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

Lord Ponsonby of Shulbrede Excerpts

Tuesday 30th November 2021 Grand Committee

[Lord Paddick (LD)]

My Lords, I thank the Minister for introducing this statutory instrument. As she explained, the sunset clause means that every five years the TPIM powers need to be reviewed. I say in response to the noble Baroness, Lady Jones of Moulsecoomb, that we support the measures because they are necessary. I think she said that they are extrajudicial. Yes, there is no criminal trial in the way somebody who is deprived of their liberty would normally be subject to a criminal trial, but these proceedings are not extrajudicial in that they still have to be approved by the court; there is some sort of judicial involvement.

We support the measures, but it is essential that there are safeguards. As the noble Lord, Lord Anderson of Ipswich, said, the Government are, when challenged, citing defences of TPIMs that do not appear to be completely the case. If three subjects have abandoned their review, citing lack of funding for legal aid, clearly some of the safeguards are not being upheld.

The other issue is that, if the Government are citing to the UN body the fact that TPIM subjects will hear what the national security case is against them in those court proceedings, clearly that is not true either. TPIMs are usually for cases where the security services have intelligence on an individual but do not have evidence that they can present in open court, so it is very unlikely that a TPIM subject will hear what the national security case is against them. On the face of it, it sounds as if the Government are misrepresenting the safeguards that should be part and parcel of the TPIM process.

What worried me about the noble Baroness’s comments, which were very similar to those made by the Minister in the other place this morning, was that TPIMs are cited as being for cases where people cannot be prosecuted or deported. My understanding is that these terrorism prevention and investigation measures were intended as a stopgap while evidence was collected in order to prosecute the individual, not as a permanent replacement for prosecution.

There is a continual refrain: “Well, if we can’t deport or prosecute somebody then we’ll deprive them of their liberty on an almost permanent basis through TPIMs.” That strikes me as going against the sort of rights and freedoms that the noble Baroness said we need to protect through combating terrorism. We are almost taking away people’s rights and freedoms by the use of TPIMs in that way.

We have heard about some worrying developments from the noble Lord, Lord Anderson of Ipswich, about reviews, a crucial safeguard as part of TPIM measures, and we have heard about the apparent misrepresentation by the Government of what the safeguards are and how what the Government appear now to be using TPIMs for goes beyond what they were intended for when they were initially envisaged. We are clearly concerned about the safeguards, but not to the extent that we feel that TPIMs are not necessary in exceptional cases as a temporary measure. Bearing in mind that the Investigatory Powers Commissioner, the security services and the independent reviewer have been consulted and are content with the renewal of the use of this power for another five years, and despite those reservations, we support the continuation of TPIMs.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the noble Baroness for introducing this statutory instrument, which has vital implications for our national security. It keeps our citizens, their families and our communities safe. We will not oppose the instrument, which renews the Secretary of State’s powers to impose, extend, vary and, where elapsed, revive a TPIM notice. This is a technical measure and is required every five years by the 2011 Act. It would be incomprehensible to let these powers elapse on 13 December.

TPIMs are a tool in an arsenal to combat terrorism. The TPIM system needs to be agile and robust to respond to the ever-changing terrorist threat. Individuals with no criminal conviction can have these exceptional measures applied against them. It follows that there need to be strong safeguards to balance the protection of our citizens with the rights of an individual to be treated within the law and in a human rights compliant manner.

Does the Minister believe that TPIMs are effective? As she said, there are five TPIMs in force as of this October. Does she believe that the resources necessary to properly administer them are in place? What impact have the recent changes had operationally? We have seen the impact of so-called lone-wolf terrorism tragically recently. The Labour Party has called on the Government to look at this specifically and to publish a review. How does a TPIM combat this type of lone-wolf terrorist threat?

I also ask the Minister about funding for community counterextremism projects and the recommendations of the Government’s own commission of experts, in particular the ISC proposals on precursor chemicals for explosives. My honourable friend Conor McGinn in the other place referred to the Government not following the recommendations of their own experts. I will widen the question: can the Minister say something about their use of experts? How do the Government believe outside experts can be best used to develop and implement a strategy to combat terrorism?

Today’s SI deals with the renewal of TPIM powers, but can the Minister say something about the Prevent scheme? It is concerning that referrals to the scheme have dropped to just below 5,000, which I understand is a 22% drop and a record low. What is the status of the independent review of Prevent and when does she expect it to be published?

I will pick up some of the points that noble Lords have made in this short debate. The noble Baroness, Lady Jones, quoted from an article by the Prime Minister in the Telegraph. She went on to express her hope that this is the last such debate. I agree with that sentiment. We all know that the Prime Minister sometimes uses colourful language to make strong points, but she agreed—I see that she is nodding her head—as I do, with what the Prime Minister said in that article. But I am not driven to the same conclusion as the noble Baroness. We need these measures and we need them now, which is why we support a renewal of this SI.

The noble Lord, Lord Anderson, is undoubtedly the most expert among us today. He raised four questions and I would be interested to hear the response to them, because I thought that they were very pertinent.

The noble Lord, Lord Paddick, put his questions succinctly and I will reiterate a couple of his points. My understanding of TPIMs agrees with his: they were not seen as a permanent replacement but as an intermediary step before prosecution, yet we see people being kept on this type of regime for long periods. The noble Lord, Lord Paddick, essentially also made the same point as that of the noble Lord, Lord Anderson, about the safeguards not being properly funded, so that, for example, it is not possible for people to take advantage of legal aid to review the TPIMs on them. I thought that the questions from the two noble Lords were important and the Government need to answer them.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all Members of the Committee who have spoken in today’s debate. First, I will correct the noble Baroness, Lady Jones of Moulsecoomb: the TPIMs have been in place not since 2006 but since 2011, I understand, so this is their 10-year anniversary. But I will certainly pass the noble Baroness’s point to the Home Office.

The noble Lord, Lord Anderson, asked me a few questions, but his main thrust was on legal aid. He outlined the opinion of Jonathan Hall QC on this. I can confirm that he has raised those concerns and that the Government will respond to both the 2019 and the 2020 reports shortly. It is for the Legal Aid Agency to assess any application for legal aid for a TPIM review and its decisions are made independently of government, in accordance with the legislative framework, but I do not think that that was the noble Lord’s point—I will get on to that. It is right that both means and merits tests are applied to all applicants for TPIM reviews to ensure that the legal aid scheme meets its dual objective of targeting funding at those who need it most and providing value for money for the taxpayer.

To that end, the noble Lord, Lord Anderson, asked a specific question on people who do not know what the case against them is—therefore, how can they respond? The merits test is a key part of the legal aid scheme. The Legal Aid Agency applies the merits criteria on the open evidence alone and there are provisions to help applicants where it is difficult to establish prospects, so closed evidence should not disadvantage applicants from satisfying the merits test.

The Home Office keeps the prospects of prosecution under review and each case is regularly reviewed. TPIMs can be imposed for a set time period only and people are not kept on them indefinitely.

[Lord Ponsonby of Shulbrede (Lab)]

On that specific point, when the Minister says that TPIMs are regularly reviewed with a view to prosecution, how often is that? Is it once a year or once every six months? How often are they reviewed?