2 What are ETPIMs?
Background to the draft legislation
5. The coalition Government has been described as
adopting a "cautious rebalancing in favour of liberty"
in its security policies.[4]
This shift of emphasis has been manifested by several changes
to the powers available to the police and security services, including:
- The repeal of Sections 44-46
of the Terrorism Act 2000, commonly known as "Section 44"
powers. Section 44 powers enabled a police constable to stop and
search any individual in a defined space "without reasonable
suspicion" that the individual in question was engaged in,
or carrying items that could be used in, terrorism;
- A reduction in the amount of time for which individuals
could be held without charge from 28 to 14 days; and
- The repeal of control orders.
6. These were recommended in the Government's Counter-Terrorism
Review, which reported in January 2011.[5]
The Review considered the best methods of managing the threat
from individuals engaged in terrorism whom the Government could
neither successfully prosecute nor deport. In recommending the
repeal of control orders, it concluded:
The Government will move to a system which will protect
the public but will be less intrusive, more clearly and tightly
defined and more comparable to restrictions imposed under other
powers in the civil justice system. There will be an end to the
use of forced relocation and lengthy curfews that prevent individuals
leading a normal daily life.[6]
7. The Government's response to this conclusion was
to introduce the Terrorism Prevention and Investigation Measures
Bill in 2011. The Bill received Royal Assent on 14 December 2011
(TPIMs Act 2011), replacing control orders with TPIMs. TPIMs are
broadly similar to control orders in that they are targeted measures
aimed at restricting the actions of individuals, and they similarly
operate outside of the criminal justice regime. However, TPIMs
differ from the previous regime in several distinct ways:
- The TPIMs Act makes no allowance
for relocation. Unlike control orders, individuals under a
TPIM cannot be forcibly relocated to a Government-chosen residence
in another part of the country;
- TPIM powers are strictly limited
to those specified in Schedule 1 of the Act. Under control orders,
the Secretary of State was empowered to take "all necessary
measures" to protect the public;
- Unlike control orders, TPIMs are time-limited.
An individual can only be subject to a TPIM for a 12 month period,
renewable once (i.e. an individual can be subjected to a TPIM
for 24 months in total); and
- The burden of proof needed
before a TPIM can be placed on an individual is higher than under
control orders. Control orders could be imposed on the grounds
of "reasonable suspicion", while TPIMs require "reasonable
belief" of terrorism-related activity.
As a result, TPIMs have been described as a "significant
rolling back of control orders"[7]
8. Since the Terrorism Prevention and Investigation
Measures Act was passed, TPIMs have been used relatively sparingly.
As of November 2012, nine individuals are subject to TPIMs; in
comparison 52 people were subject to control orders between 2005
and 2011. Deputy Assistant Commissioner Stuart Osborne speaking
on behalf of ACPO, told us that "given the resource currently
available" and the changes made to policing, the police "are
adequately managing the risk posed by people subject to TPIMs
at the moment".[8]
9. While the Government has introduced a greater
degree of liberalism into its counter-terrorism policy, it has
retained the right to reintroduce more stringent measures in situations
it deems an emergency.[9]
As a result of this position, and in response to the Counter-Terrorism
Review's conclusion that, "there may be exceptional circumstances
where it could be necessary for the Government to seek parliamentary
approval for additional restrictive measures",[10]
the Government has prepared—but not yet introduced—the
ETPIMs Bill. This Bill, if approved by Parliament, would introduce
an additional security measure which could be placed on individuals:
the Enhanced TPIM (ETPIM).
Enhanced TPIMs
10. ETPIMs are distinct from TPIMs. An individual
cannot be subject to both a standard and an Enhanced TPIM simultaneously
and the conditions that must be met before the Government can
impose an Enhanced TPIM are more stringent than under the current
regime. There is much correlation between the operation and policing
of TPIMs and ETPIMs (as there is between TPIMs and the former
control orders),[11]
but ETPIMs are generally tougher, both in terms of the restrictions
to liberty an individual under an ETPIM would face, and in the
threshold the Government must meet before an ETPIM can be imposed
on an individual. ETPIMs differ from standard TPIMs in the following
ways:
- A strengthening of the legal
test to be met before
imposition from "reasonable belief" under a TPIM to
"balance of probabilities" under an ETPIM;
- Under an ETPIM, the Secretary of State could
impose a curfew for up to 16 hours on an individual. Under
the existing TPIM Act an individual can only be compelled to reside
overnight at a specified residence;
- ETPIMs allow a complete—as opposed to partial—ban
on electronic communication devices;
- Individuals under an ETPIM can be prohibited
from entering a defined area and from associating with any
individual without the Secretary of State's prior permission;
and
- The draft ETPIMs Bill would allow the Secretary
of State to require an individual to reside at any residence specified
by the Government (i.e. relocation), unlike the existing
TPIMs Act, which makes no such allowance.
11. David Anderson QC, the Independent Reviewer of
Terrorism Legislation, suggested that, while the proposed differences
between TPIMs and ETPIMs might seem minor and technical, their
net result was two quite separate regimes:
Putting it very broadly, TPIMs are a significant
rolling back of control orders [but] as I understand the purpose
of the ETPIM, it is to allow Parliament to reintroduce restrictions
which look very like the old control orders. There are a few differences,
but not very many.[12]
Sophie Farthing of Liberty agreed, calling the Government's
changes "tweaks around the edges" which did not address
her previous concerns about the control orders regime.[13]
However, while noting the similarity of their potential effects
on an individual, David Anderson went on to note some important,
largely procedural, differences that would exist between the control
order and the proposed ETPIM regime. These included the required
legal test, the finite schedule of powers available under an ETPIM
as opposed to the illustrative list provided in the control order
regime, and the two-year time-limit that ETPIMs share with the
standard TPIMs. Nevertheless, he concluded that "in most
respects" the ETPIMs Bill appeared to "replicate what
was possible and generally imposed under control orders".[14]
12. DAC Osborne similarly told us that, while the
TPIMs Act is relatively liberal, Enhanced TPIMs would represent
a return to the old control order regime in terms of the operational
response required of the police. Therefore, the introduction of
ETPIMs would demand "practical, tactical policing" that
was "very similar to how we would have dealt with control
orders".[15]
13. The Minister, James Brokenshire MP, disagreed
with this analysis of the similarities between the old control
orders regime and the proposed ETPIMs measures. He highlighted
the differences in the process by which ETPIMs would be placed
on an individual as a key distinction between the two regimes:
There are important differences in the standards
that would legally have to be satisfied in the utilisation of
powers under the enhanced Bill and more specificity on what it
can be used for—in other words, the schedule of powers that
could be adopted. Therefore, in terms of that balance of liberty
and collective security, there are important differences that
reside here and it is not just trying to repackage or simply to
present it in a different way.[16]
He therefore argued that despite the superficial
similarity of their effects on the "controlee", ETPIMs
remained a more "liberal" measure than their predecessor.[17]
14. The Minister's assessment that the differences
in legal standards required represented a substantial change from
the previous regime had been questioned earlier in our inquiry.
Lord Carlile of Berriew QC, a former Independent Reviewer of Terrorism
Legislation, disagreed with the Minister that the heightened standard
for ETPIMs—which is "two notches"[18]
above that required under the control orders regime—represented
a real difference in how the legislation would work in practice.
He argued instead that judges would not "confirm a control
order or condition unless they believed that, on the balance of
probabilities, it was justified" and therefore any change
was one of theory, not practice.[19]
On the other hand, DAC Stuart Osborne told us that the heightened
legal test for TPIMs had led to real changes how the police worked;
an inability to meet the changed legal threshold has meant that
the police have held back from requesting a TPIM. Some individuals
who might previously have been under a control order were not
covered by the new regime's higher threshold.[20]
15. There are
strong similarities between the ETPIMs regime and its predecessor,
control orders, not least in the measures which both regimes allow
to be imposed against an individual. However, despite these common
factors it would be incorrect to argue that Enhanced TPIMs represent
a return to control orders. Key differences exist in the procedures
by which these draft measures can be applied and these differences
give ETPIMs a somewhat more liberal character than control orders.
16. While we
note the differences between ETPIMs and control orders, we similarly
note differences between Enhanced TPIMs and the existing standard
TPIM regime. Given the Government's stated liberal intentions,
only the most extreme circumstances can justify the introduction
of legislation that will bring in such stringent measures and
even then their use must be strictly limited.
4 Q 2 [David Anderson QC], Q 134 [Helen Fenwick] Back
5
Review of Counter-Terrorism and Security Powers: Review Findings
and Recommendations, Cm8004, January 2011. Back
6
Review of Counter-Terrorism and Security Powers: Review Findings
and Recommendations, page 41. Back
7
Q 3 [David Anderson QC] Back
8
Q 39 Back
9
The police maintain "no suspicion stop and search powers"
under Section 47A of the Terrorism Act, which requires a higher
threshold of risk assessment to be met. The Government has further
prepared draft legislation reintroducing pre-charge detention
of up to 28 days if this were deemed necessary. Back
10
Review of Counter-Terrorism and Security Powers: Review Findings
and Recommendations, page 43, paragraph 27. Back
11
Q 35 [Stuart Osborne] Back
12
Q 3 Back
13
Q 170 Back
14
Q 5 Back
15
Q 40, Q 68 and Q 35 Back
16
Q 209 Back
17
Q 209 Back
18
Q 90 Back
19
Q 112 Back
20
Q 86-87 Back
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