Terrorism Prevention and Investigation Measures Bill

Pat McFadden Excerpts

Monday 5th September 2011 Commons Chamber

[James Brokenshire]

In starting our consideration of the Bill, we will be reflecting on a number of points and issues that were debated in Committee. I look forward to continuing some of the debates that we had with Members who were part of that Committee, and with other Members joining today’s consideration.

This group contains two related but distinct sets of amendments. The first deals with expiry and renewal of the legislation, and the second with its commencement. On expiry and renewal, the Government new clauses and amendments return to an important matter that was raised on Second Reading and in Committee: the duration of the Bill’s provisions and whether they should be subject to any form of sunset or renewal.

A number of arguments have been advanced. The Government previously set out their view that the Bill is the product of a lengthy and considered review, that it makes significant improvements to the control orders system, and that it establishes a framework that ought to be able to operate stably and effectively on a permanent basis. The point has been well made that we are legislators, and that we are fully competent to review the necessity of legislation, and to amend or repeal it if it is no longer necessary or if changes are needed. However, it has also been argued with some force that the nature of the powers in the Bill makes some form of regular review appropriate, both to reflect the weighty responsibility on Parliament when it accords the Government such powers, and to focus minds on the need to ensure that the legislation remains in force only as long as is necessary.

[Mr Pat McFadden (Wolverhampton South East) (Lab)]

If this Bill is the product of a long and considered review, why did the Government think it necessary to publish an alternative Bill last Thursday night?

[James Brokenshire]

I will come to that point during consideration of further amendments, but I draw the right hon. Gentleman’s attention to the Government’s counter-terrorism review—which specifically contemplated the necessity of enhanced measures, should exceptional circumstances require them—and to the specific paragraphs and references in that review. That is why I have said that the product of this legislation has been subject to that careful consideration.

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[Shabana Mahmood]

I am grateful to the hon. Gentleman for giving me that indication. I am also grateful for his support. He was of course a fellow member of the Public Bill Committee.

[Mr McFadden]

Does not this go to the heart of the issue? It is risky enough to legislate, as the Government are proposing, to give terrorist suspects increased freedom of movement and increased access to mobile phones and the internet, and then to admit, as the Government do, that this will put increased pressure on the police and the security services, without also trying to implement the legislation before the police and security services are fully ready to cope with the increased risk. Does my hon. Friend agree that, if the Government do not produce better evidence of the capability of the police and security services to meet this increased risk, they will be adding irresponsibility to increased risk for the public?

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[James Brokenshire]

The counter-terrorism review carefully concluded that there might be exceptional circumstances—a very serious terrorist risk—in which the Government would have to seek parliamentary approval for additional restrictive measures. That is what we are seeking to do and that is why we believe that the overall approach taken by this Bill is appropriate.

[Mr McFadden]

With the publication of the draft Bill, the Government have conceded that they have no argument in principle against the extra powers in the enhanced TPIMs regime. What will the Minister say to the victims of terrorism in the emergency circumstances that he sets out and that might give rise to their introduction? Will he say that we had the extra powers but we decided not to use them until the incident happened? Does he really believe that the Government could survive in those circumstances? Does he not see the nonsense of that position?

[James Brokenshire]

The right hon. Gentleman’s question is premised on various assumptions that I just do not accept. He can make his point but the Bill and the enhanced measures that sit alongside it have been part of a very considered approach in relation to the overall legislative framework, which has not been rushed but has been considered. It has very much at its heart our responsibility to protect the public, but it also recognises that there is a balance to be struck. We believe that the balance has previously been wrong and that it needs to be adjusted, as contemplated by the Bill, to ensure that our counter-terrorism measures are appropriate, necessary and focused on delivering safety and security in a way that is judged appropriate on the basis of the evidence.

The draft enhanced TPIM Bill contains provisions that mean that if it is brought into force while a temporary enhanced TPIM order is in force, a decision taken under that order should be treated as a decision under the new enhanced Bill. The regime provided by the emergency TPIM order is intended to be the same as that provided by the enhanced Bill. In other words, the new clauses are intended to be complementary. They set out the various provisions and matters that may, or in some cases that must, be secured by a temporary enhanced TPIM order, to give effect to the regime set out in the emergency Bill. This includes in particular setting out the more stringent restrictions that would be available, and the fact that an enhanced notice may be imposed only where the Secretary of State is satisfied on the balance of probabilities that the individual is or has been involved in terrorism-related activity. Once made, the temporary enhanced TPIM order would remain in force for 90 days, or a shorter period if specified in the order. It must be laid before Parliament as soon as practicable. While it is in force the Secretary of State can repeal its provisions at any time.

The 90-day period is intended to cover, but not significantly to exceed, the period during which Parliament would be unable to pass the emergency legislation. After parliamentary business resumes, the Government can introduce the enhanced TPIM Bill, if they judge it appropriate, to replace the powers conferred by the order with powers under primary legislation.

These are essential provisions. The power that they provide may never need to be used. Indeed, we would all prefer that the exceptional circumstances for which it and the enhanced TPIM Bill are intended never arise. None the less, it is necessary for a responsible Government to ensure that the enhanced TPIM powers can be brought into force in all circumstances in which they may be necessary.

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I will not vote against the Government’s new clauses because I understand where they are coming from. I hope that the Minister will respond on the detail. I hope that the other place will have more of a chance to consider these important issues on how we deal with emergency rules during the period of a general election when there has been a serious terrorist attack. That is a complex set of things that bears more attention than we are able to give it here.

[Mr McFadden]

I will keep my remarks brief, because I know we all want to get on to the debate about relocation. However, I wish to say a word about new clause 5, which shows the difference between the Bill before us and what the Government know they might have to do. The new clause and the draft Bill on enhanced TPIMs measures published last Thursday represent the Government taking out an insurance policy against the failure of the Bill before us this evening.

My right hon. Friend the Member for Leicester East (Keith Vaz) reminded us that we are debating the matter around the 10th anniversary of 11 September. It is important that the House remembers that, because that incident, more than any other, forced Governments around the world to reassess their thinking and their expectations of what terrorists were capable of. It also forced all of us in democratic regimes to look again at the protections in law and law enforcement that we can give our citizens against terrorist activity. That is the basis of this whole debate and the Bill.

We did not get here entirely by choice. We got here partly because of court judgments shaping the regime for us in an involuntary way. The problem is simple: what do we do when we cannot bring someone to prosecution, but we have a good and reasonable suspicion that that person would engage in terrorist activity if they could, and there may be inadmissible evidence that they have tried to do so? There has been an assumption running through this debate that such people are necessarily less dangerous than those who have been convicted. That is not necessarily so. If they were able to carry out their intent, they may in fact be far more dangerous than people who have been convicted of other terrorist events.

The Government have published draft legislation that is an insurance policy against the Bill, and they cannot have an in-principle objection to the measures within their own draft Bill. Whereas the Bill before us states, unbelievably, that the Secretary of State must grant terrorist suspects access to mobile phones and the internet, the draft Bill would give the Secretary of State discretion over that. Whereas the Bill before us disarms the Government from giving the public the protection that relocation can provide, the draft Bill would reinsert that possibility. The question that the public will ask, and which the Minister must believe they will ask very seriously should the draft legislation be needed in future, is why the Government did not include those powers in the Bill before us. Why wait until an incident has happened?

I repeat the question that I put to the Minister before. What would he say to the victims of terrorism in such circumstances? Would he say, “We knew we might need these powers, and we could have legislated for them, but we chose not to because we believed that the balance of civil liberties was wrong”?

[Richard Fuller]

Will the right hon. Gentleman give way?

[Mr McFadden]

Not at the moment.

Let us deal with the point about civil liberties. The Minister has said several times that the motivation behind the Bill was a perceived imbalance in the last Government’s civil liberties legislation. The notion that we are some sort of quasi-police state or overly authoritarian state is complete nonsense. In this country we enjoy freedom of expression, religion and association that is the envy of the world. That is why so many dissidents from regimes around the world have sought refuge here. Indeed, the criticism that is sometimes levelled, and perhaps with validity, is that we have been very generous in accommodating dissidents from other regimes, and that sometimes our freedoms have been abused by some of those individuals. It is simply the wrong analysis and the wrong starting point to say that civil liberties in this country have been fundamentally compromised. That is not the case, but because the Government believe it and have carried forward into government the wrong analysis that they developed in opposition, that is leading to the wrong policy and to greater risk for the public. New clause 5 addresses that to some extent, but people will not understand why it, and the draft emergency legislation, were not put into the Bill.

[Shabana Mahmood]

I am conscious of the time and the fact that we have to get on to new clause 1, on relocation, ahead of Third Reading, so I will try to keep my remarks reasonably brief.

I endorse the remarks of my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) about the draft Bill. He spoke having been a member of the Committee that considered the draft Detention of Terrorist Suspects (Temporary Extensions) Bill, the findings of which are important and directly relevant to the draft emergency legislation that the Government printed a few days ago. As he pointed out, although that Committee understood the Government’s reasons for proposing that contingency powers to extend the maximum period for pre-charge detention should be provided in primary legislation so that they could be subject to parliamentary scrutiny, it still found a number of problems. Those problems exist also in relation to the draft enhanced TPIMs Bill, and it is important that we take a moment to remind ourselves of what the objections were.

The first objection was in relation to parliamentary scrutiny of a draft Bill as primary legislation. The debate that would take place would be so circumscribed by the difficulties of explaining the reasons for introducing primary legislation that it would not be possible for the House to be given proper reasons why we needed to proceed along that route. In relation to the 28-day detention powers, the risk was that a court case might be prejudiced. In this case the objection is even more important, because we are talking about intelligence evidence that has been gathered by the security services, which of course cannot be discussed openly. That is the whole reason why we have closed sessions of courts to consider such matters—they cannot enter into the public domain. That rather defeats the purpose of having any debate on the Floor of the House.

The second objection was that there would be an unacceptable degree of risk that it would be impossible to introduce and pass the legislation quickly when Parliament was in recess. Although that objection referred to the 28-day detention power, it is also important in this case. Counter-terror investigations are fast-moving, and it is not acceptable to say to the police that their reaction to investigations should be hampered while Parliament debates the matter, perhaps in a limited way, and decides to pass an Act. That would not be an acceptable way to proceed.

The third objection related to the period when Parliament has been dissolved, but as we can see, that is precisely what new clauses 5 and 6 are intended to address.

I say to the Minister that it is clear from the draft Bill that the Government have no principled objection to the control order powers that would suddenly be available once again. As my right hon. Friend the Member for Wolverhampton South East (Mr McFadden) said, the draft Bill is an insurance policy that the Government are taking out on their TPIMs regime, which will decrease and weaken the powers available to the police and the Home Secretary to control the behaviour of terror suspects. It is extremely unacceptable for legislation to be conducted in such a way. Control order powers are either needed or they are not. This Bill has used up many hours of parliamentary time to take us round in a circle and bring us back to exactly where we started, with control orders.

Rather than introduce this confused and fudged Bill, which raises many more questions, the Government should have been honest and admitted that sometimes, stringent control order measures such as relocation and 16-hour curfews are necessary. They should therefore have put them in the Bill that we are debating today.

I am afraid that the “argument on context”—that there is a standard context that would require only the standard TPIM, and an emergency context in which the enhanced TPIM might be required—does not hold up to any kind of scrutiny, because control orders and TPIMs, if they are introduced, are at the emergency end of what we do. They are not brought in lightly and have always been emergency measures.

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[Hazel Blears]

My right hon. Friend is absolutely right: in that case BM did concede that he was determined to carry out terrorist activity, and it was right that the power of relocation, which the Home Secretary had imposed relatively recently, was upheld as a necessary power to protect the public. This is not a case of draconian Governments, or authoritarian or totalitarian regimes wanting to impose controls for their own sake; it is always a matter of balance, and trying to mitigate the risk and draw the line in the correct place, so that we can maintain essential freedoms in this country, which include the freedom of the public to go about their law-abiding business without being threatened with death and destruction by some of the most committed terrorists in this country.

[Mr McFadden]

My right hon. Friend is making an eloquent speech about the reality of the situations that we face. Let me quote to her what the judge said about relocation in the case of CD:

“I have concluded that the relocation obligation is a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist related attack. While he is living in London there is a significant risk that he will take part in terrorism-related activities, notwithstanding the high level of protection implicit in the obligations which are not under challenge.”

Does she agree that that shows the danger? Will she also speculate about why the Government are so determined to deprive the public, whom we represent, of the protections afforded by the current relocation provisions?

[Hazel Blears]

My right hon. Friend is absolutely right about the case of CD. We had a long discussion in Committee about the need for a relocation clause and about the judge’s comments. Indeed, the judge in that case said that since CD’s return,

“he has endeavoured to obtain firearms on a number of occasions from a number of associates for the purposes of putting into effect a planned terrorist attack, has held covert meetings with associates in relation to plans to use the firearms as part of his planned attack and has displayed a very high level of security awareness.”

It was on those grounds that the judge decided that the relocation condition was absolutely appropriate in controlling CD’s activities. As for my right hon. Friend’s second question, about why the Government have been so reluctant to provide the Home Secretary with the power to relocate—not the duty to do so in every case, but the power where necessary—I believe that this is part of a political accommodation with the Liberal Democrats and that this will be revealed in all its rather distasteful details in due course.

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[Mr McFadden]

I believe that the Bill is based on a fundamentally mistaken premise—that liberty in our country was undermined by laws passed by the previous Labour Government in their efforts to protect the public and to combat terrorism. We have heard the Minister advance that argument many times during the debate. It is not, however, the laws passed by the last Labour Government that threaten liberty. Liberty is threatened by the ideology that fed the bombers of the London underground, by the acts that they took part in, by plots including those of the shoe bomber and the underpants bomber, as well as by other plots that have mercifully either not worked or been foiled before they reached fruition.

Both parties in the coalition have in different degrees shared in that fundamentally mistaken premise, and they have now brought it into the Government as the foundation for this Bill. I wonder whether, if we were talking about this in a year or two’s time, the Government would still introduce such a Bill. I genuinely do not know the answer to that. What we have here is a mistaken premise giving us wrong policy that will lead to increased risk for the public. The Bill will give new rights to terrorist suspects. It will allow them freedom of movement. It will grant them access to mobile phones and the internet. It will also put a two-year time limit on even the weakened provisions that TPIMs represent.

[Mr Ellwood]

I want to challenge the right hon. Gentleman’s point that any form of legislation could prevent a terrorist attack. If someone is convinced that that is what they want to do, wherever they are based in the UK and however they communicate, and whether they target the Olympics or somewhere else, they will conduct that attack, and possibly kill themselves as well. No legislation that we create in this House can prevent that. It is wrong to mislead the House and to suggest that we can somehow over-legislate or protect ourselves by what we do here. We cannot do that.

[Mr McFadden]

If that is what the hon. Gentleman believes, he should vote against the Bill because the Minister is pretending that this offers some measure of protection. These measures not only put the public at increased risk, but put the police and security services under increased pressure at the very time that their budgets are being cut. They mean less control and more surveillance. Surveillance itself compromises liberty, but does so simply in a more expensive and riskier way than some of the extra powers that the Government have chosen to reject.

To cap it all, in recent days we have seen the spectacle of the Government taking out an insurance policy against their own Bill by publishing draft emergency legislation but then refusing to add the powers to this Bill. The Government have failed utterly in today’s debate to specify the circumstances under which that insurance policy will be used. It is hard to escape the conclusion that my right hon. Friend the Member for Salford and Eccles (Hazel Blears) eloquently reached in her speech—that trade-offs within the coalition have shaped this policy. That is not good enough. We should not compromise the safety of our citizens on that basis. I echo the hope and prayer of my right hon. Friend the shadow Home Secretary that none of the terrorist suspects who are granted increased freedoms under the Bill use them to kill innocent people. I have to say in all sincerity that if they do, the public will not forgive the Ministers or the Government who have passed this measure tonight.