3 When will ETPIMs be introduced?
17. This draft Bill could be introduced by the Government
at any time to grant the Home Secretary additional powers to deal
with "exceptional circumstances". ETPIMs, if passed,
would act as a separate, parallel regime from TPIMs. The Terrorism
Prevention and Investigation Measures Act is time-limited to five
years (i.e. it will expire in 2016). By contrast, the powers set
out in the ETPIMs Bill would last for 12 months from their approval,
renewable once.[21] As
such, even if this Bill were approved by Parliament, this legislation
would only be a temporary measure, granting the Government additional
powers for a limited period.
18. At the end of the initial 12 months Parliament
will need to formally approve the extension of the Secretary of
State's powers for a further 12 months. This will be done by a
statutory order to be agreed by both Houses. The Bill can only
be extended in this fashion once; after 24 months, if these powers
were still deemed necessary, fresh primary legislation would need
to be approved by Parliament. If Parliament did not re-approve
the use of these measures—by order after 12 months or a
fresh Act after 24 months—then those subject to ETPIM notices
will be affected. Subject to a 28-day transition period, ETPIMs
will be removed from an individual. Once 28 days have elapsed
from the end of the initial 12 or 24 months, the ETPIM notice
would be treated as it had been revoked by the Secretary of State.[22]
External events
19. The introduction of the ETPIMs legislation before
Parliament will be triggered by external events rather than taking
place in the normal course of Government business. The explanatory
notes to the ETPIMs Bill state that ETPIMs are expected to be
used only in the event of "a very serious terrorist attack
that cannot be managed by other means". The Counter-Terrorism
Review that recommended the introduction of ETPIMs (and TPIMs)
said ETPIMs should only be instituted in "exceptional circumstances"
that required "additional restrictive measures".
20. We asked our witnesses what this threshold might
mean in practice. David Anderson conceded that it might be impossible
to ever give a complete definition of the "exceptional circumstances"
needed before the Bill was introduced, and that ultimately the
decision to approve such legislation would come down to a political
judgment.[23] He speculated
that a general rising of the overall threat level would be insufficient
but that "exceptional circumstances" might include a
specific case where the threat posed by individuals was such that
"TPIMs would not be adequate to do the job" or the further
powers that the ETPIMs Bill would grant the Government—particularly
relocation powers—were absolutely necessary.[24]
Lord Carlile made a similar point in more graphic terms, suggesting
that ETPIMs might be necessary when, at the end of a period under
standard TPIM restrictions, an individual remained "so driven
by what they do and are so highly respected in their very small
community that they remain as potential terrorists", or:
[I]f a multiple threat appeared that was placing
great pressure on the authorities from a policing and control
viewpoint—for example, a large cell or a cell that appeared
to have extremely dangerous weaponry beyond what we have seen
so far.[25]
21. The above descriptions of "exceptional circumstances",
suggesting as they do a particular event that demanded targeted
measures by the Government, was somewhat contradicted by Stuart
Osborne speaking on behalf of the Association of Chief Police
Officers. DAC Osborne suggested that ETPIMs could be introduced
in response to a more general rising of the threat level that
could be triggered by either an increase in the danger posed by
terrorists or a reduction in police resources. He stated that
while the resourcing level of the police was currently adequate,
he viewed the ETPIM as "a plan B" and:
It is always good to have a plan B, but given the
resource currently available to us and the way in which we have
changed our working, we are adequately managing the risk posed
by people subject to TPIMs at the moment. Should the risk change
considerably, or should the resource drop off for some reason,
then it is useful to have something to fall back on that allows
us to manage the risk to the same degree. [26]
22. We sought clarity from the Government that the
trigger for the introduction of the Bill would be a particular
threat caused by a particular individual or group rather than
a general reduction in police resources or rising of the overall
terror threat. The Minister told us that the Government had protected
counter-terrorism and police spending and that it would "always
make sure that there are sufficient resources to assure national
security", as such the situation speculated upon by DAC Osborne
was unlikely to occur.[27]
He was also clear that an increase in the general threat level
to critical would not "automatically mean that we would be
looking to draw upon an ETPIMs regime". Instead, he identified
"multiple attacks" or a "really exceptional incident"
as possible triggers for the ETPIMs Bill to be introduced.[28]
23. We appreciate
the confirmation by the Minister that Enhanced TPIMs are not viewed
by the Government as an alternative to adequate police resources;
we agree with him that ETPIMs are measures to be introduced in
exceptional, unanticipated circumstances and should remain as
such. However, in other statements he was vague as to the circumstances
in which the ETPIMs Bill might be introduced for Parliament to
consider. We accept that it would be impossible to define a hard
and fast "trigger" for this legislation, but we recommend
that, in its response to this Report, the Government set out as
clearly and unambiguously as possible its understanding of the
types of "exceptional circumstances" that would lead
to the introduction of this Bill.
24. To avoid
the possibility
of Parliament being forced to consider legislation in the "exceptional
circumstances" envisaged by the Government it has been suggested
by some that the Government instead rely on the Civil Contingencies
Act 2004 (CCA 2004). The CCA 2004 already allows the Secretary
of State additional powers in "exceptional circumstances".
However, Lord Carlile told us that the CCA 2004 was "an entirely
inappropriate vehicle for this kind of limitation" because
it would put "too much power into the hands of Ministers".[29]
David Anderson agreed that there were "difficulties"
with using the CCA 2004 and also highlighted the "far broader"
discretion it would offer the Secretary of State.[30]
25. The Civil
Contingencies Act 2004 would be an inappropriate mechanism by
which to introduce the powers currently set out in the ETPIMs
Bill, and would be contrary to the Government's aim of introducing
more liberal policies which clarify and hence constrain the Secretary
of State's powers as far as possible.
Parliamentary scrutiny of the
ETPIMs Bill
26. The Minister's explanation of the circumstances
in which ETPIMs legislation might be introduced to Parliament—in
response to some sort of multiple terrorist attack—highlighted
two worrying issues about how Parliament would scrutinise the
Bill upon introduction.
THE USE OF EMERGENCY LEGISLATION
27. Emergency legislation is rare, but in 2011 our
colleagues on the Joint Committee set up to scrutinise the Draft
Detention of Terrorist Suspects (Temporary Extension) Bills, performed
scrutiny on another piece of so-called "emergency legislation".
We note their work, not least as it considered in depth the viability
and utility of the Government introducing Bills in this fashion.
In their Report they concluded that "the parliamentary scrutiny
of primary legislation" introduced in this fashion "would
be so circumscribed by the difficulties of explaining the reasons
for introducing it" that it would leave the "process
of justifying the legislation almost impossible for the Secretary
of State and totally unsatisfactory and ineffective for Members
of both Houses of Parliament".[31]
28. The same issues apply in the case of this Bill
and we accordingly explored this question with our witnesses,
some of whom raised additional problems with the use of emergency
legislation in this particular context. Sophie Farthing of Liberty
highlighted the risk that retaining a draft Bill in this way might
lead to the temptation to introduce the legislation in situations
other than those for which it was intended:
I understand that, with this Bill, the Shadow Minister
for Crime and Security requested that it be brought into force
for the Olympics, which from the explanatory memorandum wasn't
the reason the Bill was drafted.[32]
29. David Anderson also remarked upon the risk, previously
highlighted by the Joint Committee on the Draft Detention Bills,
that Parliament would be unable to debate the Bill adequately
without impinging upon active cases, although he acknowledged
that this risk was less "acute" than in the case of
the Draft Detention of Terrorist Suspects (Temporary Extension)
Bill.[33] In his evidence
to us, the Minister argued that the process of using emergency
legislation was in some ways presentational and highlighted that
the measures were exceptional and only to be used in extremis.
He told us that the Government had judged "that having a
process where you have emergency legislation to utilise ... is
right so that it underlines how exceptional and extraordinary
that [situation] is.[34]
30. There are
many occasions in which Parliament is asked to legislate without
access to the information necessary to make a fully informed decision.
It is a problem faced by Government and Legislatures across the
world when legislating in response to national security threats,
and we fully sympathise with the Government's position. However,
we do not think that this situation is improved by the use of
so-called emergency legislation.
31. We can find
no compelling reason for the decision to introduce these measures
as a separate Bill at some unspecified time in unspecified circumstances.
We find it odd that these measures were not included as an order-making
power in the original TPIMs Bill where they could be subjected
to fuller scrutiny in the course of normal Parliamentary business.
The delegation of power to the Government does not demand its
use, and the Minister's argument that the limited scrutiny that
emergency legislation of this sort can offer is the only way to
do justice to the "exceptionality" of these powers was
unconvincing. The Government's position that it will introduce
this legislation at some future date in response to some unspecified
emergency is an unfortunate and unwelcome decision.
32. While we
do not approve of the use of emergency legislation in principle,
given the situation now created by the Government it seems to
us preferable that the ETPIMs Bill—if deemed necessary—be
brought forward as emergency legislation, rather than through
an amendment to the TPIMs Act. Nevertheless, the Government should
take all possible measures to ensure that this undesirable process
is not repeated. The scrutiny of emergency legislation is fraught
with difficulty and we deprecate the introduction of Government
measures in this fashion. Should the ETPIMs Bill ever be brought
forward and enacted, we would further advocate consolidation of
the legislation at the earliest opportunity.
PARLIAMENTARY ACCESS TO INTELLIGENCE
33. Separate from the inherent challenges faced by
Parliament when scrutinising "emergency legislation",
there are further particular difficulties associated with this
Bill. If this Bill is only to be introduced in response to the
immediate and pressing threats described above then it is almost
certain that a large part of the Government's case for the legislation
will rest on privileged intelligence information not publically
available and unavailable to Members of Parliament.
34. This problem was identified by David Anderson
who noted "difficulties in Parliament being asked to decide
on something when very few Members will have seen the national
security-sensitive information that prompted the request."[35]
As a partial remedy to this problem, he suggested a system whereby
the Intelligence and Security Committee (ISC) or a similar grouping
of senior Members from both Houses was briefed in detail on the
intelligence data—presumably suggesting the danger of the
"exceptional circumstances" described above—which
had led to the Government deciding to introduce the Bill. This
would allow Parliament a greater insight into the Government's
reasons for proposing the introduction of these Enhanced powers
and allow for better scrutiny of the Government's position.
[36]
35. We put this suggestion to Lord Carlile, who disagreed
with the proposition on two grounds. First, he disputed that there
was a problem to be addressed. He stated that no matter the system
put in place, ultimately Parliament would have to take the Government
at its word that the proposed measures were necessary. While accepting
that the result would "hardly be scrutiny by Parliament",
he was unsure of an alternative.[37]
Further, he noted extreme unease on the part of the security services
to the briefing of Members outside of the usual practice of briefing
the relevant Opposition spokesmen on Privy Council terms. He highlighted
that with the most sensitive information—Strap 3A—access
is limited to very a select few and, while Members of Parliament
could be potentially be briefed on such matters:
Those MPs and Peers generally have staff working
for them. However well trusted the main individuals are, there
is very little control in this building over the security of staff.
We do not directly develop those staff; we don't even "SC"
clear staff working for us in this building, so there is a degree
of nervousness there.[38]
36. Nevertheless,
the Minister cautiously welcomed the idea that selective briefings
might be used, encompassing members of the Opposition who are
Privy Councillors or members of the ISC, in order to "aid
and assist in the scrutiny of emergency legislation".[39]
He said that doing so might offer "a sense of some of the
issues" underlying the legislation being introduced, but
ultimately this would be "exceptional", and he was consequently
unwilling to formulate a standard mechanism to inform Members
of Parliament of the need for this legislation.[40]
37. Should this
legislation ever be introduced to Parliament there is a very real
danger that Members will be placed in the invidious situation
of approving these measures without being told the majority of
the case for them. We are aware that it would be impossible to
brief all Members of both Houses on the situation triggering the
introduction of this Bill, but we recommend that the Government
takes steps to formalise a mechanism whereby a select group of
properly vetted Members can be briefed in advance on the nature
of the particular threat that necessitates the introduction of
these measures. It would be highly regrettable if a failure to
have in place a clear process for briefing the right people at
the right time were to lead to further weakening of possible future
scrutiny, especially given stated concerns about the ability of
Parliament to fully scrutinise the Bill should it ever come before
the House.
38. We note
that the Intelligence and Security Committee is a body that would
be able to speak with some authority on the need for this legislation.
We recommend that, if in the Government's opinion the powers granted
to it under this draft Bill were needed, members of the ISC should
be briefed on the nature of the threat and then asked to formally
communicate to Parliament a recommendation on whether, in its
opinion, the Government's case for the need for the ETPIMs Bill
has been made.
21 Clause 9(1) Back
22
Clause 10 Back
23
Q 9 and Q 12 Back
24
Q 14-15 Back
25
Q 97 Back
26
Q 36-39 Back
27
Q 222, Q 223 Back
28
Q 225 Back
29
Q 115 Back
30
Q 13 Back
31
Joint Committee on the Draft Detention of Terrorist Suspects (Temporary
Extension) Bills Committee (2010-12): Draft Detention of Terrorist
Suspects (Temporary Extension) Bills Report (HL Paper 161, HC
Paper 893), para. 94. Back
32
Q 177 Back
33
Q 16 Back
34
Q 215 Back
35
Q 16 Back
36
Q 16 Back
37
Q 100 Back
38
Q 99 Back
39
Q 226 Back
40
Q 227 Back
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