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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