Bills drawn to the attention of both Houses
1 Terrorism Prevention and Investigation Measures
Bill
| Date introduced to first House
Date introduced to second House
Current Bill Number
Previous Reports
| 23 May 2011
6 September 2011
HL Bill 91
16th Report of 2010-12
|
Introduction
1.1 The Terrorism Prevention and Investigation Measures Bill ("TPIMs
Bill") was brought from the House of Commons on 6 September
2011.[1] We reported on
the Bill in our 16th Report of this Session. The Government
responded to our Report on 1 September 2011.[2]
1.2 We now report again on the Bill in light of the
Government's response to our first Report and the views expressed
during the debate on the Bill's second reading in the House of
Lords. We focus in particular on the issues on which amendments
are likely to be debated during the Bill's Committee stage in
the Lords.
(1) PRIOR JUDICIAL AUTHORISATION
1.3 In our first Report on the Bill we welcomed the
Government's restatement of its commitment to the priority of
prosecution, but were concerned that TPIMs remained outside of
the criminal justice process. We recommended amendments to the
Bill designed to ensure that TPIMs are only available as part
of an active, ongoing criminal investigation.
1.4 In its reply, the Government states that it has
given careful consideration to proposals, by Lord Macdonald, Liberty
and us, to bring TPIMs into the criminal justice process, but
has concluded that there are a number of difficulties with linking
the imposition of restrictions to an ongoing criminal investigation.
1.5 We remain of the view that the restrictions imposed
by TPIMs are serious interferences with a number of rights, including
the right to respect for private life, and that the imposition
of such restrictions on individuals can only ever be justified
if they are the product of robust due process. We note that the
House of Lords Constitution Committee is of a similar view.[3]
1.6 The Government is correct that there are other
examples of civil preventative restrictions imposed on individuals,
in order to protect the public from criminal behaviour, where
the individuals have not necessarily been convicted and are not
necessarily subject to any other ongoing criminal justice process.
In relation to those other powers, however, the restrictions are
imposed, not by the executive, but by independent courts. The
problem with TPIMs, from both a human rights and common law constitutional
perspective, is that they are essentially executive orders interfering
severely with individuals' most fundamental liberties, on the
basis of information not available to the individual, without
any prior judicial authorisation. There
is no "well established principle" across our legal
system of executive-imposed restrictions on individuals who are
not subject to any ongoing criminal process. On the contrary,
the well-established principle is that executive restrictions
on liberty are such a radical departure from our common law tradition
that they always require prior judicial authorisation after proper
legal process. It is for the Government to justify this Bill's
departure from that fundamental principle.
1.7 Much of our concern can be met, therefore, by
ensuring that TPIMs are not executive orders with limited ex post
judicial oversight. but are authorised in advance by independent
courts following a process which satisfies the minimum requirements
of due process. We are encouraged that the Government, in its
Reply to our first Report on the Bill, broadly agrees with our
overall assessment of what the role of the court should be in
relation to TPIMs, but we strongly disagree with the Government's
view that no changes to the Bill are needed to achieve this because
the Bill as currently drafted will deliver what we recommend.
1.8 As currently drafted, the Bill provides for executive
orders which are subject to ex post judicial oversight. Moreover,
that oversight is to be supervisory only, interfering with the
Minister's decision only where it is "obviously flawed"
and applying the principles of judicial review. What we recommend
is entirely different: like our predecessor Committee when it
considered the original control order legislation in 2005,[4]
we recommend prior judicial
authorisation, in which the Minister makes
an application to an independent court, and it is for the court
itself to decide whether the measures should be imposed. We note
that this is also the view of the Constitution Committee of the
House of Lords and was the view of a number of those who spoke
at second reading in the Lords.[5]
We also note that Lord Lloyd
has tabled amendments to the Bill which have the effect that TPIMs
are imposed by the court on the application of the Home Secretary.
We support those amendments 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.
1.9 The Government accepts in the Explanatory Notes
to the Bill and in its Reply to our first Report on the Bill that
"the principles applicable on an application for judicial
review" have been interpreted by courts in control order
cases as requiring a particularly high level of scrutiny. The
court will make its own decision as to whether the facts relied
on by the Secretary of State amount to reasonable grounds to believe
that the individual is or has been involved in terrorism-related
activity, and must apply "intense scrutiny" to the Secretary
of State's decision as to the necessity of the obligations imposed
in the control order. In other words, the Government accepts that
the applicable principles in TPIMs cases are quite unlike those
generally applicable on judicial review. In a recent control order
case, Collins J. observed that, as a result of judicial interpretation,
the statutory definition of the court's jurisdiction in the 2005
Act "does not mean what Parliament intended it to mean."[6]
1.10 We are astounded that the Government is asking
Parliament to re-enact in this Bill legislative language to which
the courts have given a meaning which is not what Parliament originally
intended. It is not clear whether Parliament is to be assumed
by courts to have reasserted its original intention about that
language by re-enacting it, or is to be assumed to know that the
language it is using does not mean what it says. Either way,
this is not a satisfactory way to legislate to ensure human rights
compatibility. If the Government
accepts that a judicial re-interpretation of legislative language
is justified in order to render it compatible with the ECHR (as
here), it ought not to re-enact the same language, but use different
language which reflects the compatible interpretation and does
not require to be read as meaning something quite different from
what it says. Parliament should bear in mind that human rights
law requires statute law to be both accessible and readily intelligible
on its face, and take this opportunity to rewrite the statutory
language so as to define with clarity the true nature of the judicial
function in relation to these measures.
1.11 We also recommend one further amendment designed
to ensure that at the merits review hearing sight is not lost
of the priority of criminal prosecution. The Bill as drafted requires
the police to secure that the investigation of the individual's
conduct, with a view to a prosecution of the individual for an
offence relating to terrorism, is kept under review while a TPIM
notice is in force, and there is a new statutory duty on the police
to report to the Home Secretary on this review.[7]
However, there is no mechanism in the Bill to ensure that the
progress of the criminal investigation is reported to the court
which has the function of determining whether the TPIMs are necessary
and proportionate.
1.12 We recommend
an amendment to the Bill which would require the Secretary of
State to make available to the court at the merits review hearing
the report of the police concerning its review of the criminal
investigation of the individual. The following amendment to the
Bill would give effect to this recommendation:
Clause 8, Page 4, Line 27, after
sub-clause (6) insert '(6A) Directions under subsection (5) must
provide for information to be provided to the court at the review
hearing concerning the progress of the criminal investigation
into the individual's involvement in terrorism-related activity.'
(2) STANDARD OF PROOF
1.13 The Bill provides for the imposition of TPIMs
on an individual if the Secretary of State "reasonably believes"
that the individual is, or has been, involved in terrorism-related
activity. The Government says that this is a higher threshold
than the "reasonable suspicion" threshold in the control
orders legislation, but accepts that it is lower than the civil
standard of proof on the balance of probabilities.
1.14 In our Report on the Terrorist Asset Freezing
Bill, we recommended that the standard of proof be increased from
"reasonable belief" to the balance of probabilities.[8]
We note that the threshold for other "civil" preventative
orders, such as Serious Crime Prevention Orders and Anti-Social
Behaviour Orders, is already the balance of probabilities. 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 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.
(3) FULL MERITS REVIEW
1.15 As currently drafted the Bill also defines the
court's function at the "review hearing" as an essentially
supervisory one: the court "must apply the principles applicable
on an application for judicial review."[9]
In our first Report, we recommended that the court's function
at this hearing be defined as a full merits review of whether,
in the court's view, the conditions for imposing TPIMs are satisfied.
1.16 The Government, in its Reply to our first Report,
accepts that there should be "a particularly high level of
scrutiny" by the court at this review hearing, but it does
not agree that the requirement that the court must apply the principles
applicable on an application for judicial review should be deleted
from the Bill. It argues that there is no reason to doubt that
courts will continue to apply intense scrutiny in TPIMs cases,
as they have in control order cases, and that "continued
reliance on case law" is the best way to deliver that intense
scrutiny.
1.17 We disagree
with the Government's reasoning. The surest way to deliver the
intense scrutiny that the Government says it intends is to write
it explicitly into the Bill. We therefore recommend that the
Bill be amended to make clear on the face of the Bill[10]
that the review to be conducted by the courts at the review hearing
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.[11]
We support the amendments to clause 9 to be moved by Lord Pannick
in Committee to that effect.
(4) THE RIGHT TO A FAIR HEARING
1.18 In our first Report on the Bill we pointed out
that the Bill, as drafted, fails to give effect to the judgment
of the House of Lords in AF (No. 3), 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."
We recommended that the Bill be amended to require the Secretary
of State, at the outset of the proceedings, to provide the individual
who is the subject of TPIMs with sufficient information about
the allegations against him or her to enable them to give effective
instructions in relation to those allegations.
1.19 The Government in its Reply has rejected this
recommendation. It argues that "the right to a fair trial
of individuals subject to a TPIM notice is already fully protected
by the provisions contained in the TPIMs Bill and the application
of existing case-law as appropriate by the courts." It says
that the judgment of the House of Lords in AF (No. 3) was
a judgment about the requirements of the right to a fair hearing
in Article 6 ECHR in the particular context of the stringent control
orders in the cases before the court. As such, the Government
argues, the judgment in AF (No. 3) does not require any
"read down" of the legislation, and there is no need
to make any legislative provision in the TPIM Bill to give effect
to the judgment.
1.20 We do not accept the Government's analysis.
The Government's premiss is that the disclosure obligation in
AF (No. 3) does not necessarily apply to all TPIMs because
some will not be sufficiently "stringent" to engage
Article 6. This is an argument that the Government has already
made and lost before the High Court in relation to "light
touch control orders".[12]
In our view, the AF (No. 3) disclosure obligation applies
in all proceedings concerning TPIMs and should not be left
to the court to decide whether the obligation applies on a case-by-case
basis, and the Bill requires amending to make this clear. In
our view two amendments are necessary to give practical effect
to the principle in AF (No. 3).
1.21 First, the
provision in Schedule 4 of the Bill[13]
which the Government says is designed to ensure that TPIM proceedings
will operate in a way that is compatible with Article 6 ECHR,
requires strengthening to give effect to the AF (No. 3)
decision. We support the amendment to be moved in Committee by
Lord Pannick which would introduce into that provision 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. This amendment will
ensure that the AF (No. 3) disclosure obligation applies
in all proceedings concerning TPIMs.
1.22 Second, in our view an additional amendment
is required to give concrete effect to the disclosure obligation
in AF (No. 3) sufficiently early in the proceedings to
make it practically effective. As we pointed out in our first
Report on the Bill, the Public Bill Committee in the Commons heard
evidence from two special advocates whose evidence was that, to
ensure fairness, the legislation should require the Secretary
of State to consider and acknowledge the Article 6 disclosure
obligation at the outset of proceedings rather than simply leaving
it for the special advocates to make the running and for the court
to address at a much later stage in the proceedings.
1.23 We agree
with the special advocates that the Secretary of State ought to
be required to apply her mind to what disclosure Article 6 requires
at the very outset of the proceedings, instead of much later in
the course of the review hearing, by which time the measures will
have been in force for a considerable time and the practical value
of the procedural protection of AF (No. 3) considerably
diminished. We note the amendment to clause 8 to be moved in Committee
by Lord Pannick which would require a direction to 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. This goes some way to meeting the concern
expressed by the special advocates to the Public Bill Committee.
That concern would be met completely if the direction proposed
by Lord Pannick were given earlier in the process, at the preliminary
hearing, to ensure that the individual can give effective instructions
before the review hearing takes place.
(5) ANNUAL REVIEW AND RENEWAL
1.24 In our first Report on the Bill we recommended
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.
1.25 The Government has amended the Bill to require
that the legislation be renewed by Parliament (by affirmative
order) every five years,[14]
but has refused to accede to the considerable pressure to make
it subject to annual review and renewal like the control order
regime it replaces.
1.26 We note that the UN Special Rapporteur on the
protection of human rights and fundamental freedoms while countering
terrorism, Martin Scheinin, in his recent report to the UN Human
Rights Council, observed:[15]
"Regular review and the use of sunset clauses
are best practices helping to ensure that special powers relating
to the countering of terrorism are effective and continue to be
required, and to help avoid the 'normalisation' or de facto permanent
existence of extraordinary measures."
1.27 We
remain of the view that TPIMs are an extraordinary departure from
ordinary principles of criminal due process, and we support the
amendments to the Bill to be moved in Committee which would replace
the five year sunset clause currently in the Bill with a requirement
of annual review and renewal.
1 HL Bill 91. Back
2
The Government Reply to the Sixteenth Report from the Joint
Committee on Human Rights, Session 2010-12 HL Paper 180, HC 1432,
Legislative Scrutiny: Terrorism Prevention and Investigation Measures
Bill, (Cm 8167, September 2011). Back
3
House of Lords Select Committee on the Constitution, 19th
Report of Session 2010-12, Terrorism Prevention and Investigation
Measures Bill, HL Paper 198 (15 September 2011). Back
4
See Ninth Report of 2004-05, Prevention of Terrorism Bill:
Preliminary Report, HL Paper61/HC 389, paras 10-17; Tenth
Report of 2004-05, Prevention of Terrorism Bill, HL Paper
68/HC 334, paras 2-17. Back
5
Lord Goodhart HL Deb 5 October 2011c1155; Lord Pannick c1168;
Lord Lloyd c1187. Back
6
BC v Secretary of State for the Home Department; BB v Secretary
of State for the Home Department [2009] All ER (D) 140. Back
7
Clause 10(5). Back
8
See e.g. Fourth Report of 2010-12, Legislative Scrutiny: Terrorist
Asset-Freezing etc. Bill (Second Report), HL Paper 53/HC 598,
paras 1.3-1.9. Back
9
Clause 9(2). Back
10
In clause 9(1). Back
11
Clause 9(2). Back
12
BB and BC, above n. 6. Back
13
Paragraph 5 of Schedule 4. Back
14
Clause 21. Back
15
UN General Assembly Human Rights Council, 16th Session,
A/HRC/16/51 (22 December 2010), para 19. Back
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