Terrorism Prevention and Investigation Measures Bill

Lord Hunt of Kings Heath Excerpts

Wednesday 19th October 2011 Lords Chamber

[Lord Henley]

I made clear that, as part of that review, we considered moving to that test. I was not in the Home Office at the time, so I do not know what precise consideration was given, but in the end the decision was taken that, yes, we will raise the standard from reasonable suspicion to reasonable belief, but that to take it beyond that would create risks. A decision had to be made on where the appropriate balance should be, and that is why we came down in favour of reasonable belief rather than a balance of probabilities.

I hope that the noble Lord can accept that, but I can see that it is a very difficult one and we will no doubt discuss it in later stages of the Bill. We believe that reasonable belief should deal with the questions raised by the noble Lord. The same applies to his Amendments 42 and 43 when talking about the decision being made by the Home Secretary herself. Again, I noted what my noble friend Lord Faulks had to say on that matter. Possibly they were better words for use with the Home Secretary’s decision rather than when talking about a judicial process. Again, we feel that we have the balance about right.

I turn now to the question raised on the full merits review in the noble Lord’s Amendments 42 and 43, which I mistakenly said were his amendments on the alternative, but that is covered by his Amendment 17, so I correct myself at this stage. His Amendment 42 specifies that a full court review of a TPIM notice under Clause 9 must be “on the merits” and would delete the subsection of that clause which specifies that,

“the court must apply the principles applicable on an application for judicial review”.

As the noble Lord explained, these amendments are designed to ensure that the review of an imposition of a TPIM notice provides a full merits review. He articulated the view of the Constitution Committee—yet another committee that has been looking at this—in its report on the Bill: that it should be clear, on its face, in cases concerning TPIM notices. The function of the court is not limited to ordinary judicial review. Such a constitutionally important matter should not be left for clarification in the Explanatory Notes. Similarly, the noble Lord, Lord Hunt, made it clear that the purpose behind his intention to oppose the question that Clause 9 stand part of the Bill is to facilitate consideration of this same issue.

The Government have been clear that judicial oversight of the process of imposing measures must be a key feature of the new regime. The involvement of the courts is an important safeguard for the rights of the individual, and the Bill takes a comprehensive and multilayered approach to this. As the Explanatory Notes explain, the case law relating to control orders is subject to a particularly intense level of review by the High Court. It is absolutely the case that the Government intend for the same intense level of scrutiny to be applied in court reviews of TPIM notices under Clause 9. All noble Lords will be aware that the courts have not been slow in finding against Home Secretaries of whatever regime for many years in control order litigation, and have used their powers to quash control orders or to give directions to the Secretary of State as appropriate under the current system of judicial review principles, as interpreted by the Court of Appeal in the case of MB.

We are of the view that the courts will apply relevant case law to TPIM proceedings as appropriate. That will, of course, include the case law on the type of review undertaken by the courts in these kinds of cases. In summary, in relation to the full substantive review of each control order, the Court of Appeal ruled again in MB that the High Court must make a finding of fact as to whether the reasonable suspicion limb of the statutory test for imposing a control order is met, and must apply intense scrutiny to the Secretary of State’s decisions on the necessity of each of the obligations imposed under the control order while paying a degree of deference—

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Lord for giving way because it enables me to anticipate the arguments we are going to have later, on whether Clause 9 should stand part of the Bill. He will know that the Opposition have concerns about the Bill, both because we think that it in some ways weakens our ability to prevent terrorism acts, and because we think that it weakens some of the safeguards. I very much agree with the noble Lord, Lord Pannick, on this. Given that the enhanced level of scrutiny has been one of the ways in which we have seen that the control order regime works effectively, I am surprised that the Government are not prepared to accept the spirit of what the Constitution Committee has put forward. I still do not understand why it is not possible to put this in the Bill.

[Lord Henley]

My Lords, I shall develop those arguments further when we get to Clause 9, which the noble Lord wishes to discuss. Late this evening though it might be, that might be the appropriate time, and I look forward to that in due course.

I shall now move on to the fourth point I want to deal with, which relates to the question of the time limit and how long a TPIM notice can have an effect. The noble and learned Lord, Lord Lloyd, proposes changes to the provision relating to the period for which a TPIM notice can be served. In his model, as I understand it, there would be a requirement for new terrorism-related activity to have taken place while the TPIM notice was in force in order to allow the TPIM notice to be extended into its second year. Again, we do not think that this strikes the right balance—and again, it is “balance” that we want to stress—in the context of preventive orders of this kind. Indeed, it would undermine the Government’s ability to protect the people of this country from a risk of terrorism.

Although we have decided that extension of a TPIM notice for a further year should only be allowed on one occasion—after which new evidence would be required to impose a new TPIM notice—we do not believe that new terrorism-related activity should be required in order to extend the original TPIM notice for that first year. In other words, one could make the original notice for a year, then extend it; but if one wanted to extend it further than those two years, then there must be new activity.

An ongoing necessity for the notice can be made out on the basis of the original terrorism-related activity, particularly where that activity was very serious, suggesting that the individual’s mindset and intention to do serious harm will not have changed after just one year subject to whatever restrictive measures have been imposed in the TPIM order. Indeed, many court judgments in the context of control orders confirm that ongoing necessity, for the purposes of public protection, is not dependent on any new terrorism-related activity since the imposition of the control order.

Although the Government’s view is that TPIM notices should not be used simply to warehouse people for very long periods and should not be imposed indefinitely on the basis of the same evidence—as can happen with control orders at the moment, if the statutory test continues to be met—we do not think that a notice that can only last one year without evidence of new activity while subject to the measures will be sufficient to disrupt the threat posed by the individuals concerned in many cases. Therefore we believe that the right balance—again, I stress “balance”—is this “one year plus one year” approach. It is a balance between protecting the public from persons believed to be engaged in terrorism-related activity and protecting the civil liberties of those individuals. I hope that also answers the point made by the noble Baroness, Lady Hamwee, as to whether one could go beyond two years with a TPIM notice. What I want to stress is that, if one wants to go beyond two years, one has to find some other terrorism-related activity.

I hope that that has dealt with most of the points that have been made in the very useful debate we have had on this large group of amendments at the start of the Committee stage of this Bill. No doubt we will be coming back to all these matters at a later stage of the Bill, just as we will be coming back to them on Clause 9, as the noble Lord, Lord Hunt, has assured us—possibly later on today. I hope that, as I have answered those points, the noble and learned Lord, Lord Lloyd, will feel able to withdraw his amendment, and we can move on with the Committee.

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[Lord Carlile of Berriew]

My Lords, in tabling this amendment, I am grateful for the support of the noble Lord, Lord Hunt of Kings Heath, who has put his name to it. This group of amendments is about relocation, an issue we discussed at Second Reading. The first sentence of the executive summary of the Justice and Security Green Paper, published today by the Ministry of Justice, is:

“The first duty of government is to safeguard our national security. In delivering this duty, the Government produces and receives sensitive information”.

I do not want to repeat at great length the arguments on relocation presented at Second Reading. I simply want to reiterate that the sensitive information, the security that the Government have received, points to the need, for the time being at least, to continue as part of the main legislation the power to order relocation, used sparingly as it is and subject to the scrutiny of the courts.

I have drafted the amendment so as to keep the existing control order provisions for relocation until after the Olympic Games, choosing a date after 1 January 2013. At that point, it would be open—and I am completely open-minded about this—to the Government to come back to Parliament and to replace the relocation provisions with what is in the Bill, which would remove relocation subject to emergency legislation. All that would be required would be an affirmative resolution of both Houses. There would therefore be a debate in which the Government would pass to each House of Parliament the advice that they have received from the security services, including the sensitive information to which I referred earlier.

I can best make my argument for this group of amendments by asking the Minister a series of questions. First, is it correct that the National Security Council, which is made up of Ministers only, has been advised against the removal of relocation from the list of available powers? If the NSC was so advised, I suspect that the Minister will be driven to confirm that the removal of relocation is not as a result of a debate on the merits but as a result of political considerations founded on the manifestos of the two partners in the coalition. I am as enthusiastic about the coalition as most Liberal Democrats—well, nearly—but I am not enthusiastic about political considerations trumping national security, which is what I fear may have happened.

My second question is: have Her Majesty's Government received any advice from those who are currently operational in MI5, MI6, GCHQ or SO15, the counterterrorism command, that the relocation power has become an unnecessary component of national security for the time being? If they have, perhaps they will tell us what it is and whence it came, because my belief is that the advice will be eccentric and not in the mainstream.

My third question is: does any part of the informed security bodies—those with the information—support the removal of the relocation power before the Olympics and Paralympics, as opposed to after them? In other words, what consideration has been given to the pinch point that will be created by the Games? We should remember in this context that we are talking about the security not only of the Olympic Park and the other venues where Olympic and Paralympic events will take place. One effect of the Games on policing in this country will be that a large number of police officers will be removed from their normal duties up and down the country—dare I say to the Minister, in Cumbria for example? Those officers will find themselves in unfamiliar places in east London, protecting the Olympic Park. Perhaps not in Cumbria but in some of our bigger and more populous resorts during the summer, there will be an increased risk of terrorism events going undetected.

My fourth question, which is connected, is really a rhetorical question. Surely on the basis of the evidence the Government must accept that they would be fulfilling what the Green Paper describes as the first duty of government by retaining relocation until after the Olympics and Paralympics are over.

My fifth question relates to something that was raised at Second Reading: the case of CD and the judgment of Mr Justice Simon. When the CD case was heard earlier this year, did Her Majesty's Government consider it proportionate and in the interests of national security to request a relocation component in CD’s control order? If they did, I come to my final question: have they changed their mind about CD? If they have, why have they done so?

The decision in the case of CD was taken on the basis of arguments presented on behalf of the Government, with special counsel present, after the publication of the counterterrorism review that was independently and very capably scrutinised by my noble friend Lord Macdonald of River Glaven. If the Government had decided that relocation was no longer necessary, it is surprising that they bothered to make the argument against CD. One should, after all, contrast it with the decision made in relation to Section 44 stop and search, which remained on the statute book long after the Home Secretary made the welcome announcement that it was in effect no longer to be used. I am driven to the conclusion that there was a merits argument in the Home Office about both these issues and that the decision that was taken on the merits was that Section 44 should no longer be used because we did not need it, but the decision that was taken on the merits in relation to relocation and CD was that it should continue to be used because we do need it. All that leads me very reluctantly to the conclusion that the removal of relocation has far less to do with the Government’s first duty than with meeting some arguments that have been made before this Government were formed and in a political context, including a very powerful argument made in a Times article by my noble friend Lord Macdonald before he was a Member of this House.

What I would ask the Minister to do is merely to confirm at this stage, because we will return to this later, that the Government are considering this matter and are now considering it on its merits. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I rise to support the noble Lord, Lord Carlile, and have added my name to his amendment. I really hope that the Minister will give this earnest consideration. He will know that I am highly critical of the Bill that he brings before us. It is clear that the exclusion provisions within control orders have proved to be highly effective. The evidence given by the deputy assistant commissioner to the Public Bill Committee in the other place was quite persuasive on that point. The noble Lord, Lord Carlile, has already referred to the case that the Home Secretary herself brought forward and argued for the use of such provisions. It is clear that the Government know that they may need these provisions in the future. That is why we have the enhanced TPIMs draft Bill for use if it were ever to be required.

We have the quite extraordinary provision in this Bill that if the enhanced provisions were to be required, and were to be required in the period between the Dissolution of Parliament and the first Queen’s Speech in the next Parliament, the Home Secretary is to be empowered by this Bill to use those provisions. If ever there were an admission that the Government know in their heart that they may need those provisions and, indeed, have used them in their period of office, there is the evidence.

We then come to the second issue that the noble Lord, Lord Carlile, has alluded to. It is whether it is right or sensible to remove those relocation provisions at the current time. We have the Olympics, and we also have the issue that, in lieu of the exclusion provisions, additional surveillance will have to be undertaken by the police at additional cost, with additional resources and using more people. The noble Lord will know that in the Public Bill Committee in the other place the deputy assistant commissioner expressed some concerns about the length of time that will be required by the police to put those measures into place.

The amendment moved by the noble Lord, Lord Carlile, quite brilliantly in my view, gets the Government off the hook for the period between the end of the Olympics and the beginning of 2013. It also says to the Government that, if at that time or beyond it they reach a conclusion that they do not need the exclusion provisions, they can simply bring an order before Parliament. No doubt Parliament would assent to that order, as it does assent to government orders. However, if the Government at that time are not so assured, they already have the provisions on the statute book with the benefit of them having gone through Parliament and being effectively scrutinised rather than using the very unsatisfactory approach of having an emergency Bill in the stocks ready for use.

I hope that the noble Lord, Lord Henley, might be sympathetic to the amendment in the name of the noble Lord, Lord Carlile. It is meant to be a constructive response to current circumstances. I certainly think that it warrants due consideration.

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[Lord Hunt of Kings Heath]

Will the noble Lord address the evidence given by the deputy assistant commissioner, which I know he will have read, which pays tribute to the effectiveness of that exclusion order?

[Lord Pannick]

I am coming to that, but let us at the outset recognise the impact of a relocation measure. If one is going to adopt a measure or power of this sort, one needs to recognise the striking impact that it has on the spouse and the children. A measure that amounts to internal exile of a person needs a compelling justification.

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[Lord Pannick]

The noble Lord can intervene as many times as he likes. I welcome his interventions. My answer to his point is twofold. We can always add more and more intrusive measures and protect ourselves more effectively from the perspective of national security. The question is: what is a fair balance? I am assuming that the Government, not just concerned about a particular individual case but looking at these issues as a whole, have concluded that relocation would undermine the fair balance because of its particularly intrusive nature and that the combination of the measures contained in the TPIM and the surveillance measures that can always be imposed on an individual who is not relocated will effectively protect the public. It is true that there is a financial cost, which is the point made by the noble Lord, Lord Hunt. Does the noble Lord wish to add to that?

[Lord Hunt of Kings Heath]

The noble Lord is being very kind in accepting all these interventions, but this is an important point. If the Government were really confident, they would not be producing a draft emergency Bill or having the provision in this Bill to allow the Home Secretary in an election to use the enhanced measures. I am afraid the fact is that in their heart, and particularly in the noble Lord’s own department, they know that the exclusion provisions are very important. I am sure that, in the future, they are going to have to use the emergency provisions if this Bill goes through. I do not think that the Government have that confidence, and that is the worry.

[Lord Pannick]

We will hear from the Minister in relation to that in a moment. I am satisfied that a sensible and fair way of dealing with what is a very difficult issue, because of the primacy of national security and the particularly intrusive nature of a relocation power, is for the Government to satisfy themselves, as I assume they have done, that relocation powers are not needed. However, given the importance of this power, they recognise that it is sensible to have reserve powers available which, God forbid they are ever needed, can be brought into force. I support the Government on this.

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[Lord Henley]

My Lords, as someone who started his ministerial career some 20 years ago sitting at the feet of my noble friend Lord Newton, I am grateful to hear those remarks. I always knew that he was sound, loyal and supportive of the Government in every possible way.

The noble Lord, Lord Hunt, was somewhat disparaging about the Enhanced TPIM Bill and asked why we have it. It obviously indicates that we believe there is a need for bringing in relocation because we have it in the Enhanced TPIM Bill. At Second Reading, I made it very clear that we hoped that we would never have to bring that Bill into force, but I also tried to point out how important it was that we should be able to debate it in a measured manner, which is what pre-legislative scrutiny will allow for, when the threat was not as high as it might be when and should we have to bring it in. That might be a better way to proceed than to debate it in moments of crisis and rush it straight off the shelves while minds are not necessarily as settled as they should be.

[Lord Hunt of Kings Heath]

Does not the noble Lord, Lord Carlile, propose an even better way? Essentially, he is saying, first, let us get over the Olympic-year problem by allowing the Government to have use of this power in this Bill. We are able to scrutinise it properly and if at some point in the future the Government are able to conclude that they no longer need it they can bring an order before Parliament. If I were sitting in the Minister’s place, I would be very grateful to the noble Lord, Lord Carlile, because it is a very helpful amendment.

[Lord Henley]

My Lords, I note what the noble Lord says, but I do not accept that. The power might be necessary in the future; that is why we have brought the Draft Enhanced TPIM Bill to the House and why the House will have its chance for pre-legislative scrutiny. We hope that we will not need to bring it into effect. However, we might have to bring it into effect at a time when Parliament is not sitting, which Clauses 26 and 27 allow us to do. As was made clear by the noble Lords, Lord Pannick, Lord Macdonald of River Glaven and others, it is question of getting the balance right. I am glad that the noble Lord, Lord Pannick, repeatedly stressed the word “balance” because it is all about balance.

Perhaps I may say a little more about how we reached this decision and where we think we are. The Committee will be aware that relocation has been of particular interest during the passage of the Bill both in another place and here and strong views, as we have heard today, have been expressed on all sides. No one disputes the very powerful disruptive effect that relocation of an individual to another part of the country can have on their involvement in terrorism-related activity. Equally, as, again, the noble Lord, Lord Pannick, made clear, it can have a very powerful effect on the individual and his family likewise. So such a power raises very difficult questions of proportionality, including in relation to the impact that it can have both on the individual and their family. The counterterrorism and security powers review acknowledged these difficult questions and considered them very carefully.

As was made clear following that review, the Government concluded that it should not routinely be possible under the TPIM system to require an individual to relocate without consent to another part of the UK. Debates on the issue, as, again, has been made clear, frequently turn on that question of balance, specifically between protection of individual liberty and security for the wider population. Views on where the right balance might be understandably differ in different parts and, dare I say it, on all sides of the House—not many noble friends of the noble Lord, Lord Hunt, have intervened, but I am sure that he would find that there are one or two on the Benches behind him who do not agree with everything that the Opposition have had to say. As the noble Lord will be aware, the former Government took the view that compulsory relocation was necessary as one of the wide range of potential obligations under the control order provisions. That was a perfectly legitimate position, and my right honourable friend the Home Secretary has used the power to relocate on a number occasions when she has imposed control orders.

However, the coalition Government do not think that this is the only approach that can be taken. Our conclusion, as we made clear in January, is that a more focused use of the restrictions that will be available under the TPIM Bill, together with—it is important to remember this and I am grateful that the noble Lord, Lord Pannick, reminded us of it—the significantly increased funding that we are providing for covert investigation and other measures, will allow us effectively to protect the public without the need for this potentially very intrusive power to be routinely available. That is where our approach differs from that taken by both my noble friend and the Opposition in their amendments.

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[Baroness Stowell of Beeston]

My Lords, I hope I can give some reassurance to my noble friend on the issues that she has raised in her amendments today.

My noble friend’s first amendment relates to Clause 5 and the power to extend a TPIM notice for a further year. As Clause 5 makes clear, a TPIM notice can be extended only if conditions A, C and D are met at the time and the TPIM notice would otherwise expire. In particular, the notice and the measures specified in it must be considered necessary at that point. The Secretary of State cannot reasonably make a decision to extend until shortly before the notice would expire. If she attempted to do so, I am sure that the courts would not uphold her decision. My noble friend might also like to know that decisions on whether to renew control orders have been taken only relatively close to what would otherwise be the expiry date. However, I can also assure my noble friend that any subsequent change in relation to ongoing necessity will be reflected as soon as is practical, by either the relaxation of particular measures or the revocation of the notice as a whole. This is because necessity must continue to be made clear at all stages while the notice remains in place.

My noble friend has also tabled several amendments to Clause 6 and Schedule 1 in respect of the word “obviously”. These are Amendments 28, 30, 31 and 33 to 35. She seeks to clarify the word “obviously” and proposes deleting it from the phrase “obviously flawed” where it occurs. I can confirm that, in essence, this language is intended to mean much the same as prima facie in the context of what will normally be an ex parte application. In other words, her assumption on this matter is correct.

At the permission stage, the court will normally consider the application in the absence of the individual who is to have measures imposed on him. This is to ensure that the individual is not given advance warning that he is to be made the subject of a TPIM notice. The judge therefore undertakes an initial check at this early stage to ensure that there is nothing in the material presented to him to indicate that the Secretary of State is clearly wrong to think that the statutory test is satisfied, either in relation to having reasonable grounds to believe in terrorism-related activity or the need to impose a notice, or in relation to one or more of the proposed measures. It is a preliminary hearing that in essence ensures that the Secretary of State is not using her powers in an obviously inappropriate way, and therefore is very different to the further stages when the courts would review the actual decision.

The language of “obviously flawed” is well understood and applied by the courts as it is the language that is used in the control orders legislation—it is already there. The Government therefore consider that it is appropriate to continue to use this language. The full court review will, of course, be undertaken after the measures have been imposed. The procedures for that are set out in Clauses 8 and 9.

Finally, my noble friend’s other amendment in this group relates to what would happen in a circumstance where the court determined that only the Secretary of State’s conclusion that condition D is satisfied is obviously flawed—therefore, A and C had been met but D was flawed. This is likely to be where the court identifies that one or more of the individual measures specified in the proposed TPIM notice clearly does not meet the test that it is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. In these circumstances the court may give permission to impose a TPIM notice, but may in doing so give directions to the Secretary of State in relation to the measures to be imposed.

The amendment would amplify Clause 6(9) by adding the words,

“including the variation or cancellation of specified measures”.

As my noble friend has explained, she is seeking an assurance from me that this is already the case. She is seeking further information than that which was provided during the passage of the Bill in another place. I can confirm that, as drafted, Clause 6(9) would allow the court to give directions in relation to the variation of the proposed measures set out in the draft TPIM notice. Equally, it would allow the court to direct that a particular measure should not be included in the notice. It should be noted that while the court may give directions in this regard, it will remain the duty of the Secretary of State actually to draft the terms of the measure as this role falls not to the court but to the Secretary of State, with her recognised expertise and responsibility in matters of national security and the measures that are required in order to protect the public. But when doing so following the directions of the court, she will clearly be very constrained in how she conducts that drafting exercise.

I hope that I have provided sufficient assurance to my noble friend and that she will withdraw the amendment.

[Lord Hunt of Kings Heath]

My Lords, before the noble Baroness agonises over whether she puts this to the vote, the final point made by the noble Baroness, Lady Stowell of Beeston, about the Secretary of State’s responsibilities is well taken. I congratulate her on what is probably her first appearance at the Dispatch Box, certainly in this Committee stage.

[Baroness Hamwee]

My Lords, the noble Lord, Lord Hunt, gets there before me.

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Debate on whether Clause 9 should stand part of the Bill.

[Lord Hunt of Kings Heath]

My Lords, I shall not detain the Committee long as we had a debate on this matter in the first grouping. Essentially, whatever our view of control orders, there is general agreement that the enhanced judicial scrutiny has been rigorous and the Government have said that such scrutiny will embrace the provisions in the Bill. The Constitution Committee has suggested that to put the matter beyond doubt, the Government should table an amendment to put the matter into the Bill. The noble Lord, Lord Henley, will no doubt have read today’s report of the Joint Committee on Human Rights, which endorses that point and says that the surest way to deliver the intense scrutiny that the Government say they intend is to write that explicitly into the Bill.

I doubt whether the noble Lord’s arguments have advanced considerably since he gave us the Government’s line about two hours ago, so I do not expect him to respond again to this point. All I would say is that I hope that between now and Report he might say that the Government will ponder this matter further.

[Lord Henley]

My Lords, I wish to make only one point. I said at the beginning of business that I had only recently seen the Joint Committee’s report, which was published at 11 am today, and I had not yet read it in detail. The noble Lord seemed to imply that I would have managed to read it during the course of this debate. For once, I thought it was more important to listen to the noble Lord, and other noble Lords, rather than reading the book. Of course, we will study the report in detail, and it might be that a further response can come between now and Report. I do not think that, as the noble Lord put it, our thoughts have advanced much during the previous two or three hours.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord, who manages to make marmalade as well as being a senior Minister in this Government, is clearly multitasked and multiskilled. I had thought he would easily have been able to read it while considering how to reply to noble Lords, and indeed noble and learned Lords, in our debate. That has been, as usual, an enlightening response from the noble Lord. I will not oppose that this clause stand part of the Bill.

Clause 9 agreed.

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[Lord Henley]

I hope I can answer the noble Baroness’s three points on these three separate amendments, which we are taking together. I shall start with Amendment 47, which deals with Schedule 3. As the noble Baroness is aware, Schedule 3 provides that an individual who has been convicted of the offence contained in Clause 23 of the Bill—contravening, without reasonable excuse, a measure imposed under a terrorism prevention and investigation measures notice—has a right of appeal against that conviction if the notice or relevant measure is subsequently quashed, and if they could not have been convicted had the quashing occurred before they were prosecuted. Schedule 3 provides that the court must allow such appeals. This is obviously not a provision that we expect to be used on a frequent basis. However, its clear purpose is to provide an important safeguard, and to ensure that the person will be able to get a conviction overturned for contravening a measure that the court has subsequently quashed.

It is therefore important that the schedule be agreed to. I know that the noble Baroness is only suggesting removing paragraph 1, but that is the operative provision of the schedule, and without it the remainder of the provisions in the schedule are neutered. I hope she therefore accepts my explanation and can withdraw that particular amendment.

Amendment 48 deals with subsections (1) and (2) of Clause 18 and is really a question about why we are considering having appeals only on a point of law. We believe that the limitation is appropriate, because in cases such as this it is the court of first instance that is the appropriate fact-finding body. It is this court that has developed a particular expertise and body of knowledge in this area of national security, among a small and experienced body of judges who hear these cases. This makes it the right court to review all the material upon which the Secretary of State relies to make her decisions and make findings on that basis.

With regard to the appeal on a point of law, the noble Baroness asked us whether we thought proportionality would be a point of law. Dare I say it—I might have to be corrected—but I think she is probably correct, and it probably would be. If I am wrong, I will correct that in due course. I will certainly write to her and copy that letter to other noble Lords who have taken an interest in these matters.

Finally, I turn to Amendment 51, which deals with Clause 19. Clause 19, as the noble Baroness is well aware, places a duty on the Secretary of State to report to Parliament on a quarterly basis on the exercise of her powers under this Bill. These are specifically the powers to impose measures on a person by TPIM notice, extend a TPIM notice, vary the measures specified in a TPIM notice, and revoke or revive a TPIM notice.

Amendment 51 would amend Clause 19(2)(a) to add “and the measures imposed” at the end of the subsection. The relevant provision would thus state that the requirement was for the Secretary of State to report on her powers to impose measures on an individual via a TPIM notice under Section 2, and the measures imposed. As noble Lords will appreciate, the details of the operation of the system and the particular cases will necessarily be sensitive and could not be disclosed publicly. However, taken together, the list of matters on which the Secretary of State must report ensures that key information about the operation of the system will be in the public domain, and will be debated regularly. Crucially, this will include information about the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed.

We understand that there is interest in as much information as possible being made available about the operation of the system and about the cases of those individuals subject to the measures. That has certainly been the case in relation to control orders and it is likely to continue in relation to TPIMs. Having that information available will help to ensure that any debate about the powers is as informed as possible.

[Lord Hunt of Kings Heath]

Perhaps I may ask a question about that. The Minister said that the report laid by the Secretary of State would be as comprehensive as possible within the constraints of the information that she can make available. He then said that that could be regularly debated. As your Lordships know, there is a debate to be had next week on annual orders as opposed to a system of parliamentary scrutiny every five years. Does the Minister envisage other ways in which such information can be debated in Parliament?

[Lord Henley]

The ingenuity of the noble Lord and others will find ways in which this House, which seems to have a more liberal approach in these matters, can debate these quarterly reports. There are Questions, Questions for Short Debate and all range of things, but it is not necessarily for the Government to offer those. As regards the debate next week, I look forward to it.

I hope that that deals with the points made by my noble friend. If not, perhaps we can discuss it further in due course, but I hope that today she will feel able to withdraw her amendments.

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[Baroness Hamwee]

I shall speak also to Amendment 53. This would be a new clause dealing with a matter that I regard as of the utmost seriousness. It is addressed in particular to mental health issues.

The proposed new clause is by no means an opposition to mechanisms for addressing protection of the public and the prevention of terrorism. It is a separate issue about how measures are applied in practice and about the impact of those measures. I have mentioned the matter already today but it is important to repeat it as the context for the provision. It concerns in particular tipping the individual, his family and members of his community into the precise action that we are seeking to avoid; to avoid tipping an individual into breach of the restrictions on him, which is a criminal offence and may turn into a criminal someone who is not a criminal and has no criminal record; and to avoid our failure to recognise that at the centre of all this is a human being.

The moment my new clause was published I saw a drafting error, but I will speak to it as I intended it to be. It would provide for an assessment to be made on the likely impact—my drafting error is that I failed to refer to the actual impact—of the imposition of measures, or the variation of them on the individual and his immediate family every three months, when measures expire or are repealed or revoked, and thereafter at intervals which the individual may request. The assessment I talk of would include an evaluation of the impact on mental health. It should be made by an independent person appointed by the Secretary of State but not only by that person. I suggest that of course the person should be appropriately qualified, but shall work in conjunction with the nominees of the individual who can make separate reports. That is an important point because it is all too easy and obvious that independent experts appointed by the Secretary of State, as has happened with control orders, are perceived as agents of the Secretary of State being there to gather evidence and information.

I have proposed the new clause for the reasons I have already given and because one needs to increase the opportunity for transparency around this whole area. I have said that the costs should be met by the Secretary of State because I thought that someone might ask about that. It seems to me that the numbers of cases we are talking about are small and this would be entirely proper given that the measures applied are potentially so very stringent. Amendment 53 would bring these assessments within the remit of the independent reviewer.

The experience of control orders has been not only that in some cases they are very damaging but that the controlee is essentially broken. I want quickly to share with the Committee the story I heard earlier this week of a controlee who had failed to report to the police on time. I asked how late he had been and was told that it was one hour. His control order of course required him to report at a particular time and having failed to be there on time he was charged with a breach of his order. He found himself in Pentonville. The shocking part of the story is not just that: it is that the individual will not apply for bail. For him, being in Pentonville is preferable to being under a control order. That is what the state has done to some individuals. If that is what we are going to do to them in order to protect the rest of society, we should know what the impact is.

[Lord Hunt of Kings Heath]

I do not quite understand the noble Baroness. Presumably this person was in breach of the control order by not attending on time. I do not understand the issue.

[Baroness Hamwee]

The issue is that to this individual, being in prison is more acceptable than being in his place of residence under a control order, with the restrictions imposed by the system. I am sure that the noble Lord has heard, from people who had been under control orders that were quashed, the impact they had on them and their families. The interference with anything that any of us would recognise as a normal life has been literally intolerable. That is the point I make to the Committee. I beg to move.