wait for the other place to go through the Bill properly: this House should make it work. We should improve the Bill in Committee and on Report, but I would be uncomfortable supporting the Bill on Third Reading unless there are changes and reassurances.

I shall end with some final words from Lord Macdonald. On control orders, he said:

“The reality is that controlees become warehoused far beyond the harsh scrutiny of due process and, in consequence, some terrorist activity undoubtedly remains unpunished by the criminal law. This is a serious and continuing failure of public policy.”

He is absolutely right, and we should not let that situation continue.