Legislative Scrutiny: Terrorism Prevention and Investigation Measures Bill (second Report) - Human Rights Joint Committee Contents


Conclusions and recommendations


(1) Prior judicial authorisation

1.  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. (Paragraph 1.6)

2.  We recommend prior judicial authorisation (Paragraph 1.8)

3.  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. (Paragraph 1.8)

4.  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. (Paragraph 1.10)

5.  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.' (Paragraph 1.12)

(2) Standard of proof

6.  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. (Paragraph 1.14)

(3) Full merits review

7.  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 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. We support the amendments to clause 9 to be moved by Lord Pannick in Committee to that effect. (Paragraph 1.17)

(4) The right to a fair hearing

8.  The provision in Schedule 4 of the Bill 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. (Paragraph 1.21)

9.  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. (Paragraph 1.23)

(5) Annual review and renewal

10.  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. (Paragraph 1.27)



 
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Prepared 19 October 2011