Draft Enhanced Terrorism Prevention and Investigation Measures Bill
- Joint Committee on the Draft Enhanced Terrorism Prevention and Investigation Measures Bill Contents

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 Once 28 days have elapsed from the end of the initial 12 or 24 months, the ETPIM notice would be treated as it had been revoked by the Secretary of State.[22]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.


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.


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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© Parliamentary copyright 2012
Prepared 27 November 2012