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)
† 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
Public Bill Committee
Thursday 30 June 2011
(Afternoon)
[Mr Lee Scott in the Chair]
Terrorism Prevention and Investigation Measures Bill
Clause 10
Criminal investigations into terrorism-related activity
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Question (this day) again proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire): This morning, we were discussing clause 10, which relates to criminal investigations in terrorism-related activities, and I was seeking to respond to a number of points.
One issue that was raised was the relationship with the relevant senior police officer at the appropriate police force referred to in the clause. If there was an offence, it would still fall to a particular force to investigate it, and that force would manage the order. However, the national co-ordinator of terrorist investigations advises all forces, and will obviously continue to do so. The responsibility for investigating an offence therefore lies with the appropriate police force, so there is a clear line of responsibility. There will be engagement with the relevant senior police officer, or the chief officer, as they are referred to in the clause. The way in which the clause is intended to operate in relation to the relevant police force is therefore clear. There is a principle allowing for the delegation of responsibility, which was mentioned, and consultation will generally take place at senior official level, but the central state is kept closely informed of the outcome of such consultations.
My hon. and learned Friend the Member for Sleaford and North Hykeham is not in his place, but he raised the issue of service personnel.
Mr Gerry Sutcliffe (Bradford South) (Lab): I understand what the Minister says about the chain of command, keeping things under review and the Secretary of State being involved in pursuing prosecutions if possible. When I made the point about police commissioners, I was not being partisan in any way, but there will be an issue about them. Could the Minister tell us now, or perhaps later, what their role will be?
James Brokenshire: There has been quite extensive discussion in the House of the operational independence of chief officers of police and the role of the directly elected police and crime commissioner, and that debate is continuing in the other place. In that context, the hon. Gentleman will probably be aware of the concept of the strategic policing requirement and the obligations of
individual police forces to adhere to that requirement in respect of obligations and requirements that cross borders and require join-up. That issue has been given careful scrutiny in the House and continues to be given careful scrutiny in the other place, as the Police Reform and Social Responsibility Bill proceeds. It is in that context that the need for that join-up is understood, and the operational independence of the relevant police chief is part of that arrangement. I do not know whether that is of assistance to the hon. Gentleman.Mr Sutcliffe: It is, and I thank the Minister for his explanation. He has talked about the additional resources that will go to the security forces because of the terrorism prevention and investigation measure notices, but I am concerned about how things will work if those resources come out of the local police force’s resources. The elected police commissioner will want to have a view about that. Have the Government thought about what involvement the elected police commissioner will have?
James Brokenshire: That touches on a broader debate about the strategic policing requirement, because the same arguments could be made in respect of other types of organised cross-border criminality. Counter-terrorism and the work that is undertaken to fight it are one part of the work on the strategic policing requirement. Ultimately, the police have operational independence to act in the way they deem appropriate, cognisant of the responsibilities they have in securing and delivering national security. Such matters will be addressed through the strategic policing requirement.
My hon. and learned Friend the Member for Sleaford and North Hykeham, who is now in his place, asked us to look at whether the relevant prosecuting authority for service personnel was dealt with in clause 10, and I thank him for highlighting that point. We will certainly consider that further in the context of the Bill, so I am grateful to him. The provisions in the clause are important as they will aid and assist investigation. We therefore contend that the clause stand part of the Bill.
Paul Goggins (Wythenshawe and Sale East) (Lab): I was hoping that the Minister would offer a response to my specific point about when a chief constable responsible for the continuing investigation is a different chief constable from the one responsible for the supervision of the individual in the agreed location. In my speech, I pointed out that chief constables may have slightly different priorities—one may want a slightly looser set of conditions; another may want a slightly tighter set of conditions. I asked how that conflict might be resolved, as we would not want the Secretary of State to involve herself in operational policing. I hope that the Minister will take the opportunity to respond to that point.
James Brokenshire: It is always the way that points are sometimes inadvertently not addressed when we have a debate that straddles the morning and afternoon sitting. I apologise to the right hon. Gentleman; it was my intention to respond to the point that he raised this morning.
We do not see a conflict. When seeking to attain a TPIM, there is join-up between the security services, the police and the advice that is given to the Secretary of
State in seeking to obtain the order, to set the conditions and attach them. A lead force will be responsible for the investigation of underlying terrorism-related activity that may be ascribed to an individual. It will have responsibility for the consultation duty that is laid out in clause 10. Ultimately, however, the police have a duty to protect the public too, not just the Secretary of State. In our experience of control orders, that tension has not existed. Ultimately, it is for the protection of the public that everyone seeks to act. Therefore, practically, in terms of the experience of control orders, and in the application of the structure in connection to TPIMs, we do not see a conflict. That has not arisen, and we do not envisage it arising, because ultimately the Secretary of State, the police and all of us wish to see prosecutions. Equally, circumstances arise where the protection of the public is the driving factor, so there is that alignment.Paul Goggins: The Minister must be correct to assert that that is less likely to be a conflict under TPIM than it may have been under control orders, if I understand his argument, because it is my submission that the fact that there is no power of relocation should mean that the same chief constable responsible for the investigation would probably be responsible for the supervision of the offender. In a case where there were different chief constables, would the chief constable responsible for the ongoing investigation be involved in discussions about the conditions that the Secretary of State may wish to impose?
James Brokenshire: At the outset, the Secretary of State sets out the conditions of a TPIM notice based on the assessment provided to her by the security services and the police. That is subject to an ongoing assessment of its reasonableness and appropriateness. The right hon. Gentleman will be aware of the continuing duty on the Secretary of State, which we will come on to in clause 11, to keep under review whether certain conditions are met. I have no doubt, therefore, that the Secretary of State will receive continuing advice. We anticipate that there will be a join-up between the security services and the police, and they will advise and make appropriate recommendations to the Secretary of State on a continuing basis. We do not see the tension that the right hon. Gentleman suggests might occur. The join-up in the arrangements already exists. We envisage that it will continue and will deliver on the national security agenda. I hope those comments will reassure the right hon. Gentleman and that clause 10 will stand part of the Bill.
Clause 10 accordingly ordered to stand part of the Bill.
Clause 11
Review of ongoing necessity
Question proposed, That the clause stand part of the Bill.
Paul Goggins: I want to ensure that the Minister gives us a full explanation. In response to my question, he just said that he was looking forward to discussing clause 11 and explaining how the review procedure will operate. What format will it take and how regular will it be? The Committee would welcome further information.
James Brokenshire: I am happy to provide that information.
Clause 11 places a duty on the Secretary of State to keep under review the ongoing necessity of both the TPIM notice itself and the measures specified in it— conditions C and D. In that context, I refer members of the Committee back to clause 3, which sets out those conditions. This requirement writes into legislation the effect of existing case law. In that regard, I refer right hon. and hon. Members to the Court of Appeal case of the Secretary of State for the Home Department v. MB. We wish to remove any doubt that, while it remains in force, a TPIM notice is assessed to remain necessary at all times. If it is assessed that the notice itself or any of the specified measures are no longer necessary, this statutory duty will require either the revocation of the notice or the removal of the particular measures.
As well as frequent ad hoc reviews, there will be a formal quarterly review of each case in which measures are currently in force. This will bring together all relevant departments and agencies involved in imposing and maintaining terrorism prevention investigation measures. The purpose will be to ensure in each case that the TPIM notice and the measures specified in it individually and cumulatively remain necessary and proportionate, given the latest intelligence and other assessments. This review will monitor the impact of the restrictions on the individual, including any mental or physical health issues and any impact on their family. If the objective of the measures—the disruption of terrorist-related activity—is achieved and the threat that the individual poses is reduced sufficiently, or the measures are otherwise no longer necessary, the notice would be revoked. The same goes for any specific measures.
The review will also consider whether there could be other measures for satisfactorily managing the risk posed.
Stephen Phillips (Sleaford and North Hykeham) (Con): When the TPIM measure is imposed, there is essentially a review by the court. As the Minister has now told us, although I do not think it is written into the legislation, it is contemplated that there will be quarterly reviews to check that conditions C and D remain met during the currency of the TPIM measure. In the light of what the Minister has just said, if that is not the case, or if there are changes, alterations to the specific measure that has been imposed can take place. There is a slight discrepancy between the regular reviews and the situation in which the TPIM was initially imposed, because the review mechanism is not, as I understand it, subject to review by the court, notwithstanding the Minister’s comments from which it is contemplated that there may be alterations as a result of which changed circumstances make an alteration to the TPIM necessary.
It may be impossible— it may be too expensive or inappropriate—but I wonder whether the Government have considered regular reviews by the courts when there has also been an alteration in circumstances, given what we are doing in terms of civil liberties and the rights of the subject.
James Brokenshire: The case law sets out the underlying duty to which I referred. In the case of MB, the judgment stated that
“it is the duty of the Secretary of State to keep the decision to impose a control order under review, so that the restrictions that it imposes, whether on civil rights or Convention rights, are no greater than necessary.”
That is the context for control orders, and we have learnt from the court experience and jurisprudence that has grown up around them. We seek to imply those lessons and to apply them formally in the legislation, which is one reason why clause 11 is framed in that way.
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It is worth pointing out to my hon. and learned Friend that, given any alterations to the TPIM notice, the individual has the right of appeal under clause 16. Similar points that he or other hon. and right hon. Members might make can equally well be picked up under clause 16, when we reach it.
The work of the control order review group on control orders and the relevant measures is worth recognising. Something we did not discuss in detail at the evidence session, but to which it is worth referring the Committee, is what Lord Carlile said in his most recent annual report on the operation of the Prevention of Terrorism Act 2005. He commented positively on the work of the control order review group, and on how it was organised and methodical. I pay tribute to the group and its work on the existing control orders regime. We will therefore learn from experience in the future application of the TPIMs regime.
With those comments, I hope that the Committee will be minded to allow the clause to stand part of the Bill.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Variation of measures
Question proposed, That the clause stand part of the Bill.
Paul Goggins: I have a couple of questions for the Minister, whose clear explanations to the Committee we appreciate.
First, I am curious to know whether there are any limits on the extent of the variation that the Secretary of State may apply in any particular circumstances under subsection (1)(c). If the Secretary of State decided to add an extra place to the list of those from which the person was to be excluded, or to bar an association with one additional individual, we would understand that that was a minor variation. However, if the information available to the Secretary of State caused her to vary the TPIM substantially with many exclusions, many bars on associations and other measures, would she have to apply for a new TPIM, or could she simply vary the existing one? It is important for us to know whether the process is only for fine tuning a TPIM. If substantial changes are required, will it be necessary to start the whole process again?
Mr Sutcliffe: When the Minister responds to my right hon. Friend’s question, he might want to deal with how the two-year limit on the time scale for a TPIM would be affected. If there is a variation, how will that affect the time limit?
Paul Goggins: I am sure that the Minister will want to address that pertinent point.
My second question concerns subsections (2) and (3). Elsewhere in this carefully layered process of applications for permission, directions hearings, review hearings and so on, clear time scales are laid out. The directions hearing must take place within seven days, for example, and the review hearing must be held as soon as practically possible. Subsections (2) and (3), however, include no time limits, as they simply state:
“The individual to whom a TPIM notice relates may make an application to the Secretary of State for the variation of measures specified in the TPIM notice”,
“Secretary of State must consider an application made”.
The provisions do not specify how quickly she must do that or set a time period. Does the Minister think that something is missing, because if the time scale were tighter, the individual suspect and the Secretary of State would know the time period under which they were operating?
James Brokenshire: The right hon. Gentleman suggests that a variation might create the need for a new TPIM. It is worth looking back to our debates on clauses 3 and 11 with regard to what the Secretary of State must be satisfied about. Obviously, tests are applied at the outset for granting a TPIM. To secure the TPIM in the first place, the Secretary of State has to be satisfied that the person is engaged in terrorism-related activity, which is condition A. Subsequent conditions then apply, including condition C, which is that
“the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public”,
and condition D, which is that she
“considers that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity”.
After the first hurdle of the Secretary of State being satisfied that a TPIM is required, there is the question of the terms and conditions or restrictions that sit alongside it. It is important that the Secretary of State has the ability to monitor and to consider in the context of clause 11 but, equally, that she may consider broader security issues and vary the measures. Clause 12 will retain the flexibility for the Secretary of State that, given their previous comments, right hon. and hon. Members will see as necessary and appropriate.
If the Secretary of State is minded to make a variation, it does not mean that a new TPIM is required; she can simply vary the conditions attached to the TPIM within the scope of schedule 1. Obviously, if other information comes to light, that might lead to prosecution or other steps. If a TPIM is granted, conditions will be attached to it and they can be varied under clause 12.
Bob Stewart (Beckenham) (Con): May someone on a TPIM apply for a variation of the measures? When I used to watch certain individuals, one of their key ways of avoiding being observed too closely was changing their location every night. Under the regime, does someone subject to TPIMs have the right to say, “I will be here today, there tomorrow and somewhere else on Thursday. I don’t know where I will be on Friday, but I will be within the locality”? Is that acceptable under TPIMs? Will our law-making stop that kind of action, because otherwise watching will be a real bore for the security
services? If someone is going to be watched, they should have to stay in a certain place and not skip every night, so that is one of the loopholes that we must avoid.James Brokenshire: My hon. Friend has huge practical experience of the issues. The point is that the TPIM regime enables the Secretary of State to impose the requirements set out in schedule 1.
The right hon. Member for Wythenshawe and Sale East also made a point about an application that may be made by the individual subject to a TPIM. In such cases, it would be open to that individual to come forward, as set out in clause 12(2). Clause 12(3) states:
“The Secretary of State must consider an application made under subsection (2)”,
so there would be an obligation to consider the case. Public law would mean that the Secretary of State must consider a variation request expeditiously, although the complexity of the request may affect the speed of that consideration. If an individual were to apply and say that certain changes were required, that might necessitate careful consideration by the Secretary of State in conjunction with the police and the Security Service. I would hesitate about acceding to a request for a specified time frame in which the matter should be considered, and I would prefer to rely on broader public law principles to ensure that the matter is considered fairly and in the appropriate time scale required for proper consideration.
Paul Goggins: It is probably fair to say that I have not made many speeches in favour of the suspect and their situation, but the Minister might want to look at the words
“as soon as reasonably practicable”
in clause 8(6). It might be as well to add those words to clause 12. That term does not define a specific number of days, but it puts some onus on the Secretary of State to consider the case.
James Brokenshire: I hear the right hon. Gentleman’s point. It is intended that broader public law principles will apply. In that context, broader case law might be relevant, and the complexity of an individual case might be significant. In recognition of his point, however, I will think about whether a further requirement or duty is needed and take advice on the matter.
As the right hon. Gentleman will know, when it seems that a fair or interesting argument has been put forward, it may be that after further analysis and examination, additional issues may arise, such as complexities concerning case law. Given the fair way in which the point was made, I will certainly consider the matter—albeit without obligation, as the right hon. Gentleman will appreciate. Such language has read-across. This is a different context from the earlier clause, but I will reflect further on the issue.
Under clause 16, the Secretary of State must justify the terms of any variation before the court if the case is challenged, so when we reach to that clause, we may consider appeal rights further. With those comments, I trust that the Committee will be minded to support the clause.
Clause 12 accordingly ordered to stand part of the Bill.
Clause 13
Revocation and revival of TPIM notices
James Brokenshire: I beg to move amendment 130, in clause 13, page 7, line 32, leave out ‘later’ and insert ‘different’.
The amendment makes a minor but important change to clause 13. Clause 13(2) currently states:
“The revocation of a TPIM notice take effect when the revocation notice is served or, if later, at the time specified for this purpose in the revocation notice.”
That would cover the majority of cases in which a revocation notice is served, since in most circumstances, it would not be appropriate to revoke something that had impacted on an individual with effect from an earlier date. We believe, however, that that does not provide sufficient flexibility for cases when the court directs the Secretary of State to revoke a notice with retrospective effect. The intention is that the court has the power to make such a direction. It has such a power under the control order regime, and we do not intend to reduce that power under the TPIM regime. I assure the Committee that the normal practice—when the Secretary of State revokes an order because she has reached the view that it is no longer necessary—will remain. The revocation notice will take effect when the notice is served or at a specified time.
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The amendment will ensure that there is provision to deal with the rare cases when revocation from an earlier date may be necessary. That is likely to happen only in cases when the Secretary of State is directed to revoke a TPIM notice by the court. An example of that would be if the court concludes that while it had originally been necessary to impose a TPIM notice on an individual to protect the public from a risk of terrorism, that notice had became unnecessary at some point during its duration. The court may then direct the Secretary of State to revoke that order from that date.
Stephen Phillips: Given the Minister’s explanation of the amendment, it seems that clause 13(2) could simply specify that the revocation took effect at the time specified for this purpose in the revocation notice, thus placing an obligation on the Secretary of State to put a time in the revocation notice, which would be sensible. I will certainly not oppose the amendment, but I wonder whether further consideration could be given to the matter as the Bill continues its progress. Having a revocation notice that takes effect on service seems possibly unnecessary and undesirable. There may be disputes about when service takes place. The Government might find it more sensible to have a time set out in the notice as to when the revocation takes effect.
James Brokenshire: The amendment changes the word “later” to “different” in subsection (2). I underline that it is intended to address some comments that have been made in the High Court. We believe that it is necessary to ensure that there is sufficient flexibility within the operation, given that when the comments were made, the court sought to apply the revocation from a different time, rather than a later time. We believe that the
amendment addresses the necessary requirements. I will read my hon. and learned Friend’s comments with interest to satisfy myself that there is not some further technical point that we may need to consider, but I am advised that there is not.Stephen Phillips: My only concern—I do not know the answer to this, because I cannot remember it from my perusal of the Bill—is about when service takes place. Is personal service required? Is ordinary service sufficient? Does service take place at the time that this is posted through someone’s letter box? If personal service is required, is it sufficient if it is served on someone’s personal representative? Is it possible to obtain an order for substituted service from the court? The Government would not get into any of those difficulties if they simply set out a time at which the revocation takes effect. The only point that I am making is that the subsection should be amended to make it clear that revocation takes effect from the time set out in the notice.
James Brokenshire: I am advised that service can take place, as would often be the case in other circumstances, through the solicitor and so on. I am advised that the amendment deals with the relevant points appropriately. There is other provision in the Bill on this. I direct my hon. and learned Friend to clause 24, which might be relevant to this issue, and particularly on the service of notices on individuals, revocation notices and so on.
We believe that the measure deals appropriately with the matter. As I have said, however, I will read the comments of my hon. and learned Friend the Member for Sleaford and North Hykeham, and if there is any need further to address his point, no doubt I will be advised accordingly.
Question proposed, That the clause, as amended, stand part of the Bill.
Hazel Blears (Salford and Eccles) (Lab): I have an exploratory question on how the clause will operate. Under clause 13(6)(a), the Secretary of State may agree a revival notice when a TPIM has expired and has not been extended for a further year under clause 5(2). I am unsure how that measure will interact with clause 13(9), which states:
“A TPIM notice which is revived…comes back into force when the revival notice is served or, if later, at the time specified for this purpose in the revival notice”.
Could that allow a TPIM notice to be served for a year, to expire, and then, after six months, to be revived by the Secretary of State on the grounds set out in clause 13(6)(b) if conditions A, C and D were met? The measure does not require condition B to be met, which provides that there must be new terrorism-related activity. We might have information about terrorism-related activity and serve a TPIM notice for a year. We might then have a fallow period for six or nine months. After that, could we revive the TPIM notice without having to show that condition B applied?
A core argument for the two year cut-off point might be that by the end of two years someone’s networks and associations have degraded to such an extent that the Secretary of State is content for TPIMs to come to an
end and surveillance to be enough. It would therefore appear contradictory to allow for an open-ended situation if the first TPIM had not been extended for a second year. In theory, we could come back five years later, without needing evidence of new terrorism-related activity, and use the same evidence to revive the TPIM notice. Will the Minister say whether such circumstances are envisaged? Perhaps five years is a bit extreme, but I can well envisage a six-month fallow period of intensive surveillance, after which people might seek to revive a TPIM notice without evidence of new terrorism-related activity because the surveillance has been insufficient.Stephen Phillips: I wish to raise two not entirely unrelated points, which develop my comments on clause 11. First, because there is no requirement to satisfy condition E, there will be no subsequent supervision by the court of the revival of the notice. Notwithstanding that, the Secretary of State would be seeking to revive a notice that had been revoked and removed, which would mean that she had previously concluded that it was unnecessary. Might the Government consider giving the court the same supervisory role at that stage, which would be consistent with the Bill’s principles, so that the Bill hangs together?
Secondly, subsection (3) gives the individual the right to make an application to the Secretary of State for the revocation of the TPIM notice. Again, I understand that at that stage there is no court supervision, whereas the TPIM notice under clause 11 will be regularly considered by the Secretary of State. It is entirely possible to contemplate circumstances in which there is a regular review by the Secretary of State, who comes to the legitimate conclusion that the TPIM notice should continue. Given a change in circumstances, however, that conclusion might be open to challenge. However, it would be open to challenge only if the individual knew the change in circumstances, but they will not, because they will not have access to the same information as the Secretary of State. I am concerned, in the context of subsection (3), about the fact that because under clause 11 there is no regular court review, the individual, who might have had a right to apply to revoke the TPIM notice, will not know that, because the evidence available to the Secretary of State on the regular review is not available to him or her, and there is no court oversight during the process. The Government need to consider that, given the way in which the Bill—and indeed the previous regime—interferes with the liberties of the citizen.
James Brokenshire: It may help if I set out some of the background. Clause 13 makes provision for the revocation of a TPIM notice, and for the revival of such a notice in particular circumstances. The individual who is subject to the notice may at any time apply to the Secretary of State for it to be revoked, and the Secretary of State is under a duty to consider such an application.
The Secretary of State may also revoke a notice at any time, whether or not such an application has been made. That is important as it ensures that, where a notice is no longer necessary, it can be revoked without delay. As we have already discussed, the Bill makes it clear that a notice and its constituent measures can and should remain in place only when necessary, with a requirement for a review of ongoing necessity, as set out in clause 11, being a key element of the process. It is
vital that we can respond flexibly to any change in circumstances, or any assessment of risk that may affect the need for the notice.There are some circumstances in which a notice may no longer be necessary and may therefore be revoked, or where a notice may subsequently become necessary again. An example would be when an individual who was subject to a TPIM notice was detained in custody, at which point the measures might cease to be necessary. In such circumstances, it would only be right that the notice be revoked. However, if the individual were subsequently released from custody, perhaps after only a few months, and still posed a threat, the measures might again become necessary to protect the public.
To ensure that there is no public protection gap in those circumstances, subsection (6) provides a power to revive a previously revoked notice where conditions A, C and D under clause 3 are met. Those conditions require the Secretary of State reasonably to believe that the person is or was involved in terrorism-related activity, and to consider that the notice and each of the measures are necessary.
The individual would have the right of appeal to the High Court against any decision by the Secretary of State to revive a TPIM notice. That is provided by clause 16(1), and I direct my hon. and learned Friend the Member for Sleaford and North Hykeham to that provision. I am happy to examine the appeal rights in clause 16 if there is something that has not been addressed, but in framing that clause we always envisaged that the matter would be dealt with as I have explained.
The power of revival does not apply to a notice revoked on the direction of the court. Clause 14 provides a separate power for a new replacement notice to be imposed in such circumstances if necessary. In those circumstances, not only must conditions A, C and D be met, but the court must grant permission before any new measures may be imposed.
The power provided in subsection (6) allows the Secretary of State to revive a notice that has expired after 12 months. That is intended to cover a situation in which a notice is imposed, as all notices will be, for 12 months, at the end of which period it is not necessary to extend it for a further 12 months. In addition, because those circumstances have come about at the time at which the notice is due to expire, it is allowed to expire, rather than being revoked.
Such a situation is likely to be rare, but could arise, for example, if an individual were taken into custody at the point when the TPIM notice would otherwise have been extended for a second year. In such a case, it might subsequently become necessary to revive the notice if the individual was released from custody but continued to pose a threat at that point. Again, conditions A, C and D would have to be met for that power to be exercised.
A notice revived under clause 13 does not start the clock on a new two-year time limit. To ensure that the time limit—a key part of the Bill—is not circumvented, subsection (9) makes provision for the duration of a revived notice. In the case of an order that expired at the end of the first year, the revived TPIM notice would be in place for a full second year.
In the case of an order revoked part-way through a year, the revived notice would be in force for the length of time for which the notice would have remained in
force if it had not been revoked. Therefore, if the notice had been revoked after four months, the revised notice would be in force for eight months. In effect, the clock will be stopped at the point of revocation and will continue where it left off if the notice is revived. That will ensure that an individual is not subject to the measure for more than two years without evidence of further engagement in terrorism-related activity. It will also ensure that the public can be protected by terrorism prevention and investigation measures for as long as necessary, subject to the two-year time limit.1.45 pm
Hazel Blears: The Minister has given us an illustration in which a notice might expire and then be revived when someone is taken into custody. Clearly, if someone is in custody, the public are being properly protected. The scenario that I put to him was slightly different and I would welcome his view on that. Let us say that a notice for one year expires and is not renewed at that point. There may then be a period of surveillance, perhaps for six to nine months, which results in no new evidence of involvement in terrorist activity. However, it is still open to the Secretary of State to revive the TPIM for a further year. The effect will be to have a protective regime for longer than the two-year cut-off point in the Bill. That is contradictory to some extent, if the main reason for having a two-year cut-off is that by the end of two years, the networks will have degraded and the association will not be strong, so the public will be safe. However, the Minister is contemplating a longer period without new evidence of involvement in terrorist activity.
James Brokenshire: I hear the point that the right hon. Lady is making. I have given a scenario where we believe that the measure is appropriate for someone who is in custody and released in that way. While we are always able to consider scenarios in Committee, I think she accepted that that was unlikely to happen, because of the requirement in condition C that it must be “necessary”. That is one of the factors underlying the revival provisions in the Bill.
It would seem strange if someone had been out in the community in the way that she suggested and had their TPIM, which was no longer deemed necessary at the end of the year, revived or retriggered at a later point. I will reflect on the point made by the right hon. Lady. The provisions are quite technical, and my hon. and learned Friend the Member for Sleaford and North Hykeham has highlighted some technical points. We want to ensure that the Bill is as it needs to be. In the spirit in which I dealt with the matters raised by the right hon. Member for Wythenshawe and Sale East, I will look at the scenario raised by the right hon. Member for Salford and Eccles. There is a need for flexibility for the reasons that I have outlined, but I will consider her example further.
Stephen Phillips: We have just had a statement in the House regarding bail, which unfortunately Committee members could not attend. We all thought that we knew how the Police and Criminal Evidence Act 1984 worked regarding the revival of police bail, particularly when there was no new evidence. We have exactly the same problem in subsection (9)(b)(ii), which refers to
“the period of time for which the TPIM notice would have continued in force if it had not been revoked”.
That phrase can bear two meanings; either the clock stops and starts again for the period remaining on the TPIM notice, or it refers to the original time at which it expired. That ambiguity must be removed. Otherwise, we will end up in precisely the same position as we now find ourselves on police bail, which may—I do not know what my right hon. Friend the Minister for Policing and Criminal Justice said—require emergency legislation next week.
James Brokenshire: I am grateful to my hon. and learned Friend for the insight that he is always able to provide. I can assure him that we will consider the issues carefully. As he will know, some of these matters are being considered carefully in a broader context. I accept the advice this morning from your co-Chair, Mr Scott, not to stray into those issues. Certainly, I want to be assured that there is no crossover or any other issues that may arise, so in that context I am grateful to my hon. and learned Friend for bringing this to the Committee’s attention. If any ambiguity can be construed, we will look at it further to ensure that it does not arise.
Clause 13 , as amended, accordingly ordered to stand part of the Bill.
Clause s 14 to 15 ordered to stand part of the Bill.
Clause s 16 to 17 ordered to stand part of the Bill.
Clause 18
Proceedings relating to measures
Question proposed, That the clause stand part of the Bill.
Mr Sutcliffe: This clause and schedule 4 are substantial. They relate to the measures, open and closed material, and the information that is disclosed to the individual. I accept that these provisions have been lifted from previous legislation, but I would appreciate it if the Minister outlined any changes or any aspects that were not appropriate to include in the previous legislation.
Dr Julian Huppert (Cambridge) (LD): It is a pleasure, Mr Scott, to serve under your chairmanship. I do not want to interrupt our rapid progress, but I would be grateful for a little clarity on a couple of points. If I had had years of legal training, I would not need to raise such points. Subsection (1) states:
“No appeal shall lie from any determination of the court in TPIM proceedings, except on a question of law.”
Will the Minister clarify what that rules out? As I understand it, normal appeals in criminal law can be on a question of law or if there is new evidence. Presumably, if there was new evidence, one would want to still have an appropriate mechanism to check that that actually fits in. I also want to be sure that the clause would not mean that there was not access to the Human Rights Act 1998 and the European convention on human rights. I particularly want the Minister to confirm that article 6 rights would not be prejudiced. I am sure that that is the case, because the Secretary of State would in any case be obliged to act in compliance with those measures.
I will mention schedule 4, if I may. We had some interesting comments from the special advocates.
The Chair: Order. The hon. Gentleman cannot speak to schedule 4 until we debate it. He must stay on clause 18.
Dr Huppert: In that case, I will wait for the Minister to answer my questions on the clause.
Stephen Phillips: It is right that clause 18(1) follows the provision under the 2005 Act. My right hon. Friend—I am referring to the right hon. Member for Salford and Eccles, friend though she is—will correct me if I am wrong about that. It is a harsh thing to deprive an individual whose liberty has been restrained of the right of appeal, allowed by a judge of first instance, to the Court of Appeal, and indeed thereafter, except on a question of law. Will the Minister undertake to look at the matter? Perhaps I may respectfully suggest that a more sensible limitation would be that no appeal should lie on any question other than a question of law, without the permission of the first-instance judge. There should be an automatic right of appeal on a question of law, and a right of appeal with permission from the first-instance judge on a question of fact, or on a mixed question of fact and law.
James Brokenshire: I will try to address those comments while keeping in order. Some points relate to this clause, but others read across to schedule 4. I will do my utmost to ensure that I do not fall foul of proceedings, as I know that you will call me to order, Mr Scott, should I stray in that regard.
My hon. and learned Friend the Member for Sleaford and North Hykeham and my hon. Friend the Member for Cambridge highlighted the fact that clause 18(1) states:
“No appeal shall lie…except on a question of law.”
That is a concept with which my hon. and learned Friend and my hon. Friend will be familiar, and it reflects safeguards that exist in other circumstances. On the specific point raised, if the individual finds fresh evidence in relation to the proceedings that would, for example, undermine the case deriving from the fact that the Secretary of State has reasonable belief in the individual’s involvement in terrorism-related activity, he or she may request the Secretary of State to revoke the notice under clause 13(3). If the Secretary of State refuses, the individual has a right of appeal against that decision—in other words, we get into the debate on clause 16(4). Such a right is applied in that way under clause 18, but under those circumstances, a mechanism already exists. I hope that is helpful to my hon. and learned Friend and to my hon. Friend.
Stephen Phillips: I quite accept that if new evidence comes to light, the individual has the right to go back to the Secretary of State and, as was correctly pointed out earlier, they have the right to go to the court. Appeals are concerned with circumstances where a judge has got it wrong; this is different, as we are contemplating a situation in which the Secretary of State gets it wrong and then the judge of first instance gets it wrong. The Bill deprives people of fundamental rights and liberties. In those circumstances, I suggest that with the permission of the judge—who may well say that the facts of the
case are difficult—the individual subject to the TPIM should have the right to go to the Court of Appeal and, if necessary, to the Supreme Court.James Brokenshire: Let me talk through the issue in relation to the law. Subsection (1) makes it clear that an appeal may only be brought on a point of law from any determination by the High Court—or its equivalent in Scotland—in relation to TPIM proceedings. That does not affect the judicial safeguards set out elsewhere in the Bill such as the initial court permission stage, the full review and the various rights of appeal. We have already discussed the test that will apply to those proceedings.
In the context of the full review and the various rights of appeal, the High Court will substantively consider the merits of the Secretary of State’s decisions in each case. A subsequent appeal from the determination of the court of first instance in those proceedings—the High Court—is limited to an appeal on a point of law. That includes an appeal brought by the Secretary of State, as well as by the individual subject to the measures. We judge that limitation to be appropriate because in such cases, the court of first instance is the appropriate fact-finding body. It has developed particular expertise and a body of knowledge in this area of national security, and it has an experienced body of judges who hear those cases. That makes it the right court to review all the material on which the Secretary of State relies to make her decisions, and to make findings on that basis.
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In such cases, it is right to limit the right of appeal to a point of law, because the higher courts do not necessarily have the expertise or resources to reconsider the entire factual basis of the case, and it would not be appropriate to have two further opportunities for a full re-hearing of the case—at the Court of Appeal and at the Supreme Court. The limitation on appeals to a point of law is by no means unique to the Bill; there is a similar provision in the 2005 Act, which picks up the point made by the right hon. Member for Salford and Eccles. It occurs in numerous other contexts, including, classically, in relation to appeals from statutory tribunals, such as the Special Immigration Appeals Commission, which is a recognition of the body of expertise that has developed in tribunals of first instance.
Subsection (2) means that the individual subject to the measures, or any person other than the Home Secretary, may not appeal against a court determination at the initial permission stage or on a reference following the use of the urgency procedure. That reflects the role of the first stage of judicial involvement as an initial safeguard, at which the court considers whether the Secretary of State’s decisions were obviously flawed, and which may be heard without the knowledge of the individual who is subject to the measures. The individual has the opportunity to be present and to be represented at the automatic full review of the measures, once they have been imposed, and will also have the full right of appeal contained in clause 16.
I will cut my comments short, as the other points that have been highlighted relate to schedule 4 rather than to clause 18. On that basis, I hope the Committee will agree to the clause.
Clause 18 accordingly ordered to stand part of the Bill.
Schedule 4
Proceedings relating to terrorism prevention and investigation measures
Question proposed, That the schedule be the Fourth schedule to the Bill.
Dr Huppert: I am tempted to embark on a long explanation of why I have fundamental problems with the whole approach to special advocates. Problems are introduced into our legal system when an advocate knows information but cannot adequately discuss it with the person they represent. The situation raises issues about whether there is an adequate brief and an adequate right to law.
In the interests of time, however, I will truncate my comments—I made similar ones on Second Reading, and Members will be familiar with my concerns. I accept that there has to be some mechanism to deal with such intelligence, but I am very concerned about this one. I do not want to reopen the entire row, however, so it will be helpful if we can move on from it.
I continue to be concerned about the system, and we also heard such concerns from special advocates. I will not read all their evidence back into the record, but they made a few specific suggestions. In the briefings we received, there were interesting points about having a bit more flexibility on their ability to communicate with their client about such things as the timing of meetings. Even if the Minister will not suddenly change the Government’s entire line on special advocates, I hope that he will look carefully at their suggestions and see if any can be accepted. The Home Office report stated that there would be a review of such evidence, and I believe that a Green Paper is coming. It will be helpful if the Minister can tell us where we are so that we can take a measured step away from the use of special advocates and secret evidence, whenever we can avoid using them.
James Brokenshire: I am conscious that I did not address a point highlighted about clause 18 by my hon. and learned Friend the Member for Sleaford and North Hykeham. Section 6 of the Human Rights Act 1998 provides that public authorities must act in a way that is compatible with the European convention on human rights. That law is generally applicable, so there is no need to make additional provisions to that effect in the Bill. Indeed, the advice that I have received suggests that unnecessarily repeating provisions in such a way is “poor drafting practice”.
Dr Huppert: I might regret making this intervention, but I note that such a provision is written into schedule 4, although I hope that will not be taken out due to poor drafting practice.
James Brokenshire: I hesitate to question in any way the approach taken by parliamentary counsel, but I hear my hon. Friend’s point.
My hon. Friend tries to draw together the separate points of special advocates and closed evidence. Focus has, quite reasonably, been attached to the issue. The Government are carefully considering how closed or secret evidence may apply. As my hon. Friend is aware, the case of AF (No. 3) related to what was considered to
be a stringent control order. In such circumstances, controlled individuals must be given sufficient information about the case against them so that they may give effective instructions to their special advocate. That, in effect, means that such individuals must be given the gist of the key allegations against them. The High Court judge reviewing each case will decide on the disclosure required to allow a fair trial in such circumstances. The rules will provide that it is the court, not the Government, that decides whether material may be withheld.If the judge concludes that certain material must be disclosed to allow a fair trial, even if that disclosure would be damaging to the public interest, the Secretary of State must either disclose it, or withdraw it from the case, meaning that the material could not be relied on. It is true that that would not necessarily involve the individual knowing the detail or the sources of the evidence that forms the basis of the allegations against them. The Law Lords ruled that that was not necessary to meet the requirements of a fair trial in such cases.
There are clear reasons why it would not be in the public interest to disclose all information, such as if the information came from an informant who might be put at risk, or if it was obtained using an investigative ability that might be compromised. The Law Lords, however, were equally clear that the requirements of a fair trial would not be satisfied if the case was based solely or mostly on closed material while the open material consisted purely of general assertions.
Paragraph 5 of schedule 4 expressly provides that nothing in this rule-making provision, or in the rules of the court made under this provision, is to be interpreted as requiring the court to act in a way that is inconsistent with article 6, so that reflects the case law that has developed with control orders.
Broader issues are being examined in the context of the Green Paper, because this is a sensitive area that requires careful and close consideration. A Green Paper will be brought forward shortly. It will no doubt have further focus and attention attached to it. I hear the points that my hon. Friend makes, but this requires careful and close consideration.
Paul Goggins: The casual reader of our proceedings might see that this part of our consideration was a fairly short exchange between the Minister and one of his colleagues, but in fact, as the Minister has just underlined, this is one of the most important issues on control orders and much else besides. His confirmation that work continues on the Green Paper is welcome. It should be understood that Opposition Members recognise the importance of that and the need for all parties to work together to seek a solution to a difficult issue.
James Brokenshire: I appreciate that comment, because I know that the right hon. Gentleman and the right hon. Member for Salford and Eccles are seized of the issue. They understand, and are knowledgeable of, some of the challenges that arise with the use of the closed material. That is why careful consideration is being applied around the operation of these matters, and it is why the Government will be bringing forward a Green
Paper to consider them further and to set out more thoughts and approaches on this sensitive issue. Following on from my previous comments in the context of the AF (No. 3) case, a number of challenges and issues arise—Hazel Blears: Will the Minister give way?
James Brokenshire: I give way to the right hon. Lady because I am sure that she has an important point to make.
Hazel Blears: I am grateful to the Minister for giving way and for putting on record the effort that is being made across the Government to reach the right settlement for the protection of secret information. This is another occasion when we all wish that we do not have to be in this territory. We all want evidence to be tested in open court so that a jury is able to hear it and reach a verdict in our conventional legal system. Unfortunately, in some circumstances, we must have a special advocate procedure.
The Minister will have talked to ministerial colleagues in Europe and other jurisdictions who are struggling with exactly the same problems, so it is not the case that we have a particularly illiberal system for secret and closed information. I say to all Government Members that these are very difficult issues. No one wants to be in the realms of closed sessions without defendants knowing what is being put against them, but we have to balance with that the protection of not only our own intelligence, but that from other sources, on which we rely enormously to try and keep our country safe. I am grateful for the Minister’s comments.
James Brokenshire: I reciprocate by thanking the right hon. Lady for her comments. She is right that none of us wants to deal with the very delicate issues that have arisen in connection with closed material. That is why great care is being taken and careful consideration is being given to these matters.
Given that such consideration is ongoing, I hope that Committee members understand that it is difficult for me to give them a more substantive reply. I am sure that the Green Paper will provide further context and detail so that the debate and discussion that has started in Committee today can continue. I welcome and greatly appreciate the Opposition’s wish to work constructively on these matters.
The issue is complex and it raises a number of connected matters on which we must take a balanced view. When the Green Paper is published, I hope that we can engage in further consideration of these sensitive, significant and wide-ranging issues that we have discussed in the context of schedule 4.
Stephen Phillips: In the light of the Minister’s comments, I wish to ask him a specific question. Why, in the context of paragraph 3(1), is it contemplated that the Secretary of State must make only standard disclosure? Why is there no provision to suggest that, at least on application, wider disclosure might be appropriate? Perhaps the Minister cannot answer that question now and will inform us in the future, but the point may need to be addressed.
James Brokenshire: I suspect that the question that my hon. and learned Friend understandably asks is wrapped up in the broader debate on the use of evidence. He will understand that the concept of the duty of candour also applies. Some broad and sensitive issues arise, so we will take those forward in the context of the Green Paper that will be published shortly.
Schedule 4 accordingly agreed to.
Clause 19
Reports on exercise of powers under Act
Question proposed, That the clause stand part of the Bill.
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Mr Sutcliffe: The clause places a duty on the Secretary of State to lay before Parliament each quarter a report on the exercise of particular powers under the Bill. The Minister knows that we were concerned that control orders had to be renewed each year. What format will the report be in, and what opportunities will there be to discuss it?
James Brokenshire: Clause 19 will place a duty on the Secretary of State to report to Parliament quarterly on the exercise of her powers under the Bill to impose a measure on a person by a TPIM notice, to extend a notice, to vary the measures specified in a notice, and to revoke or revive a notice. Although the details of the operation of the system and of particular cases will be sensitive and therefore could not be disclosed publically, the clause will ensure that key information about the operation of the system will be in the public domain and regularly updated. Crucially, the report will include information about the extent of the Secretary of State’s use of her powers and the number of cases in which measures are imposed. It will also include details of court judgments relating to the use of such powers handed down in the relevant reporting period.
We understand that there is interest in making available as much information as possible about the operation of the system and the cases of individuals subject to the measures. That has certainly been the case with control orders and it is likely to continue in relation to TPIMs. Having the information available will help to ensure that any debate about the powers is as informed as possible.
We have had to balance those considerations against the need to avoid disclosing sensitive information in a way that could be damaging. I hope that the Committee will appreciate that such considerations are important in the quarterly reports. The Government are committed to making public as much information as they can, but we need to be cognisant of issues that might damage national security, the effective operational management of the TPIM system or an individual’s right to a private life, should they be identified. There are therefore understandable and reasonable limits. However, as I have indicated, disclosure is important to inform the debate, subject to those clear limitations.
Mr Sutcliffe: I would like some detail about the practicalities. The Minister says that the numbers will be reported, rather than any further detail. He also says that there might be a debate, but if the annual accountability to Parliament is removed, how will a debate be facilitated?
James Brokenshire: I was talking about a debate in a generic sense rather than about a specific parliamentary debate. I know that the Opposition have tabled an amendment about annual review, so it would be appropriate for us to discuss the issue in that context. The Government intend to lay a written ministerial statement, as is the case under the control orders regime. I hope that that helps to inform the hon. Gentleman of our intentions for the application of clause 19. On that basis, I trust that the clause will stand part of the Bill.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Reviews of operation of Act
Mr Sutcliffe: I beg to move amendment 140, in clause 20, page 12, line 7, at end insert
‘within three months of the date on which he received the report’.
Again, the amendment is self-explanatory. Clause 20 gives the Secretary of State the opportunity to appoint an independent reviewer who will prepare an annual report on the operation of the Bill and lay it before Parliament. The amendment would provide that that would have to happen within three months of the Home Secretary receiving the report. That is important because of the reduction of parliamentary scrutiny. The report will be an important indication of how things are working and the independent reviewer’s view. We believe that we should have that at the earliest opportunity, so the amendment would give the opportunity for that report to be in Parliament within three months.
James Brokenshire: We do not believe that it is necessary to set a maximum period by which a report from the independent reviewer must be laid before Parliament by the Secretary of State, as suggested under the amendment. I shall explain why, but the hon. Gentleman will no doubt consider further my response.
Reports by the former independent reviewer, Lord Carlile, on the operation of the 2005 Act were promptly laid before Parliament by successive Governments. As the right hon. Member for Salford and Eccles will know, they were often laid a matter of days, or at most weeks, after the receipt of the report. A similar approach is taken in respect of other reports that the independent reviewer is required to produce and the Secretary of State to publish, such as the annual report on the operation of the Terrorism Act 2000 and part 1 of the Terrorism Act 2006.
The amendment would not alter current practice. In our judgment, it is not necessary—in this or any other context in which the Secretary of State would be required to lay an annual report before Parliament—to specify a maximum time frame. Opposition Members took the same view when they passed successive pieces of legislation with almost identical provisions to those in the Bill.
I appreciate that views may change over time, but such a requirement was not seen as necessary in existing legislation under which the independent reviewer provides reports. We are not convinced of the necessity of setting a new precedent by taking a contrasting approach to that under the 2000 and 2005 Acts.James Brokenshire: It seems that the right hon. Lady will try to persuade me otherwise.
Hazel Blears: Section 14(6) of the 2005 Act states:
“On receiving a report under subsection (4), the Secretary of State must lay a copy of it before Parliament.”
The words “on receiving” indicate a measure of immediacy, suggesting that on receipt of the report, it will be laid before Parliament. The hon. Gentleman has been keen to mirror the provisions of the 2005 Act, but he has chosen in this instance to depart from the language of immediacy, because clause 20(5) says that the Secretary of State “must lay a copy”. Why not use the language of the 2005 Act, which states that on receiving the report, it will be laid? That wording suggests a degree of urgency and immediacy. I commend the words of the 2005 Act, the provisions of which the Minister has been so keen to replicate throughout the rest of the Bill.
James Brokenshire: There is no desire to sit on reports. It would be foolish and inappropriate for Government to do so, particularly with a report from an independent reviewer. Members of the Committee have approached the matter in a spirit of good will, so I shall certainly consider the matter further. It is not our intention to sit on reports; that is not the practice. If it gives comfort to the Committee and to the public, reports received from the independent reviewer will be published on receipt or promptly—whatever the appropriate phrase is. That is what I expect to happen, and I would expect any successor of mine to take the same approach. In the spirit of good will, however, I shall reflect on the point made by the hon. Member for Bradford South and by the right hon. Member for Salford and Eccles.
Mr Sutcliffe: There must be something in the water. In his usual fashion, the Minister is being very helpful. In light of what he has said, I shall not press the amendment to a Division, because if he follows through what he says he will do, there are sufficient safeguards. I am grateful to him, and to my right hon. Friend the Member for Salford and Eccles for pointing out the differences in the legislation. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 ordered to stand part of the Bill.
Clause 21
Offence
James Brokenshire: I beg to move amendment 131, in clause 21, page 12, line 15, leave out ‘an’ and insert ‘the’.
The Chair: With this it will be convenient to discuss Government amendment 132.
James Brokenshire: These Government amendments are technical drafting amendments. They do not represent any change to policy. Amendment 131 simply ensures that the offence is more clearly and consistently framed, so that both subsections (a) and (b) of clause 1(1) refer to the “the individual”. Amendment 132 may look more significant, but in fact simply ensures that there is no potential ambiguity as to whether the drafting of the Bill delivers the existing policy intention as explained in the explanatory notes.
The explanatory notes explain that the offence extends to the breach by the individual of any permission granted to the individual by the Secretary of State in respect of a measure in a TPIM notice. If the Secretary of State grants permission under schedule 1 for the individual to do something that the TPIM notice otherwise prohibits that individual from doing, and grants that permission subject to conditions, a breach of those conditions without reasonable excuse will constitute an offence. For example, should the Secretary of State allow the individual to attend a place from which he is otherwise excluded by his TPIM notice, subject to the condition that he is escorted by a constable, if the individual attends that place other than under police escort, that would constitute a breach of the exclusion measure in the TPIM notice and therefore, in the absence of a reasonable excuse, it would be a criminal offence.
Having considered the detailed drafting of clause 21, it became clear that there might be ambiguity as to whether a breach of the terms of a permission would definitely be caught. As it is undesirable to have any such ambiguity about what constitutes a criminal offence, the Government amendment will ensure that the Bill clearly reflects the stated policy objective.
Paul Goggins: Will the Minister be candid with the Committee about clause 21? What thought has he given to the additional challenge and difficulty presented to the law-enforcement agencies as a result of the changes in the Bill and the fact that it means that there will be greater reliance on surveillance than under the control order regime, which may make it far more difficult to sustain a prosecution?
We are dealing with individuals about whom we have information that is not admissible as evidence in court, so we cannot prosecute, although we may continue to try to do so. That is why they are subject to a control order or, in the future, to a TPIM. If an individual contravenes the conditions placed on him, he is liable to prosecution. With the overnight residence measure, such a contravention can be objectively measured, because he would presumably have an electronic tag. If he broke that condition, there would be a proper record and that could be used as evidence in court. However, the evidence for a contravention might be based on intercepted telephone conversations or intelligence provided by someone working under cover in a surveillance operation, and such information would not be admissible in a prosecution.
The Minister should be candid with the Committee about what thought he has given to that issue. To return to the mantra that we have repeated many times in Committee, because the restrictions are less stringent, the risk is greater. The Minister argues that that is mitigated by the additional money but, in my submission, it will be more difficult to sustain the prosecution of someone who has contravened the conditions in the
TPIM. Will he be straightforward and tell us how he intends to address that deficit? We all agree that someone who is not keeping to the conditions should be subject to the law, prosecuted where possible and imprisoned. I look forward to hearing the Minister’s comments.James Brokenshire: There is little merit in rehashing or rehearsing arguments that we have already had. However, I say to the right hon. Gentleman that additional police and surveillance might make it more likely that an offence is triggered—information might be identified that shows an offence has been committed under clause 21. We have had a range of debates over the nature of the regime and the additional support that we see as mitigating the challenges that could arise. I hear the point of principle that he has consistently made in Committee, but we have been through that several times.
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Paul Goggins: This is a very serious issue. If the individual who is watching to see whether a suspect keeps to the conditions operates under cover or if their information is based on a sensitive source that could not possibly be compromised, that evidence could not be used to prosecute the individual for contravening those conditions. In some circumstances, the additional police presence might assist, but the Minister must be candid and say that it might not. An officer might be operating under cover and might not wish to have his identity revealed. He might be working with a source that is sensitive and cannot be compromised. It might not be as straightforward as the Minister suggests in his argument.
James Brokenshire: I hope that the right hon. Gentleman will accept in equal candour that I have always sought to underline in my comments the law that applies in relation to intercept evidence. He will know well the further consideration in which the Privy Council is engaged to examine the potential to use intercept evidence. It reflects the challenges in the area, of which right hon. and hon. Members will be well aware. Obviously, other provisions apply—we might come to them in due course—on powers of entry to check compliance with the terms of the TPIM notice and identify whether breaches have taken place that are actionable under clause 21, but the duty is on the Secretary of State to bring a prosecution and make out the case in the ordinary way, with admissible evidence, in order to persuade the court that a breach has taken place for which no reasonable excuse can be proffered in defence of the individual’s actions.
I hope that the right hon. Gentleman will accept from my comments that there are complexities on both sides involving the limitations of law on admissible evidence with which we in the Committee are all familiar. Equally, additional support to the police and security services mitigates risk and, in certain circumstances, might enable breaches and offences under the Bill to be identified and prosecuted. I accept that limitations apply under the law as to the admissibility of evidence and the need to adduce the evidence that can be brought before the court. We do not take such matters lightly. No doubt we will continue to return to the issue during the passage of the Bill, but on the basis of my comments, I hope that right hon. and hon. Members will support the amendments.
Amendment made: 132, in clause 21, page 12, line 16, leave out
“measures specified in the notice.”
“any measure specified in the TPIM notice.
‘(1A) If the individual has the permission of the Secretary of State by virtue of Schedule 1 for an act which would, without that permission, contravene such a measure, the individual contravenes that measure by virtue of that act if the act is not in accordance with the terms of the permission.”.—(James Brokenshire.)
Clause 21, as amended, ordered to stand part of the Bill.
Clause 22
Powers of entry etc
Question proposed, That the clause stand part of the Bill.
Mr Sutcliffe: Will the Minister confirm that clause 22 and schedule 5 are direct lifts from the 2005 Act? I want to put on record my thanks to the hon. Member for Beckenham, who congratulated the previous Government on the legislation, given circumstances at the time. It was generous of him, and I am grateful for the spirit in which he said it. We are all trying to achieve the same things. Will the Minister confirm that most of the measures are a direct lift from the previous Act?
James Brokenshire: Actually, no. Clause 22 gives effect to schedule 5, which provides for police powers of search, entry, seizure and retention in a number of scenarios relating to TPIMs. The Bill takes a different approach from the Prevention of Terrorism Act 2005, which did not set out on the face of the legislation the main powers relating to entry and search. To be fair to the hon. Member for Bradford South, that was a point that was recognised by the right hon. Member for Salford and Eccles in our discussion on Tuesday, when she rightly challenged me on the need to have rights of search and entry. She did not move her amendments and I did not thank her at the time for her generosity in doing that. I want to put my thanks on record. There is a difference and distinction in the Bill by expressly setting out a number of these provisions. I am grateful to the hon. Member for Bradford South for allowing me to underline the differences contained in the Bill as contrasted with previous legislation. I thank him for his comments.
Clause 22 accordingly ordered to stand part of the Bill.
Clause 23
Fingerprints and samples
Question proposed, That the clause stand part of the Bill.
Mr Sutcliffe: I will not make the same mistake twice. Clause 23 and schedule 6 set out the provisions in relation to fingerprints and samples. The Minister will know that we are having an interesting debate on the
retention of DNA. I am informed by one of my Front-Bench colleagues that the measures on fingerprints and non-intimate samples in this Bill differ from the Protection of Freedoms Bill, in that hair samples can be taken under these measures, whereas they cannot under the Protection of Freedoms Bill, which is passing through the House at the moment. Perhaps the Minister will talk a little about the DNA issue, how long samples will be retained and his thoughts on that.James Brokenshire: Clause 23 gives effect to schedule 6, which makes provision for the taking and retention of biometric material from individuals subject to a TPIM notice.
I am conscious that some of my comments may stray on to schedule 6. This clause inserts that provision. I wonder whether it would be appropriate for me to look at that in a slightly different way, albeit that the definition of fingerprints and samples is the same in this Bill as it is in the Protection of Freedoms Bill, for example, on hair, as my advisers tell me.
We have looked carefully and closely at the interrelationship between the Protection of Freedoms Bill and this Bill to ensure that there is read-across and dovetailing between the two regimes. It may be that there are further, broader comments that the hon. Member for Bradford South may want to make on the schedule. I may then speak to schedule 6 if the hon. Gentleman will allow me to make those broader points.
Clause 23 accordingly ordered to stand part of the Bill.
Schedule 6
Fingerprints and samples
Question proposed, That the schedule be the Sixth schedule to the Bill.
Mr Sutcliffe: I shall now ask the Minister to give us the information he was going to give us a little while ago.
James Brokenshire: Mr Scott, I believe that it would be in order for me to respond to the hon. Gentleman’s comments. We consider it important to ensure that the rules on taking and retention of biometric material from individuals subject to TPIM notices are not exceptional, but are in line with the provisions we are making elsewhere for similar cases. The schedule makes separate provision for Scotland to that for England, Wales and Northern Ireland, to ensure that it is line with the different police procedures and legislation in Scotland.
There are powers to take from a person subject to a TPIM notice both fingerprints—including palm prints—and non-intimate samples, which can include a sample of hair, a sample taken from a nail or under a nail, a swab taken from any part of the body including the mouth, saliva and a footprint or other impression of a part of the body other than the hand. The individual may be required to attend a police station for the purpose of taking fingerprints or a non-intimate sample. That material may be checked against other such material held under a variety of other powers.
As the Committee may know, in the Protection of Freedoms Bill we are introducing a new regime for the retention and destruction of such material with the aim of striking a fair balance between protection of the public and individual civil liberties. The schedule makes provision, in line with that regime, for the retention and destruction of material taken under this Bill. That means that any samples taken from the individual will be destroyed as soon as a DNA profile has been derived from that sample, or, if sooner, within six months of taking the sample. It also means that, where the individual has no relevant previous conviction, the fingerprints and DNA profile may be kept for only six months after the TPIM notice ceases to be in force, or, in a case where the notice has been quashed, until there is no further right of appeal remaining against the quashing. However, there is an exception for cases in which a chief officer of police determines that it is necessary to retain the material for national security purposes, in which case the material may be retained for up to two years. It will then be open to the chief officer to make a further determination, if necessary, that the material should be retained for a further two years. That exception for national security cases is of vital importance in supporting future counter-terrorism investigations.
We recognise that the police and other law enforcement authorities face particular difficulties when working to counter threats to national security. Counter-terrorism investigations often run for many years. As we have discussed, the threat posed by an individual who has been subject to a TPIM notice for two years may in some cases continue beyond that time, but it will be managed by other means. The retention of an individual’s fingerprints and DNA profile will support that. To apply a fixed six-month retention period alone, without any mechanism for extending retention where necessary for national security purposes, would inevitably lead to the early destruction of valuable material relating to individuals who are of continuing interest to the police and the Security Service, undermining attempts to protect the public from the threat we face.
That reflects the approach taken to national security cases in the Protection of Freedoms Bill, including the safeguards. We intend for the power to extend retention to be subject to independent oversight by the new independent commissioner for the retention and use of biometric material, and we aim to amend the Protection of Freedoms Bill to provide for that. Each national security determination that is made or renewed, and the reasons for it, must be sent to the commissioner, who will have the power to order the destruction of material that does not meet the necessary criteria. That approach will provide the right balance between national security and civil liberties by ensuring strong protection for both.
Schedule 6 will also place limitations on the uses to which biometric material taken from a person subject to a TPIM notice may be put. Again, those uses are in line with the provision being debated in the Protection of Freedoms Bill. Such uses are those in the interests of national security, those for the purposes of a terrorist investigation, those for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution, or those for purposes related to the identification of a deceased person or of the person to whom the material relates.
I hope that with that clarification, right hon. and hon. Members will be minded to agree to schedule 6.
Schedule 6 accordingly agreed to.
Clause s 24 and 25 ordered to stand part of the Bill.
Schedule 7
Minor and consequential amendments
James Brokenshire: I beg to move amendment 136, in schedule 7, page 46, line 35, at end insert—
‘( ) Omit sections 78 to 81 (provision in relation to control orders).’.
The Chair: With this it will be convenient to take Government amendments 137 and 138.
James Brokenshire: The amendments are technical or drafting amendments to schedule 7, which itself makes minor and consequential amendments to other legislation that will be required as a result of the passing of the Bill.
Amendments 136 and 138 simply move paragraph 7 of the schedule, so that rather than sitting under its own “Miscellaneous” heading, it sits with the other repeals relating to the Counter-Terrorism Act 2008. Amendment 137 will repeal additional provisions in the Crime and Security Act 2010. They were not originally included in schedule 7 because they will amend the 2005 Act, which will itself be repealed by clause 1 of the Bill. However, I understand that best practice is to make a specific repeal, which the amendment will deliver.
Amendments made: 137, in schedule 7, page 47, line 2, at end insert—
‘( ) Omit—
(a) section 56 (persons subject to control orders: powers of search and seizure), and
(b) section 58(16) (extent of section 56).’.
Amendment 138, in schedule 7, page 47, leave out lines 3 to 5.—(James Brokenshire.)
Schedule 7, as amended, agreed to.
Ordered , That further consideration be now adjourned. —(Mr Newmark.)
2.45 pm
Adjourned till Tuesday 5 July at half-past Ten o’clock.