|
The Terrorism Prevention and Investigation Measures Bill ("TPIMs Bill") gives effect to the recommendation of the Government's Review of Counter-Terrorism and Security Powers that the current system of control orders should be repealed and replaced with a system of less restrictive and more focused measures. In March 2011 the current control order regime was renewed until the end of December this year. The Government wants TPIMs to be available by the time the control orders legislation lapses.
We and our predecessor Committee have consistently expressed serious concerns about the human rights compatibility of the control order regime. The TPIMs Bill does modify in some significant respects a number of aspects of control orders which have given rise to human rights compatibility concerns over the lifetime of that regime. For example, the threshold for imposing the measures will be raised from reasonable suspicion to reasonable belief; the measures will be subject to a maximum time limit of 2 years (unless there is fresh evidence of the individual's involvement in terrorism); the restrictions imposed will be less severe in a number of respects; and there is to be a renewed emphasis on investigation and prosecution
Although we have some significant human rights concerns about the proposed TPIMs regime, we welcome those aspects of the Bill which modify in significant ways aspects of the predecessor control order regime. In our view, these should make it less likely that the regime will be operated in a way which gives rise in practice to breaches of individuals' human rights.
We also believe that the overriding priority of public policy in this area should be the criminal prosecution of individuals who are suspected of involvement in terrorist activity. We are concerned by what appears to be a very significant fall in the number of successful prosecutions for terrorist offences over the last few years. Recognition of the difficulties of prosecuting some dangerous individuals does not in our view require acceptance of the need for a replacement regime which is essentially a watered down version of control orders. We continue to regard the admissibility of intercept as an important part of a package of measures that will lead to more successful prosecutions in relation to terrorism.
In his Report on the Government's Review of Counter-Terrorism Powers, Lord Macdonald of River Glaven argued that restrictions on the freedoms of terrorist suspects are only justifiable in constitutional and human rights terms if they are part of a continuing criminal investigation into their activities. He wants to see any replacement of control orders brought firmly back within the criminal justice system. We share Lord Macdonald's concerns about TPIMs not going far enough to bring the restrictions back into the domain of criminal due process.
We welcome the Government's restatement of its commitment to the priority of prosecution, but as the Bill currently stands it is clear that the overriding purpose of its provisions is prevention, not investigation and prosecution. We recommend amendments to the Bill to give effect to Lord Macdonald's alternative model, which would bring TPIMs into the criminal justice process.
We recommend that an additional precondition of the imposition of TPIMs on an individual should be that the DPP (or relevant prosecuting authority) is satisfied that a criminal investigation into the individual's involvement in terrorism-related activity is justified, and that none of the specified terrorism prevention and investigation measures to be imposed on the individual will impede that investigation.
We further recommend that the Bill provide for judicial supervision in relation to the ongoing criminal investigation; and that some of the measures set out in the Bill should be subject to further restrictions to ensure that they do not impede or discourage evidence gathering with a view to conventional prosecution.
The Bill provides that TPIMs can be imposed only with the prior permission of the court and also provides for an automatic review hearing after TPIMs have been imposed. At both stages, however, the function of the court is narrowly defined in the Bill. We recommend that the court's function at the permission stage should be to determine whether the conditions for imposing TPIMs appear to be met, and at the review hearing to determine whether those conditions were and continue to be satisfied.
As with the control orders legislation, the Bill makes provision for both the Secretary of State and the High Court to make use of "closed evidence": evidence which is withheld from the individual and their legal adviser because its disclosure would be contrary to the public interest. In our view, however, the Bill does not make provision which takes proper account of the judgment of the House of Lords which held that, in order for control order proceedings to be fair, "the controlee must be given sufficient information about the allegations against him to give effective instructions in relation to those allegations". Therefore we recommend that the Bill be amended to require the Secretary of State, at the outset, to provide the individual who is the subject of the TPIMs notice with sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations.
Unlike the control orders regime which it replaces, the TPIMs regime is not to be subject to annual renewal by Parliament. It is intended to be permanent. Although the TPIMs regime is less severe than the control orders regime, it remains an extraordinary departure from the ordinary principles of criminal due process, as Lord Macdonald's report makes clear. We therefore recommend that the Bill be amended to require annual renewal, and so ensure that there is an annual opportunity for Parliament to scrutinise and debate the continued necessity for such exceptional measures and the way in which they are working in practice.
We welcome the Government's decision to make its proposed draft legislation for "enhanced TPIMs" available to Parliament for pre-legislative scrutiny and look forward to scrutinising it for compatibility with human rights.
| 
