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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of the Government's Review of Counter-Terrorism and Security Powers that the current system of control orders should be repealed and replaced with a system of less restrictive and more focused measures.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 reported on this Bill on 19 July 2011. In this, first, Report we welcomed those aspects of the Bill which would modify in significant ways aspects of the predecessor control order regime. In our view, these would make it less likely that the regime will be operated in a way which would give rise in practice to breaches of individuals' human rights.
However, we also expressed some significant human rights concerns about the proposed TPIMs regime. Some of these concerns were centred upon the lack of a requirement for prior judicial authorisation; the need for the process to incorporate a "full merits review"; the need to assure the right to a fair hearing in terms of those subject to a TPIMs notice being given sufficient information about the allegations made against them; and the lack of a requirement for the new system to be debated or agreed annually by Parliament.
The Government responded to our Report by Command Paper on 1 September 2011. We are reporting again on the Bill in the light of this response and the views expressed during the debate on Second Reading in the House of Lords. We focus principally on the issues on which the Government response gave little or no reassurance and on which amendments are likely to be debated during the Bill's Committee stage in the Lords.
On the issue of prior judicial authorisation, we support the amendments tabled in the House of Lords by Lord Lloyd of Berwick which in our view replace executive orders with prior judicial authorisation of the kind which both human rights law and our common law constitutional tradition require.
On the issue of the standard of proof, we state that, in our view, reasonable belief is too low a threshold for the imposition of such intrusive measures as are envisaged in the TPIMs Bill. The standard should be the balance of probabilities. We therefore support the amendment to clauses 3 and 6 to be moved in Committee by Lord Lloyd, to the effect that the decision of the court as to whether the individual is, or has been, involved in terrorism-related activity is to be taken on the civil standard of proof, that is, the balance of probabilities.
Furthermore we recommend that the Bill be amended to make clear on the face of the Bill that the review to be conducted by the courts, at the review hearing referred to in the text of the Bill, is a "merits review" (as opposed to a supervisory review) and to delete the requirement that the court must apply the principles applicable on an application for judicial review. We therefore support the amendments to clause 9 to be moved by Lord Pannick in Committee to that effect.
With regard to ensuring a fair hearing, we support the amendments to be moved in Committee by Lord Pannick which would introduce into the relevant provisions:
(1) an overriding requirement that rules of court must provide that the individual on whom the measures are imposed is entitled to be given sufficient information about the allegations against him or her to enable him or her at the review hearing to give effective instructions to his or her representatives, and information to the special advocate, in relation to those allegations; and
(2) a requirement that a direction be given at the directions hearing that the Secretary of State shall provide the individual who is the subject of the TPIMs with sufficient information about the allegations against him or her to enable them to give effective instructions to their legal representatives, or information to the special advocate, in relation to those allegations at the review hearing. A direction requiring that such disclosure is made even earlier in the process, at the preliminary hearing, would be even more effective, because it would ensure that the individual can give effective instructions before the review hearing.
Whilst we welcome the fact that the Government has moved to amend the Bill since our first Report to require renewal of this new scheme, we believe that this period of renewal—at five years—is too long and we therefore support the amendments to the Bill to be moved in Committee to replace this five year period with an annual review.
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