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Terrorism Prevention and Investigation Measures Bill


The Committee consisted of the following Members:

Chairs: Martin Caton  , Mr Lee Scott 

Blears, Hazel (Salford and Eccles) (Lab) 

Brake, Tom (Carshalton and Wallington) (LD) 

Brokenshire, James (Parliamentary Under-Secretary of State for the Home Department)  

Buckland, Mr Robert (South Swindon) (Con) 

Donaldson, Mr Jeffrey M. (Lagan Valley) (DUP) 

Ellwood, Mr Tobias (Bournemouth East) (Con) 

Goggins, Paul (Wythenshawe and Sale East) (Lab) 

Gummer, Ben (Ipswich) (Con) 

Harris, Rebecca (Castle Point) (Con) 

Huppert, Dr Julian (Cambridge) (LD) 

Mahmood, Shabana (Birmingham, Ladywood) (Lab) 

Morden, Jessica (Newport East) (Lab) 

Newmark, Mr Brooks (Lord Commissioner of Her Majesty's Treasury)  

Ollerenshaw, Eric (Lancaster and Fleetwood) (Con) 

Phillips, Stephen (Sleaford and North Hykeham) (Con) 

Robertson, John (Glasgow North West) (Lab) 

Stewart, Bob (Beckenham) (Con) 

Sutcliffe, Mr Gerry (Bradford South) (Lab) 

Tami, Mark (Alyn and Deeside) (Lab) 

Sarah Thatcher, Committee Clerk

† attended the Committee

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Public Bill Committee 

Thursday 23 June 2011  

(Afternoon)  

[Martin Caton in the Chair] 

Terrorism Prevention and Investigation Measures Bill

Clause 1 

Abolition of control orders 

1 pm 

Question (this day) again proposed, That the clause stand part of the Bill. 

Stephen Phillips (Sleaford and North Hykeham) (Con):  The point that I was making this morning arose from my intervention, which the hon. Member for Birmingham, Ladywood kindly took. It is right that I explain it a little further so that she and the Committee understand it, for at least two reasons. First, I am concerned about the way in which the Bill Committee is beginning its business, in that the clause 1 stand part debate appears to be taking place in a partisan atmosphere, which, given the subject matter of the Bill, should not, I venture to suggest, be happening. 

Mr Gerry Sutcliffe (Bradford South) (Lab):  I agree that we should not be partisan because the Bill is about national security, but is not one of the reasons why we are perhaps being partisan that, if the Minister had introduced the legislation as an amendment to the Prevention of Terrorism Act 2005—as my right hon. Friend the Member for Salford and Eccles said this morning—that would have been much more helpful? 

Stephen Phillips:  I will come on to that point in a moment, but the short answer is this. The right hon. Member for Salford and Eccles accepted, in the course of her remarks to the Committee, that this was new legislation. She also accepted that it made certain changes, some of which are sufficiently significant that they are evidently troubling the Opposition. Given that, the right way to introduce the Bill is the way in which it has been brought forward: as a new piece of legislation, so that we can properly debate all its provisions, including those that the Opposition suggest overlap with those that are already in place on control orders. I will deal with that point in further detail in a moment. 

As I was saying, it is important for me to explain the intervention that I made on the hon. Member for Birmingham, Ladywood. The point that my hon. Friend the Minister put to her and which both he and I evidently failed to explain particularly well is very simple. She asked why the current Home Secretary has been using control orders if they are thought to be objectionable by the current Government. The point that the Minister made to her was that when the terrorism prevention and investigation measures regime comes into being—assuming

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that it passes through Committee and survives the subsequent stages in this House and the other place—the Government will put in place extra resources to support the security services and the police. Those resources are— 

Hazel Blears (Salford and Eccles) (Lab)  rose—  

Stephen Phillips:  I would have liked to make some progress, but I have so much respect for the right hon. Lady that I will at this stage give way. 

Hazel Blears:  I thank the hon. and learned Gentleman for giving way and I apologise for being a few seconds late in arriving—I was running up the stairs. What troubles me is that the regime is likely to come in by the end of this year, but the evidence that we heard from Deputy Assistant Commissioner Osborne was that it would take at least a year for the human resources to be recruited, trained and put in place to exercise the 24/7 surveillance that will be necessary because of the weakening of the provisions with TPIMs as opposed to control orders. Does the hon. and learned Gentleman share my concern about that gap when the resources are not in place? 

Stephen Phillips:  I will make two points. First, in my limited experience as a new Member of this place and in my previous incarnation, it has generally been my experience that both the security services and the police will always wish to preserve, in a very conservative way, the existing regime in relation to this area or anything else, because they know how it works and they know the resources that they need to deploy to ensure that they operate it correctly. Therefore, any form of change always involves an assessment that is generally very conservative by the security services and the police about both the resources that they need to put it into place and the time that they need in which to do that. 

The Minister and the Department will need to consider whether a transitional period is needed and, if so, how long it needs to be. I look forward to hearing that the question has been considered, and to hearing the Minister’s answer. He is right to raise the point at this stage. However, I shall not take any more interventions on the subject as I was going to deal with it in any event. 

The Minister’s argument this morning was simple; he was answering the Opposition’s point that the Home Secretary has been using the control order regime since this Government came to office. My right hon. Friend has indicated that when the TPIM regime comes into being, additional resources will be put in place. Those resources are not in place yet, and no one has suggested that they are. The Opposition’s argument is being made in a partisan way, and for the hon. Member for Birmingham, Ladywood to say that the Secretary of State has been using control orders is bad for that very reason. 

Shabana Mahmood (Birmingham, Ladywood) (Lab):  rose—  

Stephen Phillips:  I am happy to take an intervention from the hon. Lady, so that she can accept that it is a bad point or, if not, give us an answer. 

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Shabana Mahmood:  I do not agree that it is a bad point. I do not accept the argument that the Home Secretary is forced to impose control order measures that would not be available to her under the TPIM regime, and which are contrary to the counter-terrorism review, because of resources. That is not entirely correct. If that were the case, the Bill would include a clause providing that it would not come into force until such time as the police had confirmed to the Home Secretary and Parliament that they had the additional resources needed to manage the increased risk created by the TPIM regime, and that the additional police officers needed to undertake surveillance were fully trained and ready to start work. There is no such clause. 

The resources argument cannot be used both ways. It cannot be used to say that the Home Secretary is correct to use control order measures, as she has done over the past few months, but allow the resources point to fall away when the Bill comes into force. 

Stephen Phillips:  With the greatest respect, the hon. Lady does not answer the simple point that the argument that she was making this morning was a bad one. She conflates two factors in her intervention. The first is the fact that, at present, the Bill does not say when the TPIM provisions will come into being. The point that she made this morning was different; she asked why, if control orders are so bad and strike the wrong balance, the Home Secretary continued to use them. She has been given an answer to that question by the Minister and Government Members. The Home Secretary has had to continue using them because the resources are not yet in place. 

It is no answer to the fallacious nature of her argument for the hon. Lady to intervene on me and say, “Oh, but there is no clause in the Bill to say when TPIMs will come into being, which needs to be after the police have confirmed that sufficient resources are in place to mitigate the risk to those who will be operating under this regime.” The hon. Lady still has not answered the question. It may be that she still does not understand why the argument—I have no doubt that it was given to her by the Labour Whips—is such a bad one. We will continue to disagree on this, but it is a matter of debate, and people can read Hansard and form their own view. I suspect that the vast majority of those who are sufficiently unfortunate to have to read Hansard will take the same view as me, which is that the hon. Lady’s argument was badly planted by the Labour Whips. That was the first point that I wished to deal with, and I did so because it was unclear whether I had missed the point this morning. The answer is obviously that I did not. 

I now turn to the rather more powerful contribution made by the right hon. Member for Salford and Eccles; we share a considerable amount of common ground on this measure. Albeit that some of my hon. Friends might wish that it went further, it is unfortunately necessary given the security situation in which the country presently finds itself. The right hon. Lady saw fit to describe the Bill as dishonest legislation—I think that she used those words. This is one point where I disagree with what she said this morning. Indeed, that characterisation is somewhat regrettable. 

As my hon. Friend the Member for Ipswich indicated this morning, the legislation interferes fundamentally with the liberties that we expect customarily in this

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country by virtue of the fact that we are a civilized democracy and have had protections for our liberties under the common law since time immemorial. It is therefore right that, if the Government want to reshape existing legislation that deals with those whose liberty is under restriction, and if they are to carry out their first duty of protecting the public, that legislation should be debated in is entirety. 

I come back to a point that I made during an intervention this morning: this Committee should, on a bipartisan basis, deal with the substance of what is necessary to protect the public by restricting people’s liberties, and not whether we call them control orders, TPIMs or anything else. That is a semantic question, which I think has been made obvious to every member of the Committee by the Opposition’s description of “mini control orders” or “control orders-lite”. They are seeking to make party political capital out of that point, which is not what should be taking place in this House or this Committee. I respectfully submit that we should focus on what the Bill is about, its measures to protect the public, and whether they need to go further—as Opposition Members seem to think—or whether, as I said on Second Reading, this Bill strikes the right balance between the necessity to protect the public on one hand and interference with the liberties of the citizen on the other. 

Hazel Blears:  I think that the hon. and learned Gentleman has made my point for me. I have listened carefully to what he has said and there is a great deal of common ground between us, but I think he has made the very point that I was seeking to establish in my contribution, namely that what we call this regime is irrelevant. I was seeking to establish a degree of consensus across the Committee on the view that, if people who pose a serious threat to the national security of the country cannot be prosecuted or deported, we must have a regime that enables us to control their behaviour. The point that I was seeking to make was that we could have a much more straightforward debate if we did not pretend that the TPIM regime is a fundamental departure from the Prevention of Terrorism Act 2005. It is, in fact, a refinement. By relaxing some measures and raising the burden of proof, and by not having a sunset clause, it is a refinement of the existing regime. I think that the hon. and learned Gentleman, in his usual eloquent and erudite way, has made that point far better than I could. 

Stephen Phillips:  I am always happy to help the right hon. Lady. I am not sure whether my argument is consistent with the entirety of what she said this morning. Both aspects of my contribution stress, in all seriousness, that the Committee must approach the issues with which this Bill grapples in an entirely bipartisan, or perhaps tripartisan, and proper way. What concerns me about this morning’s contributions from Opposition Members, and about the facile semantic debate about whether these are “control orders-lite” or “mini control orders,” is that we are not focusing, in the limited time available to the Committee, on what we should be, namely, as I have already said, the substance of the measures that are necessary to protect the public, consistent with the liberties that we hold dear in this country. If the right hon. Lady and the shadow Minister, the hon. Member for Bradford South, agree with that, they will not divide the Committee on the clause, and they will

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certainly not move their amendment to strike out clause 1. The only reason why that amendment was tabled was to try to make a party political point that this is nothing other than the control order regime, with limited changes. [ Interruption. ] The hon. Member for Alyn and Deeside chunters from a sedentary position. If he wants to say something, I am quite happy for him to intervene. 

Mark Tami (Alyn and Deeside) (Lab):  I am grateful to the hon. and learned Gentleman for letting me intervene. Surely the party political point—the fudge—is clause 1 itself, which is intended to give the Liberal Democrats the idea that control orders have somehow been abolished. 

1.15 pm 

Stephen Phillips:  I am grateful for the hon. Gentleman’s contribution, which was much as I would have expected it to be. As I said, and it remains the case, the existing measures are a fundamental interference with the liberties the citizens of this country are entitled to expect. For that reason, it is appropriate, desirable, necessary and proper that our proposals come before the House in their entirety and not as a series of amendments to legislation that the previous Government rushed through in deliberations that went well into the night, as the right hon. Member for Salford and Eccles made clear on Second Reading and in her contributions on the Committee’s first day. 

Mr Sutcliffe:  Will the hon. and learned Gentleman give way? 

Stephen Phillips:  I will give way one last time to the hon. Gentleman. 

Mr Sutcliffe:  I understand the hon. and learned Gentleman’s position and the strength of feeling in his argument, but the partisan politics on this issue started when the deputy Prime Minister said the Government were going to get rid of control orders. He was not going to get involved in a debate about the PTA or the issues that, I agree with the hon. Gentleman, we need to go through thoroughly. The proposals have been disguised so that they look like something different from control orders, when they clearly are not, and the hon. Member for Cambridge, on Second Reading, wanted to go even further. 

Stephen Phillips:  Yet again, that is the same point dressed up. The hon. Gentleman can make that point on Third Reading, outside this place or in the newspapers. The Committee needs to concentrate on the substance of the measures that need to be put in place to protect the citizens of this country in a way that is consistent with the liberties they enjoy. 

Ben Gummer (Ipswich) (Con):  I wish that Labour Members would listen to the right hon. Member for Salford and Eccles, who carefully pointed to five substantial areas in which TPIMs differ from control orders, one of which is the name, which Opposition Members have laughed at. It would be quite improper, on one of the most important subjects we could discuss in the House, to put a series of amendments to an existing piece of

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legislation before the House and the electorate, when we are depriving people of their liberty without a trial. It is entirely right that one of the substantial issues we are discussing is the change in name, because we are saying that the proposals are different in four substantial ways, as pointed out by the right hon. Lady. I wish we could actually move on to discuss those substantial items, rather than fiddling around with this clause. 

Stephen Phillips:  I could not agree more with my hon. Friend; indeed, I sought to make that point earlier. The only reason I have been addressing the Committee for such a long time—I apologise for that, given that I promised to make a brief contribution—is that I genuinely hope the Opposition will not divide the Committee on stand part or amendment 9, which would leave out clause 1. The only purpose they could possibly have for doing that would be to make some party political capital, when we should be focusing on the substantive measures that need to be put in place in the Bill. That is what Government Members want to focus on, and those are the issues the Committee needs to debate. For those reasons, I urge the shadow Minister, those who assist and advise him and those who whip Opposition Members not to divide the Committee on stand part. 

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire):  Good afternoon, Mr Caton. I welcome you to the Chair for the second of the Committee’s sessions of line-by-line consideration of the Bill. You will no doubt have gathered just from this afternoon’s contributions that this has been quite a passionate debate. A number of important arguments have been set out and perhaps frame very well the debate we will no doubt have on the Bill. 

I should also formally welcome the Opposition Front-Bench spokespeople. It is a pleasure to welcome the hon. Member for Birmingham, Ladywood, and this is possibly the first Bill Committee in which I have had the pleasure of debating with her. I certainly welcome her to her position. I am delighted to resume debates with the hon. Member for Bradford South—he was the first Minister I had the pleasure of debating with in Committee, on the Consumer Credit Bill I think, back in 2005. We have had regular debates in Committee Rooms such as this over the years, and I welcome our continuing discussions. 

Similarly, I remember some good, detailed debates with the right hon. Member for Salford and Eccles on the Police and Crime Bill, and I recognise her experience. I must also admit to a slight soft spot for the right hon. Lady—I will confess this at the start of the Committee. At the time, I was a new Member of the House, and she kindly created a constituency in my name in the first sitting of the Bill Committee, because she was unfamiliar with who I was, and I was probably unfamiliar with who she was. She kindly referred to me on a couple of occasions as the hon. Member for Brokenshire, which led to a wonderful debate about what the constituency might look like, which was helpful at the time, given that my constituency was about to be abolished. I was grateful for her kind comments. 

The Committee includes a lot of experience and, despite some of the harsh words and chiding, there is common ground on a number of themes underpinning recognition of the severe terrorist threat we continue to

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face and the need for Government to take their responsibility extraordinarily seriously, which we do. Safeguarding our national security and safety is the first duty of the Government—a commitment of this Government and the previous one, which is shared by the public and Parliament. We will not do anything to undermine that security. 

My role and responsibility is to explain to the Committee in its entirety how the various strands of the Bill fit together. We can look at the Bill—the point was made well by the right hon. Member for Wythenshawe and Sale East—but there is a broader context. We need to look at the roles of what might be described as disruption, of surveillance and intelligence, of prosecution and of deportation, and at how all those strands fit together cohesively to deliver on the safety and security of our citizens. We are debating what might be considered one of those strands, but it needs to be viewed in context. That context, given the points made by the hon. Member for Birmingham, Ladywood, and in case I was not clear enough in response to her intervention, is why I am seeking to explain that the surveillance and intelligence sitting alongside the disruption tools are key to the overarching package of protection that we can deliver. That is what I was trying to explain in response to her intervention on context. 

Context is important, so I ought to talk about some of the context of the Bill, as well as the changes being examined in Committee. Opposition Members, in essence, are asking why we need to make any changes—that is a fundamental context which they are taking into account in their approach to the Committee. Paragraph 7 of the counter-terrorism review states: 

“Control order powers have always been controversial because they are imposed without the person on whom they are applied being convicted for the terrorist activity in which he is judged to be engaged, because of the use of closed material and because of the very intrusive restrictions that they can involve.” 

That is why the Government embarked on looking at the control order powers and other intrusive powers in their review, and why certain other changes are being brought about. There is a need to look at the context of some of the fundamental liberties that we uphold and believe to be important in our society—what defines us as a country, and what defines our values. That has been brought out quite well in some of the contributions thus far, and my hon. Friend the Member for Ipswich framed it well when he referred to how the state approaches the matter and how liberties are curtailed. That has been the starting point for looking at the balance between liberty and security, between collective liberty and that of the individual, and how to strike the appropriate balance. 

The issues are those of judgment and examination of how that balance is best struck. Following the review of counter-terrorism legislation, we concluded that control orders needed a fundamental change, indeed to be scrapped and replaced with the legislation that we are debating. Some characteristics are similar in structure, and I do not deny that those structural characteristics are similar in the procedural ways in which the legislation is framed, but there are important differences. One is context, and the fact that the Bill is based on investigation and that it includes clearly expressed provisions in clause 10 that emphasise that what we are always trying to do is to bring people before the courts and to secure a criminal prosecution if that is possible. 

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The previous Government took the same approach, and whatever criticisms were made at the time, I did not in any way question the integrity or desire of Ministers, of whatever political colour, to seek to bring people before the courts and to secure prosecution and a conviction based on the evidence, if that is possible. However, there is recognition on both sides of the Committee that sometimes it is not possible to bring someone before the courts, either because the evidence is inadmissible—we can debate what is taking place to make more evidence admissible—or sometimes because the evidence, if it were disclosed, could have a dangerous impact on our capabilities, covert human intelligence sources, and the activities of those who seek to keep us safe. I endorse the earlier comments about recognising and thanking all those who do so much, often at great risk to themselves, in keeping us all safe, and dealing with the threat before us. 

Hazel Blears:  I am grateful for the Minister’s acknowledgement that, whatever the political context, we all want to maximise prosecution. I want to ask him the question that I asked one of his hon. Friends earlier. What measures in the TPIM regime does he believe will lead to a better chance of bringing more people to trial? 

James Brokenshire:  It is perhaps because of the way the measure is grounded. The right hon. Lady will obviously have read the Bill carefully when preparing for the Committee. I point her to clause 10, which is the key clause that reminds everyone that we are seeking to ensure prosecutions whenever possible. This measure is largely preventive, hence the name of the Bill. It is a preventive and investigatory measure. In large part, the investigation is the support that sits around it—the covert surveillance, and the additional funding that is being provided to the police and the security services. That is why I emphasise the context, and how that investment will better assist in the overall intelligence perspective to ensure that more people are brought to justice. Yes, I certainly heard the evidence that was provided on Tuesday, and the points that the right hon. Lady sought to adduce when she asked, “Well, how does this assist us and take us forward?” However, the way in which the measure is grounded and structured, and the fact there is a statutory requirement to continue to report back to the police and all those who are working on our behalf to secure those convictions is so important. It is vital to telegraph the message from Parliament and Government that that is our primary objective. 

1.30 pm 

I have already admitted to the right hon. Lady and other Committee members that that will not always be possible and that once a disruptive technique is put into place, that puts someone on notice. Evidence ultimately to gain a conviction may therefore be harder to secure, but that does not mean it is impossible. The work that sits alongside the measure is very important. The grounding of the Bill in the way that I have characterised is significant. 

Stephen Phillips:  Does the Minister agree that one of the answers to the right hon. Lady’s question is that changing the name of something, particularly in the

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context of an entirely new piece of legislation, often changes the culture of the way in which these things are approached? We heard evidence on Tuesday that in the opinion of some control orders are simply being used as a parking mechanism. As a result, there has been no investigation of those who are subject to control orders in circumstances where hon. Members from all parties would agree that the best thing is to bring these people to trial. 

Merely changing the name of control orders to something that includes the word investigation gives a very clear signal to the law enforcement agencies and the security services that Parliament wants these people to be brought to trial. One has only to think of the mistake of the previous Government in creating something called a Supreme Court to realise how a change of culture can, in fact, lead to real changes on the ground. 

James Brokenshire:  There is an issue, but I do not know if I would describe it as one of culture. The police and the Crown Prosecution Service work extraordinarily hard to bring crimes to justice. My hon. and learned Friend makes an important point. We must always underline and recognise that sometimes such matters are challenging, but that we must continue to try to ensure that all avenues are explored. 

Hazel Blears  rose—  

James Brokenshire:  Having said what I said earlier, how could I possibly not give way to the right hon. Lady? 

Hazel Blears:  I am grateful for the generosity of the hon. Member for Old Bexley and Sidcup, not for Brokenshire—although lovely Thomas Hardy moments were conjured up by that. I am listening to him very carefully and like his colleague, the hon. and learned Member for Sleaford and North Hykeham, he failed to answer my very specific question. What measures in the TPIM regime are different and will lead to more people being brought to justice through the conventional criminal justice system? 

I take his point about sending a message. The previous Government were often criticised by Conservative Members for sending messages, rather than legislating in a proper fashion—some people have referred to it as “aromapolitics.” If the legislation is to work and to bring more people to justice and there is a genuine justification for introducing a new Bill, I am open to hearing about it. However, I have not yet heard from any hon. Member what specific measures in the TPIMs Bill are different from control orders and will enable more people to be brought to justice. In fact, I have heard the contrary from the Director of Public Prosecutions and from DAC Osborne. The police and the security services are saying to the Minister that TPIMs are not as disruptive as control orders because they are a weakening of the measure. As I think DAC Osborne said, control orders are in the protect and prepare bit of Contest and TPIMs are under pursue. There is a difference. 

If the Government really wanted to take such action, they could have put in place extra surveillance in addition to control orders. If their justification for the measure is

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that more associates will be found and evidence will be obtained, they could have had extra surveillance. That could have been done if the reason for the measure is to bring more people to justice. I am afraid that there are some big logical holes in the Minister’s argument. 

James Brokenshire:  I hear what the right hon. Lady says, but it is more fundamental than that. It is about the issues of liberty and where to strike the right balance on the quite invasive measures in the control order regime. We need to look at the changes as a package rather than in isolation. Taken together, they will ensure that the police and security services have the power that they really need, as well as the enhanced capabilities through surveillance, intelligence and the way in which the regime itself operates, to have the focus and to attain the end result. 

I was quite struck by several contributions this morning on the issue of liberty and how to achieve the right balance. In one exchange it was said that we could have either security or liberty. I do not accept that. Some contributors suggested that we were being almost casual with security. We absolutely are not. We take the responsibility extraordinary seriously. However, it is fair to say that, when the Opposition were in government, they were too casual with liberty. Those are not my words, but the words of the Leader of the Opposition, who said: 

“My generation recognises, too, that government can itself become a vested interest when it comes to civil liberties. I believe too in a society where individual freedom and liberty matter and should never be given away lightly”. 

He went on to say: 

“But we must always remember that British liberties were hard fought and hard won over hundreds of years. We should always take the greatest care in protecting them. And too often we seemed casual about them.” 

That was not what I said; it was what the Leader of the Opposition said about the approach taken by the previous Government. He also said in an article in The Guardian last summer: 

“I want to take my party on a journey to a different identity for the future: social democratic on economic policy, standing for redistribution and tackling inequality, liberal in our respect for individual rights.” 

Well, I am not quite sure whether I heard that said in Committee this morning to describe the approach taken by the Opposition. Perhaps they have reflected on matters and reconsidered, but it is interesting that the Leader of Opposition himself believes that a different approach should be taken, and he has underlined the important aspects of how liberty fits into the issues at hand. 

Bob Stewart (Beckenham) (Con):  I have thought very hard about TPIMs in the past two days. I speak as an ex-intelligence officer who had to recruit sources in Northern Ireland, and one thing that we have not covered is how, by giving a little more liberty to people under the TPIMs regime, they would discover that perhaps we are not as bad as others. It would encourage them to cough up or, indeed, to come over and perhaps declare that they were in the wrong. That is one of the advantages of TPIMs, which is why fundamentally, if we keep those people under surveillance, do things properly and show that we care about liberty in the way in which we deal with them, we might receive a better response. It is for that reason that I support TPIMs and

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primarily why I shall vote in favour of them rather than the reverse. I shall be honest and, having recruited sources for the intelligence service in Northern Ireland, I know that, by treating people decently rather than harshly, we get a much better human response and that is very encouraging in those terms. I am sorry to intervene, Mr Caton. 

The Chair:  Order. I did not ask the hon. Gentleman to stop speaking, because I have allowed others to make long interventions, but I ask members of the Committee to try to keep their interventions short.

James Brokenshire:  I do not think my hon. Friend should apologise in any way, shape or form for his intervention, because he underlines a significant point about the need to focus on the issue of liberties and how there are differences in the way in which action that the Government and the state undertake can be perceived. We need to ensure that we do not undermine the very freedoms that we are trying to protect and thus fuel the problems that we are trying to tackle. That is why we need to take such great care regarding the steps that we take, why the counter-terrorism review was undertaken and why various changes have been made to ensure that the public have confidence in the way in which the Government exercise their powers. 

Again, that underlines the approach that we are taking in the Bill and why the changes are necessary, as they reach the appropriate judgment. I appreciate that that judgment means that people are able to take a different, contrary view, reasonably and appropriately. Ultimately, it is about weighing up those values and issues and forming a judgment. We have formed a judgment that change is necessary, creating the Bill before us today. It strikes the appropriate balance between individual liberty and collective liberty and security. 

Mr Sutcliffe:  The Minister has mentioned a few times the fact that the security services would have adequate resources. Lord Carlile made a point in the evidence session about the cost of control orders versus TPIMs. He said that control orders cost £1.8 million an individual, whereas, under the TPIM regime, the cost would be anywhere between £11 million and £18 million. Was he correct? 

James Brokenshire:  I think that the right hon. Members for Salford and Eccles and for Wythenshawe and Sale East appreciate some of the challenges in government when responding to issues such as the one that the hon. Member for Bradford South has raised. Providing details of how much will be spent on the measure may assist those who wish to cause us harm, by giving them a sense of what our capabilities are. 

The hon. Gentleman has made a fair point, but we would not proceed along this route if we were not confident of the surveillance and the ability of the security services and the police to tackle the challenges that may result from the regime. On the scale-up point, which is important, the police and security services have been aware since at least February 2011 of the funding that would be made available to them. They know that the business case may need to be put alongside this and that there should be no impediment to recruitment or

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preparation. We are confident that the necessary transition can take place to ensure that those capabilities are available to support the TPIMs regime. 

Mr Sutcliffe  rose—  

Mark Tami:  Will the Minister give way? 

James Brokenshire:  I shall give way to the hon. Member for Bradford South and then to the hon. Member for Alyn and Deeside, who is probably sick of the sound of my voice, this being the third Bill Committee on which he and I have served this year. 

Mr Sutcliffe:  I understand the point that the Minister is making about giving the details to people who would do us harm, but the public have a right to know about the increased costs of these things. On the business case, Mr Osborne said that the police put the business case to the Home Office last week. He also said that it would take 12 months for the assets and the training requirements for individuals to come into effect. Does the Minister have any views on those issues? 

James Brokenshire:  Again, that is a fair point, which is why I have sought to make it clear that we have had discussions with both the security services and the police since early this year as part of the counter-terrorism review. The police have been aware since at least February of the sums of money available to them, with the expectation and clear indication that preparations have been ongoing since then. We are therefore confident about the transition arrangements and the fact that recruitment and all other necessary preparations have to be ongoing, as has been clear since early this year. 

1.45 pm 

Mark Tami:  I understand that the Minister does not want to give figures for the increased cost, but will he at least accept that there will be a considerable increase in overall cost? 

James Brokenshire:  I can tell the hon. Gentleman that the Government have made a commitment to provide additional resource—new money—to the police and the security services so that they can enhance their intelligence and surveillance capabilities around the TPIM regime and more generally, which underlines my point about the context in which they can deliver and provide enhanced services. 

I apologise to members of the Committee for not being able to be clearer on amounts or sums, but I hope that they understand the challenges facing the Government and that people may look with malign intent at what we say publicly in Committee. I have been as forthcoming as I can be in setting out the enhanced capabilities arising from the overall package of reform, because the Bill is important and the context is significant. 

I have noted the comments made in the debate on clause 1. We believe that the Bill charts a very different direction. The reforms that it makes are important, including those on issues of liberty. It forms part of the overall package of measures to deliver security, and it does so in a way which is more focused, more structured

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and in some ways less intrusive, which is important in how we frame the debate about an alternative approach. I therefore hope that hon. Members will agree that clause 1 should stand part of the Bill, because we must underline the fact that we are taking a different direction in seeking to prevent crimes while retaining a focus on bringing criminals to justice. Ultimately, the Bill is about protection, but it is also about ensuring that justice is done and seen to be done. 

Question put, That the clause stand part of the Bill. 

The Committee divided: Ayes 8, Noes 7. 

Division No. 1 ]  

AYES

Brokenshire, James   

Gummer, Ben   

Harris, Rebecca   

Huppert, Dr Julian   

Newmark, Mr Brooks   

Ollerenshaw, Eric   

Phillips, Stephen   

Stewart, Bob   

NOES

Blears, rh Hazel   

Goggins, rh Paul   

Mahmood, Shabana   

Morden, Jessica   

Robertson, John   

Sutcliffe, Mr Gerry   

Tami, Mark   

Question accordingly agreed to.  

Clause 1 ordered to stand part of the Bill.  

Clause 2 

Imposition of terrorism prevention and investigation measures 

Dr Julian Huppert (Cambridge) (LD):  I beg to move amendment 118, in clause 2, page 1, line 6, leave out from ‘may’ to end of line 8 and insert 

‘apply to the High Court for a terrorism prevention and investigation measures notice (a “TPIM” notice) in relation to an individual if conditions A to C in section 3 are met.

‘(1A) The High Court may grant a TPIM notice in accordance with section 6.

(1B) A TPIM notice is a notice which specifies that a particular individual may be released from police custody on bail with specified terrorism prevention and investigation measures (“TPIMs”) imposed where—

(a) the individual has been arrested for a terrorism-related offence;

(b) the relevant custody officer determines that there is insufficient evidence with which to charge the individual with the offence;

(c) there is a need for further investigation of any matter in connection with which he was detained; and

(d) it appears necessary for TPIMs to be imposed in order to prevent the individual from engaging in any of the activities listed in subsection (4).

(1C) Activities in relation to subsection (1B) are—

(a) failing to surrender to custody;

(b) committing an offence while on bail;

(c) interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person;

(d) for that person’s own protection or, if he is a child or young person, for his own welfare or in his own interests.’.

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The Chair:  With this it will be convenient to discuss the following: amendment 66, in schedule 1, page 16, line 7, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 67, in schedule 1, page 16, line 12, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 68, in schedule 1, page 16, line 23, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 69, in schedule 1, page 16, line 31, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 70, in schedule 1, page 16, line 33, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 71, in schedule 1, page 16, line 35, leave out 

‘Secretary of State, the Secretary of State’

and insert 

‘chief officer of the appropriate police force, the chief officer of the appropriate police force’.

Amendment 72, in schedule 1, page 17, line 3, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 73, in schedule 1, page 17, line 5, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 74, in schedule 1, page 17, line 8, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 75, in schedule 1, page 17, line 9, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 76, in schedule 1, page 17, line 11, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 77, in schedule 1, page 17, line 14, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 78, in schedule 1, page 17, line 22, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 79, in schedule 1, page 17, line 25, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 80, in schedule 1, page 17, line 26, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 81, in schedule 1, page 17, line 29, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 82, in schedule 1, page 18, line 2, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 83, in schedule 1, page 18, line 5, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Column number: 95 

Amendment 84, in schedule 1, page 18, line 8, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 85, in schedule 1, page 18, line 10, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 86, in schedule 1, page 18, line 13, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 87, in schedule 1, page 18, line 26, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 88, in schedule 1, page 18, line 28, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 89, in schedule 1, page 18, line 31, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 90, in schedule 1, page 18, line 38, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 91, in schedule 1, page 18, line 41, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 92, in schedule 1, page 19, line 33, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 93, in schedule 1, page 19, line 38, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 94, in schedule 1, page 19, line 42, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 95, in schedule 1, page 19, line 43, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 96, in schedule 1, page 20, line 1, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 97, in schedule 1, page 20, line 15, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 98, in schedule 1, page 20, line 21, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 99, in schedule 1, page 20, line 23, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 100, in schedule 1, page 20, line 26, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 101, in schedule 1, page 21, line 16, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 102, in schedule 1, page 21, line 18, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 103, in schedule 1, page 21, line 22, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Column number: 96 

Amendment 104, in schedule 1, page 21, line 23, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 105, in schedule 1, page 21, line 34, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 106, in schedule 1, page 21, line 36, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 107, in schedule 1, page 21, line 39, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 108, in schedule 1, page 21, line 42, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 109, in schedule 1, page 22, line 5, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 110, in schedule 1, page 22, line 6, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 111, in schedule 1, page 22, line 11, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 112, in schedule 1, page 22, line 13, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 113, in schedule 1, page 22, line 15, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 114, in schedule 1, page 22, line 19, leave out ‘Secretary of State’ and insert 

‘chief officer of the appropriate police force’.

Amendment 119, in clause 3, page 1, line 19, leave out subsections (2) to (6) and insert— 

‘(2) Condition B is that the Secretary of State is satisfied that the individual is currently subject to criminal investigation for a terrorism-related offence.

(3) Condition C is that the Secretary of State is satisfied that if the individual is, having been arrested, released prior to charge, certain conditions would be necessary and proportionate to ensuring that the suspect in question—

(a) surrenders to custody;

(b) does not commit an offence while on bail; or

(c) does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.

(4) The Secretary of State may apply to the High Court for a TPIMs notice to be granted at any time that he or she is satisfied that Conditions A, B and C are met.

Amendment 121, in clause 5, page 2, line 43, leave out from ‘individual’ to ‘; and’ in line 44. 

Amendment 122, in clause 5, page 3, line 1, leave out ‘by notice’ and insert 

‘apply to the High Court to’.

Amendment 123, in clause 5, page 3, line 4, leave out from ‘if’ to ‘; and’ in line 5 and insert 

‘the High Court is satisfied that conditions A, B and C are met’.

Amendment 120, in clause 5, page 3, line 4, leave out ‘C and D’ and insert ‘B and C’. 

Amendment 124, in clause 5, page 3, line 7, leave out subsection (4). 

Column number: 97 

Amendment 31, in clause 6, page 3, line 13, leave out from ‘court’ to end of line 14 and insert 

‘to grant a TPIM notice’.

Amendment 32, in clause 6, page 3, line 19, leave out paragraph (b) and insert— 

‘(b) to determine whether to grant a TPIM notice.’.

Amendment 33, in clause 6, page 3, line 35, leave out subsection (9). 

Amendment 34, in clause 6, page 4, line 2, leave out paragraph (d). 

Amendment 36, in clause 8, page 4, line 7, leave out paragraphs (a) and (b) and insert 

‘grants the application for a TPIMs notice’.

Amendment 37, in clause 8, page 4, line 23, leave out ‘measures’ and insert ‘the TPIMs notice’. 

Amendment 38, in clause 8, page 4, line 27, leave out subsection (7) and insert— 

‘(7) In this section “relevant day” means the day on which the TPIM notice is served on the individual’.

Amendment 39, in clause 9, page 5, line 7, leave out paragraphs (b) and (c). 

Amendment 40, in clause 9, page 5, line 13, leave out subsection (7). 

Amendment 41, in clause 9, page 5, line 20, leave out paragraph (d). 

Amendment 42, in clause 10, page 5, line 23, leave out subsection (1) and insert— 

‘(1) The Secretary of State must consult the chief officer of the appropriate police force about the matter mentioned in subsection (2) before applying for a TPIM notice under section 2.’.

Amendment 43, in clause 10, page 5, line 38, leave out subsection (4) and insert— 

‘(4) If a TPIM notice is granted by the High Court, the Secretary of State must immediately notify the chief officer of the appropriate police force that the TPIM notice has been granted.

(4A) If the individual to which the TPIM notice relates is being detained by the police following his arrest, the chief officer must, after being informed of the matters mentioned in subsection (2), notify the appropriate custody officer.

(4B) If the individual to whom the TPIM notice relates is not being detained by the police, at the time that the TPIM notice is granted, but is later arrested, the chief constable must inform the appropriate custody officer of the existence of the TPIM notice immediately following the arrest.

(4C) After being informed of the matters mentioned in subsection (4A) or subsection (4B), the appropriate custody officer must notify the individual to whom the TPIM notice relates, of the existence of the TPIM notice and the directions hearing.

(4D) The “appropriate custody officer” means the custody officer who is responsible for the detention of the individual against whom a TPIM notice has been granted.’.

Amendment 45, in clause 11, page 6, line 44, leave out ‘C and D’ and insert ‘A, B and C’. 

Amendment 46, in clause 12, page 7, line 3, leave out ‘The Secretary of State’ and insert 

‘A chief officer of police’.

Amendment 47, in clause 12, page 7, line 4, leave out ‘notice’ and insert ‘certificate’. 

Amendment 48, in clause 12, page 7, line 7, leave out paragraph (c) and insert— 

‘(c) the chief officer of police reasonably considers that the variation is necessary for the purposes set out in section 10A(3)(e).’.

Column number: 98 

Amendment 49, in clause 12, page 7, line 10, leave out ‘notice’ and insert ‘certificate’. 

Amendment 50, in clause 12, page 7, line 11, leave out 

‘Secretary of State for the’

and insert 

‘High Court for the discharge or’.

Amendment 51, in clause 12, page 7, line 12, leave out ‘Secretary of State’ and insert ‘High Court’. 

Amendment 52, in clause 12, page 7, line 17, leave out subsections (6) and (7). 

Amendment 59, in clause 19, page 11, line 28, leave out subsection (a) and insert— 

‘(a) to apply to the High Court for a TPIMs notice under section 2;’.

Amendment 60, in clause 19, page 11, line 30, leave out subsections (c), (d) and (e). 

Amendment 61, in clause 21, page 12, line 15, leave out subsections (a) and (b) and insert— 

‘(a) a TPIM notice is in force in relation to an individual;

(b) the individual has been arrested and released without charge on police bail with terrorism prevention and investigation measures attached;

(c) the individual contravenes, without reasonable excuse, measures specified in the TPIMs certificate.’.

New clause 1—Amendments to Terrorism Act 2000—  

‘(1) The Terrorism Act 2000 shall be amended as follows.

(2) In section 41 of the Terrorism Act 2000, after subsection (9) insert—

“(10) Where for any reason the continued detention of a person arrested under subsection (1) is no longer authorised, a chief officer of police may release the person on police bail, but only if—

(a) he reasonably believes there is a need for further investigation of any matter in connection with which the individual was detained; and

(b) he has been notified by the Secretary of State that a TPIM notice has been granted and is in force in relation to the individual.”’.

New clause 2—Amendments to Bail Act 1976—  

‘(1) The Bail Act 1976 shall be amended as follows.

(2) After section 3A of the Bail Act 1976, insert—

“3B Police bail in relation to terrorism-related offences

(1) Section 3 of this Act applies in relation to bail granted by a chief officer of police under section 41(10) of the Terrorism Act 2000 subject to the following modifications.

(2) Any reference in section 3 to ‘custody officer’ shall be substituted by ‘chief officer of police’.

(3) Subsection (6) does not authorise the imposition of a requirement to reside in a bail hostel or any requirement under paragraph (d) or (e).

(4) Subsections (6ZAA), (6ZA) and (6A) to (6F) shall be omitted.

(5) Terrorism prevention and investigation measures as contained in Schedule 1 to the Terrorism Prevention and Investigation Measures Act 2011 may be imposed by a chief officer of police as bail conditions.

(6) Where a chief officer of police grants bail to a person, no conditions shall be imposed under this Act unless it appears to the constable that it is necessary to do so—

(a) for the purpose of preventing that person from failing to surrender to custody, or

(b) for the purpose of preventing that person from committing an offence while on bail, or

Column number: 99 

(c) for the purpose of preventing that person from interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person, or

(d) for that person’s own protection or, if he is a child or young person, for his own welfare or in his own interests.

(7) For subsection 8 substitute—

(8) Where a chief officer of police has granted bail under section 41(10) of the Terrorism Act 2000 and imposed terrorism prevention and investigation measures in accordance with section 10 of the Terrorism Prevention and Investigation Act 2011, the High Court may on application by or on behalf of the person to whom bail was granted vary or discharge the conditions of bail contained in a Terrorism Prevention and Investigation Measures certificate (“TPIMs certificate”) in accordance with this subsection.

(8A) In determining whether or not to vary or discharge the conditions of bail as contained in the TPIMs certificate, the High Court must be satisfied, in relation to each measure or restriction, that it is necessary—

(a) (a) to secure that he surrenders to custody;

(b) to secure that he does not commit an offence while on bail;

(c) to secure that he does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person;

(d) to secure his own protection or, if he is a child or a young person, for his own welfare or in his own interests.”’.

Dr Huppert:  It is a pleasure to speak to this large group of amendments. The proposals are intended to fix the fundamental problem that both control orders and TPIMs share, which is the constitutional objections to them both because, essentially, they sit outside the rule of law. The shadow Minister accepted the view that some people should be held outside a legal framework, which I find extremely disturbing. 

No doubt, we face a genuine terrorist threat and I think that Members on both sides of the Committee would agree that control orders or TPIMs are exceptional processes. Exceptionalism, however, is simply not the way to make good law. To work out how to tackle the problem, it is important to go back to the basics. 

The central problem is the gap, which has been mentioned, between people about whom we have enough evidence to prosecute, and people about whom we have genuine concerns. We face a genuine threat because of that gap, but what do we do about it? The first and most important step is to try to close down that gap. It is important to carry out further work and put further investment into ways of closing it so that we can prosecute people and go through the due legal process correctly. 

We must resolve the intelligence problems that make us a bit of a laughing stock in some parts of the world, where people are much more able to use intelligence in their processes. We must put more money into investigation and have a greater focus on it. We must allow all sorts of procedures, such as post-charge questioning, to make it easier to close that evidence gap and prosecute more people. A problem with control orders and, to a slightly lesser extent, TPIMs is that they hinder closure by making it harder to hold an investigation and go to a prosecution. We need greater focus on that closure. I welcome the extra financial investments that have been announced, which will accompany the Bill. Such investments will make a huge difference, because they will make us better able to investigate and, I hope, achieve more prosecutions. 

Column number: 100 

I accept, however, that for some people we will not manage to close that gap, even if we do everything that we should be doing in step 1. Therefore step 2 should be to try to use existing legal frameworks to build on. The problem is that the previous Government jumped straight to step 3, which was to come up with new rules and, as we heard from the shadow Minister, to hold people outside a legal framework. Surely that is not what we should do. 

I want to go back to step 2 and emphasise the importance of the rule of law and take our lesson from what is already set out for dealing with a range of criminals, some of whom are very violent—police bail. Police bail exists; it works. It is not used perfectly in every single case, but it is well established, it is a key part of the existing legal framework, and it would not cause the constitutional problems and concerns that arise from control orders and TPIMs. It would get rid of that whole concern about exceptionalism. Importantly, however, it would maintain security. Police bail could be implemented to work in several different ways, but my group of amendments details one particular way to do so. Some others ways would change the nuance. 

Amendment 118 is the key proposal. It begins with a role for the Home Secretary. Concern was expressed about whether a custody sergeant should initiate the process, but that would be inappropriate. The Home Secretary would have the initial role to say: “This is someone about whom we have concerns.” We do not, however, need to give executive control—an executive decision about the liberty of individuals—to the Home Secretary. That would, on principle, be a step away from the rule of law. 

At present, there is a bar to prevent police bail in terrorism cases. The Home Secretary would initiate the process, which would remove that bar. If the bar were gone, on the application of the Home Secretary, the bail route would be available. At that point, the usual legal processes could be used—people could be arrested for their terrorism offence, because we would, presumably, have reasonable suspicion that they were involved in terrorism well before we got to any of the other processes. They can be detained without charge for 14 days now, which is down from Labour’s proposal for 90 days. Even so, we have 14 days during which it is possible to question people. 

In my amendments, a chief police officer would be in charge of deciding what would happen under police bail. All the normal police bail conditions would be allowed, and the chief police officer would also be allowed to use each measure in schedule 1. In keeping with the naming, we have continued to use the terms “TPIM notice” and “TPIMs”. Police chiefs would have the power to implement each measure in the Bill. However, rather than the Executive acting outside a legal framework, it would fall to the police. There would be normal protections and a High Court appeal. In the interests of time, I will not take the Committee through every amendment that I have tabled, but I will take questions. By putting the primacy for the measures with the police and by using the terminology from the Bail Act 1976, we put a very clear focus on investigation and on the role that we should all want to see. Ultimately we all want people such as terrorists to be convicted. 

There is a wealth of consequential amendments, but at the core is this: the Home Secretary does not decide to apply the measures outside the normal legal frameworks;

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instead, we use the tried and tested approach of bail, which has existed in this country for a very long time, to address the problem. As we heard earlier in the week, the proposals have the support of Lord Macdonald, Liberty and Justice. They provide the security that we need and the liberty that we deserve, as well as fitting within the normal legal process. Every schedule 1 power and every power under the current police bail provisions would be available, but we avoid the constitutional objections. 

Mr Sutcliffe:  The hon. Gentleman quoted Lord Macdonald and Liberty. What does he think about the comments of Lord Carlile when he was asked about police bail? 

Dr Huppert:  Lord Carlile and I do not necessarily see eye to eye on the matter, but I am sure that he will give it more consideration. I should be delighted to see him out of the House of Lords when we reform that place, which would be an excellent thing to do. I look forward to the Opposition taking a progressive stance on this, which would mean democratic legitimacy. My proposals give us liberty and security and they support investigation. I hope that the Committee will give them serious consideration. 

Hazel Blears:  I got the sense that the hon. Gentleman was drawing his remarks to a close. I would certainly benefit from a little more elucidation about the practicalities of how his proposals might work. The more he says, the more I am concerned—not necessarily always in this place—about people’s liberty. If he were to set up the type of framework that I think he is suggesting, would he ask the chief constable of a particular area, depending on where the person was picked up, to make a decision about restrictions that could be placed on the individual, which could be at least as draconian as we have heard, if not more draconian than what is available under control orders or TPIMs? The chief constable would not have seen the full intelligence picture and would not be able to assess the threat to national security. I am very concerned that the hon. Gentleman, despite his liberal credentials, may cast a much wider net for people. If we have TPIMs and police bail, we might be “locking up” people or placing them under restrictions in many more cases. It is very contradictory; I am confused. 

Dr Huppert:  I am glad I have a chance to explain. I obviously did not explain it carefully enough for the right hon. Lady. It is clear in the amendments, but I appreciate that she may not have gone through them in great detail. Liberty has produced a helpful briefing that was sent to all members of the Committee. I am happy to explain further. 

First, police bail already exists, so I do not think that the introduction of police bail powers will lead to a massive police state or any such thing. I absolutely reject that. We have that already. The only issue is the fact that we do not currently allow terrorist suspects to be held under police bail. People suspected of any other crime are held on police bail, so I do not see how the police would suddenly experience a huge surge in power. As I said earlier, the process has to be initiated by the

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Home Secretary. There is a democratic check at the beginning, which is right; we do not want to give the police unfettered power either. The Home Secretary has to say that it is appropriate to have such measures for a particular person. However, it would not simply be down to the Home Secretary’s judgment, with a slight overview from the court to check that it is not obviously flawed. It would not just be up to her to judge how the measure would operate. 

Hazel Blears:  Who would determine the measures attached to bail? Would it be the chief constable or the Home Secretary? 

2 pm 

Dr Huppert:  The chief officer of police would determine those measures. That is a higher standard than is currently used for other forms of bail. There is police bail in this country. I do not recall the right hon. Lady speaking out against it as a massive infringement of people’s rights. This change would be a step forward. If there were concerns, the Home Secretary could withdraw the notice. The Home Secretary would presumably be able to talk to the chief constable if particular things needed to be brought to their attention. The provision would provide greater safeguards from a liberal perspective and in terms of liberty. There would be more opportunity for appeal to the High Court, which would have the power to vary bail conditions, as it does currently, rather than only to see whether the decision was obviously flawed. 

I therefore absolutely reject the right hon. Lady’s position. I would be happy to spend further time talking her through the proposal. I suggest that she read the document that Liberty has produced, which deals with the matter in even greater detail. Not being a lawyer or police officer, I cannot give her the full details of how the police bail system operates, but I am sure that as a lawyer and former Home Office Minister herself, she knows that. This proposal would provide security, liberty and a focus on investigation. I hope that the Committee and, more particularly, the Government will consider it seriously. 

Mr Sutcliffe:  I shall be brief because I am not sure that the hon. Gentleman has convinced anyone on the Committee that the proposed system would work. Before moving anywhere near accepting his suggestion, I would want to know what the Association of Chief Police Officers thought about it and what the Minister thought about it following the consultation that has taken place in relation to the counter-terrorism review. It sounds a wonderful liberal solution, but we do not have the detail and the substance of how it would work in practice. I do not know whether the hon. Member for Cambridge wishes to press amendment 118 to a Division. I am prepared to go away and look at what has been said. I have seen the briefing from Liberty, and I want to examine that in greater detail. However, on the evidence that the hon. Gentleman has given us so far, I do not think that there is room for the Committee to move. 

Hazel Blears:  I do not want to delay the Committee, but this is an important debate. I am sorry that we did not have a lengthier introduction from the hon. Member

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for Cambridge about exactly how the proposed system would work. I, too, will read the Liberty briefing in detail. The provision was presented by Lord Macdonald on Tuesday almost as a silver bullet, slightly akin to the use of intercept as evidence—if only we could use police bail or intercept material, none of these unfortunate measures would be necessary. 

I have a number of questions for the hon. Gentleman. I understand that, at the moment, police bail is given to people after they have been held for 48 hours, pre-charge. They are released on police bail and the conditions are that they are not likely to commit an offence or interfere with witnesses—those kinds of criteria. At the moment, suspected terrorists who are arrested can be held for up to 14 days pre-charge while they are questioned. What is proposed in the report is that at 14 days, either they would be released or they could be subject to a control order. So is the hon. Gentleman proposing the 48 hours that currently applies under the Bail Act, or the 14 or 28 days for pre-charge detention? 

My understanding of police bail is that there must be an ongoing investigation—that is fundamental to the whole concept of police bail. Whether the matter involves serious and organised crime, international partners or whatever, there must be an ongoing investigation. If, as we have been discussing, people have an intelligence picture and at that time they know that that intelligence cannot be converted into evidence or is inadmissible in a court, how will they convince the High Court or the person who challenges the police bail that they have a sufficient legal base to enable them to argue the case for police bail, when they know that at that moment they do not have an ongoing investigation that is likely to lead to evidence that will be admissible in a criminal court? 

In those circumstances, and quite properly, a judge will consider the situation and say, “What you’re creating is a sham regime to enable you to rely on police bail, but in your heart of hearts, as a prosecuting authority”—as Keir Starmer said—“you know that it will be very unlikely that you will get any new evidence or information that will enable you to bring this person to trial.” If I was making that decision as a judge—luckily, I am not—I would say, “I do not feel comfortable with giving you serially extended police bail. You come back to me every month. You say you want another month, another month and another month, yet at the heart of it, you have no basis on which you will be able to bring this back.” Dare I repeat the words said earlier? That is a dishonest approach. That is a dishonest approach to the issue, and we must be honest and grapple with the practical realities. 

Dr Huppert:  I shall respond to such points in detail later but, in the meantime, will the right hon. Lady look at amendment 44, which specifies that there would be a need for further investigation of any matter in connection with which the person had been detained? Incidentally, the period would be unchangeable from 14 days. We hope that there is a need for further investigation in such cases, otherwise we should not oppose such controls. 

Hazel Blears:  I put to the hon. Gentleman the situation in which it is known at the time that it would be unlikely that further information about an individual would arise in an investigation—let us say that the balance was

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90:10 against. A judge who was asked to authorise the continuation of bail conditions would find it difficult to resist a challenge that that bail was granted wrongly when there was precious little likelihood of further information arising. The hon. Gentleman is using the idea of criminal investigation almost as a fig leaf for an artificial regime that makes him feel more comfortable because he had connected it, however tenuously, to the criminal justice system. 

Ben Gummer:  When the idea was posited yesterday by Lord Macdonald he put his argument persuasively, and the mere fact that it was posited by him gives it considerable force. I am no way criticising my hon. Friend the Member for Cambridge, whose liberal credentials are unimpeachable, but they slightly unravelled in his second explanation. 

I have two principle concerns about the measure in addition to that put ably by the right hon. Member for Salford and Eccles. First, it goes down the familiar route of trying to remove democratically accountable people from important procedures. The key distinction is that police officers with delegated powers from Parliament and the Crown will always err on the side of caution, because their position is to protect the public. Therefore, they will always try to apply for police bail and not balance up necessarily the demands of liberty in the way in which the Home Secretary, answerable to Parliament at the same time as to the public safety and wider considerations of liberty, will do in all circumstances. I am worried that, in trying to produce a liberal alteration to the regime, we would end up with an unintended consequence, which is a far greater issuance of police bail on grounds that may or may not be correct, merely because there is no check. I accept that there is a place for the Home Secretary in such matters, but it is reduced considerably. 

Secondly, I am worried about consistency throughout the country. I have the great privilege of having a Suffolk constituency. Suffolk has the smallest police force in the country and fantastically run it is, too. It is local, and it has marvellous chief constables, and I am sure that they would take such matters into consideration. I would not be happy about the previous Commissioner of Police of the Metropolis having control in such circumstances and the decision-making powers proposed by my hon. Friend because, frankly, we would have much of London under police bail. I am therefore worried about the unintended consequences of what my hon. Friend has suggested because so much power would be given to the police. So many people would be put before the courts under police bail, and we would be overwhelmed by the number of people just because the police wanted to protect their backs. Let us imagine what it would be like for the police officer, with an atrocity that might have happened or might not have happened, as a result of the lack of intelligence. That officer would then have to face the Home Secretary and the public and say why he did not put them under police bail when he knew just one tiny piece of information. 

Dr Huppert:  Will the hon. Gentleman give way? 

Ben Gummer:  I will finish at that point, because that is all I have to say, and I am sure my hon. Friend will address my comments when he replies. 

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Stephen Phillips:  The right hon. Member for Salford and Eccles said that she is not a judge; I am. I am afraid that, for several reasons, I simply cannot support the amendments tabled by my hon. Friend the Member for Cambridge. One reason has already been dealt with by my hon. Friend the Member for Ipswich. 

My hon. Friend the Member for Cambridge indicated to the Committee that the amendments follow closely the provisions of the Bail Act; in fact, that is not that case. In his amendment 118, proposed subsection (1C) lists the conditions that have to be fulfilled for the procedure to be brought into play. Under the Bail Act, there is a very important restriction on bail—there is no right to bail—where a person needs to be kept in custody for their own protection. I do not see such a restriction anywhere in my hon. Friend’s amendments. For example, posit the situation in which there is reasonable belief—or, under the current regime, reasonable suspicion—that someone is likely to conduct a suicide attack. 

Dr Huppert:  Will the hon. and learned Gentleman give way? 

Stephen Phillips:  It seems a little early in my argument, but I suppose so. 

Dr Huppert:  I have no intention of inhibiting the development of the hon. and learned Gentleman’s argument, which is very interesting—it is always nice to hear from a judge—but amendment 44 specifically includes paragraph (d)(iv) of proposed section 10A about 

“for that person’s own protection”. 

Stephen Phillips:  I am grateful to my hon. Friend. I may therefore have been making a bad point, as the hon. Member for Birmingham, Ladywood did earlier. If I have not sufficiently read his amendments, I apologise and withdraw that point. However, there are other fundamental objections to his proposals, of which I will deal with only two. 

The first objection has already been partly addressed by my hon. Friend the Member for Ipswich, who pointed out that nobody under the regime proposed by my hon. Friend the Member for Cambridge is answerable for it in Parliament. As my hon. Friend the Member for Ipswich said, the proposal of my hon. Friend the Member for Cambridge would essentially delegate the powers to those who will err on the side of caution and would not be answerable for significantly restricting people’s liberties. For that reason alone, given that we are also concerned about striking a proper balance, it is simply not appropriate that that should be done other than by a person who is answerable to Parliament. That is the first fundamental objection with which he has to grapple, and I have not yet heard his answer or conceived a solution to it. 

The second objection is far more serious, and I have little doubt that the right hon. Member for Salford and Eccles will agree with it. It is simply that there are some people who it is reasonable to believe are engaged in activities related to terrorism, but who cannot be brought to trial. They cannot be brought to trial for the simple reason that were one to proceed as the criminal justice system currently works, evidence would have to be given that revealed either highly sensitive information or information that was damaging not to the Government but to the people of this country whose protection is the

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Government’s first duty. Where such people cannot be brought to trial, the amendments tabled by my hon. Friend the Member for Cambridge would result in one of two things: either they would be kept indefinitely on police bail, which we would all agree is wholly and utterly unacceptable, or their bail conditions would be lifted, in which case we would have let go of the very issue with which we are trying to grapple, because they would be free to go about their business of busily planning to blow up London buses and tube trains and goodness knows what else all over the country. Unless and until my hon. Friend can tell us the solution to that problem, the amendments are wholly misconceived, if not downright idiotic. 

Paul Goggins (Wythenshawe and Sale East) (Lab):  It is good to see you in the Chair, Mr Caton. I had indicated that I intended to speak, but I am in two minds about whether to catch your eye after the contribution by the hon. and learned Member for Sleaford and North Hykeham, because it was a superb demolition job. I want, however, to give a faint echo of the arguments made by him and the hon. Member for Ipswich. 

It is true that over the past 20 years in particular, the role of the Home Secretary on individual decisions has reduced. For example, it is not that long ago that the Home Secretary made individual decisions on the release of prisoners. That has now been taken out of the Home Secretary’s hands and I think we would, across the room, agree that that was a good move. 

2.15 pm 

The challenge presented by this very small group of very dangerous people is such a special and significant set of circumstances that it is essential that the person who holds responsibility for the security of the nation should be personally involved in making decisions on applications for a control order or a TPIM. I absolutely agree with the comments that the hon. Member for Ipswich made on the importance of that. He also made an extremely relevant point that if it was in the hands of chief police officers, there would be at least 43 different approaches to the question. When it comes to matters of national security, we have to have national standards operated in a carefully organised and scrutinised way. That is why the Home Secretary should be involved. 

I would not pretend to have the skills of a lawyer, such as those of my right hon. Friend the Member for Salford and Eccles, or the skills of a judge, such as those of the hon. and learned Member for Sleaford and North Hykeham, but it is self-evident that the 2005 Act, in section 8, requires that there is an ongoing review of the investigation. The Bill has that requirement in clause 10. There is no question but that if police bail were used there would have to be a higher test applied to that ongoing investigation. We have heard about the difficulties that there are in investigating these people and getting a successful prosecution. There are a small number for whom prosecution would simply not be possible. The hon. and learned Gentleman is right: the end result of that would be that dangerous people would walk free from the court and the people of this country would be at great risk. 

James Brokenshire:  We have had a powerful debate on some of the issues that surround this group of amendments. I respect my hon. Friend the Member for

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Cambridge for tabling them. The issue of the use of police bail was something that came up during our evidence sessions. Many people, with an honest and genuine view, who grapple with these extraordinarily difficult issues, posit the issue from time to time. I respect Liberty for how it has sought to advance the proposals. It lies behind some of my hon. Friend’s amendments that seek to deal with that challenge. 

It is a difficult challenge, but for the reasons that my hon. Friends and Opposition hon. and right hon. Members have highlighted, there are flaws in the structure that is being drawn up. There are issues on the principle behind police bail, because of the difficulties that Lord Carlile highlighted during his evidence. He made the point that a control order has been issued to three people who have been acquitted. It is hard. I am not pretending that we want to be in this situation, but we are. When the risks are balanced, there is a need for a preventive measure to be able to disrupt and deal with the challenges that are at hand. 

The issue of bail was considered during the course of the counter-terrorism review. The manner in which it came forward on the evidence and information that has been provided did not point towards us being able to support it or feel that it was an appropriate way forward. When I was preparing for this debate, I looked at what the previous Government thought of the issue, because it has been considered for some time. The right hon. Member for Delyn (Mr Hanson), who was the Minister with responsibility for police and security in the previous Government, gave evidence to the Joint Committee on Human Rights on 1 December 2009. He said that it is “an interesting point”, which it is. He went on: 

“We have discussed this with the police, with ACPO, and with other agencies, and the advice that we have been given is that the level of offence for individuals and the type of offence that has been considered to date is not suitable for bail, and that was the advice given to us by operational police officers, and that is the advice we have accepted.” 

That shows the challenge before us, and, yes, we are grappling with difficult issues. 

A link to ongoing criminal investigations and the proposed use of police bail for those being investigated for terrorism offences, combined with the more limited purposes for which bail can be used, would, in our judgment, not work in the circumstances in which the risk arises. There is a particular risk where intelligence indicates a serious threat, but where exhaustive investigation has not yielded admissible evidence that is sufficient to prosecute and where further investigation is unlikely to yield such evidence. A risk may also arise where an individual has been unsuccessfully prosecuted but is still assessed as posing a risk to the public. 

There is also a risk where prosecution is not possible, not because of a lack of admissible evidence, but because using the evidence would not be appropriate, because there would be a serious and unacceptable risk to a covert human intelligence source, for example. And there are risks where there are foreign nationals who we cannot prosecute but want to remove from the country, but where deportation has not proved possible because of European convention on human rights concerns about safety on return. 

The main problem with the approach outlined by my hon. Friend the Member for Cambridge is that it does not address the problem. That is why, as a Government,

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we cannot consider it further in this context. I have, however, underlined the Government’s commitment to the priority of prosecution. I can probably say that that commitment is shared by all members of the Committee. Obviously, we have sought to emphasise that in the approach we have outlined. 

The proposal outlined in these amendments raises a number of other potentially difficult issues. A key example is the level of involvement that the Home Secretary would need to have in considering matters directly related to an ongoing investigation and prosecution of an individual. That would be a highly unusual approach given the importance we rightly place on the independence from Government of the police and prosecuting authorities. That separation of powers is key, and it was the point adduced in the comments of the right hon. Member for Wythenshawe and Sale East. 

Even if there was an argument for police bail to be available in terrorism cases, it is unlikely that we would consider this model because it departs significantly from the model that applies in other cases and it raises the constitutional issue of the Secretary of State having a role with an inappropriate level of involvement in operational matters. 

As members of the Committee may be aware, the Government’s review of counter-terrorism and security powers considered whether suspected terrorists should be allowed bail. The police recommended against making bail available for terrorism suspects because of the potential risk to public safety. The Government agree with that assessment. 

The priority for the police and the prosecutor is to either charge or release suspected terrorists as quickly as possible. Therefore, we want to retain that model. I assure the Committee that, under the current arrangement, control orders have not been used in cases in which there is an ongoing criminal investigation with a realistic and pending prospect of prosecution. Lord Carlile has given evidence on that in some of the reports to which he alluded. 

It is with regret that I am unable to accept the amendments that my hon. Friend the Member for Cambridge has introduced with a genuine intent to deal with the issue. I in no way impugn the desire behind what is intended under the amendments or by those who have articulated and argued the case outside the Committee, too. It is genuinely held that that unfortunately misses an important factor, which is that sometimes a prosecution cannot be brought. Inevitably, bail is linked to prosecution and there will be hard, difficult circumstances when that is not possible. I say that with regret and reluctance, but that is the situation in which we find ourselves. Given that risk and the difficulties with his proposal, I hope that my hon. Friend will agree to withdraw the amendment. 

Hazel Blears  rose—  

James Brokenshire:  The right hon. Lady seeks to intervene before I conclude my remarks. Again, how can I refuse her? 

Hazel Blears:  I am grateful to the Minister. He has again reminded me of one of the contradictions in the Bill. One of the main reasons for it was that its provisions

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were sufficiently different from control orders to provide a positive incentive for ongoing investigation, for more evidence to be gathered and for more people to be brought to trial. However, in all circumstances that the hon. Gentleman has described, I have not yet heard what measures will make such action more likely. In his latest contribution to the debate, he seemed to be stating even more firmly that there circumstances in which there would be— 

The Chair:  Order. What the right hon. Lady is saying is not directly relevant to amendment 118. 

James Brokenshire:  Obviously, we have discussed the issue. I have sought to make it clear that terrorism prevention and investigation measures are primarily disruptive and that they are primarily preventive, but that they sit within the context of investigation. Clause 10 underlines such issues. I understand the right hon. Lady’s point, and I am sorry that I have not persuaded her of my argument. We will obviously have different views, but I note that we are probably in agreement in recognising the difficult challenges that exist in such cases. We must bring those crimes to justice, which is why preventive and disruptive measures are important in delivering the safety and security that all members of the Committee want to uphold. In that context, and on reflecting on the difficult circumstances and challenges that we face, I hope that my hon. Friend the Member for Cambridge will be minded to withdraw the amendment. 

Dr Huppert:  I thank all members of the Committee who contributed to the discussion. It is clear that I did not spend long enough talking through all of the 80-odd amendments. I apologise to the Committee for that. I thought that brevity would be preferable. 

I want to draw attention briefly to amendment 44. To step slightly further back, to apply for a TPIM notice and to allow bail to happen, the Home Secretary would have to been involved in each case. That would deal with the objections made about thousands and thousands of such cases appearing suddenly. That would not happen unless the Home Secretary decided that it was important to apply for thousands and thousands of notices. 

Amendment 44 specifies the conditions when someone could apply for police bail. I should have thought that we would have all agreed on such matters. The Minister highlighted his concern that the person would have to be arrested for a terrorism-related offence. That is clear. As for whether there was not enough evidence to charge the individual of the offence, I am sure that we would agree that, if there were, the person should be charged and there was a need for further investigation of any matter in connection with which the person was detained. 

I listened carefully to the right hon. Member for Salford and Eccles about whether such action would be a sham investigation. I do not want it to be a sham investigation. We should be trying to find other investigative measures, whenever possible, so that we can prosecute such people. I want to see a real investigation. There are techniques that we could use to gain evidential material. However, the right hon. Lady is absolutely right: one of the purposes of such measures is to have more investigation and more prosecutions. If such action led to sham investigations, that is clearly not the intention. 

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The measures would stop people engaging in various activities and include, in particular, committing an offence while on bail under the Bail Act 1976. That would clearly cover any cases when someone would be a risk. A number of other interesting points were made. What struck me as fascinating—I had not expected this from the Committee—was the fear of the police that was evident in some comments. There seems to be an idea that we would not be able to trust chief officers to have those powers, but they use police bail in all sorts cases with a range of fairly violent people. I have been fascinated by comments that suggest we could not trust the police to implement the proposal; perhaps I have a bit more faith in police fairness. 

Ben Gummer:  I was not going to intervene, but I think that comment was aimed at me, and I do not want my words to be misconstrued. There is nothing about which I do not trust the police, but the proposal would give them the powers to take away—possibly for years at a time—someone’s liberty under very considerable bail conditions. If the Home Secretary were involved in every single case, I do not understand where the nexus would be between her and the chief police officer. I am confused about that matter. 

2.30 pm 

Dr Huppert:  It was, indeed, the hon. Gentleman’s comment about the former commissioner to which I referred. We should avoid castigating police officers in public, whatever we may think of them in practice. The Home Secretary would have the initial role. 

The hon. and learned Member for Sleaford and North Hykeham made an interesting comment about our wanting to have the role for the Executive. Winston Churchill said: 

“The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him judgment by his peers for an indefinite period, is in the highest degree odious, and is the foundation of all totalitarian Government.” 

I agree that in this case we are not talking about jail, but the concern about Executive power has led me to propose a greater role for the police. 

Hon. Members argued against having indefinite police bail; but we do not want indefinite TPIMs either, which will come to an end after two years. I am concerned, as are many others, about imposing such measures on people indefinitely without a conviction. The issue of permanence is fundamental, and it would apply equally to my proposal as to TPIMs. We would not want to run any of the measures indefinitely. 

The Minister made a number of serious points and I thank him for the tone in which he did so. He reported that the police were worried about releasing people on bail for terrorist offences because we would not have enough controls for them. That is precisely why the controls in my proposal slightly strengthen police bail to cover all the measures in schedule 1 to the Bill. Exactly the same measures might be imposed on someone for exactly the same length of time, but with a greater focus on investigation, and with a different process that would be within the rule of law. 

I must confess that I did not expect the Committee to agree to the amendment unanimously. The shadow Minister made it clear in this morning’s sitting that he

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was against police bail. Clearly, I have not persuaded hon. Members to change their minds, so I shall not be pressing the amendment to a vote. I hope, however, that we will consider the proposal, or a variation of it, on Report and at later stages. I think we can find a way to bring our system in line with the rule of law, with our standard legal processes. In doing so we would provide both security and liberty. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Hazel Blears:  I rise to speak to amendment 20, in clause 2, page 1, line 6, leave out ‘notice (a “TPIM notice”)’ and insert 

‘a mini control order notice (“MCON”)’.

The Chair:  With this it will be convenient to discuss the following: 

Amendment 10, in clause 2, page 1, line 6, leave out ‘TPIM’ and insert ‘control order’. 

Amendment 11, in clause 2, page 1, line 6, leave out 

‘specified terrorism prevention and investigation measures’ and insert ‘a control order’.

Amendment 12, in clause 2, page 1, line 9, leave out 

‘terrorism prevention and investigation measures’ and insert ‘a control order’.

Amendment 116, in clause 2, page 1, line 9, leave out 

‘terrorism prevention and investigation measures’

and insert ‘mini control order’. 

Amendment 13, in clause 2, page 1, line 13, leave out ‘TPIM’ and insert ‘control order’. 

Amendment 22, in clause 2, page 1, line 13, leave out ‘TPIM’ and insert ‘MCON’. 

Hazel Blears:  I have been remiss, Mr Caton, in not having welcomed you to the Committee before now. 

We have had good debates in our sittings so far, particularly on clause 1, in which we explored most of the issues that the amendments were designed to highlight. I am now beginning to enjoy myself enormously in Committee, so I hope that we will continue our discussions in a constructive spirit, sharing many concerns around these important issues. It serves little purpose to have another debate on the name of the legislation—we have explored that in great detail. On that basis, I shall not move the amendment. 

The Chair:  Amendment 20 is not moved. 

Mr Sutcliffe:  I beg to move amendment 19, in clause 2, page 1, line 14, at end add— 

‘(4) In exercising powers under this section, the Secretary of State must take into consideration—

(a) national security;

(b) the level of risk posed by the individual; and

(c) public safety.’.

The Chair:  With this it will be convenient to discuss amendment 23, in clause 2, page 1, line 14, at end add— 

‘(4) In imposing any terrorism prevention and investigation measures the Secretary of State must have regard to—

(a) the safeguarding of national security;

(b) the protection of the general public;

(c) the risk posed by the person subject to the TPIM notice to the general public; and

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(d) the ability and the capacity of the police and the security services to protect and safeguard the general public.’.

Mr Sutcliffe:  I am grateful to my right hon. Friend for deciding not to move the amendment. We had a good debate this morning on clause 1. 

I hope that the Minister will respond to amendments 19 and 23 in the same spirit of consensus. The amendments aim to provide that the Secretary of State has regard to particular matters in the exceptional circumstances in which a TPIM notice is served on an individual. We think that that would give confidence to all of us who have concerns about—watering-down is too strong a word—the change in emphasis. I understand what the Minister has said about trying to change the culture and to secure prosecutions, but if those matters were added to the Bill it would give us some comfort on the issues that the Secretary of State has to take into account.

Hazel Blears:  The amendments would be a straightforward addition to the clause. The whole regime is based on the Home Secretary’s making an order, which is subject to High Court scrutiny based on judicial review. Clearly, when the court looks at whether the Home Secretary’s decision is correct, it will decide whether she has taken into account all relevant considerations, whether she has taken into account any irrelevant conditions and whether she has reached a decision that no reasonable Home Secretary could reach, which are the basic principles of judicial review. The purpose of the amendments is to add to the Bill some of the relevant considerations that the Home Secretary should include in the process of deciding whether to make a TPIM order. 

We could have a lengthy debate on what a list of such considerations should consist of and whether it is exhaustive. I entirely understand that the list in paragraphs (a) to (d) of amendment 23 perhaps errs on the side of national security. The Secretary of State would have to have regard to the following factors: 

“the safeguarding of national security”— 

that has to be right at the heart of her decision making— 

“the protection of the general public” 

and 

“the risk posed by the person” 

to whom the TPIM is applicable, which goes to the heart of the Bill, because it is about managing risk and ensuring that the Secretary of State has properly considered that risk. The important addition to the three paragraphs is, 

“the ability and the capacity of the police and the security services to protect and safeguard the general public.” 

We have already had several debates about resources, the extra money that will be available, the new electronic techniques that will be put in place and the recruitment of far more surveillance officers, and today we have heard various figures. I know that the Minister has provided extra resources, but I am still extremely worried by Lord Carlile’s evidence about the cost of 24-hour security and surveillance for each person. I am not yet convinced that the extra resources will be sufficient to meet the extra costs incurred, and we ought to pursue that very practical matter. 

I understand that it is difficult for the Minister to state, in open session, the extent of the extra resources that he has given to the security services and the police.

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He knows the figures for the resources that he has put in place to cope with the TPIM regime. If he looks at those figures and the ones cited by Lord Carlile of a cost of anywhere between £10 million and £18 million per TPIM—if there are only 10 of those, that is £100 million—he will know the relationship between what he has provided and the likely cost. I am very concerned, and I want the Home Secretary, in deciding whether to issue a TPIM, to have to have regard to the practical implications of whether the police and the security services have the people, the techniques and the ability to carry out the surveillance. 

That is fundamental, because the TPIM regime will dilute the existing controls. We can argue about whether that is right or not, but it is the case because there is no relocation clause, there will be access to mobile phones and the internet, and there are differing conditions on work and studying, all of which draw back from the current regime. We can debate the rights and wrongs of that, but if resources are not in place to fill the gap caused by that drawing-away from the current regime, we are opening ourselves up to the risk posed by the individual, to go back to paragraph (c). It is important that the Bill provides that the Secretary of State, in exercising her decision-making power, must focus on those important issues. 

Paul Goggins:  My right hon. Friend makes an important point. The Minister will no doubt argue that, by introducing fewer controls and additional resources, the overall risk is no greater than under the control order regime. We have a different opinion on that, but that would be his contention. My right hon. Friend is arguing very effectively that the Home Secretary must be satisfied on that in each individual case, rather than just the general picture.

Hazel Blears:  I am grateful to my right hon. Friend for expressing himself so forcefully, because this is an important issue. When we come to the judicial review principles that the High Court will examine when addressing the Home Secretary’s decision, the High Court needs to be satisfied not only about the risk posed by the individual and the facts of overall national security, but that the provisions are in place. 

I am sure the Minister will feel this as greatly as I do. I feel it as a personal responsibility that the orders should never be made unless the gap can be filled. The police and the security services have both said that the new resources will help mitigate the risk; they have not said that they will eliminate the risk. These things cannot be perfectly resolved, but they have said that the new resources will mitigate the risk. How far that mitigation goes, and how big the remaining gap is, goes to the heart of the judgment in such cases, which is what the Minister said. 

Stephen Phillips:  I am trying to understand the right hon. Lady’s argument, because she seems to be on a different point. The two amendments address matters to which the Secretary of State must have regard when making the initial decision on whether a TPIM should be issued. The amendments in no way address the point she is developing on whether the resources are in place and whether the TPIM regime is more or less safe than the control order regime. Will she help me by dealing with the issue addressed by the amendments? 

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Hazel Blears:  That is an appropriate intervention, and if I were to present a case in court before the hon. and learned Gentleman, no doubt he would test my arguments. I have not done that for some 20 years, so he is putting me—[ Interruption. ] Indeed, and he is rightly putting me under the spotlight. 

Paragraph (d) of amendment 23 goes to the heart of my point. Paragraphs (a) to (c) highlight the issues to which the Home Secretary must have regard, and, therefore, the amendment would set out those important issues in the Bill. I thought that, not the hon. and learned Gentleman himself, but the hon. Member for Ipswich might want to intervene to say that, in addition to those factors, the Home Secretary should also have regard to liberty, freedom and other such matters, but he has not chosen to do so. 

It is right to set out in the Bill the factors that the Secretary of State should have in mind when she makes a serious order that affects people’s liberty; we are all agreed on that. It would be helpful to have that spelled out, particularly for the High Court when it looks at whether the order should be made. When it does so, the High Court assesses whether the Home Secretary’s decision is flawed, which is the phrase it uses, on the basis of judicial review principles—now I am remembering my legal experience. The High Court would have to make an assessment of whether the Home Secretary had taken account of relevant considerations, whether she had taken account of irrelevant considerations and whether she reached a decision that no rational Home Secretary would reach. 

Setting out in the Bill the factors that the Home Secretary needs to take into account aids the transparency of the judicial process, because it brings to the surface the reasons for making such orders and allows people to see whether the balance has been struck in a proper way. It is important to take account not only of the theoretical issues, but of the practical issues of whether there are the resources to fill the gap. 

Stephen Phillips:  I shall be brief. I cannot support the amendments for two reasons. First, as drafted, they do not make it clear whether the views are the only factors that the Secretary of State must take into account. It is also unclear whether the list is exhaustive, or whether it is intended merely to be a list of matters that may be taken into account. The amendments are ill framed. 

More seriously, I have to say to the right hon. Member for Salford and Eccles and the shadow Minister that these are exactly the sort of amendments that one expects of the Opposition, because they arise from going through the Bill line by line. When one gets to the end of clause 2, it no doubt seems sensible to table the amendments, but as soon as one gets to clause 3, one sees that they are entirely unnecessary, either because all the points contained in the amendments are duplicated in the conditions, or because it is blindingly obvious that they are matters of which the Secretary of State will take account when lawfully reaching a decision to ask the court to issue a TPIM. Frankly, we have enough law and enough statutes in this country, much of which we have to thank the right hon. Lady and the previous Government for, so I do not see why we should add unnecessarily to the burden on poor lawyers like me. 

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2.45 pm 

Hazel Blears:  There are not that many poor lawyers, apart, perhaps, from poor working-class lawyers. I plead in my defence that I do not think that I have ever sat on a Bill Committee in opposition before, which is a terrible admission—[ Interruption. ] The hon. and learned Gentleman’s colleagues clearly have a great deal more experience of doing that than me. 

By supporting the amendments, it was my genuine intention to have a little more transparency in the Bill and to express my concerns that these issues of national security weigh heavily with all of us. I wanted to raise the issue of resource, because I am not convinced by any stretch of the imagination that the current proposal for extra resource will fill the gap of risk. If that is the case, it will weigh heavily on the Minister when he comes to make his decisions. 

I am grateful to the hon. and learned Gentleman for pointing out that clause 3 covers some of this territory. I contend that that clause is not exhaustive, however, and being able to say that something is “blindingly obvious” is not a reason not to put it in legislation, in my experience. As he will know, it is important that we construe language, look at words and look at what is in the Bill before we consider what might have been blindingly obvious. If something is not in a Bill, it is far more difficult to determine the intention of legislators and what they had in mind. I urge the hon. and learned Gentleman, despite his extensive legal experience, to be a little more understanding and a little more generous when the intention is to have a more transparent regime, which I would have thought was attractive to some coalition Members. When dealing with factors to be taken into account, we would all want judges to operate in a far more transparent legislative framework than they often do. 

James Brokenshire:  I am grateful to my hon. and learned Friend the Member for Sleaford and North Hykeham for his impressive demolition of the amendments—there might not be too much more for me to add. I gently say to the right hon. Member for Salford and Eccles that none of the factors outlined in the amendments are contained in the Prevention of Terrorism Act 2005, which she seeks to pray in aid. I am sure that she would not mind me suggesting that when she was deciding whether a control order should be imposed, she would have had regard to these factors, even though they are not specified in the legislation that she brought forward. If the factors were so important, she would, no doubt, have been championing them and asking her officials to ensure that they were put into the 2005 Bill. However, she did not do so. In that sense, the 2005 Act and the Bill operate in the same way. 

The amendments raise an important issue. I agree that the Secretary of State should take into account the matters outlined in amendments 19 and 23 when imposing a TPIM notice. National security as it relates to terrorism, the protection of the public, the risk posed by the individual, and the capacity of the police and the security and intelligence agencies are all important factors for consideration. However, as my hon. and learned Friend the Member for Sleaford and North Hykeham rightly identified, there is no need for the amendments, because the Bill provides that the Government must take such factors into account. 

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The conditions that are set out in clause 3 are particularly relevant, because conditions C and D cover the factors that are outlined in both amendments. Condition C is 

“that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual.”, 

while condition D is 

“that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual.” 

The consideration of whether a TPIM notice and the specific measures imposed under it are necessary means, by definition, that the Government must consider national security as it relates to terrorism, the risk to the public, the risk posed by the individual, and the resources of the police and the security services. All those factors relate to the question of necessity. 

In terms of judicial review, the court does not look only at whether the Home Secretary acts rationally and takes relevant factors into account. In the context of judicial review, in control order cases—by extension, this is likely to apply in TPIM cases—the court looks carefully at the Home Secretary’s decisions and considers how reasonable and proportionate they are. That is a general view undertaken by the court. 

On resources and the support that is available, let me be clear that I believe that our police and security services are equal to this challenge. If I did not, I would not take this approach, and nor would we be bringing forward the Bill. I remind hon. Members of what I said on Second Reading: the director general of the Security Service told the Home Secretary that he is content that the changes provide an acceptable balance between the needs of national security and civil liberties, and that the overall package mitigates risk. I hope that the hon. Member for Bradford South will withdraw the amendment. 

Mr Sutcliffe:  I thank the Minister for dealing with the amendments in his customary way. In all the years that I have been in the House—I think this is my 17th—this is the first time that I have served on a Committee alongside a judge, which is good news for my legal advice and support to find out about many of these issues. There is an array of lawyers—working class and otherwise—on the Committee from whom we can benefit. 

During his time in the House, the hon. and learned Member for Sleaford and North Hykeham will find that many amendments to Bills are not drafted in the way that he might like, but they provide an opportunity for the Opposition to nudge, cajole and push Ministers into giving us more information about their thinking. It was in that spirit that the amendments were tabled. 

Hazel Blears:  I want to place on record that the hon. and learned Member for Sleaford and North Hykeham is rapidly gaining a reputation, at least in this Committee, as being something of a bruiser with regard to his demolition jobs on amendments. I am grateful to him for being kinder to me than he was to the hon. Member for Cambridge; he accused me only of being blindingly obvious, as opposed to idiotic. 

I am also grateful to the Minister for putting on record what the considerations of the Home Secretary will be, which was very helpful. On that basis, I am

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happy for us not to pursue the amendments. I hope that we can persuade the hon. and learned Member for Sleaford and North Hykeham that delicacy is occasionally just as appropriate as demolition. 

Mr Sutcliffe:  I thank my right hon. Friend. We will not press the amendments further, and I am grateful to the Minister for his explanation. I beg to ask leave to withdraw the amendment. 

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Amendment, by leave, withdrawn.  

Clause 2 ordered to stand part of the Bill.  

Ordered, That further consideration be now adjourned. —(Mr Newmark.)  

2.54 pm 

Adjourned till Tuesday 28 June at half-past Ten o’clock.  

Prepared 24th June 2011