Terrorism Prevention and Investigation Measures Bill

Lord Henley Excerpts

Wednesday 5th October 2011 Lords Chamber

Moved By

[Lord Henley]

That the Bill be read a second time.

[The Minister of State, Home Office (Lord Henley)]

My Lords, protecting the public from terrorism will always be the top priority of the Government and we will do nothing to jeopardise the safety of our citizens. We are committed to ensuring that the police and others have the powers they need to tackle terrorism, but we are also committed to ensuring that there is a correct balance between state powers and the civil liberties of individual citizens. One does not preclude the other. Public safety is enhanced, not diminished, by having appropriate and proportionate powers.

We believe that the previous Government got that balance wrong and introduced laws that were unnecessary, ineffective and damaging to the long-held traditions of liberty in this country. That is why one of the first things we did was to carry out a comprehensive review of the most controversial counterterrorism and security powers. The outcome of the review was announced in January of this year. The review benefited considerably from the independent oversight provided by my noble friend Lord Macdonald and from the input of a wide range of organisations and individuals, including my noble friend Lord Carlile. Both noble Lords will speak later in the debate. As a result of the review, we reduced the maximum period that terrorist suspects can be held before charge from 28 to 14 days, and we replaced the stop and search powers in Section 44 of the Terrorism Act 2000 with a significantly more circumscribed regime. We are making other important changes as part of the Protection of Freedoms Bill that is currently in another place.

The Government have already done much to deliver on their commitment to restore the balance between civil liberties and state powers, but we are also clear that we have an overriding duty to protect the public and to uphold their values and defend their way of life. That is why the most difficult issue faced by the review was what to do with control orders. It is clear that the current threat from terrorism remains serious and will not diminish in the foreseeable future. It is also clear that in this country there are, and will continue to be, a small number of people who pose a real and immediate terrorist threat but who cannot be successfully prosecuted or deported. The difficulty for the review was how we could protect the public from the threat posed by these individuals while ensuring that they can lead as normal a life as possible. The results of our deliberations are reflected in the Bill before us.

The Terrorism Prevention and Investigation Measures Bill will repeal the control order regime contained in the Prevention of Terrorism Act 2005 and replace it with more focused and targeted terrorism prevention and investigation measures. The so-called TPIMs will be supported by significant extra resources for the police and security services to increase their covert investigative capabilities. This approach mitigates the risk we face in a more balanced way than control orders, but does not undermine the protection provided to the public. The prosecution and conviction of those involved in terrorism will always be our top priority. However, where prosecution is not possible, we cannot allow such individuals to continue with their activities. That is why the TPIM Bill will enable us to place restrictions on the individuals involved.

I turn now to some key measures in the Bill. In Clause 1, the Bill abolishes control orders and establishes the new TPIM regime. This enables the Secretary of State to impose specified measures on an individual by means of a TPIM notice. The details of the requirements and restrictions that can be specified are set out in the first schedule to the Bill.

Setting out in detail the nature of the measures that will be able to be imposed—including clear limits on those measures—is central to our approach. Under control orders there are very few limits on what types of measures can be imposed. Now, there will be a very specific list of the potential measures available, which is a more transparent approach. It also means that the types of measures that are available will have been specifically approved by Parliament. This is right—it should be for Parliament, not the Executive, to decide what types of measures can be imposed.

The Bill establishes 12 types of measures that can be imposed. These include: an overnight residence requirement; a travel measure, primarily to prevent travel outside the United Kingdom; an exclusion measure, to prevent individuals entering specified areas or places; a financial services measure; an electronic communication device measure; an association measure; a reporting measure; and a monitoring measure.

The overnight residence requirement is not the same as the curfew requirement that is available under control orders. Such curfews can be for up to 16 hours a day and can cover any point in the day. Our intention is not to force individuals to remain in their homes during the day, when they would normally go out to work or to study, but to ensure that they are in their homes overnight. The Bill makes clear the limits of the restrictions that can be imposed—for example there is no power in the Bill to relocate an individual to another part of the country without their consent; and under the electronic communication device measure, it is clear that the individual must be allowed to possess and use certain communications equipment.

The Bill also sets out the conditions that must be satisfied before the Secretary of State may impose a TPIM notice. A key change from the current control order regime is in the first of these conditions, which requires that the Secretary of State must reasonably believe—rather than reasonably suspect—that the individual is, or has been, involved in terrorism-related activity. We think that this is an appropriate raising of the bar for imposing such preventive measures. In each case, the Secretary of State must also reasonably consider that it is necessary to impose measures on an individual, both in relation to the TPIM notice as a whole and the specific restrictions it contains. A further condition is that, except in the most urgent cases, the court has given permission for the proposed TPIM notice to be imposed.

TPIMs are intended to be a short-term tool to protect the public. They are not a long-term solution. A TPIM notice can therefore only be extended once. This means that a person can only be subject to a TPIM notice for a total of two years. This is a significant change from the current control order arrangements.

While TPIM notices will be imposed by the Secretary of State, the Bill sets out the significant involvement that the courts will have in the process. We are clear that the primary decision-maker in these cases must be the Secretary of State, as she is the person responsible for national security. However, we are also clear that the High Court should have full oversight of the process. The courts will, in all but the most urgent cases, give prior permission for the notice to be imposed. At this stage the court must determine whether the Secretary of State’s decision to impose a TPIM notice on the basis of the evidence available is obviously flawed.

If the court gives permission and the Secretary of State then imposes a TPIM notice, the process for a full review of the decision must begin. This happens automatically without the need for an appeal to be lodged by the individual subject to the TPIM notice. The full review will be heard by a High Court judge. The judge will consider the Secretary of State’s decisions that both the conditions for imposing a TPIM notice were met at the time the notice was first imposed, and that those conditions continue to be met at the date of the hearing. The judge may quash the whole notice or specific measures within it as appropriate.

The reviews of TPIM notices will take place within the context of the relevant case law on control orders that has been developed in recent years. This means that the court will exercise intense scrutiny over the Secretary of State’s decisions and that individuals will know the key elements of the case against them even if it is not possible for them to see all the underlying intelligence.

In addition to the rigorous consideration of the Secretary of State’s decisions by the courts, the Bill also builds in a formal statutory requirement for the Secretary of State to keep under review whether each TPIM notice remains necessary to protect the public from a risk of terrorism and that each of the measures in those notices remains necessary. The Bill also makes provision for a number of additional safeguards.

First, we listened carefully to the debates in another place about the need for renewal of the TPIM legislation by Parliament. We have accepted the arguments that TPIM notices should be seen as exceptional measures and that, as such, some form of regular review of the powers by Parliament is appropriate. We therefore amended the Bill in another place so that the operative powers under the Bill will expire after five years unless they are renewed by affirmative order; that is, with the approval of Parliament. This means that each new Parliament will have the opportunity to consider the legislation, how it has operated and whether it is still necessary. I hope that the House agrees that that represents a significant safeguard.

As well as this renewal by Parliament, the Secretary of State will be required to make a quarterly report to Parliament on the exercise of the powers under this legislation. The Secretary of State must also appoint an independent person to review the operation of the Act. As the House will be aware, David Anderson QC is now the independent reviewer of terrorism legislation, a role which was previously undertaken with great distinction for many years by my noble friend Lord Carlile.

Finally, I should like to bring Clauses 26 and 27 to the attention of the House. On 1 September, the Government published a draft enhanced TPIM Bill for pre-legislative scrutiny. This reflects the conclusion of our review that additional restrictive measures may—I stress may—be required in exceptional circumstances and that we would produce draft legislation to cover such a situation. We do not believe that it is necessary to have these additional measures in the TPIM Bill as we sincerely hope that they will never be required—and here I stress we sincerely hope that they will never be required. However, we think that it is right to have the draft legislation available and that Parliament should have the chance to consider it in detail now through pre-legislative scrutiny. The TPIM Bill, however, makes provision for the Secretary of State to introduce by order the enhanced TPIM regime during periods when Parliament is dissolved.

I look forward to our debate today and to the further debates that we will have in Committee, on Report and as the Bill otherwise proceeds through the House. As always, I am sure that our debates will be characterised by the thoughtful and expert contributions that are a mark of this House. It is with some humility that I look at the experience and expertise of all those who are speaking today, compared with my lack of experience in this new brief which I have taken on from my noble friend Lady Browning, whose resignation we all very much regret. I rather wish that she was here in this place rather than me but I will do my best, as is my duty, and I look forward to hearing from all those who are speaking today. Having said that, I believe that this Bill, together with the extra resources that we are providing, will protect the security of the British public and ensure that, in doing so, we go no further than is absolutely necessary. I believe that the Bill strikes the right balance between protecting us all from terrorism and upholding the civil liberties that all of us cherish. The approach set out in the Bill is the right one, and I commend the Bill to the House. I beg to move.

--- Later in debate ---

[Lord Henley]

My Lords, I offer my thanks to all noble Lords who have welcomed me to this post and, more importantly, for the tributes that they have paid to my predecessor, my noble friend Lady Browning, who served in the Home Office, albeit briefly, and in other departments in a previous Government with great distinction. We all wish her well.

After the particularly thoughtful earlier intervention by the noble Lord, Lord Reid, I intended to keep party politics out of this debate. However, after the savaging to which I have just been subjected by the noble Lord, Lord Rosser—accusations of political fudge by the coalition Government and so on—I ought to remind him that there are considerable divisions in all parts of the House, possibly nowhere more so than on his own Benches. Not all his party agrees with the line that he, the shadow Home Secretary and others are taking. Certainly, that is true of possibly four Members on his Benches today and I am sure there are many others. The noble Lord had one or two supporters from his Benches but not many more than that.

Within the coalition there are always differences. As my noble friend Lord Howard made clear, without a single party in government, these matters have to be debated within the Cabinet and within the Government, and one has to come to a proper conclusion. The important thing, as he made clear, was getting the balance right. I was grateful that my noble friend felt, with one or two doubts, that we had got it broadly right. My noble friend Lord Phillips also said that we had got it broadly right. That is what we will debate in due course as we cover these matters.

We have had a very good, full and constructive debate today. I am grateful to all those who have contributed. We have heard a wide range of different views and it is important that we continue to discuss these issues and the different views that we take. One of the points on which I agree with the noble Lord, Lord Hunt of Kings Heath, is the importance of scrutiny of the Bill in this House. I positively look forward to the Committee stage, and Report after that, when we shall get down to that in detail. The Bill needs careful consideration by this House. It is something that this House is particularly good at. The debate has also confirmed yet again the importance that this House places on our liberties—not just the civil liberties of individuals but the right of all members of society to enjoy those liberties free from the fear of terrorism. Civil liberties are at the core of our society, the rule of law and respect for individual liberties being the very things that those terrorists wish to destroy.

A great number of very detailed points have been put to me in the course of the debate. I do not intend to answer all of them at this stage; we would be here for a very long time. However, I shall go through some of the broader themes that have come up to give some indication of where we are and what we are thinking. We will no doubt debate those in much greater detail in Committee, as is right and proper. I also want to deal with some of the worries that have been put forward. In particular, the noble Lord, Lord Dubs, talked about the enhanced TPIM Bill and seemed to think that it was lacking in scrutiny. The important point to remember about the enhanced TPIM Bill—although, as I stressed in my opening remarks, we do not want to have to make use of it—is that it will be debated in due course. That is the point of giving it pre-legislative scrutiny. It will mean that it can be debated in a measured manner at an appropriate time, and not just in moments of crisis. That will be a matter for the usual channels to arrange in due course.

The first and most important point that I shall deal with, which was raised by my noble friend Lord Goodhart, the noble Lords, Lord Pannick and Lord Morgan, and others, is the idea that the TPIM system—with which we propose to replace control orders—will operate outside the rule of law. It will not operate outside the rule of law. We are here today in Parliament, in the Lords, debating this Bill. If enacted, it will have been passed by Parliament, just as the previous Bill was—many of us remember those long hours in 2005. The regime that follows that will be fully overseen by the courts. The Secretary of State’s decisions will be constrained by legislation and the Human Rights Act and, again, be fully overseen by the courts. I forget who it was who said earlier of a particular issue—I think it was the noble Lord, Lord Desai—that, either way, it would be tested in a court of law. We can be pretty sure that everything will be tested in a court of law in due course. Seeing two former Home Secretaries in the House, I imagine that Home Secretaries get rather used to that. It happens to other Secretaries of State, and I think that all Ministers are aware of the problems it can lead to.

As I said, I want to deal with some of the points that have been made and some of the difficulties that many noble Lords see in the Bill. I want to address the whole question of the removal of relocation powers. Many from the Official Opposition, my noble friend Lord Howard and others feel that we have gone too far in removing those powers, which they believe are essential for national security. We have been clear that we will do nothing that risks our national security or the safety of citizens. Schedule 1 to the Bill contains all the powers that we need for all but the most exceptional circumstances. The exclusion regime that we propose is not the same as relocation but it will allow a certain degree of exclusion from particular places, such as named buildings, streets or towns. Exclusion from airports, ports and international railway stations will also be possible. Other restrictions include the requirement for an individual to stay overnight at a designated address, preventing him contacting certain individuals and preventing him travelling overseas. Together with the additional resources that we will provide for the police—this is the important point—those powers are sufficient to manage the risks that we face.

I think it was the noble Lord, Lord Harris of Haringey, who asked why we had still been using relocation powers over the past year if that was the case—he rightly said that there had been some use of them. I make it clear that it is our view that the public can be protected by a less intrusive and more targeted regime, which is what we are replacing the current regime with and what the Bill will bring about. However, we want to make it absolutely clear that the new regime will be complemented by those additional resources for the police and the security services allowing more surveillance and so on. Those additional resources will inevitably take some time to put in place. The noble Lord, Lord Rosser, got it absolutely right when he implied that it takes time to train people in the art of surveillance. Therefore, it takes time to put them in place. That is why the full range of control orders, including relocation powers, are still being used at this time. However, we do not believe that they will be necessary in the future, when we have moved on and the rest of the provisions are in place.

[Lord Hunt of Kings Heath]

That is extremely helpful but, on that basis, does the Minister agree that it would be sensible for the commencement order to start on, let us say, 1 January 2013, so that we can get through the Olympic year using the present provisions? Would that not be a more sensible approach?

[Lord Henley]

I will make no guarantee at this stage. I noted that my noble friend Lord Carlile suggested a delay for the Olympics. We will certainly look at that. It is something that I am sure will be argued in Committee. I give no guarantees but it is something that can be looked at. Obviously, it is important to get these things right.

[Lord Desai]

I was in India when the London riots took place. The one fear that everybody expressed was, “What will happen at the Olympics?”. It is very important that, whatever the Government do, they take care over the global anxiety about security in London during the Olympics, and do nothing to give the impression that we are lowering our guard.

[Lord Henley]

My Lords, I can give an assurance to the House, to the noble Lord and to anyone else who reads our debates that the Government take security for the Olympics very seriously indeed. Again, this is a point that we will have to consider further when we get to Committee stage but I note what the noble Lord had to say.

The noble Lords, Lord Goodhart and Lord Pannick, asked whether the TPIMs system should not be made by a judge rather than just judge reviewed. The noble Lord recalled the passage of the 2005 Act, which we all remember. He recalled my late noble friend Lord Kingsland, who at that stage wanted control orders to be made by the judge. I think that I was probably sitting next to him as he made those arguments but I cannot remember the exact outcome other than the fact that the Government got their way in the end and we have all moved on and changed our views on these things. However, we believe that this is a matter of national security and is properly a matter for the Secretary of State. While there obviously should be the appropriate extensive judicial oversight of the Secretary of State’s decision, it should none the less be the responsibility of the Home Secretary and not the High Court to impose these notices. We believe this is consistent with the approach that we have taken in other areas such as in decisions to exclude, deport or deprive citizenship on the basis of national security considerations. However, the TPIMs regime must certainly be subject to very thorough oversight arrangements by the courts. I hope that we have set out just how thorough those will be. As I said, we will continue to argue that case during the passage of the Bill.

As regards the renewal and the review by Parliament, as all noble Lords have reminded us, control orders have been subject to review every year. It was proposed that they should be reviewed every five years. That concession was brought in in another place. We believe that five years strikes the right balance. It will recognise the competence of Parliament—each Parliament will be five years from now on—to scrutinise the Bill and to arrive at a settled position on proportionate and effective powers that are needed to protect the public. It will also allow each new Parliament to review the situation and to consider whether the powers are still needed, and will mirror the length of Parliaments that we now have provided for in the Fixed-term Parliaments Bill. Ending annual renewal will allow the system to operate in a stable and considered way, focusing on protecting the public and striking the right balance with liberty rather than on merely political bickering. If we have the annual debate, I wonder whether, as with some other annual debates that we have, there will be a gradual diminishing in the interest taken in that and whether this is not something that should be left for each new Parliament to decide in due course. As I said, this matter has been raised by a large number of noble Lords on all sides of the House and I am more than happy to consider it again when we get to Committee stage.

My noble friend Lord Howard talked about being a member of the committee of privy counsellors looking at intercept and how he would have liked to use intercept if it were possible but that he was beginning to see the difficulties in so doing. I looked back to the debates in 2005 that the noble and learned Lord, Lord Lloyd, will remember. In those debates it was not Lord Kingsland arguing the point from the opposition Benches but myself. The noble and learned Lord will remember that we had considerable discussions on this matter. I think we all accept that views can change. We are committed to seeking a practical way that will allow the use of intercept evidence in court. That work is under way. My noble friend Lord Howard and others are involved in that. We will report to Parliament in due course. However, as my noble friend made perfectly clear, the issues are difficult and complex. None the less, we believe that a workable scheme could offer clear benefits in terms of enhanced scope to bring the guilty to justice and increased confidence in the justice system.

I wanted to cover those brief points at this stage. I appreciate that noble Lords have raised a large number of other points. I repeat that this has been a very good and useful debate in first airing our views on the Bill. That is exactly what a Second Reading should be. I look forward very much to Committee stage. I hope that we can continue to argue the case in a civilised manner and send the Bill back to another place in as good a state as we can get it. I commend the Bill to the House. I beg to move.

Bill read a second time and committed to a Committee of the Whole House.