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 

Tuesday 28 June 2011  


[Mr Martin Caton in the Chair] 

Terrorism Prevention and Investigation Measures Bill

Schedule 1 

Terrorism prevention and investigation measures 

Amendment proposed (this day): 24, page 16, line 21, leave out ‘must’ and insert ‘may’.—(Hazel Blears.)  

4 pm 

Question again proposed, That the amendment be made. 

The Chair:  I remind the Committee that with this we are discussing the following: 

Amendment 16, page 16, line 24, leave out ‘or an agreed locality’. 

Amendment 8, page 16, line 24, at end insert ‘or 

(c) premises provided by or on behalf of the Secretary of State other than those referred to in (3)(b).’.

Amendment 25, page 16, line 25, leave out ‘is’ and insert ‘may be’. 

Amendment 26, page 16, line 30, leave out from beginning to ‘any’. 

Amendment 1, page 16, line 31 , at end insert— 

‘(d) Except that if the individual has his own residence or a connection with a particular locality but is considered to pose a serious threat to the public if he resides there, an appropriate locality is any locality that appears to the Secretary of State to be appropriate.’.

Amendment 17, page 16, line 32, leave out sub-paragraph (5). 

Amendment 18, page 17, line 12, at end insert— 

‘(10) The Secretary of State shall have powers to relocate individuals subject to these powers to any appropriate locality.’.

Amendment 128, page 18, line 4, at end insert ‘and such a place may include the locality in which the individual has a residence or with which the individual has a connection.’. 

Amendment 2, page 18, line 4, at end insert ‘or 

(c) premises that are the individual’s own residence.’.

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire):  A very good afternoon to you, Mr Caton. I welcome you back to the Chair. 

At this morning’s sitting, we had a lively debate about some of the provisions of schedule 1. We are looking at relocation, the overnight residence requirement and some of the contributions that were made on those

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issues. Just before the break, I was setting out the context and talking about the Government’s consideration of these issues as part of the counter-terrorism review. Obviously, we had regard to the significant issues involved in relocating an individual to a different part of the country and the need to set that against the threat that people pose to this country. 

Clearly, the provisions in schedule 1 do not mean that it is not possible to provide that the individual must remain overnight in a residence other than their own. In certain circumstances—for example, where the individual is homeless or does not have a suitable permanent residence—it will be possible to require them to stay overnight in Home Office-provided accommodation, and we talked through some of the provisions on locality that are reflected in schedule 1. Such accommodation must be in the individual’s home area or in an area that they have a connection with. If there is no such area—for example, because the individual is a foreign national with no home in, or connection to, the UK—the area may be one that the Secretary of State considers appropriate. Again, that was part and parcel of some of the discussions we have had. 

Mr Gerry Sutcliffe (Bradford South) (Lab):  We are trying to tease out why the word used in the Bill is “must” and not, as my right hon. Friend the Member for Salford and Eccles proposes, “may.” Why do we need “must” in the Bill? 

James Brokenshire:  I tried to give hon. Members an indication of that by setting out the context and reading the relevant section from the counter-terrorism review, which deals with the significant impact of some of the provisions, including the relocation requirement. That has raised significant issues, and we heard in the evidence sessions about the possible impact on specific individuals. Equally, there is the proportionality of the overall package. We are investing heavily in policing and Security Service funding for monitoring. We are also focusing on delivering the requirements that we need to deliver on—national security and protecting against a terrorist threat. Again, the way in which we do things is a question of balance, judgment and degree. 

We believe it is appropriate for there to be restrictions on the Secretary of State’s use of the powers. However, as I hope to explain, other measures in the schedule can be applied to disrupt the activities of terrorists. For example, we can require them to stay overnight at a particular address in their home locality so that they can be more easily monitored and, in some cases, so that they are separated from other extremists. We can also require them to abide by other restrictions on their movements overnight, such as excluding them from areas or places where they might meet extremist associates or conduct terrorist-related activities; prohibiting their association with individuals of concern; requiring prior notice of association with other individuals; restricting and monitoring their financial activities; and limiting their communications to a small number of approved devices. 

All those restrictions and powers are potentially available to the Secretary of State in schedule 1. These focused powers will be accompanied by a significant increase in funding for the police and the Security Service to enhance their covert investigating capabilities. That is the balance

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to be struck, and having conducted the review and examined the issue in the broad way that we have, we believe that that is the appropriate way forward. Deciding on appropriate powers for the state in areas of counter-terrorism will always raise difficult issues. We have confronted some such issues in many different ways in Committee thus far. I understand some of the genuine concerns that hon. Members have highlighted, which I do not ascribe to basic partisanship; they wish to satisfy themselves about fair and reasonable points, which I respect. 

There will always be an understandable temptation for the Government of the day to take a cautious approach that does not give sufficient consideration to civil liberties. That is why our review of counter-terrorism and security powers made it clear that we wanted to redress imbalances that had arisen in the past. We considered very carefully whether to retain the power to relocate individuals under the TPIM regime, as I have indicated. 

Our approach in the provisions gives the right mix of disruption, to protect the public, and protection of civil liberties. All the powers that are available in schedule 1 combine with the support that is available to the police and the security services. In a free society, we must challenge ourselves to fight terrorism using a targeted set of powers, safeguarding our hard-won civil liberties and prosecuting terrorists wherever possible. 

Of course, there will always be particularly difficult individual cases, which will require particularly close working between the police and the security services to manage the risk that the individuals pose. Our police and security services are equal to that challenge. I acknowledge the speeches made by Opposition Members, who questioned whether this is the right approach. We must weigh up difficult issues, but we have reflected carefully on the matter and on the discussions with the director general of the Security Service. He is content that the changes provide an acceptable balance between the needs of national security and civil liberties, that the overall package mitigates risk and that it is possible to attain that end result through our focused approach. It is, however, a question of judgment and assessment and I acknowledge that others may reach a different judgment. However, based on our assessment, we believe that the approach in the Bill is the right one. 

Paul Goggins (Wythenshawe and Sale East) (Lab):  The Committee is developing a mantra, which goes something like this: there is an increased risk as a result of the TPIMs, but that risk can be mitigated because the Government have committed additional resources to the police and the Security Service. Will the Minister give the Committee some detailed insight—we do not expect firm figures; we understand why they cannot be given—into the process that has been agreed with the police and the Security Service for keeping under review the amount of additional resource that has been committed? The Minister must make a commitment here and now: if the requirement on the police and the Security Service increases and more finance is needed, the Government must not hesitate to make such money available. 

James Brokenshire:  As the right hon. Gentleman will understand, and as I indicated in a previous exchange about a different group of amendments, it is difficult for

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me to be explicit and specific on the funding that will be made available, and will continue to be made available. In doing so, I might in some way provide assistance to those who have malign intent towards this country by giving information on capability and the approach that is taken. 

We will provide sufficient new money for the Security Service to take the mitigating actions that it has identified as necessary. Discussions have taken place to ensure that our approach has been considered and reflected on as part of the overall package that we are introducing to the Committee, the House and, ultimately, the country. 

Hazel Blears (Salford and Eccles) (Lab):  This is a crucial part of our discussion. Clearly, the Minister seeks to rely heavily on the extra resources that will be invested in surveillance. So far, the Bill relaxes the overnight residence requirements—curfew—which will result in increased risk and will require extra surveillance. I think that the Minister has acknowledged that. Secondly, we have the abolition of the relocation power, which has been described as the most important power by a whole series of witnesses. That will increase the risk and extra resources will be needed to mitigate that risk. 

Thirdly, we will come on to debate the access to mobile phones and computers, which again will need further resource in terms of surveillance and monitoring in order to mitigate the risk. What process is the Minister adopting to quantify the risk that is raised by each of the relaxations that he is putting in place and, in particular, the cumulative effect of that relaxation in relation to the resources? Does he agree with the figures that Lord Carlile talked to us about, of between £11 million and £18 million per suspect? 

James Brokenshire:  I am consciously and deliberately not getting drawn into a discussion on numbers. That would have the potential to expose the approach or manner that the security services and the police may wish to adopt in relation to those who are subject to terrorism prevention investigation measures. While I understand the point that the right hon. Lady is making, I am afraid it would be inappropriate for me to get drawn down that path in terms of numbers and overall budgets. As she will well know, previous Governments have always been clear about, and committed to, not describing that level of detail and granularity, due to the issues that she will well appreciate and understand. 

Hazel Blears:  I understand the Minister’s position entirely. I asked him a question: what process is he going through to quantify the individual risks of each of the relaxations to the measures that he is making, and has he taken into account the cumulative effect of those measures? What process is he adopting to quantify that? 

James Brokenshire:  We certainly had a number of discussions with the police and the security services, and that has led to the approach that we are taking in the Bill. That has led to the balanced package that we have ascribed, and to the provisions in the proposed schedule 1, as I have already indicated in my contribution to this short debate, and how cumulatively they can be applied to disrupt and to ensure that those subject to

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terrorism prevention and investigation measures are appropriately disrupted. That then fits into the overall mechanism, funding and support that is being provided to the police and to the security services to give the necessary assurances. That is why I again refer to the comments of the director general of the Security Service, and the comments that he has made in that regard. I point to the process that has underpinned that and to the work that has been undertaken to date, and the continued consideration of the work that is ongoing. As I say, this has been very carefully considered. 

The right hon. Lady was almost suggesting that if we are serious about preventing terrorism, we have to do things in a particular way. I do not agree with that analysis. We are able to balance and look at the various different mechanisms and ways to ensure that citizens in this country are protected by looking at the level of support that is provided to the security services and the police, by looking at the disruptive tactics that are potentially available, and by looking at the options to ensure that those who are suspected of committing terrorist acts, or acts preparatory to terrorism, are brought to justice. Underpinned in the counter-terrorism review, a combination of those factors led us to the approach in the Bill and the approach that the Government are seeking to adopt to ensure that safety and security.

4.15 pm 

Paul Goggins:  For the avoidance of doubt, no Committee member expects the Minister to give us a precise number for the amount of additional money that has been made available—that should not be disclosed, for obvious reasons—but we do need to know that a review process is in place and which is unequivocal in providing further support should that be necessary. 

My right hon. Friend the Member for Lagan Valley is serving on the Committee; he will remember, at the time I was Security Minister in Northern Ireland, the appalling murder of two soldiers at the Massereene barracks. At that point, a process was set in train to keep under review the additional expenditure that the police in Northern Ireland needed to meet and counter the terrorist threat; the cheque was not open-ended, but the commitment was unequivocal. I am pleased that the Secretary of State for Northern Ireland has continued that commitment—£200 million over four years. All we want to know in Committee is that there is a commitment to keep the situation under review and to make the necessary resources available. 

James Brokenshire:  As the right hon. Gentleman knows, the budget for the Security Service forms an element of the security and intelligence agencies’ budget, which is £2 billion per annum through to 2014-15. The funding for the police and security services, which I spoke to in Committee, is new money committed alongside their budget. 

Certainly, the duty of any Government is continually to assess risk and constantly to assess capability and capacity to deal with that risk. Therefore, Government would not be fulfilling their responsibility if they did not continue to monitor and assess, and to ensure that risk was considered. I genuinely respect the right hon.

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Gentleman’s point, and I underline the role of Government in providing continued assurance. He understands that, whatever measure the previous Government or any Government adopt, there will always be an element of risk. As a Committee, we need to understand that we do not live in a perfect world—there is no perfect scenario or perfect solution. I recognise the challenges faced by the previous Government, but we are carefully considering the issues raised in the work undertaken so professionally by those who act on our behalf—but there is always some risk. 

Tom Brake (Carshalton and Wallington) (LD):  Presumably, the risk assessment would be conducted on an identical basis to that for the one on control orders. On relocation or overnight considerations, given the flexibility under control orders to choose whether to relocate someone or to have a curfew of a certain length, risk assessment must have happened and, therefore, will presumably carry on in the same way under TPIMs. 

James Brokenshire:  As I think I said, we sought feedback and advice from the police and the security services on the mitigating actions that they have identified as necessary in the context of the new regime, and we have funded that accordingly. Careful consideration has been applied to the new regime that we are seeking to introduce through the Bill, so I genuinely respect and acknowledge the serious points being made by right hon. and hon. Members in Committee. 

Mr Sutcliffe  rose—  

The Chair:  Order. Before I call Mr Sutcliffe, even though we are talking about resources, we need to relate that to this group of amendments. We are spreading a little bit too far into resources more generally. 

Mr Sutcliffe:  I thank the Minister for giving way, and am mindful of your comments, Mr Caton. 

It is the process that we are trying to tease out from the Minister. If it takes 12 months for the assets to be delivered and the people to be trained, is it not right for a review process to be in place? Inevitably, the Government and the security services and police will argue about just what level of resource there should be. All we are asking for is an opportunity for that review to take place. 

James Brokenshire:  I am mindful of what you have said, Mr Caton, but I think that the issue of resources and the support provided to the security services—not specifically to the individuals concerned but more broadly in the overall management of risk—is directly relevant to the amendment. I recognise, however, your desire for the Committee not to stray more widely. 

Since February at the latest, we have telegraphed clearly to the police and security services in terms of the resources that were indicated following those discussions. Our expectation is for that situation to move forward and for the plans under development to be implemented. We will continue to monitor that situation; it is being carefully considered and I assure the Committee that it is not something we are treating lightly. This is an issue of national security and we underline and understand the serious nature of the obligations on our shoulders,

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albeit that, as I have indicated, we have sought and obtained the relevant assurance from the director general of the Security Service. 

Bob Stewart (Beckenham) (Con):  I am not a great expert on finance, and I accept that we cannot talk about how much these additional resources will cost. I understand that the security services and the police have said that the extra measures will suit them, but they are not responsible for the money—we are. Since the Minister will know the cost and no one else will, he will presumably make the value judgment about whether our resources are being properly used. If the figures for any decision that the Minister makes ever come out, the public should accept that it was a good use of their money. 

James Brokenshire:  As Members would expect, we are looking closely to ensure that funding is applied appropriately. The Security Service and the police have outlined their plans for mitigating actions, and that is the basis on which we follow. This has been another good debate. I recognise the issues that have been raised and that some have sensitivities attached to them. We have considered the matter carefully, and we believe that relocation requirements are not needed in the context of other provisions in the Bill and the additional resources that will be made available. We take our responsibilities seriously, and consider this measure to be the appropriate way forward. On that basis, I respectfully ask Members who have tabled amendments in this group not to press them to a Division. I am sure that issues will still be raised, but we believe that the proposals in the Bill strike the right balance, which is why we recommend them to the Committee. 

Hazel Blears:  As the Minister was drawing his remarks to a close, it occurred to me that I am keen for him to tell the Committee his definition of locality. A lot has turned on the meaning of “an agreed locality” for the overnight residence requirement, and whether that might be a ward, a borough, a whole city or Greater London. The Committee would welcome clarification on that issue; we need to know the Minister’s definition of locality before we decide on the amendment. 

James Brokenshire:  It is ultimately for the courts to decide the relevant locality, taking into account the definition of provisions in schedule 1—the right hon. Lady obviously looks at paragraph 1 in that way. While she is tempting me down this path—I understand why she is doing so—the locality is likely to differ depending on whether the area is urban or rural. We will therefore need to assess, on a case-by-case basis, what is considered appropriate and reasonable in terms of the locality and take those important distinctions into account. 

Ultimately, the Secretary of State, in exercising their powers and ensuring that he or she is satisfied that the provisions of clause 3 have been met, will need to consider and ensure that there is reasonableness attached, given that this will be reviewed by the court with the normal scrutiny approach, which is also set out in the Bill. 

Paul Goggins:  I am grateful to the Minister for trying to be clear about the definition of locality, because such clarity is important before any decisions can be made

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about withdrawing amendments or voting on them. He has emphasised the role of the courts, but the Secretary of State will have to have an understanding in her own mind of locality when she introduces the proposals for conditions. 

James Brokenshire:  Of course. 

Paul Goggins:  So perhaps the Minister could explain the thinking that he and his right hon. Friend the Secretary of State are deploying as they think about the future and how this might work in practice. What precisely do they mean by locality? 

James Brokenshire:  That is something that needs to be considered on a case-by-case basis. We need to look at where someone may be living, and if no suitable accommodation satisfies the necessary requirements, the Secretary of State could relocate that person within that locality. Again, it will depend on whether it is an urban area or a more rural area, because in terms of geographical size, a locality in a rural area may be much larger than a locality in a more urbanised area. It is difficult for me to say that it is a certain amount of space or a precise geographical area, because it will hinge on the individual circumstances. 

Stephen Phillips (Sleaford and North Hykeham) (Con):  The word “locality” in paragraph 1(4) of part 1 of the schedule forms a contrast with the word “place” in paragraph 3. Does my hon. Friend the Minister therefore agree that locality implies something different from place and that “place” is likely to be interpreted by the Secretary of State, no doubt on perfectly good legal advice, as being wider than “locality”? A locality is likely to be construed as something smaller than a place, which makes perfect sense in the context of the legislation and the balance that it seeks to draw. 

James Brokenshire:  My hon. and learned Friend makes an interesting point. I recognise his judicial and legal experience. We need to look, however, at the overnight residence measure, which seeks to address where someone is living. I suppose that that offers a hub around which a locality may emerge, whereas the provision that he alludes to relates to exclusion, which may mean a specific building, railway station or other defined area. I would tread carefully in seeking to mark the definitional provisions in paragraph 3 back to those in paragraph 1. I am grateful, however, for his assistance in pointing out that issue. 

Hazel Blears:  If I may say so, the Minister is doing an admirable job of dancing around the various definitions, but it would be right for me to ask him a straight question. Does he envisage the locality in paragraph 1(4) and the exclusion measure in paragraph 3 being Greater London? I am seeking to establish whether the agreed locality could be as big or the exclusion area as large as Greater London, because otherwise I do not see how the provisions will interact. 

4.30 pm 

James Brokenshire:  On the definition, the locality might be a part of a large city or a town, if that is where someone lives. It is difficult to give the Committee the specifics, because it will be considered on a case-by-case

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basis, but for a large city, an appropriate locality would be part rather than the whole of a city. I hope that assists the right hon. Lady on how the Secretary of State will apply overnight residence requirements. The locality has to be one in the United Kingdom in which the individual has a residence, and its definition will be approached in that way. 

Ultimately, the courts will determine the reasonableness of the Secretary of State’s assessment, but as I have already said, the provision strikes the right balance, in that it takes account of other provisions in the schedule and the resources available to the police and the security services. I ask the right hon. Lady to withdraw the amendment. 

Hazel Blears:  I am grateful to the Minister for his response. I hesitate to say it, but he has not dealt with the issues, certainly not those arising on amendment 128, which relates to the exclusion measure. He did not give me a satisfactory answer about whether the place from which the individual is excluded could be as big as Greater London. My confusion relates to what happens if the subject’s residence is in London. He will therefore be subject to an overnight residence requirement to live in his house there, but at the same time it might be desirable to exclude him from London, certainly during the Olympics, so are not the two provisions contradictory? I have not received an answer on that point from the Minister. 

James Brokenshire:  Obviously, it will be open to the Secretary of State to use the overnight residence measure and the exclusion measure either in tandem or in isolation. A menu of options will be available to the Secretary of State, and the matter should be viewed in that way. 

Hazel Blears:  With the greatest respect, the Minister has not grasped the point. Under the provisions as they currently stand, if someone has a residence and the Secretary of State applies the overnight residence requirement, that person has to be kept in that home or within a locality with which he has a connection. If, at the same time, the Secretary of State wants to exclude a person from a particular place, she will be prevented from doing so, because the person has a right to be in his residence. The two provisions appear to be contradictory. If the Secretary of State wants to exclude someone from most of London, but his residence is in London, how can she use the exclusion power to achieve the desired result? [ Interruption. ]  

The Chair:  Order. Are you intervening, Minister? 

James Brokenshire:  No. 

Hazel Blears:  As I have said, we have not received a satisfactory explanation as to how those provisions interact, and I am unhappy with the Minister’s reply in that regard. We have had a good and lengthy debate. 

Paul Goggins:  Does my right hon. Friend agree that, in the spirit in which the Committee is operating, it would be helpful if the Minister gave her an undertaking

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to reflect on the issues and consider whether a Government amendment might be appropriate? In my hamfisted way, I tabled amendment 1 to suggest that there should be a hierarchy—the individual’s residence should always be the first matter considered and an area with which the individual has some connection should be the second, but the overriding concern should be public safety. My amendment 1 would give the Secretary of State an opportunity to make a different condition to specify a different locality where public safety is put at risk. Does my right hon. Friend agree that it would be helpful if the Minister gave an assurance that he was prepared to go away and think about what he has recognised as complex issues and perhaps come back on Report with some considered amendments? 

Hazel Blears:  My right hon. Friend makes a helpful suggestion, which all members of the Committee will appreciate, because the provisions are complex. We have had the discussion about how the courts will be looking—in the Minister’s own words—at the context of the situation, so they will be looking at the specific power. They will then be looking at the combination of measures and how they contribute to public safety. They will also look—as Mr Justice Simon said—at the resources available to try to fill any gaps that are there, to maximise public safety. The Minister has acknowledged that this is a complex and interrelated jigsaw, and we have the same provision in the measures. They are interrelated and balance each other. 

At the moment, I am not sure about how the powers can be operated. It appears they are possibly contradictory. I urge the Minister to reflect on that and come back to us with suggestions about how we can impose logical order to the interaction between the power for overnight residence, the fact that there is no relocation power and the use of the exclusion powers in the Bill. I invite the Minister to think about that, reflect on it and perhaps come back to us later. 

The Minister is silent. 

Stephen Phillips:  I am grateful to the right hon. Lady. It may be that we have found a place where the Bill needs improvement. I wonder whether it can be dealt with in this way. If one looks at the exclusion measures, the restrictions in paragraph 3(1)(a) relate to 

“a specified area or place”. 

That seems to imply—I wonder whether she agrees—that place is smaller than area. Paragraph 3(1)(b) states 

“a place or area of a specified description”. 

If one reversed that so that it read “an area or a place of a specific description”, one would have an area, which is a big thing; a locality, which is something slightly smaller; and a place, which is something smaller still, and might, for example, be railway stations or something of that nature. Does the right hon. Lady agree that that might resolve the issue? 

Hazel Blears:  The hon. and learned Gentleman is clearly used to drafting on his feet. His suggestions have a great deal of merit. If he is proposing that there be some kind of hierarchy, so that there is some logic in terms of what the Secretary of State’s considerations are when deciding the appropriateness of the measures, that would indeed be helpful. I am still not convinced.

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I want more time to consider the interaction and interplay between the overnight residency requirement and the exclusion powers. If someone’s residence is in the place from which we wish to exclude them, it appears contradictory. I want to see whether there might be some drafting provisions that would enable us to have clarity about which one takes precedence. 

The hon. and learned Gentleman has made a good suggestion about the hierarchy of place. I am not yet satisfied that there is a hierarchy of which measures and which powers to use. I still think there is an element of confusion. However, the hon. and learned Gentleman’s suggestions are helpful. It may be that the Minister will reflect on them and come back with some amendments when officials have had time to draft them. I do not mean that the hon. and learned Gentleman’s amendments need improving, but I am sure we could improve them if we had more time. 

We still have silence from the Minister. I hope that he is considering the proposals in a positive frame of mind. Mr Caton, we have had a good debate. In summing up, my only point is to do with the matter of principle. One of my amendments was to delete “must” and insert “may”. That was about trying to give the Secretary of State discretion over the powers that she thought it appropriate to use. On relocation, I am still absolutely of the view that preventing the Secretary of State from ever, in any circumstances, considering the practical necessity of having the relocation power is a serious step to take. At the moment, I am not convinced that simply relying on extra resources for surveillance will fill the gap to the extent that the Minister has expressed. 

If the Minister is prepared to reflect on the issues that we have raised, we will not press our amendments to a Division today. In the views of the former Home Secretary Lord Howard, Lord Carlile and DAC Osborne, the issues are serious matters, which no doubt we will want to return to. Is the Minister prepared to reflect and to come back with suggestions along the lines that his hon. and learned Friend has indicated? 

James Brokenshire:  As tempting as the right hon. Lady is, we believe that we have struck the right balance. Of course I will look back at the discussion that we have had today; it would not be dutiful of me if I did not do that. However, I do not want to get her hopes up that that will lead to any change. So, rather than reflect, I will read the proceedings of the Committee this afternoon and I will obviously examine in the written word the comments that have been made. 

Hazel Blears:  I am very grateful to the Minister for his typically generous response. I know that he will read the proceedings and consider the situation, even if he will not reflect. Personally, I find that when I have a chance to read the report of proceedings—perhaps not in the atmosphere of the Committee—often matters appear to be different from when we were debating them. 

I am grateful to the Minister for giving the undertaking that he has given. On that basis, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Hazel Blears:  I beg to move amendment 27, page 20, line 19, after ‘persons’, insert ‘visiting or staying’. 

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

Amendment 28, page 20, line 23, leave out ‘(subject to sub-paragraph (3))’. 

Amendment 29, page 20, line 26, leave out sub-paragraph (3). 

Amendment 129, page 20, line 26, leave out ‘must’ and insert ‘may’. 

Hazel Blears:  This is a group of relatively short amendments that relate to electronic communications and devices. It is spelled out in schedule 1 that the Secretary of State can impose restrictions on an individual’s possession or use of electronic communications devices. Amendment 27 is fairly straightforward. It seeks to include persons “visiting or staying” at the individual’s residence as well as the individual concerned. It would provide more clarity, by showing that the measure will apply not only to members of the individual’s family who will be there on a permanent basis but to visitors who may attend the premises; there ought to be restrictions on their use of devices as well. 

Amendment 28 would delete sub-paragraph (3), which brings us to amendment 129. Amendment 129 is really about the heart of the matter and it is similar to the amendment that I tabled on relocation powers. Again, I seek to delete the word “must” and insert the word “may”, and I will be using the same kind of argument that I used earlier. Once again, I do not understand why the Minister seeks to tie the hands of the Secretary of State by saying that in every circumstance a terrorist suspect must be allowed access to a telephone operated by connection to a fixed line, a computer that provides access to the internet and a mobile telephone that does not provide access to the internet. We all know that in this world of international terrorism, the use of mobile phones and in particular the use of the internet are key ways in which terrorists will seek to communicate with each other, to pass information and to prepare for and be involved in the attack planning that we know goes on. 

Again, it may well be that in 99 cases out of 100 there might not be sufficient concern for there to be restrictions on the use of a mobile phone or the internet. The Minister will no doubt tell me that the provisions in sub-paragraph (4) about monitoring and surveillance will all be sufficient to reassure him that there will not be an increased risk in allowing terrorist suspects access to the internet. I have no doubt that he will tell me that. But again the argument is the same—why, in the one case out of a hundred where there will be an increased risk, is the Minister not prepared to allow a discretion for the use of the internet and mobile phones not to be allowed? 

Dr Julian Huppert (Cambridge) (LD):  We discussed this issue on Second Reading and I am afraid that I still do not understand which argument the right hon. Lady is trying to make. If it is the case that in this one case in 100, or in however many cases it is, this suspected terrorist will be using an electronic device as part of their terrorist plan, they will know that it is being monitored and if they were so foolish as to use that device they would be providing a lot of evidence that could be used quite strongly against them. We would have a lot of information about who they rang, and so on. In fact, that would make it easier to prosecute. So, is

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she saying that they will be able to use those devices and hence they will be prosecuted, or is she saying that they would not use them? 

Hazel Blears:  I am not a computer expert myself and I am not necessarily reassured that in every case the monitoring would be such that there would be no prospect whatsoever of any information escaping from that monitoring or of a communication being made that could not be monitored. I am genuinely not reassured that there would not be a gap once somebody had possession of a mobile phone or a line that would give them access to the internet. 

4.45 pm 

Mr Sutcliffe:  My right hon. Friend is making an interesting point, but it comes to my mind, in terms of security, that mobile phones have been used as detonators. Is that not a risk that might be considered? 

Hazel Blears:  I was going to come to that. Clearly, the concerns are not simply about communication. I understand that there are internet sites that detail graphically how mobile phones can be used as electronic detonators and that provide instructions. I can provide the Minister with the name of one website that has been used in such circumstances; I am reluctant to say it in an open sitting. Mobile phones have been used not for communications but to detonate bombs. 

Tom Brake:  Is it not the case that if someone were to access a website of the nature that the right hon. Lady has described, they might be guilty of an offence for which they could then be prosecuted? 

Hazel Blears:  The people who provide the information on the website that I have in mind will say that it is to detonate firework displays, not explosives, and that it is therefore a perfectly legitimate use of a mobile phone, so it would not necessarily be evidence of a terrorist offence. There could be an alternative, non-terrorist use of a mobile phone. As the website would say, it might be used to set off a firework display in one’s garden remotely. However, it is clearly an issue that a terrorist could use a phone in that way. 

I was interested to see the report of the trial for the bomb attempts that took place last year. The report said that terrorists tried 15 times to detonate two car bombs filled with petrol, gas and 2,000 nails in central London. The displays of Nokia mobile phones left in each car revealed several missed calls; they had been dialled up to four times each. By the time that happens, it does not matter how much monitoring we do. What is the space between using a mobile phone to make a call to set off a bomb and the security services’ ability to intervene and say, “We have been monitoring your use of these phones”? It is simply not practical. 

Dr Huppert:  I am trying to follow the case that the right hon. Lady is making. Is she positing that a person who knows that they are under a TPIM might be chosen by whoever prepared the explosives and put them there—presumably it would not be the same person—

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because they are the best person to dial the phone to set it off? Surely such an organisation would be much better advised to use somebody who they knew was not under surveillance and a TPIM. 

Hazel Blears:  That posits the idea that people involved in terrorist activity always make the most logical and rational decisions. The hon. Gentleman will know that people who are prepared to undertake such activities are driven by an ideology, and they will not always make rational and logical decisions at the time. 

The measures provide an extra risk in the system. My amendment asks why, for heaven’s sake, the Secretary of State will be required to provide a mobile phone and internet access in all circumstances. It brings me back to the first premise. The measures are framed so as to maximise the ability of the person subject to them to lead a normal life, rather than to strike the right balance with national security and the protection of the public. Yet again, the Government are asking what the rights of the individual are, and stating that they must have a mobile phone and access to the internet. There may be circumstances—I am prepared to admit that they might not happen often—in which we do not want highly dangerous people to have access to a mobile phone or the internet, and the Secretary of State will not be able to make that decision. 

Ben Gummer (Ipswich) (Con):  I am glad that we have established by this stage in the Committee that the hon. Member for Cambridge is a potential terrorist mastermind. 

Of all the things that Mr Osborne said in evidence and all his potential issues with the Bill that were offset by an increase in resources, at no point did he mention a technical problem with mobile phones, the internet, computers and the rest. I cannot understand why we are spending time on the amendment when there is so much in the Bill to be discussed. Clearly, the provisions in the schedule have been trawled over by the security services, and they must be happy with the provisions; otherwise, I cannot believe that the Secretary of State would introduce the Bill in good faith. 

Hazel Blears:  I am surprised by the hon. Gentleman. The measures are important. Taken together with the other measures that we are debating today, they draw a picture of the various steps that the Minister is proposing to take that, in my view, will increase the risk to the public. All the measures that we have talked about, such as relocation, the relaxation of provisions for a mobile phone and the residence requirement, have a cumulative effect. Each of them contributes to an increased risk, which is supposed to be filled by the extra resources for surveillance. It is therefore important that we delve into the matters and probe and press the Minister on why it is necessary in every single case for someone to have access to a mobile phone. 

The phones that were used in the particular case were two unregistered phones—pay-as-you-go models with their numbers written on labels stuck on the back. They were used to try to detonate the bombs. Whatever monitoring the security services had in place at the time, they were not able to monitor those pay-as-you-go phones that were used to make four missed calls. Luckily, the terrorists were not successful, although they tried to detonate the bombs using the mobile phones 15 times. The security services were not able to monitor them. 

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Stephen Phillips:  I think that the attempted atrocity that the right hon. Lady is talking about is the failed bombing outside the Tiger Tiger nightclub. Both participants were present, so they did not need to use a mobile phone. As I recall, they made their way off in a rickshaw before taking a coach to Glasgow and becoming responsible for the attack at Glasgow airport. That rather undermines the point that mobile phones are necessary for such attacks, at least in that case. Both participants were present at the scene. 

Hazel Blears:  I only have here the Mail Online’s report of the trial proceedings. Perhaps it was not reported elsewhere, and that is the only report I have. It states: 

“Police revealed the ringing circuit in each was wired to a light bulb, held in a syringe and surrounded by match heads…The simple devices were intended to ignite the volatile vapours swirling inside the vehicles and create an explosion…But”— 


“a lack of oxygen prevented a potentially deadly fireball”, 

which could have occurred in other circumstances. It is all very well to say that a suspected terrorist who has a mobile phone may know that it is likely to be monitored and therefore—this is the submission of the hon. Member for Cambridge—they would never, ever seek to use it in those circumstances. However, I am not convinced that if we give people access to mobile phones, people will not seek to use them in the way that they were used in that case. There may be circumstances in which it is not appropriate, but the risks outweigh the possibility. Again, I do not understand why the Government are providing that the Secretary of State can never have the discretion to bar access. 

Mr Tobias Ellwood (Bournemouth East) (Con):  I appreciate the spirit in which the right hon. Lady has tabled the amendment. There is a desire to ensure that we fully understand what these individuals might be up to. However, we are getting into the weeds of the issue here by trying to understand the mechanics of how a phone might or might not be used. She and another committee might be better placed to assess the use of mobile phones rather than this Committee. 

From my experience in the military, if a terrorist wanted to get hold of a phone to use in the circumstances that she describes, there is now a common deterrent. In the bands marching down Whitehall, there are devices in the rucksacks of the last soldiers that give out signals to block mobile phone signals for that exact reason. Is the right hon. Lady really trying to say that if we agree to the amendment, we would prevent someone who was determined to use a mobile phone as a trigger device from getting hold of one? I think that is absolute nonsense. 

Hazel Blears:  I do not think that the hon. Gentleman is talking nonsense; he makes a reasonable point. It is very difficult to prevent determined terrorists from getting access to mobile phones and computers, so why do the Government want to legislate for the Secretary of State to allow them to have such devices? 

Mr Ellwood:  It is an important debate. If people are to have access to a phone, I would prefer it to be one that we had given them rather than one they had gone out, bought themselves and tampered with. 

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Hazel Blears:  Does the hon. Gentleman think that a phone issued by the Home Office is going to satisfy the would-be terrorist so that they will not need to go out and get another one? 

Stephen Phillips:  Any mobile phone that is issued by the Home Office is unlikely to work. For that reason, this is a very good provision. 

Hazel Blears:  The hon. and learned Gentleman makes a good point. I shall be fascinated to hear the Minister’s response about the efficiency of Home Office computers and mobile phones. 

Mark Tami (Alyn and Deeside) (Lab):  It will be a very expensive phone, too. 

Hazel Blears:  Indeed. Even if it were to work, I imagine it would be rather expensive and its tariff would exceed that of one that could be obtained on the market. 

I genuinely seek to make the point that it may be appropriate in some cases for suspect terrorists to have access to mobile phones and the internet. That makes me nervous, but it may be appropriate. Again, however, I cannot understand why the Bill provides that the Secretary of State “must” provide at least one mobile phone and access to the internet to a terrorist suspect. There may be circumstances in which the security services say, “In the light of this person’s previous behaviour and our security assessment, we do not think it appropriate for them to have access to a mobile phone or the internet, whether that is monitored or not, because we might not be able to intervene by the time we find out what they are using the phone for—and that increases the risk.” The amendment is perfectly sensible. 

Mr Ellwood:  It is generous of the right hon. Lady to give way a third time. She speaks from a security angle. Dr Michael Korzinski provided an illuminating contribution to the Committee’s evidence session by talking about these people as human beings rather than simply as terrorists. Some people might have been picked up in a taxi in the wrong place in Kabul, been in Guantanamo Bay, and ended up in the UK. Such people might genuinely want to get on with a normal life, or they might have a family around them who are not terrorists in any form. 

If someone can be wooed away from the dark side of fundamentalism, they must have some normality in their lifestyle, which unfortunately means, in this day and age, having access or ownership of a mobile phone and a computer. That makes sense. If we deny them those, they will go out and get them themselves, or they will be prevented from getting involved and engaged in society, gaining employment and so on. 

Hazel Blears:  In the scenario that the hon. Gentleman sets out, in which a person has found themselves back in this country, really wants to change their life, is determined to put their past behind them and wants to become a good, upstanding member of our society, clearly the Secretary of State would not want to impose restrictions on their ability to have access to a mobile phone or a computer. Such a scenario would be unlikely to lead to

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the imposition of a control order that included such measures. The components of the control order would be reviewed and confirmed by the High Court. If the evidence demonstrates that the person has genuinely rejected an extremist past, wishes to pursue a future with no connection with terrorism and disavows all those activities, I very much doubt that a High Court judge would, having seen both open and closed-session evidence, confirm a control order that included those measures. 

The scenario of a committed person who, given any chance whatever, is determined to engage in attack planning and to seek to damage and maim as many people as possible, is very different. When a determined terrorist cannot be brought to trial, not allowing the Secretary of State to disallow them access to a mobile phone or a computer increases the risk in the system. 

Our whole debate over the past few sittings has been about managing that risk and reducing it to manageable proportions. Why do we not want to allow the Secretary of State discretion, in the small minority of cases when it is necessary, to decide that a person is such a danger that they must not have access to a mobile phone that could be used in attack planning, in plots and to detonate bombs? I do not understand why we frame legislation that does not allow us even the possibility to manage such a risk, perhaps in a better way than is currently proposed. If people want to change their lives and not associate with anyone they have ever previously associated with, and if they can convince the Home Secretary and the courts that that is the case, they would not be subject to control orders. The people subject to control orders, or indeed to TPIMs, would be some of the half dozen or so most dangerous people in this country, who are determined to do maximum harm and damage to the ordinary citizens of our nation. 

5 pm 

Bob Stewart:  I would have thought that the most likely use of a Home Office mobile telephone, assuming that the battery works, is to give warning to someone that something has happened, perhaps using certain code words, rather than as a detonation device. The danger in someone having one of those phones might well be simply that he or she can give warning or inform someone else of what has happened. That is probably the most dangerous aspect of someone being given a Home Office telephone that works. 

Hazel Blears:  The hon. Gentleman, obviously as a result of personal, practical experience in his work, has made one of the most telling points of the afternoon. There is a practical issue. Someone could warn an associate that something might be about to be discovered—the security services would be monitoring but, again, before they have a chance to intervene, evidence could be disposed of and we would not be able to build the case. 

In one of the court cases I was reading about, exactly that happened. A recording was made of a telephone call between two terrorists—they were gathering the means to make a bomb, such as chemicals, and had been in touch with people who sold hydrogen peroxide—but it was about designer aftershaves. The discussion about

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aftershaves was clearly about the chemicals necessary to make a bomb—obviously, people use code words. However, the hon. Member for Beckenham made his point about a warning extremely well, and I ask the Minister to reflect on it. What reassurance can the Minister give us that if such a scenario were to occur, he would be satisfied that the monitoring provision is sufficient either to deter the would-be terrorist from using the device in that way or for the security services to be able to intervene immediately to prevent the warning having the effect that the hon. Gentleman indicated? 

Paul Goggins:  My right hon. Friend has exceeded even her own high standards this afternoon. She has matched her grasp of policy with a technical understanding that, frankly, I did not know she had. She has been remarkable in her explanation of the issues to the Committee. 

I do not wish to detain the Committee for long—I am mindful of what the hon. Member for Ipswich said about how we have many other things we need to discuss—but I have a couple of comments. The hon. Member for Bournemouth East matched a degree of humanity with his obvious understanding of security risk in his intervention on my right hon. Friend the Member for Salford and Eccles; his comments do him great credit. 

I can understand the reason for a provision in schedule 1 that invites—not invites but insists—the Secretary of State to consider the merit of a fixed phone line, an internet connection or a mobile phone in each individual case. They should be considered, and in most cases there might well be a good argument why they should be permitted but, going back to the main points made by my right hon. Friend, as currently drafted the matter is mandatory—there is no choice, and the Secretary of State must make such provision. Again, I fear that the Minister is boxing himself into a corner. One day—I hope this never happens, but it is a possibility—the Secretary of State might want to act in a certain way but be unable to do so, because she is prohibited by her own legislation. As I said, the comments of the hon. Member for Bournemouth East were timely and important. 

My only other point relates to yet further challenges for the police and the Security Service that will arise from the obligation to provide a telephone line, internet connection and mobile phone. There will certainly be further challenges and costs for surveillance; that is undeniable and will happen in each and every case. I do not have the technical expertise of my right hon. Friend the Member for Salford and Eccles, but in common with my hon. Friend the Member for Bradford South, I spent some time with responsibility for prisons. My hon. Friend will agree that the ingenuity with which prisoners are able to secrete mobile phones and SIM cards into their prison cells is at times beyond belief. It happens none the less, and the Minister’s colleagues in the Ministry of Justice will have to deal with that problem. It relates to organised crime outside prison and to drug misuse inside. It is an absolute menace. 

As was pointed out during an intervention, if it is possible to secrete mobile phones in and out of prison, suspects will certainly be able to pick up mobile phones and SIM cards outside their home, bring them in and—who knows?—switch the SIM card in the phone they have brought in with that in the phone provided by the Home

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Office. I am sure that our Security Service will be up to that challenge, but there may be moments of confusion. [ Interruption. ] The hon. Member for Cambridge laughs, but I am talking about the prospect of someone switching SIM cards and of a moment of confusion where the security services try to establish whether the phone being used is different from that provided by the Home Office. 

Dr Huppert  rose—  

Paul Goggins:  I will give way in a moment. That point of confusion, perhaps lasting only seconds or minutes, could be crucial for public safety. 

Dr Huppert:  I am trying to understand how the right hon. Gentleman’s comments fit with those of his right hon. Friend the Member for Salford and Eccles. She was explaining how any phone could be extremely dangerous and lead to massive explosions if a particular number is dialled. You are now arguing— 

The Chair:  Order. I am not arguing. 

Dr Huppert:  I apologise, Mr Caton. The right hon. Gentleman is now arguing that phones can be acquired easily and we cannot even stop them getting into prisons. Perhaps the two right hon. Members could work out which line it is. Is it that phones are phenomenally dangerous, or is it that even with controls, people can still easily get hold of them? 

Paul Goggins:  Quite amazingly, the two right hon. Members are making two different points. Isn’t that amazing? My right hon. Friend the Member for Salford and Eccles has explained her position and concerns perfectly clearly and I do not intend to detain the Committee by going over them again. I simply make the point that there is the potential for confusion because phones or SIM cards could be swapped in a way that could be momentarily confusing for those operating the surveillance. It could be a moment in time for which we would all pay dearly. If someone subject to a TPIM order was found to be misusing their mobile phone in that way, they could not have the phone taken off them; they would have to have it because the Secretary of State must give them one. There is no penalty if someone subject to the TPIM misuses their phone. I do not see any way in which the Secretary of State could withdraw it; they must provide that person with a mobile telephone. 

Dr Huppert:  The right hon. Gentleman might like to look at paragraph 7(2)(b) of schedule 1, which states that the provision of all such devices is subject to 

“a requirement that the device may only be possessed or used subject to specified conditions.” 

It is clear that if those specified conditions are breached, there is the power to stop an individual from possessing a phone and so on. 

Paul Goggins:  The hon. Gentleman might wish to table an amendment on Report—[ Interruption. ] Forgive me. Although the provision states that 

“The Secretary of State may, in particular, impose…a requirement that a device may only be possessed or used subject to specified conditions”, 

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he must read on, because the next sub-paragraph states: 

“The Secretary of State must allow the individual to possess and use…one of each of the following”, 

and it lists specifically the mobile phone, the fixed phone connection and an internet connection. 

Dr Huppert:  What is that subject to? 

Paul Goggins:  There is no conditionality. Well, perhaps the Minister can clarify; if I have misunderstood, I will be more than happy to be reassured. I do not see any way that the “must” in sub-paragraph (3) is conditional on any other element in the provision. 

Dr Huppert:  Will the right hon. Gentleman give way?  

Paul Goggins:  I will give way again, but I want to conclude my remarks because the Minister is eager to clarify the position. 

Dr Huppert:  I thank the right hon. Gentleman, and I look forward to the Minister’s comments. Paragraph 7(3) states: 

“The Secretary of State must allow the individual to possess and use (at least) one of each of the following descriptions of device (subject to any conditions on such use as may be specified under sub-paragraph (2)(b))”. 

I am sure that the right hon. Gentleman is delighted that that provision is already in the Bill. 

Paul Goggins:  I am very grateful. I look forward to the Minister confirming that if someone subject to a TPIM was found not to be following the conditions imposed under sub-paragraph (2)(b), the Secretary of State would have the power to withdraw the mobile phone. 

James Brokenshire:  If I may clarify, in those circumstances, an offence would have been committed under the Act. 

Paul Goggins:  The Minister is characteristically forthright. I am sure that he will expand on those remarks when he comments further. If he is telling the Committee that all these things will be closely monitored, and that if the conditions set out by the Secretary of State are not adhered to, the mobile phone will be withdrawn, the Committee will be reassured. 

My right hon. Friend the Member for Salford and Eccles has made some very important points about the additional risk introduced by these provisions. The fact that the provision is mandatory on the Secretary of State, rather than optional, is something else that will pile challenge upon challenge for the security services and the police. Yes, additional resources are being made available but, once again, they will have to be sufficient to meet the challenge. 

Stephen Phillips:  It is, as always, an enormous pleasure to follow the right hon. Gentleman. I want to take some of the heat out of the last part of the debate by

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explaining my understanding, at least, of how the process will work. The Minister can confirm that to be correct or otherwise. 

My hon. Friend the Member for Cambridge is perfectly correct that paragraph 7 includes the right for the Secretary of State to impose requirements, particularly under sub-paragraph (2)(b). However, the right hon. Member for Wythenshawe and Sale East is also correct that there is no right, if any of those requirements are broken, for the Secretary of State to remove the devices that sub-paragraph (3) obliges her to give the subject of a TPIM order. My hon. Friend the Minister is correct that someone who did not comply with those conditions would commit an offence under clause 21 that would be triable on indictment and could give rise to a five-year custodial sentence. Notwithstanding the heat of the last part of the debate, the point is that my hon. Friend the Member for Cambridge, the right hon. Member for Wythenshawe and Sale East and my hon. Friend the Minister are all correct, so I hope that that makes the position clear. 

I actually rose to address amendment 27, which was moved by the right hon. Member for Salford and Eccles, because it is both unnecessary and dangerous. I will invite her to withdraw it in due course. The amendment would add the words “visiting or staying” after the word “persons” into paragraph 7(1)(b) of schedule 1. The present position in the Bill is that the Secretary of State has the power to impose 

“requirements on the individual in relation to the possession or use of electronic communication devices by other persons in the individual’s residence.” 

My understanding is that that covers everybody in that individual’s residence, so the addition of the words “visiting or staying” is unnecessary. 

It goes beyond that, however, and that is why I invite the right hon. Lady to withdraw the amendment. It is possible to contemplate persons who could be in the residence but would not be visiting or staying. While I have been listening intently to the debate on her well-formulated amendments, the only group of such persons that I have been able to come up with is those who might be engaged in cleaning or something similar—service occupiers within the house, or domestic staff for want of a better phrase. It is possible that such people could be construed to be persons who are not visiting or staying in the house. 

The amendment is in fact dangerous and counter-productive to the view that the right hon. Lady takes of what the Bill ought to contain. For that reason, I urge her not to press at least that amendment, although judging by the state of the Opposition Benches, I imagine that none of the amendments in the group will be pressed to a Division at this stage. 

James Brokenshire:  I do not intend to extend the debate for much longer because we have had an interesting exchange on a wide range of issues. We had a discussion about the way in which the various provisions in paragraph 7 interrelate, and I am grateful to my hon. and learned Friend the Member for Sleaford and North Hykeham for his assurance that we were all right. That is reassuring for the Members who undertook analysis in that particular

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mini-debate, although I could not agree with the aspersions that he cast on Home Office equipment, which has been noted. 

5.15 pm 

It was interesting to hear the comments of the right hon. Member for Salford and Eccles and her personal concern. Indeed, the approach that Opposition Members are taking is interesting. At times, that approach seems to involve looking at the balance and then saying that we always need a bit more. In many ways, that was the problem when the previous Government were posed with some of these challenges and difficulties. We are trying to fix the situation with the measures that we are introducing in the Bill, as well as those that have been introduced in other ways. 

Fundamentally, the approach that we try to take is that the individual should be able to live a normal life as far as is consistent with protecting the public, and that they should be subject to only the minimum restrictions necessary for that purpose. That, perhaps, is where the difference lies. We have taken that approach so that we are able to ensure that it is consistent with protecting the public while we examine the situation in a very focused and measured way. In the context of paragraph 7, we believe that there are certain basic standards that should be upheld as part of living a normal life. To that extent, it is appropriate to look at limitations that might apply. This reflects some of the comments made by my hon. Friend the Member for Bournemouth East. We should look at what is necessary and focused, and what will deliver on the public safety agenda. 

Amendment 27 would specify that restrictions could be imposed on the individual under the electronic communication device measure, in relation to the possession or use of devices by third parties in the residence, only if those persons were “visiting or staying” at the residence. As I have said, the approach to the measures that may be imposed under the Bill is that the individual should be able to live a normal life as far as is consistent with protecting the public. That is why, under this measure, it will not be possible to impose a blanket ban on electronic communication devices. The individual must be permitted at least one mobile and one landline telephone, and a computer with a fixed-line connection to the internet. 

To ensure that the measure is compatible with public protection, however, it is intended that it will be possible, when necessary, to restrict access to any communication devices other than those permitted. To ensure that that restriction is effective and enforceable, the Bill allows the Secretary of State to impose—if that is necessary and proportionate—requirements on the individual regarding the possession and use of such devices by other people in the residence. The Bill makes no distinction between visitors, guests and long-term residents, since the mischief that the provision is designed to address is generally not dependent on the status of the individual. It would therefore be possible, for example, to impose a restriction on the individual requiring them not to knowingly permit specified electronic communications devices to be kept switched on or used in their residence while they are there. The clear purpose of that would be to ensure that the individual was not easily able to use any communications devices, including any brought into his residence by a third party, other than those of which the authorities were aware. To limit the power to

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impose such restrictions only to devices brought into the residence by visitors or guests, and not by persons living at the residence, would reduce its effectiveness. It would limit our ability to ensure that the individual does not have easy access to devices other than those permitted in the TPIM notice. We do not think that the amendment would bring about the right approach. 

Amendments 28, 29 and 129, by contrast, would amend the requirement in paragraph 7 that the Secretary of State must allow an individual to possess and use the devices specified in sub-paragraph (3) without the need for specific permission to be granted. The sub-paragraph gives effect to the conclusion in the counter-terrorism review that the replacement system for control orders can continue to protect the public while allowing greater, albeit still fairly limited, access to electronic communications devices. The devices that the individual must be permitted to access, as specified by sub-paragraph (3), are a fixed-line telephone, a computer with fixed-line internet connection, and a mobile telephone that does not provide access to the internet. I assure the Committee that the exceptions have been considered and framed carefully. This reflects the approach taken on the Bill: the individual should be able to live a normal life as far as is consistent with protecting the public, and should be subject only to the minimum restrictions necessary for that purpose. Again, I refer the Committee to the fact that the director general of the Security Service has made it clear that the changes provide an acceptable balance between the needs of national security and civil liberties, which is at the heart of our debate on this group of amendments and other aspects of the Bill. 

Amendments 28 and 29 would remove sub-paragraph (3). Amendment 129 would leave it in, but would specify that the Secretary of State only “may”, rather than “must”, permit access to the specified devices. Its effect would be that the Secretary of State could prohibit access to any communication device if that was thought to be necessary and proportionate. There would be no requirement for her to permit a minimum level of access. 

Although we share the desire of Opposition Members to ensure that the public are protected, the amendment goes further than necessary under the new regime, especially if we take account of the restrictions that can be imposed under sub-paragraph (4). Our view is that the measure in the Bill as it stands strikes the right balance, because it will protect the public by continuing to limit access to electronic communication devices significantly, while avoiding unnecessary intrusion into the life of the individual who is subject to the measure. None of the amendments would improve the Bill, and I ask the right hon. Member for Salford and Eccles to withdraw amendment 27. 

Hazel Blears:  This is the first time I have felt like this, but I envy the Minister’s access to a comprehensive and accurate note from his officials. I will have to do the best I can by improvising, which will be character building. 

The Minister says that my amendments are characterised by the argument that we need a bit more restriction to reassure ourselves about public safety. I think that there is a difference between us, because I would characterise the Minister’s position as saying that we can manage with a bit less, whether that relates to relocation, overnight residence restrictions or access to the internet and mobile

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phones. It is right that we have teased out the difference between us, although I would not characterise it as a chasm. I think it is summed up by amendment 129, which would simply replace the word “must” with “may”. That does not indicate that there is a gulf between our view of the balance, but it shows that we are in a different place, because I am have not yet been reassured by what the Minister has said in any of our debates that the cumulative effect of all these relaxations will be sufficiently mitigated by the extra resource that he is putting in for surveillance. 

When DAC Osborne gave evidence to the Committee on some of these issues, albeit not particularly on access to the internet, he said that he hoped that we would be able to achieve the right level of protection for the public. I hope so, too, but I do not think that hope is the right level of reassurance. I want much more clarity about how much reassurance we can have. 

The hon. Member for Beckenham, in a brief but extremely effective intervention, brought the issue to a head in very practical terms. He asked what would happen if somebody used a mobile phone to warn their associates that the police or security service were on their case and then steps were immediately taken to bring a plot to fruition, or to abandon it and dispose of the evidence. That point weighs heavily with me in terms of the reassurance that we can offer the public. Providing the Secretary of State with an obligation to ensure that suspected terrorists have access to the internet and mobile phones is not necessarily the right thing to do in every single case. We ought to measure the degree of risk that such individuals pose. It might well be appropriate for nine out of 10 to have access to the internet and a mobile phone, but we are not in a position to provide that the one person for whom that is inappropriate does not have access. 

My right hon. Friend the Member for Wythenshawe and Sale East underestimates his knowledge of technical matters. If he thinks that his knowledge is less than mine, he is wrong because, as my husband will testify when I get in trouble on the computer, I have very little knowledge of technical matters. My right hon. Friend’s contribution was straightforward. He said that such things are hard enough to control anyway, because suspected terrorists will try to get other SIM cards and mobile phones. Every single court case has shown that mobile phones have been key to these people’s network of communication. Such people rarely act alone; they act in a group with associates. They plan attacks and prepare the ground together, and mobile phones are crucial. Why make it any more difficult for the police and security services to disrupt and intervene in such activity? I am not saying for a moment that if terrorist suspects were not allowed access to an official mobile phone, the problem would be solved, but I feel that we are making things even more difficult by putting an obligation on the Secretary of State. 

The hon. and learned Member for Sleaford and North Hykeham described amendment 27 as unnecessary, counter-productive and possibly dangerous. I feel less aggrieved by that formulation than I did when he declared some of my previous amendments to be blindingly obvious. I agree with him that the amendment is unnecessary. The wider formulation in the Bill is better, and it provides a more comprehensive definition of the people who will be covered by the prohibition and the

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conditions than my amendment would have introduced. I am therefore more than happy to accept his point. As I have said, he is proving to be a master of drafting on the hoof, so I will not press that amendment. 

The other amendments deal with matters to which we will need to return when we consider the balance between security and the rights of the individual in such cases. I am sure that we will have further debates on Report, so I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

The Chair:  I call Hazel Blears to move amendment 30. 

Hazel Blears:  I shall not move amendment 30. I drafted my amendments without having perused the whole Bill, and I see that schedule 5 deals comprehensively with powers of search, entry and seizure. I am, of course, gracious enough not to move my amendment, having seen the other provisions. 

Paul Goggins:  I beg to move amendment 125, in schedule 1, page 22, line 31, at end add— 

‘Additional measures

13 (1) The Secretary of State may impose measures additional to those contained in Schedule 1 if—

(a) there is a serious terrorist threat; or

(b) they are necessary for the protection of the public.

(2) Any measure under paragraph 13(1) can only be imposed if the Secretary of State is satisfied on the balance of probabilities that the individual is involved in terrorism-related activity.’.

Committee members will have had the opportunity to read amendment 125, which proposes a new paragraph 13 at the end of schedule 1. Members of the Committee will see that sub-paragraph (2) applies a higher test for the basis on which the Secretary of State may impose conditions. 

Why am I moving the amendment? As I have mentioned on several occasions, as control orders have developed over time, with the Secretary of State having the ability to impose any conditions subject, of course, to review and challenge in the courts, we have gained a better understanding of them. For example, on what is meant by a curfew, we know that it is not possible to impose one of 18 hours or more, but that 16 hours is permitted. In the AF judgment, an interpretation has been made about the rules on disclosure that has also refined how control orders have operated recently. 

5.30 pm 

My concern is that the gradual process of development and evolutionary change and improvement will be interrupted by the proposals in schedule 1. The issue of having “must” rather than “may” has been raised several times in discussing the schedule. There will be very tight restrictions on the overnight residence requirement. Relocation will not be permitted under the schedule. There will be a mandatory requirement on the Home Secretary to provide a computer, a mobile phone and a landline phone. Certain measures will now be closed off from being used by the Home Secretary; even if she wanted to, she could not impose them. That causes me considerable concern, as it is out of keeping with the process of gradual change. 

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I put it to the Minister that there may be circumstances that even he, in his far-sighted way, has not yet called to mind or that the Home Secretary has not envisaged, but which might lead her to believe that certain conditions are required under the TPIM arrangements. Nothing is perfect, and we should never assume that certain things will never happen, because it is in the nature of things that Home Office Ministers, in particular, often have to deal with unexpected and unpredicted events. I am concerned that without the proposed new paragraph 13—it would allow, albeit subject to a higher test, the Secretary of State to impose requirements additional to those specified in the schedule—a day may come when the Secretary of State wants to impose a condition that her legislation prevents her imposing. 

Dr Huppert:  It will be no surprise to the right hon. Gentleman that I do not support his efforts to salvage more from the wreckage of authoritarian control orders. I am sure that we will shortly receive some legal advice, but it seems to me that the word “or” in the amendment would allow the Secretary of State to impose extra measures if there is a serious terrorist threat and the measures are not necessary for the protection of the public. Is that not what the “or” means? 

Paul Goggins:  I could go into a very long explanation about the inclusion of the word “or”, or I could admit to the Committee that one’s first draft sometimes contains imperfections. The point on which I want to press the Minister is that not having some form of additional power, which would allow the Secretary of State to impose conditions other than those rightly set out in the schedule—I have previously said to the Minister that I agree with the measures and with his trying to be as clear and specific as possible—and ruling out the possibility of circumstances that we cannot predict and have not foreseen but which require measures that are not in the Bill, might put the Secretary of State in a real predicament. In her heart and in her judgment, she will know that something needs to be done, but she will be unable to do it, because her legislation does not allow her to do so. 

I am heartened that those who undertook the counter-terrorism review have foreseen that problem. I ask the Minister to turn to paragraph 27 on the final page of the review, and I hope that the Committee will bear with me if I read four or five important lines from it. The review concluded that 

“there may be exceptional circumstances where it could be necessary for the Government to seek Parliamentary approval for additional restrictive measures. In the event of a very serious terrorist risk that cannot be managed by any other means more stringent measures may be required. Such measures would include curfews and further restrictions on communications, association and movement.” 

I find that to be a welcome conclusion. It recognises that as much as there is an attempt in the Bill to change the regime under which suspects may be controlled and supervised, there may be “exceptional circumstances” requiring further action to be taken. There is also an intriguing phrase— 

“for the Government to seek Parliamentary approval for additional restrictive measures”. 

We then get into the issue of how the Government would seek that approval from Parliament. 

It has been my pleasure for the best part of the last two months to sit on the Joint Committee considering the draft Detention of Terrorist Suspects (Temporary

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Extension) Bills, which are the Government’s plan to make it possible to extend the maximum period of pre-charge detention from 14 to 28 days in exceptional circumstances. The proposal, which is relevant to our deliberations, is that if such circumstances arise, the Government would introduce primary legislation to enable those circumstances to be accounted for. 

Is the Minister thinking of something similar for the TPIMs regime? I am sure that he has already paid careful notice to the recommendations of the report, but I need to draw his attention to some of the difficulties that the Joint Committee encountered. That Committee is made up of Members from both Houses and from all parties, and we reached a unanimous view, so the seriousness of the recommendations should not be underestimated. We saw difficulties in producing primary legislation, literally at the drop of a hat, in exceptional circumstances. Some of the difficulties we foresaw would take me away from the issues at stake in the Bill, so I will not dwell on them. Suffice it to say that in those circumstances, if the Secretary of State came in search of those emergency powers, she would be unable to say much at all to Parliament about the circumstances in which she was seeking those additional powers. There would also be a risk that any subsequent trial is prejudiced by a debate about the extension of the pre-charge detention period. 

Those are issues of principle, but there are also issues of practicality, which apply if the Government are thinking of using fresh primary legislation to deal with the exceptional circumstances on TPIMs. The Joint Committee was seized of two particular practicalities. The first is if the House is not sitting, and the other is if the House had been dissolved before a general election. I will go through those issues in turn. 

If Parliament was sitting, it would be extremely difficult for the Home Secretary to introduce fresh primary emergency legislation as it would require a lot of reorganisation of the Houses’ business. Other important business would have to be set aside. However, it would be possible to do that, albeit there would be the risk of prejudice at subsequent trials. However, were the exceptional circumstances on the TPIM to occur in the middle of August, and the Minister sought to introduce primary legislation to extend the requirements of the TPIMs regime, he would face extraordinary difficulties. Some hon. Members would be enjoying holidays, others the delights of their constituency. A whole variety of activities would be going on. My right hon. Friend the Member for Blackburn (Mr Straw), who was at one time the Home Secretary, was clear in his advice to the Joint Committee about the time it could take to recall Parliament during a recess. 

If the Minister is thinking of bringing in new requirements under the TPIMs regime through fresh emergency primary legislation when there is a risk that the House might not be sitting, he needs to reflect hard on whether he is doing the right thing. 

Stephen Phillips:  I do not know the answer to those questions, but I suspect that the right hon. Gentleman and the right hon. Member for Salford and Eccles do. The simple question is this—in circumstances where the House is not sitting, is it possible for the Privy Council to act under the royal prerogative before the House returns? 

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Paul Goggins:  My understanding is that the Privy Council certainly could not implement primary legislation. That has to be done by both Houses in the normal way. Although it would be possible for emergency legislation to be passed very quickly, perhaps even within two days, that in itself means that the Secretary of State has to sit around waiting for two or three days to get Royal Assent before she could impose any further conditions. 

Stephen Phillips:  I appreciate that the Privy Council cannot act to pass primary legislation, but I presume that it could act to issue some form of executive order that would be subject thereafter to parliamentary scrutiny. As far as I am aware, those powers have never been removed, unless I missed it in the plethora of legislation that we had after 1997. 

Paul Goggins:  I can only say to the hon. and learned Gentleman that in all the different scenarios that we considered in the Joint Committee, the one that he suggests was not considered because it was not thought feasible. One issue that was discussed extensively was the idea of using the Civil Contingencies Act 2004 as a way of dealing with that situation. He may agree that that might be a rather blunt way, and a rather too expansive way, of dealing with this very specific issue of additional requirements to a TPIMs regime further to those contained in schedule 1 that, in the view of the Secretary of State, are required and for which she would have to bring primary legislation to the House. 

Dr Huppert:  It is quite an interesting topic of conversation. Presumably, if there is a delay of a few days that would not be such a problem, because there already are existing powers to detain without charge for 14 days. So there would be that period of 14 days before there would be any real concerns. Am I missing something? 

Paul Goggins:  I fear, Mr Caton, that you will prevent me from straying too far here. However, in terms of the pre-charge detention, of course it may not become apparent until some way through the investigation—perhaps on day 10, 11 or 12—that it is necessary to seek an extension beyond 14 days. Again, that was another practical issue that was considered. 

In relation to the Bill and the TPIMs regime, I do not think that the Home Secretary would feel very comfortable about there being a period even of three or four days in which conditions she thinks are essential could not be imposed because she did not have the power to do so as it is not listed in schedule 1. 

I pause here for a moment, Mr Caton, to remind the Committee that I am seeking to give the Secretary of State the power in the Bill to make those requirements—albeit subject to a higher test, which I will come on to shortly—without any need to come back to Parliament. She could do what she judges needs to be done and she could do it because we would give her the authority through the amendment that I am proposing. Indeed, that reflects the conclusion that was reached by the Joint Committee, which has recommended that the Home Secretary should have an order-making power. She would require the agreement of the Attorney-General and she would then be subject to some very strict conditions, but she would have the power to make the order. She would be accountable for it; eventually, she or her successor would have to come back to Parliament

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to account for the decision that was made. But that is a practical way of marrying the principles that hon. Members from various parties in this Committee are keen to press home with the practicality of ensuring that the Home Secretary has the powers that she needs. 

I must say to the Minister that I was disappointed yesterday by the Home Secretary’s initial response to the Joint Committee and the report that was published last Thursday. However, she gave one assurance to the House in questions yesterday. That was that a proposal would be introduced by the Home Office for an order-making power to be available for the Home Secretary in the period when a Dissolution of Parliament has taken place. Therefore I expect, at the very least, that the same order-making power in relation to TPIMs should be brought back as a Government amendment on Report so that there would be no doubt whatsoever that when Parliament is not sitting, because it has been dissolved, the Home Secretary would have a power to impose the conditions that she has judged to be appropriate. I expect the Minister to give us that assurance this afternoon. I am sure that he will be able to bring forward a perfect redrafted amendment—unlike mine. 

Finally, the issue of threshold, which is covered in proposed new subsection (2), is rather important. The review pointed out that the measures will be brought forward if and when it becomes necessary to have them in place to protect the public from the risk of terrorism. They would 

“only be imposed if the Secretary of State is satisfied on the balance of probabilities that the individual is involved in terrorism-related activity.” 

The Committee has discussed that. 

5.45 pm 

I accept that the move from reasonable suspicion to reasonable belief should be supported. We know from the evidence of Lord Carlile that in practice the level of reasonable belief has operated in relation to all control orders imposed so far. In practice, there is no big issue, but it is right that it should be in the Bill. I am proposing a safeguard so that the power is not used too lightly. There should be a higher threshold in relation to a decision to use the additional power that I am suggesting, and it should be on the balance of probabilities. There would be a requirement on the Home Secretary to meet that higher test before she imposed any new requirements under my amendment. 

Mr Caton, I am genuinely attempting to be helpful, based on the recent experience of a Joint Committee, which reached the conclusion that if the Government intend primary legislation to be the route out of the problem, they should think very hard about it, because there are real practical difficulties involved. Were the Minister to adapt my perhaps slightly flawed amendment and bring it back on Report, he would do all of us a service. Most particularly, he would do the Home Secretary a service, because she could then be confident that she would always have the powers that she needs when circumstances demand it. 

Mr Sutcliffe:  I do not want to detain the Committee for too long. I hope that the Minister will reflect on what my right hon. Friend has said. If the Minister is

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not prepared to support the amendment as drafted, because there may be technical issues around that, I hope that he will understand the spirit in which my right hon. Friend moved the amendment, given what the counter-terrorism review said. What my right hon. Friend said will help us all to support the Home Secretary in difficult decisions. The counter-terrorism review alluded to the fact that there may be a need for emergency powers. This seems a sensible way forward. 

As a former Minister, I know that sometimes there is a desire to dismiss the Opposition’s amendments, although when I was in that post I tried to be of assistance on the odd occasion, as the Minister will remember. The amendment was tabled in a spirit of helpfulness. If the Minister cannot accept it, I hope that he will reflect on the issues raised. 

Stephen Phillips:  I do not expect the Minister to address this point now, but the right hon. Member for Wythenshawe and Sale East has raised an interesting argument in the context of the mechanics of acting speedily or during a parliamentary recess. I would like the Minister to let the Committee know at some point whether the Government’s position is, as I think it ought to be, that the Crown retains a prerogative right to promulgate law, even in the absence of parliamentary consent, albeit that is a reserve power, which I do not think has been used since the Glorious Revolution. Given the world we now live in, it may prove to be a useful power as we move forward in the 21st century. I would like some assurances in due course. 

James Brokenshire:  I thank the right hon. Member for Wythenshawe and Sale East for the way in which he moved his amendment, even if I cannot accept it for some of the drafting reasons identified, as well as certain issues of principle which I will speak to. In saying that, I pay tribute to his work and that of others on the Joint Committee in providing pre-legislative scrutiny and examining the draft legislation that would increase pre-charge detention from 14 to 28 days in extremis and in limited circumstances. The report is interesting and we will certainly consider it carefully and respond in due course. He noted yesterday’s comment by the Home Secretary on the report, so he already knows that my right hon. Friend is prepared to consider how to act in the circumstances of the Dissolution of Parliament, albeit certain reserve powers might be contained in the Civil Contingencies Act. I saw him in the Chamber, he noted what the Home Secretary said and he has referred to it today. 

We will certainly consider the implications of the report for pre-charge detention in the draft legislation that we intend to publish on the enhanced TPIMs regime. Given yesterday’s comment by the Home Secretary, we will reflect on 14 days to 28 days in the context of this Bill and how that might operate in an enhanced TPIMs structure. I hope that the right hon. Gentleman will accept that we are carefully examining the report published by the Joint Committee and that he is reassured by the Home Secretary’s comment. I hope that stating that at the outset is helpful to him and the Committee. 

I must add that we see the enhanced TPIMs regime as the exception, not the norm. That came out clearly in the counter-terrorism review, which was highlighted by the right hon. Gentleman. Some of his drafting might

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make the enhanced regime more rudimentary and more common. That might not have been his intention, and I appreciate his comments on the drafting of his proposed provisions in amendment 125. However, the clear conclusion of the counter-terrorism review was that in certain circumstances it would be necessary for the Government to seek parliamentary approval for additional, more stringent measures to protect the public. We do not dispute the need to deal with such circumstances, but the approach taken by the amendment would differ, sometimes significantly, from the one proposed by the Government. We do not agree with his approach, notwithstanding my comments at the outset. 

The amendment would grant the Secretary of State a broad power to impose any measure that she considers necessary. We have been clear throughout the process that we consider it appropriate for measures available to the Secretary of State to be considered in advance by Parliament. That is the clear approach adopted in the Bill, and the approach that should be taken towards the enhanced measures that might be required in exceptional circumstances, when there is a serious terrorist risk that cannot be managed by any other means. Of course, given their purpose, the enhanced measures would be more stringent than those provided for in the Bill, which is also the intention behind the right hon. Gentleman’s amendment. 

The amendment also proposes that the enhanced measures would be available in a wide range of circumstances. The first suggested condition is a serious terrorist threat; although no definition is suggested in the amendment, the phrasing could arguably be invoked when the joint terrorism analysis centre threat level was at “substantial” or higher which, based on the experience of recent years and current assessments, would probably mean that the additional powers were immediately and generally available to the Secretary of State. Again, that might not be what the right hon. Gentleman intends, but that is perhaps a comment on the drafting. I respect the probing nature of his amendment in that regard. 

Our assessment, in general terms, is that the package of measures set out in schedule 1 is the right one. I have sought to explain to the Committee that as they will be combined with the additional resources that we are providing to the police and the Security Service, we do not see the need for further measures, other than in emergency or extreme situations, which we must consider, sadly, although it is not something that any of us would wish to entertain lightly. As the counter-terrorism review indicated, we believe that further measures might be appropriate in some circumstances. 

The second objection to the amendment is that given the more intrusive nature of the powers that we propose will be available under the enhanced TPIMs regime, our view is that it is appropriate that legislation should not be introduced or passed until it is needed, subject to the point that my right hon. Friend the Home Secretary made yesterday about the extension of 14 days to 28 days. Again, I commit that to the Committee to consider carefully in the context of the report and the comments that my right hon. Friend made yesterday. 

We consider that the standard measures will protect the public in normal circumstances and for the foreseeable future. The enhanced measures will be a contingency for an exceptional situation—as I have said, when we are faced with a serious terrorist risk that cannot be

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managed by any other means. Before such a situation arises—we hope that it never will—we do not consider it necessary or appropriate for such stringent powers to be generally available. Therefore, although I recognise the good intention behind the proposed amendments, I feel that our approach strikes a fair balance and provides greater safeguards while ensuring that we can protect the public. 

For those reasons, the Government resist the amendment, but given the comments made, I commit to the Committee to reflect on it further in the context of the report published by the Joint Committee and of the comments made by my right hon. Friend yesterday. 

Paul Goggins:  I will not detain the Committee for long. I am grateful to the Minister for his positive response to the points that I made. I was reflecting earlier with my right hon. and hon. Friends that as Ministers, we always appreciated officials’ careful drafting and helpful notes. We probably appreciate them even more now that we are sitting on these Benches, without helpful notes and careful drafting. I compliment the hon. Member for Cambridge; of course there should be an “and”, not an “or”. These things happen, but at least it has enabled us to explore the issues. I explore them, as do others, in a way intended to be helpful and to contribute to the security of the nation. 

I am grateful to the Minister for undertaking to consider the Joint Committee report in the context of the Bill’s provisions. I look forward with great interest to what might come forward on Report. In that spirit, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Schedule 1 agreed to.  

Clause 3 

Conditions A to E 

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

Mr Sutcliffe:  Briefly, we acknowledge the change in powers relating to reasonable belief and reasonable suspicion. I put it on record that we support the change, given Lord Carlile’s evidence about investigations under previous orders. 

Hazel Blears:  I have a question for the Minister about subsection (2), which sets out that condition B requires that 

“some or all of the relevant activity is new terrorism-related activity.” 

We have yet to come to my amendment 127 to clause 5. If the Committee were to agree to my amendment—which is fairly unlikely in view of previous discussions—that would have a consequential effect on the paragraph relating to condition B. 

6 pm 

James Brokenshire:  I am grateful for that clarification from the right hon. Lady; I appreciate that she is “rolling a pitch” that seems to relate to her forthcoming amendment. I will not stray into that territory yet.

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I thank the hon. Member for Bradford South for welcoming the provisions on the burden of proof and the conditions that would need to be satisfied: 

“Condition A is that the Secretary of State reasonably believes that the individual is, or has been, involved in terrorism-related activity”. 

That is a higher test than that required for a control order, which requires “reasonable grounds” for suspecting involvement in terrorism-related activity. We consider that the replacement for control orders should have a higher legal test as an additional safeguard, and that the test I have mentioned is appropriate. It is now also applied to the freezing of terrorist assets. 

Dr Huppert:  The Minister will recall discussions that we had on asset freezing and the standard of the test. On that occasion, I argued that we should have a test on the balance of probability, and act if we believed at least 50:50 that somebody was actually doing what we suspected. That was similar to the words used earlier by the right hon. Member for Wythenshawe and Sale East, and we have accepted that it would be an acceptable test to use in terms of legal parlance. Will the Minister comment on the suggestion that we change the words “reasonably believes” to “is satisfied on the balance of probabilities”? 

James Brokenshire:  We believe that the test under discussion is appropriate for standard TPIM provisions. It obviously reflects an enhancement in the requirements on the Secretary of State, but as I have already indicated and as the counter-terrorism review makes clear, if enhanced TPIM measures are required, the Secretary of State would need to be satisfied on the balance of probabilities. Again, that requires the higher test that the person 

“is, or has been, involved in terrorism-related activity.” 

Although I am unable to offer my hon. Friend comfort in the context of the TPIM measures, I can offer assurance in relation to the enhanced regime that is proposed, where the test applicable under those circumstances would reflect the balance of probabilities. 

Paul Goggins  rose—  

James Brokenshire:  I give way to the right hon. Gentleman, who came to the same point in his previous amendment. 

Paul Goggins:  I just want to clarify a point. I could not intervene on the hon. Member for Cambridge because he was intervening on the Minister. I concur with the Minister that the higher test clearly applies in the enhanced TPIM regime under exceptional circumstances. The increase to reasonable belief is a sensible proposal, with which I have no problem whatsoever. 

James Brokenshire:  I am grateful for the right hon. Gentleman’s support and the approach that has been taken on this issue. With those brief comments, I support the clause to stand part of the Bill. 

Question put and agreed to.  

Clause 3 accordingly ordered to stand part of the Bill.  

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Clause 4 

Involvement in terrorism-related activity 

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

Mr Sutcliffe:  Clause 4(1)(d) mentions 

“conduct which gives support or assistance to individuals who are known or believed by the individuals concerned to be involved in conduct falling within paragraphs (a) to (c);”. 

Perhaps the Minister can help me. I am slightly concerned about financial support and whether there are issues concerning individuals who get money for supporting people who may be involved in terrorist activity. I tabled an amendment on the matter, but it was not selected and the point may be covered elsewhere in the law. If the Minister is not able to answer me now, perhaps he will write to me later and let me have the details, so that my fears are allayed and the issue of financial support is covered. 

James Brokenshire:  My understanding is that financial support would be covered by the definition in clause 4(1)(d). That is my clear understanding of the legislation, and I am grateful to the hon. Gentleman for enabling me to put that on the record. 

Stephen Phillips:  I rise merely to say that the Minister’s understanding is correct. 

Question put and agreed to.  

Clause 4 accordingly ordered to stand part of the Bill.  

Clause 5 

Two year limit for TPIM notices 

Hazel Blears:  I beg to move amendment 127, in clause 5, page 3, line 6, at end insert 

‘save in exceptional circumstances where the Secretary of State certifies that the person subject to the TPIM continues to pose such a substantial risk to the public that it is necessary for the TPIM to be extended for a further year.’.

I am not sure whether I can live up to expectations at this time of the evening after a fairly lengthy Committee sitting, but I shall do my best. The amendment proposes that we should insert a condition at the end of clause 5(3)(b) that is similar to that in the amendment 125, which was tabled by my right hon. Friend the Member for Wythenshawe and Sale East. It is a probing amendment to try to ascertain and expose the difficulties in the measure, and the cliff edge that we will reach. A TPIM will be imposed, with all its proportionate and necessary measures to contain and control the activity of the person who is subject to it, but suddenly, after a period of two years, everything will be discharged and that person will be completely free to walk the streets, carry on with their behaviour and perhaps continue to pose a significant and substantial threat to the public’s safety. 

I want to explore with the Minister whether there is any possibility of providing for exceptional circumstances. Heaven forbid, there might be several terrorist attacks across the country, and the surveillance and monitoring capabilities of the security services and the police would be stretched to the limit. At the same time, two or three

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TPIM notices might be coming to an end and those individuals might be released into that set of exceptional circumstances that the country faces. In those circumstances, can we provide for an extension of the TPIM notice, albeit with modified measures, to allow at least for some supervision, surveillance and disruption beyond pure surveillance? 

I know that hon. Members on both sides of the Committee do not want TPIMs to be imposed indefinitely, and I do not pursue that argument. We all have tremendous qualms—I certainly have—about people being subject to intrusive measures for an indefinite time period, which does not sit well with our legal system or with people’s rights to have their case heard. I am concerned, however, that the TPIM notice can be extended for one year under clause 5, but unless there is evidence of new involvement in terrorist activity, it must come to an end. 

I think it was Lord Carlile who told us in the first evidence session that he initially supported the provision of two years, but said that there must be a two-year cut-off point. Yet, on reflection, when he looked at some of the serious cases, he felt that in a tiny number it might be necessary, because of the continued risk that someone posed, for an order to continue to apply without evidence of new terrorist activity. We should take seriously Lord Carlile’s views, because he is the only person who has reviewed every single control order and looked at every set of circumstances. Indeed, he has also discussed about the effect of the orders on the people who are subject to them. 

Dr Huppert:  I have followed the right hon. Lady’s argument with great interest. I am trying to understand how we could be sufficiently sure that someone posed a great risk after two years when, during that two-year period, there was no new evidence of any terrorist involvement. I find it hard to imagine that to be a realistic situation. I am very concerned about the measure becoming a rolling punishment for someone who was never convicted. 

Hazel Blears:  The hon. Gentleman takes an entirely principled position. I share his view that TPIMs should not be subject to automatic renewal year on year, irrespective of the risk that is posed. The purpose of TPIMs is to balance the risk with measures that intrude on people’s civil liberties, and to get that balance right. 

The key question is whether, over the period in which a TPIM is in place, the risk has reduced such that it is no longer necessary to have the restrictions. People often argue that if someone who has been subject to measures for two years, their associations and networks will have degraded, they will not have used their mobile phone to keep in contact, they will not have met people outside their home and their relationships with those with whom they plotted and planned will have broken down to such an extent that it would be safe to remove the TPIM to allow them to be subject, perhaps to surveillance, but not to the measures in the order. 

Tom Brake:  The right hon. Lady has stated that this is a probing amendment, so there may not necessarily be a detailed logic behind what she is advocating. She proposes to allow TPIMs to be extended for one year, but how will that additional year—over and above the two years that apply—make a difference, and did she consider an

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extension of more than one year to be certain that the networks she mentioned have been completely broken and that there is no risk of any further activity? 

Hazel Blears:  I put in a further year because I was conscious that people would argue that, without an end point for the TPIM, the suggestion would simply amount to an annual renewal. The key question is whether the networks have degraded to such an extent that we can collectively be assured that removing the TPIM notice will not expose the public to too high a risk, and to be assured that we have got the balance right. I put in a further year, because it is right to have such an end point. 

The hon. Member for Cambridge asked what kind of cases might fall within that definition. I draw to his attention the case of AM, in which a control order was imposed on a subject in June 2007 and came up for renewal in 2009. The evidence was scrutinised extremely closely by the High Court because, in relation to control orders, the courts are always conscious that they should keep in mind the minimum period necessary commensurate with public safety. Just as will be the case for TPIMs, control orders have to be renewed and subject to judicial scrutiny, and quite rightly so. 

In the case of AM, Mr Justice Wilkie looked at the material—it was open rather than closed material—about someone who was part of the cell planning the transatlantic liquid bomb plot, who was an al-Qaeda sympathiser and who had connections with others involved in such plots. Mr Justice Wilkie, who had an opportunity to hear AM speak on his own behalf and personally to assess him on the strength of his evidence, said that he was 

“highly intelligent, calm and cautious beyond his years. He was only prepared to say in oral evidence whatever was contained in his written evidence. He is strong minded and disciplined. In the face of the overwhelming evidence against him, his firm consistent denials are, in my judgment, simply untrue. They have been maintained with a degree of calmness and self confidence which, in my judgment, is consistent with the view of the Security Service that he is a disciplined, trained and committed person whose commitment remains unimpaired…He was and remains prepared to be a martyr in an attack designed to take many lives. He remains highly trained, security conscious and committed.” 

There was no evidence of new involvement in that case, but the depth of the risk that AM posed and the likelihood that he would immediately return to his networks and to active planning were such that the judge, who had heard the evidence and the individual himself, reached that assessment. That is a rare case perhaps, but it is a recent one, and the decision was made that that person was likely to revert automatically. The judge also said that 

“he has repeatedly, systematically and carefully lied. It is my judgment that he is an intelligent, capable, well trained individual who remains committed to terrorist activity.” 

In such a case, I would have concerns, particularly if we were in the exceptional circumstances to which my amendment refers, with the prospect of his TPIM coming to an end and of him being out on the streets without there being any measures under TPIM legislation to monitor his behaviour, may be an unacceptable level of risk when we seek to balance the rights of the individual with the right of the community to be protected. 

If, unfortunately—I hope that it does not happen—we faced exceptional circumstances, with multiple terror attacks and a small number of individuals who were, as

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in the circumstances of AM, deeply committed to resuming terrorist activity, would it be possible to make a further one-year extension? It would be perfectly proper to vary the conditions and look at them again, but I am concerned about the automatic cliff-edge provision that would cause the TPIM to come to an end, with no mechanism other than surveillance to enable us to control the activities of such people. 

6.15 pm 

Stephen Phillips:  I have been listening intently to the right hon. Lady’s argument, but there does not seem to be any principled basis to land on three years, rather than on two years, or 12 years or 50 years. What she is really saying, if she will have the courage of her convictions in her argument on AM, is that we should be able to roll over TPIMs for as long as the Home Secretary considers necessary. Three years is entirely arbitrary and, with the greatest respect, wholly unprincipled. 

Hazel Blears:  I think that the hon. and learned Gentleman’s descriptions are unfortunate. 

Stephen Phillips:  But they are accurate. 

Hazel Blears:  I say to the hon. and learned Gentleman that it is not often in this House that I have been accused of being unprincipled. I wish he would not pursue that line of argument. 

I recognise that Parliament must have an end point to this. It may well be that risk still continues, but it is right and proper that Parliament takes that view, because otherwise we would have a system of indefinite measures, which I would not want to promote. Whether it is a further 12 months or a further two years is a matter for debate. I tabled my amendment to find out whether the Minister shares my unease at the prospect in exceptional circumstances of a TPIM reaching a cliff edge, and in which someone may still be utterly committed, without evidence of new involvement in terrorist activity, to pursuing the plotting and the attack planning that he was doing before the TPIM was imposed. 

Paul Goggins:  Does my right hon. Friend agree that the great merit of her proposal is that it is specific? I tabled an amendment to add new paragraph 13 to schedule 1, which would provide catch-all arrangements for new conditions. Some people may disagree with it and think that it goes too wide. Others may have concerns that fresh primary legislation is too complex and too risky. My right hon. Friend, in a practical and principled way—she said that indefinite arrangements do not sit easily with our legal system—is seeking to do something specific that would deal with a precise set of circumstances in which the Secretary of State feels that it is absolutely essential that the conditions are applied for a further period. 

Hazel Blears:  As ever, my right hon. Friend is seeking to establish that sometimes there are practical considerations to which we have to have regard, as well as theoretical considerations about what we might like to see in the abstract. That is a practical proposition for a Minister faced with a set of circumstances that we cannot begin

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to contemplate, where our country is in dire straits and facing terrorist attacks. There may be circumstances in which he would be loth to allow persons subject to a TPIM to suddenly not be subject to any measures whatsoever. 

That takes into account the fact that many of the Minister’s arguments rest on the fact that the additional resources that he is giving to the police and security services will be sufficient to close the gap in increased risk. If he faces exceptional circumstances, with a number of simultaneous attacks on the country, the pressures on the Security Service and the police will be enormous. If I were making the decisions that he is making , I would want at least some flexibility so that, if a TPIM was about to come to an end and I had no prospect of renewal, I might be able to renew it for a limited fixed period of a year. At the end of that period, if the exceptional circumstances on terror attacks had abated, he would be able to make the decision. If they had not, a Secretary of State might want to come back to the House to introduce further legislation. At least the amendment would give him some flexibility in the exceptional circumstances that I have set out. It echoes many of the amendments that Opposition Members have tabled, and which give the Secretary of State flexibility in powers on relocation, access to mobile phones and computers, and the extension of a TPIM notice. In each circumstance, the Government are limiting the flexibility to cope with changing circumstances when national security is at issue. I genuinely believe that the amendments that we have tabled provide a little flexibility and discretion. In the case of a tiny minority of people and where the balance lies with the protection of the public, the Secretary of State would be able to take the necessary steps. 

Stephen Phillips:  I do not intend to detain the Committee very long. The right hon. Lady said something along the following lines. I am afraid I did not write quickly enough, but we can consult Hansard in due course. Towards the end of her argument, she said that there may be circumstances in which the Home Secretary would be loth to permit someone subject to a TPIM not to be subject to any measures at all. That was how I heard it. According to her argument, the circumstances in which the Home Secretary might be loth to permit a person to come off a TPIM may occur 23 months after the TPIM has been imposed, or at 35 months if the amendment is accepted. They might occur thereafter if a different amendment were made enabling the TPIM to run on and on. It is for that reason, I am afraid, that I do not support amendment 127, because there is an arbitrary cut-off point at three years. 

I described the argument—not the right hon. Lady—as unprincipled. It makes no more sense to have a three-year cut-off point than it does to have a two-year cut-off point. If we adopt the argument that the right hon. Lady urges on the Committee, we might as well have a five-year cut-off point or no cut-off point at all. The only point that I was making to the right hon. Lady was that if she actually believed the argument that she was advancing, she ought to have the courage of her convictions and develop it to it logical conclusion and say that there should be no cut-off point for TPIMs at all, so that they could be rolled over indefinitely. That was the point that

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I was making, and it was for that reason that I described her argument as unprincipled—in other words, for the simple reason that it is. 

James Brokenshire:  I appreciate the comments made by the right hon. Member for Salford and Eccles. I also note the comments made by my hon. and learned Friend the Member for Sleaford and North Hykeham. The right hon. Lady said she accepted that it was not right and appropriate to warehouse people on a TPIM indefinitely. I welcome that comment. Under the control order regime, it is possible to continue the control order without limitation, subject to annual renewal. The regime that we set out in the Bill requires a TPIM to be granted and the relevant tests that we have just considered in clause 3 to be satisfied. The TPIM is then in operation for a year and a further assessment on whether to renew it for a second year has to be made by the Secretary of State at the end of the first year. Unless new terrorism-related activity comes to light at the end of the two-year period, the TPIM comes to an end. It demonstrates our belief that the measures should not be used to warehouse people and should not be imposed indefinitely on individuals who have not been convicted of any crime. The Secretary of State may be satisfied by the relevant test, and can impose the TPIM at the outset. That test needs to be satisfied at the end of two years for new terrorism-related activity as defined in clause 3, if it is to be extended. 

That is important, because ultimately we want to see people coming off TPIMs in the same way that the previous Government wanted to see people coming off control orders, managing the process and preparations over that period. In some ways, having the two-year requirement focuses attention on the fact that this is intended to be a temporary measure, and that it is intended to allow time for such preparation to take place. 

I note the right hon. Lady’s anxiety, which underpins her desire to add a further year. Her amendment is drafted in such a way that it could be interpreted as a wish to add a further year and a further year and a further year. She said that that is not the intention, and I understand that, and that the amendment intends to provide for a maximum period of three years. Ultimately, she accepted that there has to be an end point. We have carefully considered what the duration of a TPIM should be and have come to the conclusion that two years is the appropriate period. Careful consideration and close working with the police and the security services will be required to assess and manage the risk posed by an individual at the end of the two-year period, or, in the right hon. Lady’s analysis, at the end of the three-year period. 

The two-year period is appropriate, as it strikes the right balance. It provides safeguards during the time period, enables preparations to be undertaken, and allows further extensions to be granted if there is new evidence of involvement in terrorism-related activity. It does not simply look back, as it recognises the important work that the security services and the police would need to undertake, during and after that period, to ensure that the appropriate support is provided. 

Mr Sutcliffe:  My right hon. Friend the Member for Salford and Eccles deserves an answer to the case that she raised of AM. The Minister seems to be saying,

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“That is that,” when we get to the two years, and that the security services will have to find another way, which is unspecified, to deal with the threat. In the judgment that my right hon. Friend read out, the judge made it clear that that individual would still be committed to the cause. We have not heard what the Minister would do in those circumstances. Perhaps we need a little bit more. 

James Brokenshire:  I am sure that the right hon. Lady can speak for herself, but my understanding is that the amendment seeks a single one-year extension. The amendment does not deal with the point made by the hon. Gentleman. We have made it clear that where the individual does not re-engage in terrorism-related activity and it is not possible to impose further measures, but where they are assessed as having the potential still to pose some form of risk, they will, of course, be managed by the police and the security intelligence agencies through other arrangements. The additional resources that we are providing for covert investigation will help to deal with that, too, in the same way that the measure would work at the end of the three-year period suggested by the right hon. Lady. That is a means of dealing with the issue at the end of the appropriate period. Otherwise, we would be led down the path of saying that we have to warehouse people. That is why there is some confusion as to whether it is warehousing, or whether there is an end point to a TPIM. We have set out clearly our position that we need an end point, with support, which is being provided and will continue to be provided, to manage risk at the end of the TPIM period. The hon. Member for Bradford South seems to be suggesting that continual arrangements should be in place, which differs from the point made by his right hon. Friend the Member for Salford and Eccles. I think that that represents a clear distinction between us. 

Mr Sutcliffe:  My right hon. Friend said right at the start that this is a probing amendment, because we want to tease out from the Government what happens in exceptional circumstances. To be fair, the Minister has responded by saying that there will be extra surveillance, which will rely on the additional resources. That is a fair answer. I think it is a tremendous risk, but the Minister thinks otherwise. 

6.30 pm 

James Brokenshire:  There may be a point of difference between us and, perhaps, between the hon. Gentleman and his right hon. Friend. I recognise that difficult judgments have to be made from time to time, and that they are made on a day-to-day basis by the security services and the police, even as we serve on this Committee today. I pay tribute to their work. We have considered the issue carefully and believe that, at the end of a period of time, it will be possible to deal with the risk and the issues in this way. 

The right hon. Lady highlighted the issue of extreme circumstances, and she might have been thinking about emergency situations. We have promised that the Joint Committee will be able to provide pre-legislative scrutiny of emergency legislation, so she might want to return to the matter at that time. We have considered the issue in the context of the TPIM regime, as constructed by the Bill, and believe that a two-year period is the right approach. 

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Hazel Blears:  I am grateful to the Minister for his last point, because it is exactly what I sought to achieve with this amendment. That is why I framed it in terms of exceptional circumstances. If the country faces multiple threats and if we are to introduce emergency legislation that might include enhanced measures in the TPIM regime, the prospect of people coming off a TPIM is a cliff edge. How we manage the situation is a genuine scenario that we ought to consider. It should also include what the transition should be when a TPIM comes to an end. I am grateful to the Minister for his comments on that matter. 

The only other issue that I have to deal with is that raised by the hon. and learned Member for Sleaford and North Hykeham. I am grateful for his clarification that he was referring to my amendment rather than me when he used the term “unprincipled.” Perhaps he will agree that the provision for a two-year TPIM is equally unprincipled, because it has an arbitrary cut-off point. The legislation frames it as a two-year order, rather than a three-year order. I am seeking to do a pragmatic and practical thing. I do not think that our British law can have a regime of indefinite detention without trial, as was the case with the Special Immigration Appeals Commission and the original detainees. That decision was overturned by the courts, which was the whole reason for control orders, and now we have TPIMs. 

My position has always been that we need to make a practical and pragmatic decision about where the limit is. At the end of three years, I may not be happy that the networks have degraded to such an extent that I feel comfortable, relaxed and calm about somebody coming off the measures on a TPIM. I might feel slightly more

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relaxed, however, than I would at the end of two years, if the country faced multiple attacks that would put immense strain on the security services and the police to carry out the kind of surveillance envisaged by the Minister. That is the basis of my amendment. 

Stephen Phillips:  I do not agree with the right hon. Lady. Presumably, she would feel more content that the networks were likely to have been degraded after four years, and even more content after five years, and even more content after six years, so why three years? 

Hazel Blears:  I do not think that the legislation will be framed according to the degree of my contentment with the measures. That would be difficult to draft. I am seeking to draw out from the Minister a recognition that sometimes somebody’s commitment to terrorism is not necessarily degraded simply by the expiration of a period of two years or, indeed, as the hon. and learned Gentleman has said, three years. However, a point has to be made that is commensurate with the principles of our legal system, as the hon. Member for Cambridge has said time and again. Those are matters of balance and judgment. I am grateful to the Minister for his comments, and on that basis, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Clause 5 ordered to stand part of the Bill.  

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

6.35 pm 

Adjourned till Thursday 30 June at Nine o’clock.  

Prepared 29th June 2011