Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2021

Lord Anderson of Ipswich Excerpts

Tuesday 30th November 2021 Grand Committee

[Baroness Jones of Moulsecoomb (GP)]

My Lords, here we are again: the five-yearly renewal of the TPIM scheme, which has been in place since 2006. I oppose these restrictive measures, which are an extrajudicial way of interfering with the rights and liberties of people who cannot be convicted of any crime.

I am curious to know whether the Home Office has explained to the Prime Minister that it is doing this. I ask because, while MP for Henley in 2005, Boris Johnson wrote of the Act in his Telegraph article of 10 March:

“It is a cynical attempt to pander to the many who”—


forgive my language here—

“think the world would be a better place if dangerous folk with dusky skins were just slammed away, and never mind a judicial proceeding; and, given the strength of this belief among good Tory folk, it is heroic of the Tories to oppose the Bill. We do so because the removal of this ancient freedom is not only unnecessary, but it is also a victory for terror.”

I hope that the Minister will at least pass this back to the Home Office to make sure that the Prime Minister is happy with this renewal. It must be so difficult for Ministers to do anything without Boris Johnson having opposed it somewhere at some point in the past; there is always an article somewhere that one can track down. Our Prime Minister is so very often so wrong, but on this rare occasion he was so right: it is heroic to oppose these measures, and the Greens in your Lordships’ House will register their opposition every five years when this continuation order comes round. I actually hope this will be the last time.

[Lord Anderson of Ipswich (CB)]

As Independent Reviewer of Terrorism Legislation in 2016, I had no hesitation in recommending the second renewal of TPIMs in that year. I share the Government’s view that TPIMs, although they involve a particularly severe deprivation of liberty and intrusion into private life, may be an appropriate tool for dealing with a small number of individuals who are believed to endanger the public but whom it is feasible neither to prosecute nor to deport.

However, close scrutiny of TPIMs is important, all the more so since the maximum duration of a TPIM was significantly increased by the Counter-Terrorism and Sentencing Act 2021. I am here to raise with the Minister one concerning development that has arisen since my time as independent reviewer: the refusal of legal aid to TPIM suspects who cannot afford to progress the automatic review of each TPIM that is provided for in Section 9 of the TPIM Act 2011.

Jonathan Hall QC, the current independent reviewer, reported to the Government in November 2020 that, in the previous year, three subjects of so-called light-touch TPIMs, known as JD, HB and HC, requested the court to discontinue the reviews in their cases and that

“the absence of funding was a factor”.

In each case, they had been refused legal aid. The independent reviewer’s report, published in March 2021, recommended that, subject of course to means, legal funding should swiftly be made available to TPIM subjects for the purpose of participating in Section 9 review hearings. Mr Hall informed me this afternoon that, more than eight months after publication, there has still been no response from the Home Office to this recommendation. Can the Minister say when a response will be provided?

In the hope that it may influence the substance of any response, which, I might add, I do not expect today, I shall make four points. First, on 12 October 2020, the Government wrote to the UN High Commissioner for Human Rights, defending the TPIM regime on the basis that, among other things,

“all TPIM subjects have an automatic right to have a court review the imposition of their TPIM and each of the measures imposed. This hearing also provides an opportunity for the subject to hear the national security case against them.”

I assume that in the last sentence the reference is to the gist of the national security case, which is now provided to the TPIM subject. It is plain from what I have said, and from what the independent reviewer has said, that there is, in reality, no automatic right to review and that there will be no such right for as long as legal aid is refused to TPIM subjects on grounds other than means.

Secondly, it would be unacceptable if funding were to be denied because of a misapprehension that a Section 9 review is a form of challenge that requires a TPIM subject to establish reasonable prospects of success. As the independent reviewer explains in his report, Section 9 review was designed not as an add-on but as an integral part of every TPIM. Furthermore, it is not feasible to apply a merits criterion to the grant of legal aid, because the requirements of national security mean that TPIM subjects do not know, and will never be told, the full reasons for the Secretary of State’s decision to impose a TPIM.

Thirdly, if the aim is to save money or a desire to avoid giving money to lawyers for suspected terrorists, that aim is not only misguided but likely to be counterproductive. The legal aid issue affects very few cases—just three in 2019, as I indicated—but is bound eventually to lead to prolonged litigation about the fairness of proceedings.