Terrorism Prevention and Investigation Measures Bill

Shabana Mahmood Excerpts

Monday 5th September 2011 Commons Chamber

[James Brokenshire]

The right hon. Lady has consistently made this point and we debated this issue at length in Committee, but I have been quite clear to the House about the statements that the Metropolitan Police Service has made to the Home Office. It has confirmed that arrangements will be in place effectively to manage the transition from control orders to TPIM notices. I am being quite specific and explicit in relation to that and the work that has been undertaken to prepare for that transition. Although I accept the points that the right hon. Lady has made, I have been quite clear about the assurances that we have gained in that regard and, similarly, the work that the Security Service has developed in its detailed plans for its additional allocation over the next four years, which it too is implementing.

[Shabana Mahmood (Birmingham, Ladywood) (Lab)]

The Minister will recall from Committee that one of the issues regarding additional resources was the fact that we are talking not just about money but about the extra surveillance officers who will be required to meet the increased risk under the TPIMs regime, which did not exist under control orders because we had relocation and longer curfews. DAC Osborne was clear that it takes about a year to train the extra surveillance officers. Will the Minister explain how that will be truncated and how the training will now take less than a year?

[James Brokenshire]

Let me make it clear that the additional resources are not simply about providing additional human surveillance capacity. The police and Security Service will use the additional money to enhance their use of a range of covert investigative techniques, including human and technical surveillance. It is not simply about that one point. Although I am unable to go into the detail of the preparations that are in hand, the police service and the Security Service have been engaged in work to ensure that appropriate measures are in place to provide us with the assurance that the TPIMs regime will work as we intend, so that we as a Government can fulfil our responsibilities and provide assurances on this important point.

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[James Brokenshire]

I am aware that the right hon. Gentleman had that exchange with the Prime Minister and has subsequently written to him. He raised the point in a fair and balanced way and, from my reading of the record, the Prime Minister said that he would look carefully and closely at what he said. I can tell the right hon. Gentleman that we have looked carefully and closely at what he said, but the approach that we are taking is as I have set out in relation to the Bill and as I set out this afternoon.

Right hon. and hon. Members will appreciate that we cannot provide detailed breakdowns of what money we provide for specific security activities. This could provide detailed information about our capabilities and techniques, which could undermine national security. But the Government continue to consider that the TPIMs regime and the additional resources for the police and Security Service for covert investigation provide an acceptable balance between the needs of national security and civil liberties, and that the overall package mitigates the risks that we face. Indeed, the additional resources for covert investigative techniques could increase the opportunities for the collection of evidence that may be used in a prosecution.

It would be irresponsible of the Government to introduce the new system when it was not safe to do so. I am sure that there is absolute consensus on that, and I appreciate that the proposed changes are intended to ensure that the Government are not able to take such a risk with public safety, but I have been clear in what I have said and about the assurances that we have obtained, and, on the introduction of the new regime, the Government would not take such a risk if they were not satisfied about the steps and approaches being taken by the Metropolitan Police Service and Security Service.

I have moved new clause 3, and I look forward to further debate about the other new clauses and amendments.

[Shabana Mahmood]

May I welcome the Minister formally to his place? It is a pleasure to continue on Report the debate that we had in Committee.

I shall speak to new clause 7 and amendment 20, which stand in my name and those of my right hon. and hon. Friends. I am grateful to the Minister for his explanation of the Government’s movement in relation to the introduction of new clause 3 and new clause 4, which, as he explained, envisages a five-year sunset clause and moves us somewhat further on than did our debate in Committee.

New clause 7 would replicate the position under the Prevention of Terrorism Act 2005, which brought in the control order regime, and the amendment would limit to 12 months the powers under the TPIMs regime and would, therefore, require their annual renewal by Parliament.

Our new clause began in Committee as an amendment, which I moved, and was based on oral evidence given in Committee by Liberty, Justice and others. It was introduced to reflect our concerns that the Government’s legislation will mean fewer checks and balances on what are exceptional measures. Many in the House agree that they are undesirable and in an ideal world we would not have to have them, but they have proved necessary, given the serious terrorist risks that we face.

I do not often agree with Liberty, particularly on control orders, because our starting points for the debate are different, but I was struck by its evidence in Committee, when the organisation made it clear that it would rather—to be fair to Shami Chakrabarti, she said that she would choke on these words—take existing control orders, with their annual renewal, meaning a 12-month limit on their power, over the new TPIMs regime. The reasons for that—and why I agree with that position—primarily relate to the importance of bringing such exceptional measures back to the House for regular, annual review and, if Parliament deems it appropriate, for renewal.

[Richard Fuller]

I was not on the Committee, but in the evidence I noted Lord Carlile’s comments about the point of annual renewal. He said that

“annual renewal has been a bit of a fiction, to be frank,”

and went on to issue a challenge, stating that

Parliament should have the courage of its convictions and decide whether it wants a regime like this or not.”—[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 23-24, Q70.]

How does the hon. Lady square that with her view of annual reviews?

[Shabana Mahmood]

I am grateful for that intervention, and I will come to Lord Carlile’s evidence in Committee. He clearly did not think that annual renewal was needed, but recent developments, in particular the introduction of the Government’s draft Bill four days ago, make annual renewal even more necessary than before. I will turn shortly to the reasons why.

[Dr Huppert]

May I ask the hon. Lady the same question that I asked the Minister? If the measures before us are passed and there is a five-yearly cycle, and if the Government then include her and her party, will she commit to a full and proper review of the entire counter-terror strategy, as this Government have?

[Shabana Mahmood]

I am afraid that I have to give the hon. Gentleman exactly the same answer that the Minister gave, which is that obviously one Parliament cannot constrain another. I imagine that most new Governments would want to look carefully and responsibly at what are exceptional measures. We have all stated on many occasions that in an ideal world we would not need these powers. The risk is developing all the time and I would hope that any Government would keep these matters under continual review, rather than just saying that they will do it every five years. I think that that clearly sets out our position.

[Jeremy Corbyn (Islington North) (Lab)]

I am interested in my hon. Friend’s answer. Does she not think that we should move in the direction of using criminal law in all cases, rather than going down this endless route of special legislation? I have been in this House long enough to have voted against most of these pieces of legislation, starting with the renewal of the Prevention of Terrorism (Temporary Provisions) Act 1974. I did so because it departed from the criminal law and essentially involved the executive powers of Ministers, which I am sure she will agree is a dangerous thing.

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[Shabana Mahmood]

Wherever possible, we should clearly proceed down the criminal justice system route. If that is available in the irreducible minimum number of cases that we have, it should be pursued. I expect the police and responsible prosecutors to ensure that prosecutions take place wherever possible. I think that all Members on both sides of the House share the view that it is far better that individuals involved in terrorism-related activity are prosecuted, convicted and banged up. However, there are cases where it is not possible to convert the evidence that we have, which is intelligence based, into evidence that would be admissible in a court of law. For those cases, it is necessary to have a different system to deal with the risk. If we could avoid being in that position, of course we would, but it is just not possible because of the nature of the evidence and the intelligence sources that it relies on. I am afraid to say that it will not always be possible to resort to the criminal justice system and that a different kind of system for dealing with this risk is therefore necessary.

[Mr Mark Field (Cities of London and Westminster) (Con)]

I have immense sympathy with the views that have just been expressed by the hon. Member for Islington North (Jeremy Corbyn). Equally, I have some sympathy with the notion that we should look at this legislation on a more regular basis. However, the hon. Lady has not addressed the issue raised by my hon. Friend the Member for Bedford (Richard Fuller) a moment ago. The reality is that with Northern Ireland terrorism before 2005, the annual reviews were entirely a fiction and the powers went through on the nod. I have some sympathy with the Minister’s view that a five-yearly review allows for a proper review, provided that the safeguards are in place. Although an annual review might sound like better protection on the face of it, it becomes largely a fiction.

[Shabana Mahmood]

I am surprised that the hon. Gentleman would describe parliamentary debate and holding the Government to account as a fiction. I do not think that having an annual debate is a fiction. It is important that we give right hon. and hon. Members the chance to hold the Government to account, to review how the powers have been used throughout a particular year, and to take a view on whether the risk is such that we still need an exceptional system of rules outside the criminal justice system. I do not believe that those debates are a fiction.

[Mr David Davis (Haltemprice and Howden) (Con)]

Does the hon. Lady accept that using intelligence-based evidence, such as evidence obtained under torture, evidence from foreign countries or unchecked intercept evidence, leads to a greater chance of a miscarriage of justice? The reason I raise that point now is that we did not once, in the course of all the so-called reviews of the control order legislation, hear about any miscarriages of justice. Of course, there were several, as was demonstrated by the courts.

[Shabana Mahmood]

I am grateful for the right hon. Gentleman’s intervention. In the end, we must accept that there is an irreducible minimum number of cases in which the intelligence tells us that a serious risk is posed by an individual and they have to be dealt with, but they cannot be brought within the criminal justice system. We must accept that we need a system for mitigating that risk and for bringing those individuals under some form of control to prevent them from attack planning, which might lead to the loss of innocent lives.

[Dr Huppert]

I thank the hon. Lady for giving way; she is being very generous. I was interested in her answer to the hon. Member for Islington North (Jeremy Corbyn) about alternatives. Does she agree with the shadow Home Secretary that:

“There are cases where police bail can, of course, be used”?—[Official Report, 7 July 2011; Vol. 530, c. 1688.]

Alternatively, does she prefer the line that she used in the Public Bill Committee that police bail is not the way to deal with such cases?

[Shabana Mahmood]

I note that the hon. Gentleman’s amendments on police bail did not make the selection list today, so we cannot continue the debate on it that was begun in Committee. I simply repeat to him the position as it was stated in Committee. There may well be some cases in which it is possible to consider whether police bail might be an answer, but I do not believe that that would be possible in the vast majority of cases. That is not the view of the experts, including the individuals who looked into the matter under the last Labour Government. That was why the control orders regime was deemed necessary.

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[Mark Durkan (Foyle) (SDLP)]

rose—

[Shabana Mahmood]

I am going to make some progress. I have been quite generous, and I will take some more interventions a little later.

On annual renewal, covered in new clause 7, there is a symbolic and practical importance to Parliament asking itself every year whether the powers that it has given the Home Secretary are still necessary and in holding the police and the Government to account for how those powers are used. That is an important measure of checks and balances. As we discussed in Committee, it also concentrates the mind. It requires the police and everybody else to consider regularly whether we truly need these powers, whether the risk is such that we cannot do without them and whether some mechanism might present itself that would enable more people to be brought within the criminal justice system rather than be kept outside it.

Our debate in Committee featured the idea of exceptionalism—the idea that these powers are an exceptional part of our legal framework and should not be permanent. Of course, the Bill did not originally have the provisions of new clauses 3 and 4 in it, and I am grateful that the Government have made some movement and taken on board some of the arguments made in Committee in support of more regular review and renewal of the powers. However, I do not believe that the new clauses go far enough, or that review every five years would meet our concerns about how the Bill and the new TPIMs regime will operate in practice.

There are a number of reasons for our concerns. The first, which the Minister touched on, is about resources. We have real concern about the additional resources that the police have said will be required under the new regime because there will be a higher risk under TPIMs. We are concerned about how they will be deployed and come on line ready for the police to use. Given that uncertainty, annual renewal and an early opportunity for Parliament to consider how the new TPIMs regime is getting on would be very welcome. It is necessary also because of the draft Bill that the Government printed only about four days ago as it would bring control order powers back into the system by way of emergency legislation. We have a number of questions about how that alternative regime may operate, which we will come to in the next group of amendments.

[Dr Huppert]

I am fascinated by what the hon. Lady says about her desire to review the legislation. It seems that we are perhaps talking at cross purposes about the role of a sunset clause. I would like one because I would like TPIMs to go the same way that I want control orders to go. It sounds like she wants a review so that she can bring the subject of TPIMs back up and make them more draconian. Is that why she would like a review?

[Shabana Mahmood]

A review is an opportunity for Parliament to take stock of how the regime has operated over the course of one year, and to decide whether it wants to give the Home Secretary those powers to use for another year. Obviously, Parliament is the right place to debate any new circumstances that bring about the need for more powers.

[Hazel Blears]

Does my hon. Friend agree that the way to approach such issues is to consider the balance of risk, rather than simply to adopt a fixed position, as the hon. Member for Cambridge (Dr Huppert) appears to have done? We should then consider how to get to a position in a series of steps. Clearly, the questions are these: what risk faces the nation from a terrorist threat, and what are the appropriate, proportionate powers to protect the public? That ought to be the analysis. We should not seek constantly to chip away at powers when that might expose us to a greater risk.

[Shabana Mahmood]

I agree with my hon. Friend on the starting point for debate. When Parliament considers such matters, it must consider the balance of risk and ask serious questions about how that risk is managed. That should always be the starting point of hon. Members as responsible parliamentarians when we consider exceptional powers that do not exist in other parts of our legal framework. We are also committed to saying that in an ideal world, we would not need such powers, but unfortunately, we are not in an ideal world—[Interruption.] Does the right hon. Member for Haltemprice and Howden (Mr Davis) want to intervene?

[Mr David Davis]

indicated dissent.

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[Shabana Mahmood]

The right hon. Gentleman does not, so I shall press on.

I spoke of the draft Bill that the Government published a few days ago, which seeks to introduce control order powers by way of emergency legislation. That Bill, which we will discuss at length shortly, raises many questions, and an early opportunity for Parliament to take stock of the operation, implementation, practice and working of that regime will be welcome.

[Richard Fuller]

The hon. Lady is being extraordinarily generous in giving way. The question that I should like to ask is from the perspective of the people who are under control orders and similar restrictions. Such people have not been brought to trial and no evidence has been presented to them to substantiate the reasons why they are under such restrictions. She is advocating annual reviews, and increases as well as decreases in powers, but has she considered the commentary on the mental health implications for the people who are subject to control orders? In that regard, does she believe that some period of certainty for those people on how they will be treated will be welcome?

[Shabana Mahmood]

The first part of the hon. Gentleman’s intervention makes my point for me. This is about the balance of risk. It is in the interests of those who are under control orders for Parliament to look at such measures at regular intervals rather than once every five years. His intervention supports rather than goes against my point.

[Richard Fuller]

rose—

[Shabana Mahmood]

I shall make some progress, because I am about to wind-up on new clause 7.

The Minister spoke of the comments made by my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) on Second Reading. My right hon. Friend spoke powerfully on the merit of reaching a settled position on such measures, but I should tell the Minister that given what has happened in the past few days, we are clearly not at a settled position on the Bill. In fact, the Government unsettled matters further by introducing the draft Bill a few days ago. For that reason, the Opposition believe that an annual renewal measure is merited and needed now more than ever, and we shall later seek to press new clause 7 to a Division.

I am grateful for the Minister’s comments on amendment 20, which is in my name and those of my right hon. and hon. Friends. He updated the House and told us from the Dispatch Box that the police say that they will be able to meet the increased risks that we face under TPIMs with the additional resources, but I am afraid that I do not feel reassured by what he said, and we need to consider the matter in greater detail in the House this evening.

By way of background, I should add that amendment 20 began life in Committee, as the Minister noted, and was introduced following evidence given to the Committee by Deputy Assistant Commissioner Osborne, the national co-ordinator for counter-terrorist investigations. It is important to consider his evidence in detail. He was asked by my right hon. Friend the Member for Salford and Eccles (Hazel Blears) about the time scales that he was working to in relation to the TPIMs regime, given that we have the Olympics next year, which is a particular concern. He said:

“To get the resources that we anticipate we need will take more than a year, in terms of being able to get people trained and to get the right equipment. Until we have got that, we will not be able to start to bed things in and see how it works and how it transpires. It also depends on how many people actually go on to the TPIMs regime and how many people come off it. There are a lot of inter-dependents there. The control order put people in the protect and prepare part of the Contest strategy. TPIMs moves them back into the pursue element of the strategy, which is a slight paradox because it was only due to the failure to get sufficient evidence to prosecute them that we moved them into the control order in the first place

He was asked further questions about resources by the hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips). He asked why Mr Osborne was saying that it would take a year for the new regime to bed in, to which Mr Osborne replied:

“I think I said it would take a year to procure and train sufficient additional assets before it would be ready to do that. We have to order some of the assets so that they are made in advance. To train a surveillance officer and then have them fully able to operate in a challenging environment probably takes at least 12 months before they are deployable. Once they are deployable, they have to work within the environment under a new set of regimes that will need to bed in.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c.9-10.]

That important evidence is the reason I moved the amendment in Committee and why I tabled amendment 20 for debate today. I was extremely concerned about the position on resources. The evidence from Mr Osborne was obviously stark, and it raised in my mind the spectre that if the Bill were passed by the end of this year, as we anticipate it will be, we would create a concerning situation: the additional resources required to meet the increased risk might not be deployable, and if they are, it seems they might be only partially ready. That is not, to my mind, a satisfactory state of affairs. The amendment therefore seeks to prevent the Bill from coming into force until the resources are online and would put in place a mechanism by which to get agreement between the national co-ordinator and the Home Secretary on the additional resources required and to get them ready and online.

[Mr Sutcliffe]

My hon. Friend, who is making a forceful point, will remember Lord Carlile’s evidence to the Committee about the cost of surveillance. He said that the new TPIMs regime will increase the amount of human surveillance and that we could be talking about £18 million. We have not heard anything from the Minister about Lord Carlile’s evidence. Is that another area of concern for her?

[Shabana Mahmood]

I am grateful to my hon. Friend for his intervention. I entirely agree that the additional costs of the TPIMs regime are of concern, given the much lower cost of the control order regime, and I invite the Minister to explain how that correlates with the draft emergency legislation. Presumably, the additional resources might not be required in those circumstances. We need greater clarity about the costs that might arise in that situation.

When I asked the Minister, in relation to amendment 20, about the one year that it takes to train up a surveillance officer, he said, “We’re not just looking at human resources”, but it is clear that Mr Osborne—this is why I read out his responses—was not just talking about human resources either. He was talking about hardware, software and money resources too, and it was his considered opinion, put on the record of the House, that all those resources would take more than one year to come online.

I have to say that the Minister’s explanation—that not only are we looking at surveillance officers, but somehow this process can be managed with technology as well as anything else—does not give us the reassurance that we need that all the resources will be available, a point that I put to the Minister in Committee as well. I am not a very technical person—I often describe myself as a “tech-know-nothing”. However, after we have worked out what hardware is required, it will then need to be designed, procured and made, a process that I imagine would also take some time and could not happen overnight. Again, we do not have any clarity that those assets will be ready by the time the Bill comes into force.

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[Hazel Blears]

I, too, think that my hon. Friend is making a powerful case on resources. This is a practical issue, irrespective of the principal differences that we might have on different sides of the House. Does she regard the assurances that the Minister has received from the Metropolitan police as sufficient in the circumstances? Would she welcome some written evidence from the Minister and the Metropolitan police about the time that it will take to procure those resources, both human and electronic, and the period in which they can be ready to meet the increased risk caused by the TPIM legislation?

[Shabana Mahmood]

I entirely endorse my right hon. Friend’s comments. The House needs much more detail, given that there now seems to be a big difference between what Deputy Assistant Commissioner Osborne told us in Committee and what the Minister is telling the House today. A written explanation needs to be put before the House when we are working out whether we buy this new line that the resources will, in fact, be ready. If that information is forthcoming, it is important that it should be about not just the human resources, but the hardware, software and other assets, as well as the money. I appreciate that some of that information might be constrained, but surely it would not be too difficult to allay any fears that the House might have about the time that it takes for such resources to be either trained up or procured and developed.

[Mr Mark Field]

The hon. Lady is making a fair case, but in view of the fact that we are now 11 months in advance of the Olympic games, which is clearly the big cloud in the sky when it comes to these issues, is she really suggesting that we should keep to the control order regime until the Olympics are behind us and only then change, or does she think that there is any chance of the procurement that she is looking for taking place within that time frame, such that the process will be “online”, as she puts it, before July next year?

[Shabana Mahmood]

The short answer is yes. We have retained the control order regime until the end of this year, which was a decision that the coalition Government took to give themselves a chance to bring forward their legislation. I do not think that an amendment that seeks to make that legislation better—or at least allay concerns that the public might have about the dangers that it poses—should somehow mean that we dump control orders and just have a gap. We could quite easily carry on with control orders until the new resources were ready to be deployed, which is exactly what the amendment envisages.

[Bob Stewart (Beckenham) (Con)]

I have been a watcher. It takes a heck of a long time to train someone to become proficient in watching an individual. I fully support what the hon. Lady is saying. We cannot just do this overnight; it is going to take a long time. I am really worried by what the Minister said about the Metropolitan police saying that they could do all this now, when Mr Osborne said that it would take a minimum of 12 months to establish.

[Shabana Mahmood]

In that case, I hope that the hon. Gentleman will support amendment 20. He has made my case for me.

[Bob Stewart]

May I do so while holding my nose?

[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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[Shabana Mahmood]

I entirely endorse my right hon. Friend’s point, which reminds me that, under the Bill, access to electronic communications must be provided to suspects. One of the justifications for that is that the suspects will be monitored in that way, and the equipment will be provided by the Home Office. Presumably, some kind of software or hardware wiring will be needed to enable the suspects to be traced, and to listen in on conversations. Again, I do not believe that those technical assets could be procured overnight, especially given the different kinds of asset that might be needed to deal with different kinds of risk.

[Richard Fuller]

I fear that Opposition Members might be trying to scare Members of Parliament when there is no real justification for doing so. In Committee, the hon. Member for Bradford South (Mr Sutcliffe) spoke of increased threats, saying:

“I visited some of our prisons and I saw some of the terrorists who had been prosecuted, and they really are scary people. Next year, a large number of them will be released on licence, and they will be back in society, so the threat is always there.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 23 June 2011; c. 55.]

Does not that show that our police and security forces are constantly having to meet these threats? If the police feel comfortable managing people who have been convicted and are coming out of prison, this modification of control orders into TPIMs is a minor issue in comparison. The hon. Lady is building this issue up into something that it is not.

[Shabana Mahmood]

I entirely disagree with the hon. Gentleman. In fact, he almost makes my point for me. The police do an incredible job of trying to protect us from the serious risks that we face, not only from the individuals who are or have been subjected to a control order, but from the many hundreds, possibly thousands, more who are of interest to them in their investigations into potential terrorism offences. The risk is always there, which is why we had to bring in the control order regime and why we believe those powers are necessary. Elements of the Bill decrease those measures in such a way as to increase the risk. We are told that the risk can be mitigated by the additional resources, but it cannot be eliminated. We have a real fear that those additional resources will not be ready by the time the Bill comes into force. For that reason, amendment 20 would reassure the public; its purpose is really no more than that.

[Dr Huppert]

Will the hon. Lady give way?

[Shabana Mahmood]

No, I am about to finish my speech.

I note that the Government have made some movement in the right direction in relation to the review and the sunset clause, but I do not believe that that goes far enough. We need the extra check and balance that would be provided by annual renewal, so I am minded to press new clause 7 to a vote, and unless the Minister gives us further reassurance about the resources, I shall also be minded to press amendment 20 to the vote.

[Dr Huppert]

It is tempting to spend a while talking about risk, as that is a theme that lies behind this debate. Opposition Members have not mentioned the risk we create by treating people who have not been convicted of an offence as though they have been so convicted. In some cases, people who have been found not guilty in a court of law have immediately had a control order slapped on them. There is a risk involved in such cases. We have also heard the slightly lazy assumption that all the people who are suspects in these circumstances are dangerous. We know that some people have been completely exonerated. For example, Cerrie Bullivant, to whom I spoke earlier today, was not a risk, yet he was punished as though he was, for a very long time. Instead, however, I will talk about the purpose of sunset clauses.

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[Dr Huppert]

I thank the right hon. Lady for her kind comments. It is clear that we come from very different principled positions; we disagree at the level of principle, not just at the level of detail. She is absolutely right to say that there is indeed a lot of judicial oversight and a number of checks and balances, not all agreed to entirely voluntarily by the previous Government. The judges sometimes had to take quite active steps about the gist of the case. I do not think special advocates provide the best way of doing this; I would like people to know what they are accused of. I will agree to the right hon. Lady’s request and try to remember to talk about “internal exile with judicial oversight”. I will try to remember to use that full phrase if it would please her.

These powers are exceptional. They are not what we want. We should strive harder to find ways that fit within the legal framework to make this case. I would have liked to talk later in great detail about police bail, but I am afraid I shall not be able to. I still think it is the right way forward. [Interruption.] It sounds as though there is some support from others. I hope that their lordships will have a chance to look at that. I still think we could make that system work extremely well.

I am pleased to see the Government new clauses 3 and 4 and consequential Government amendments 11 and 13. I am delighted that the Government have accepted the need for a sunset clause. I thank the Minister for doing that. It is always a great pleasure when the Government take up something that a Back-Bench Member has argued for. I am very pleased indeed.

I deal now with new clause 7, proposed by the hon. Member for Birmingham, Ladywood (Shabana Mahmood). She has tried to come up with this sort of amending provision on a number of occasions. It is good to see that there are no obvious flaws in this one, but I just disagree with it. I would love to have a proper, carefully thought-through review every single year, but I do not think it will happen. It has never happened in the past and I believe it is more valuable to have a serious piece of work, seriously looking at whether we could reduce the amount of extraordinary legislation, carried out every five years than it is to have a token review every year. I respect the hon. Lady’s position in wanting a review every year, but I disagree with her in that she wants to revise it upwards every year—

[Shabana Mahmood]

Or downwards.

[Dr Huppert]

Indeed. I definitely disagree with the idea of it going up every year. I accept her principles, as I say, but I think that doing it properly every five years is better.

I disagree in principle, however, with amendment 8, which has not yet been spoken to, but may be later, and amendment 20. These are, I am afraid, a last-ditch attempt to keep control orders going for as long as possible. We do not want that to happen. We do not want control orders, and all the problems associated with them, lasting longer than they have to. They should be stopped as soon as possible.

[Shabana Mahmood]

Does the hon. Gentleman recognise that the amendments, as drafted, envisage that the TPIMs regime will come into force and that they seek only to delay it until the resources are ready? They do not seek to keep control orders for ever more.

[Hazel Blears]

I accept that these are delays; they are not about permanently keeping the orders. We will, of course, see how the vote works out. The amendments are nonetheless a last-ditch attempt to keep the orders going for a few more months or a couple more years or a little bit further. I do not want that.

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[James Brokenshire]

The hon. Gentleman will have heard what the Prime Minister said in his statement about the investigation being undertaken by the Gibson inquiry. These matters will be looked at closely, but I certainly do not intend to expand this debate to cover them in such a way because time is pressing and we have a number of other issues to do with this mini-debate to get through.

The right hon. Member for Leicester East (Keith Vaz) asked me about a couple of issues. The first was to do with the role of Lord Macdonald, who was not appointed to review counter-terrorism legislation generally or on an ongoing basis but was asked to oversee the counter-terrorism review, which completed in January. It is obviously open to him to look at and comment on the draft Bill; we have published it with the purpose of allowing it to be considered.

Let me turn to the central issue raised by those on the Opposition Front Bench as well as other Opposition Members. I want to make it very clear that the TPIM system will provide appropriate, proportionate and effective powers for dealing with the risk posed by suspected terrorists whom we can neither prosecute nor deport. The new system introduced by the Bill will be accompanied by an increase in funding for the police and security services to enhance their investigative capabilities. As I have said, this will complement the new regime and, we believe, maintain public confidence. To repeat what I have said, the Metropolitan Police Service has confirmed that arrangements will be in place effectively to manage the transition from control orders to TPIMs. I have heard what Opposition Members and other Members have said and I can say to the right hon. Member for Leicester East—or I would have done, if he was in his place—that I will take the issue away and consider further with the police what further information may be provided.

As right hon. and hon. Members will recognise, there is a challenge here and we do not provide detailed breakdowns of what money we provide for specific security activities as that would provide detailed information about our capabilities and techniques that could undermine national security. There is a delicate balance to be struck, but I will certainly consider carefully the comments that have been made during this debate and consider with the Metropolitan police what further information might be appropriate.

[Shabana Mahmood]

I thank the Minister for giving way and for the indication that further written evidence will be available. I am still minded to press amendment 20 to a vote later this evening, but I have been advised by the Clerks that if new clause 3 is passed we cannot have a vote on new clause 7. May I clarify that although we would have liked to vote on annual renewal—we still believe it is an important measure—we will not oppose new clause 3? However, Labour Members will take the issue forward when the Bill reaches the other place.

[James Brokenshire]

I appreciate the hon. Lady’s clarification of the official Opposition’s stance. I have given the House clear assurances about the preparations for the transfer from control orders to TPIMs and we will reflect on the debate further, but we believe that the Government’s amendments for the review are appropriate, and, on the basis of the assurances we have received, we do not believe that the Opposition amendments are required. Even at this stage, I ask the hon. Lady to reflect on the debate and to consider withdrawing those amendments.

Question put and agreed to.

New clause 3 accordingly read a Second time, and added to the Bill.

New Clause 4

Section (Expiry and repeal of TPIM powers): supplementary provision

‘(1) This section applies if the Secretary of State’s TPIM powers expire or are repealed under section (Expiry and repeal of TPIM powers).

(2) A TPIM notice which is in force immediately before expiry or repeal is to—

(a) continue in force for the period of 28 days beginning with expiry or repeal; and

(b) be treated as if revoked by the Secretary of State at the end of that period.

(3) Subsection (2)(a) is subject to—

(a) any variation under section12(1)(a) or (b), and

(b) any revocation or quashing.

(4) Except as provided for in subsection (5) or (6), TPIM proceedings may neither continue nor be begun after expiry or repeal.

(5) TPIM proceedings of a kind set out in subsection (7) may continue, or be begun, after expiry or repeal, but only for the purpose of determining one or more of the following matters—

(a) whether a TPIM notice should be quashed;

(b) whether measures imposed by a TPIM notice should be quashed;

(c) whether to make a declaration under paragraph 4(4) of Schedule2.

(6) Proceedings for an award of damages or other relief arising out of any TPIM proceedings of a kind set out in subsection (7)(a) to (c) may continue, or be begun, after expiry or repeal.

(7) The TPIM proceedings referred to in subsections (5) and (6) are—

(a) a reference made under paragraph 3 of Schedule 2 before expiry or repeal;

(b) a hearing in pursuance of directions under section 8(2) or 8(5);

(c) an appeal under section16;

(d) an appeal, or further appeal, relating to a decision in any proceedings mentioned in any of paragraphs (a) to (c).

(8) If, after expiry of the Secretary of State’s TPIM powers, the powers are revived under section (Expiry and repeal of TPIM powers)(2)(b)—

(a) all TPIM notices, including any which were in force before expiry, are to be taken into account in determining whether there is new terrorism-related activity for the purposes of section3(6);

(b) the expiry of those powers does not prevent them from being exercised after revival in relation to any TPIM notice which—

(i) expired or was revoked before the expiry of the powers or during the relevant 28 day period, or

(ii) is, in accordance with subsection (2)(b) of this section, treated as if revoked at the end of the relevant 28 day period;

and for this purpose “relevant 28 day period” means the period of 28 days beginning with the expiry of the powers that is mentioned in subsection (2)(b).’.—(James Brokenshire.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 5

Temporary power for imposition of enhanced measures

‘(1) If the Secretary of State considers that it is necessary to do so by reason of urgency, the Secretary of State may make a temporary enhanced TPIM order during any period that—

(a) begins with the dissolution of Parliament, and

(b) ends with the first Queen’s Speech of the Parliament which first meets after that dissolution.

(2) A temporary enhanced TPIM order is an order which makes provision for, or in connection with, giving the Secretary of State power to impose enhanced measures by notice on individuals whom the Secretary of State is satisfied, on the balance of probabilities, are, or have been, involved in terrorism-related activity.

(3) An enhanced measure is a requirement, restriction or other provision which is of any of the following kinds—

(a) a restriction on an individual in relation to the residence in which the individual resides, including—

(i) a requirement to reside at a specified residence in the United Kingdom;

(ii) a requirement not to allow others to reside at that residence without the permission of the Secretary of State;

(iii) a requirement, applicable between specified hours, to remain at that residence;

(b) a restriction on an individual in relation to leaving a specified area;

(c) a requirement, restriction or other provision which corresponds to provision within any of these paragraphs of Schedule1—

(i) paragraphs 2 to 6;

(ii) paragraph 7(1) and (2) and (4) to (6);

(iii) paragraphs 9 to 12;

(d) a requirement, restriction or other provision which corresponds to provision within paragraph 8(1) of Schedule1 (as read with paragraph 8(3) of that Schedule), including—

(i) a requirement not to associate or communicate with other persons without the permission of the Secretary of State, which includes provision allowing the individual (without seeking permission) to associate and communicate with such persons or descriptions of persons as the Secretary of State may specify;

(ii) a requirement to give notice to the Secretary of State before associating or communicating with other persons, which includes provision allowing the individual (without giving notice) to associate and communicate with such persons, or descriptions of persons, as are specified.

(iii) a requirement of the kind referred to in sub-paragraph (c) of paragraph 8(2) of Schedule1, which may in particular relate to association or communication which is allowed by virtue of provision of the kind referred to in sub-paragraph (i) or (ii) above;

(e) provision which corresponds to provision within Part 2 of Schedule1;

and for this purpose “specified” means specified by the Secretary of State in an enhanced TPIM notice.

(4) Except as provided for in subsections (5) to (10), the provision made by a temporary enhanced TPIM order must correspond to the relevant provisions of this Act.

(5) A temporary enhanced TPIM order—

(a) must secure that enhanced TPIM notices and standard TPIM notices are separate notices;

(b) must secure that, at any particular time, an enhanced TPIM notice and a standard TPIM notice are not both in force in relation to a particular individual; and

(c) may secure that the application of a temporary enhanced TPIM order to a particular individual does not affect the application of this Act to that individual (and vice versa).

(6) The provision of a temporary enhanced TPIM order which corresponds to section 3 must include appropriate variations from the provision contained in that section to secure—

(a) that condition A is replaced by a condition which secures that the enhanced TPIM power may not be exercised in relation to an individual unless the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity; and

(b) that condition D is replaced by a condition which secures both—

(i) the same result as condition D, and

(ii) that the enhanced TPIM power may not be exercised in relation to an individual unless some or all of the measures imposed by the enhanced TPIM notice are measures that may not be imposed by a standard TPIM notice.

(7) The provision of a temporary enhanced TPIM order which corresponds to section5(1) must include appropriate variations from the provision contained in that subsection to secure that each enhanced TPIM notice ceases to be in force at the time when the enhanced TPIM power ceases to have effect in accordance with section (Temporary power: supplementary provision)(1) (subject to earlier revocation or quashing of the notice).

(8) The provision of a temporary enhanced TPIM order which corresponds to Schedule 1 must include appropriate variations from the provision contained in that Schedule to secure that it is enhanced measures which the Secretary of State has power to impose.

(9) A temporary enhanced TPIM order may make appropriate provision (including appropriate variations from the provision contained in the relevant provisions of this Act) in consequence of, or in connection with, the creation, in accordance with this section, of the enhanced TPIM power.

(10) A temporary enhanced TPIM order may make appropriate provision for the purposes of securing that transitional and saving provision relating to a temporary enhanced TPIM order ceasing to have effect may be made (including provision for enhanced TPIM notices to continue in force for a period, which does not exceed 28 days, after the enhanced TPIM power ceases to have effect).

(11) The provision that may be made by a temporary enhanced TPIM order includes—

(a) provision amending any enactment (including an enactment contained in this Act);

(b) provision applying (with or without modifications) any enactment (including an enactment contained in this Act);

(c) provision conferring functions on the Secretary of State or any other person (including, in the case of the Secretary of State or any other Minister of the Crown, functions of a legislative nature).’.—(James Brokenshire.)

Brought up, and read the First time.

--- Later in debate ---

[James Brokenshire]

I absolutely reject the assertion that this Bill is in some way more draconian and cracks down more on liberty than the approach of the previous Government. That is precisely why we have sought to rebalance the counter-terrorism legislation, and that has been at the heart of the counter-terrorism review. I should have hoped that the hon. Gentleman recognised that. We have recognised the very nature of the enhanced measures and why it is appropriate not to have them as business as usual—why it is appropriate to have them in a Bill that can be subject to pre-legislative scrutiny and can be considered calmly and rationally rather than rushing and not having powers available to deal with extraordinary and extreme circumstances. That is why we have taken the view that we have in the structure of the approach in the draft enhanced Bill and in this Bill.

[Shabana Mahmood]

How does the Minister say that control orders or TPIMs are business as usual?

[James Brokenshire]

I am saying that because this legislation remains and resides on the statute book, subject to the new clauses that we have rightly put in place following the previous debate with the five-year renewal. The powers that are available under the enhanced measures are such that they require a further considered approach by Parliament before they are introduced. That is why we have rationally and reasonably, as reflected in the counter-terrorism review, sought to adopt the approach that we have.

--- Later in debate ---

[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.

--- Later in debate ---

[Shabana Mahmood]

I am mindful of the time, so I will try to keep my comments relatively brief.

I endorse the powerful contribution made by my right hon. Friend the Member for Salford and Eccles (Hazel Blears). She spoke with great passion about an issue that has concerned her for some time. It certainly concerned her in Committee, and it has concerned Opposition Front Benchers, too.

Relocation has been a central issue in the debates that we have had about the Bill, both on Second Reading and in Committee, and it is one of the most important issues that we are taking forward on Report. New clause 1 seeks to add the power of relocation to the Bill to replicate the position in relation to control orders under the Prevention of Terrorism Act 2005.

It is clear from the evidence that the relocation power has proved extremely useful in disrupting terrorist activity. It is regularly described by police and others as one of the most useful and effective powers that they have under the control orders regime. We know that nine of the 12 current control orders have relocation as part of the control order.

The importance of relocation as a measure to be made available to the police in meeting the terror threat was made clear at the evidence sessions held by the Public Bill Committee. We heard evidence from Deputy Assistant Commissioner Stuart Osborne, for whom, like my right hon. Friend said, I am starting to feel slightly sorry. She quoted him, but I will repeat the important bit of the quote again because it will concentrate the mind of the House:

“The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult.”

He added:

“The new freedoms that will be given to individuals will significantly increase the challenges that we have to face, and managing those challenges will increase the resources that we need. The degree to which we are successful in managing them depends on both the extent of the Bill and the additional resources that we get.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 5-6, Q 10 and 14.]

The importance of relocation as a measure was further highlighted by Lord Howard and Lord Carlile. Lord Howard, the former Home Secretary, has described the power as the single most useful power in ensuring that the package of measures that we have is sufficient to keep us safe.

It is clear from the evidence that the police gave to the Committee that the additional risk created by removing relocation from the TPIMs regime could be mitigated by the additional resources, but it would not be eliminated and there are of course degrees of mitigation. In Committee, DAC Osborne was only “hopeful” that the risk would not increase if the Bill were passed, which does not fill me with a huge amount of confidence.

It is clear, and we must recognise, that there is an irreducible minimum number of people who pose a serious threat to our country and we have to have an adequate and effective way to manage that risk. Relocation is clearly an important part of that package of measures. It is our view that, if the new clause is added to the Bill, the policing challenge that DAC Osborne and others will face will be reduced and our collective security protected. It has always been our concern that if this Bill closes off the power of relocation to the Home Secretary—if it deprives her of being able to use that power—that would deprive her of an incredibly important tool in her kit bag for dealing with the threat posed by a very small number of people. For those reasons, we will support new clause 1 in the Division.

[Richard Fuller]

It is a pleasure to be able to make a brief contribution to this debate.

I listened to the rhetoric of the right hon. Member for Salford and Eccles (Hazel Blears) in her opening speech in support of her new clause, and it made me even more scared about giving Administrations a fiat on the treatment of people in our judicial system, rather than leaving that with the judges. On many occasions, both in this debate and in Committee, the right hon. Lady talked about the importance of balance, but I feel that, in the sharpness of her rhetoric and the blithe way challenges were laid down and comments were made about loosening and potentially putting us at risk, her speech did not betray any balance whatever. That highlights one of the risks in giving the Executive the power to restrain and control people who have not been brought to justice. Both in the specific instance of relocation and more generally in the tone of Opposition Members, a disservice is being done to this Government’s attempts to return us to some semblance of the traditions of British justice that we achieved before the period of the so-called “war on terror”—before 2001—and we should remember that control orders were not introduced until 2005, and that therefore they were not in place between 2001 and the Iraq war, which some would argue was the period of greatest risk.

I wish to make a couple of comments on the specific issue of relocation. I have a lot of respect for the right hon. Lady and I do not mean to pick on her; I am just picking on her point. I challenged her earlier about democratic countries from which she drew inspiration. I could not think of any either, so I did some research on a well-known search engine. I looked up forced relocation of individuals. Kazakhstan featured prominently. There were also a few honourable mentions for Cambodia—not the current Cambodian Government, but I think we can work out which Government—and for Burma. Kazakhstan, Cambodia and Burma are not exactly the paragons of virtue in this respect that I would like our Government to follow as they attempt to strike the difficult balance of maintaining both the security of the nation and the liberty of the individual.

May I also refer to one not particularly tabloid-friendly comment on relocation? A number of Members have talked about meeting people who are subject to a control order or its equivalents and who have been subject to relocation. We must remember that those subject to control orders have not yet gone through full justice in our country. Many other countries, including the United States, have laws against cruel and unusual punishment. Relocation has the most significant negative impact on the mental health of these individuals. In evidence in Committee, Dr Korzinski said:

“What I am concerned about…is the absence of any sort of safeguards with respect to the impact on the mental health of the individuals who are subjected to these regimes. I can say quite unequivocally that it has been catastrophic in all the cases that I have worked on.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 43, Q121.]

That may not be the most popular of reasons to oppose the right hon. Lady’s new clause, but there are also many others, such as support for our justice system and achieving that balance that she advocates, but which I do not think she spoke to today. I shall support the Government on this new clause.