4 How ETPIMs will work
39. Previously in this Report we have analysed the
circumstances in which this legislation will be introduced before
Parliament. The rest of this Report will examine what happens
after an ETPIM is imposed on an individual and starts from the
premise that Parliament has passed the Bill.
The conditions to be met before
an ETPIM is imposed
40. In the event that the draft Bill is introduced,
the Secretary of State may seek to impose an ETPIM notice upon
an individual by way of application to the High Court.[41]
The function of the High Court at this stage will be limited to
whether or not the decision of the Secretary of State is flawed.[42]
This function—the permission stage—is separate
from, and much less arduous than, the automatic review,
discussed below.
41. Clause 2 of the draft Bill specifies the five
conditions the Secretary of State must satisfy before imposing
an ETPIM, all of which must be met. The draft Bill states that
the Secretary of State must be satisfied on the balance of probabilities
that the individual is, or has been, involved in terrorism-related
activity, and that some or all of this activity is new. The Secretary
of State must also reasonably consider it necessary to impose
an ETPIM, and that the threat posed cannot be dealt with by a
standard TPIM. If all these thresholds are met and approved by
the court an ETPIM, comprising a combination of the restrictions
set out in Schedule 1 of the Bill, can be imposed on an individual
for a period of 12 months, renewable once.[43]
42. It is important to note that, one of the conditions
to be met by the Home Secretary - the requirement that some of
the terrorism-related activity is new - does not mean 'new'
in the conventional sense. Clause 2(6) sets out the statutory
definition of the term "new" and David Anderson told
us how this definition would operate in practice:
"New" is of course a defined term in the
Bill, just as it is under the TPIM Act itself. Under clause 2(6),
new terrorism-related activity, in circumstances where no enhanced
TPIM notice has ever been in force, can mean "terrorism-related
activity occurring at any time (whether before or after the coming
into force of this Act)". The adjective "new" might
seem a little strange in that context, but if there has been an
enhanced TPIM notice relating to that individual, it means that
terrorism-related activity counts for the purposes of an ETPIM
only if it occurs after that notice came into force. The adjective
"new" is perhaps of more relevance in circumstances
where someone has already been under an ETPIM than when they go
straight into an ETPIM for the first time.[44]
43. As such if an individual has served one period
on an ETPIM and the Government seeks to restrict his activities
for a longer period beyond the 24 month limit. (i.e. the Government
seeks to impose a new ETPIM on an individual) then "new"
evidence is required, distinct from that used to justify the earlier
ETPIM.[45] We note later
the practical effects of this definition.
The New Threshold: Balance of
Probabilities
44. Only if the Government is confident that the
conditions set out in Clause 2 of the draft Bill have been met
can the Secretary of State apply to the courts for an ETPIM notice
against a named individual. The Government has claimed that a
key difference between the ETPIMs and control order regime is
that courts must be satisfied that the Secretary of State is confident
that the conditions have been met on the "balance of probabilities".
Under control orders, the Secretary of State merely had to have
a "reasonable suspicion" that the individual was engaged
in terrorist activity.[46]
45. We asked our witnesses to consider whether or
not this new threshold—on the balance of probabilities—was
in practical terms, different from the requirement of reasonable
belief for TPIMs, and reasonable suspicion for control orders.
We also asked witnesses to consider if this was an appropriate
standard for measures such as ETPIMs.
46. DAC Osborne told us what this standard meant
in practical terms, and confirmed that in his opinion this new
standard represented a higher hurdle for the Secretary of State:
... Quite simply, based on evidence, it is more probable
that this is the case than it is not the case, whereas previously
it was on a suspicion, which was someone's point of view. For
TPIMs, it is about reasonable belief, which means that somebody
must believe it and not just suspect it. The next stage, on the
balance of probability, is that it must be more likely than not.
Each of those is a progressive hurdle in terms of the amount of
evidence and certainty that is needed.[47]
David Anderson told us that the more onerous test
was to be welcomed, but that it raised further questions as to
whether or not it should be applied for other measures, like TPIMs:
... there will be no question of imposing an ETPIM
on anybody unless the Home Secretary is persuaded, on the balance
of probabilities, that they have been involved in terrorism, which
to my mind makes them more tolerable. It also begs the question
as to why a similar balance of probabilities test could not be
applied in relation to TPIMs, and indeed other Executive orders,
such as proscription orders and asset-freezing orders.[48]
47. However, we also heard contradictory evidence
which suggested that while this change was to be welcomed it would
have little practical impact. Lord Carlile took the view that
judges were already applying more rigorous standards for control
orders:
Intellectually, raising the standard of proof by
two notches to the balance of probabilities is undoubtedly more
demanding. However, I have read every control orders case, and
I do not believe that there is a single case in fact in which
the judicial decision has not been made on the balance of probabilities.
Putting it another way, judges have a bit of difficulty dealing
with lower standards than the balance of probabilities. Therefore,
as a safety position for themselves—in my view, rightly—they
have not confirmed a control order or condition unless they believed
that, on the balance of probabilities, it was justified. However,
I absolutely applaud including it in statutory provisions; even
it is no more than a recognition of the realistic position.[49]
Professor Helen Fenwick was similarly sceptical as
to whether a change in the legal threshold to be met before the
Secretary of State could impose these measures would amount to
much of a change in real terms. She drew parallels with the change
between control orders and TPIMs which had not translated into
practical differences in the decision-making process:
In reality, will it make any difference? I don't
think the change from reasonable suspicion to reasonable belief
makes much difference, no. In fact, it is obvious it does not
because all the TPIMs were imposed on the basis of reasonable
belief and they had previously been imposed on the basis of reasonable
suspicion.[50]
48. Given the evidence that this change is more a
recognition of reality than a practical shift in the thresholds
to be met before an ETPIM can be introduced, we pushed the Minister
for his views. He rejected the assessment that the new threshold
would mean little change in practice and stressed that it was
a significant safeguard in the legislation:
Under the control orders regime the standard of proof
there was "reasonable suspicion" ... To take the legal
approach on that, "reasonable suspicion" is a state
of mind by which a certain person thinks that something may have
been the case, whereas "on the balance of probabilities"
you have to be satisfied that something is more probable than
not. Whilst these are, on one level, quite technical legal issues,
they are important in giving assurance on how particular provisions
would be used ...[51]
49. The Minister emphasised that whilst there may
be some similarities between the ETPIMs and control order regimes—most
notably in the range of measures which can be applied to individuals
in both regimes—the new test that the Secretary of State
is satisfied on the balance of probabilities is an important
change and would ensure that the courts will have to go even further
in showing that the measures are in fact justified.[52]
50. While we
welcome the decision to elevate the legal threshold from one of
reasonable suspicion to a balance of probabilities, we note the
evidence we have received that in practice, the courts generally
already operated a more robust standard than was called for in
statute in determining whether the conditions were satisfied for
a control order. Caution must therefore be used in attributing
too much value to this change. Nonetheless, we agree with the
decision to require the Secretary of State to be satisfied on
the balance of probabilities before imposing an ETPIM. These are
exceptional measures for exceptional circumstances and the decision
to impose formally this higher threshold before they can be met—even
if this only regularises current practice—is the correct
one.
The Role of the Courts
51. As under existing TPIMs, the imposition of an
Enhanced TPIM notice immediately triggers an automatic review
hearing of the Secretary of State's decision to impose the notice.[53]
The review will solely determine whether the relevant conditions
as set out in Clause 2 were met at the time of notice, and continue
to be met, applying the principles applicable on an application
for judicial review. At this stage, the court has the power to
quash the ETPIM notice completely, quash certain measures within
it (for example, a requirement to not communicate with certain
persons) or to direct the Secretary of State in relation to revocation
of the notice or variation of the measures specified.
52. This process was criticised during the passage
of the Terrorism Prevention and Investigation Measures Act 2011,
and given the more stringent restrictions that could be imposed
under an ETPIM we sought further evidence on what should be the
appropriate standard of judicial scrutiny. JUSTICE emphasised
the need for a more rigorous standard of judicial scrutiny, calling
for a full merits review of the Secretary of State's decision.
In particular, JUSTICE drew a distinction between judicial scrutiny
and supervision, claiming that the Bill as drafted affords the
judiciary only a limited supervisory role and recommending that
the Bill be amended to provide for full and effective judicial
control from the outset of the ETPIM process.[54]
53. We tested this view with our other witnesses,
asking if there was anything to be gained from more rigorous judicial
scrutiny. As with the changes to the legal threshold, it was suggested
that any change would be one of theory rather than practice. Professor
Fenwick took the view that where "the process is tested against
the ECHR articles, then in effect, the review is a merits review
in any event."[55]
Lord Carlile echoed this position, noting that the distinction
between judicial review and full merits review is "a distinction
without a difference."[56]
54. Having heard divergent views as to whether there
is in fact any difference between the two standards, and whether
a full merits review of the decision to impose an ETPIM was therefore
desirable, we put the question to the Minister. The Minister rejected
the case for a full merits review, on the basis that the ETPIMs
regime was already a structured process, with clear oversight
by the Secretary of State.[57]
The Minister also stated that as the TPIM measures has been deemed
compliant with the UK's ECHR obligations he was confident that
there was no need to revise the standard of review conducted by
the court: an individual subject to an ETPIM or TPIM should be
able to have a fair hearing under the current regime and no change
was therefore needed.[58]
55. We were not satisfied with this answer, and again
pressed the Minister on this point, in particular noting that
if the Government was indeed satisfied that there was in fact
robust scrutiny already of each case, then it would have nothing
to lose from a full merits review. Furthermore, we highlighted
that a full merits review would actually assist the Government,
as it would provide further safeguards and curb expensive litigation,
as each case would be fully and adequately tested in the first
instance. The Minster again rejected the proposal, stating his
preference that the Home Secretary retain the power to make judgments
on the appropriate restrictions to be placed on each individual
and commenting:
When we look at the legal process, there is a great
and detailed examination of the security case that has been relied
upon by the Home Secretary in seeking to use one of these measures.
In both open and closed session, there is a great deal of analysis
and consideration of the merits in that way within the principles
of judicial review as framed within the legislation. I certainly
would not want to give the impression, because I genuinely don't
think it is the case, that there is not detailed examination of
the merits that underpin the relevant measure being taken.[59]
56. Given
the potential seriousness of the Government's decision to impose
an ETPIM measure on an individual we are not satisfied by the
Minister's case for retaining the current level of judicial scrutiny
at the 'on the principles of judicial review' standard. There
should be a full merits review of each ETPIM notice. Formally
amending the legislation to allow a full merits review would represent,
more than anything else, a recognition of existing practice. We
recommend that the Government amend its draft Bill to ensure a
full merits review by the courts of each decision to impose an
ETPIM.
Review mechanisms
57. Enhanced TPIMs are, by definition, an extension
of the standard TPIMs regime. As with TPIMs, there are other safeguards
which would play an important role in ensuring accountability
and thorough review of their use. Both the Independent Reviewer
of Terrorism Legislation and the TPIM Review Group (TRG) play
a role in the oversight of the use of TPIMs. We explored whether
it would be appropriate to extend such systems to the proposed
ETPIMs.
58. The TPIM Review Group is similar to the previous
Control Order Review Group (CORG). As with CORG, the objective
of the TPIM Review Group is to bring together the departments
and agencies involved in making, maintaining and monitoring TPIM
notices on a quarterly basis, to keep all cases under frequent,
formal and audited review. Lord Carlile, in his former role as
the Independent Reviewer of Terrorism Legislation, was an ex
officio member of the CORG told us that he was satisfied that
it had become a rigorous body: "it considered facts, and
cases were explored slowly and methodically."[60]
He was confident it was a genuine review of each case and had
recommended the loosening of some restrictions faced by those
under a control order.[61]
59. We asked the Minister by what review mechanisms
he had proposed to monitor the use of ETPIMs. He confirmed that
he would expect the same regime to operate for ETPIMs as for TPIMs.[62]
In particular, the Minister singled out the quarterly review by
the TRG as an important safeguard, ensuring examination and continued
assessment of whether an ETPIM is appropriate.[63]
Given the increased severity of ETPIMs, we then asked him whether
or not a further level of review would be appropriate, we asked
the Minister to consider whether these warranted the introduction
of a further review mechanism. The Minister informed us that no
decision had yet been taken but there may be scope for a greater
level of review:
We have to be satisfied that the relevant use of
the powers contemplated under the ETPIMs regime continues to be
appropriate to satisfy our obligations under the legislation itself.
I am simply pointing to the fact that having a quarterly review
mechanism provides a means of ensuring that the relevant agencies
and those involved are able to have that regular review, analysis
and assessment of an individual who may be subject to the relevant
powers contained within the Bill to ensure that they remain appropriate.
I am simply saying that it is a mechanism that is there but, equally,
recognising that, as they are more stringent and greater than
under the TPIMs legislation, in satisfying that test of necessity,
clearly that has to be taken into consideration.[64]
60. It
is logical to have a formal review group—established on
the same basis as the CORG—to oversee the operation of the
Enhanced TPIM measures. However, we ask the Government to consider
whether the existing TPIM Review Group is the appropriate review
group for ETPIMs cases, given that the measures which could be
imposed under an ETPIM are more stringent and the power available
to the Government is broader in scope. A separate ETPIMs Review
Group (if necessary containing the same members as the TPIM Review
Group but meeting with greater powers of recommendation) may be
the most appropriate body to review the ongoing necessity of individual
ETPIM notices.
The measures available to the
Secretary of State
61. We noted earlier that among the differences between
control orders and ETPIMs, a crucial distinction relates to the
nature of the measures available. With control orders, the Secretary
of State was free to impose any obligation on an individual, provided
it was necessary and proportionate to disrupt terrorism-related
activity and, while the Prevention of Terrorism Act 2005
included a list of the types of measures available, these were
for illustrative purposes only. By contrast, under the draft Bill,
the Secretary of State will only be able to impose those measures
specified in Schedule 1. As this represents a significant departure
from the previous regime, we sought evidence as to whether or
not ETPIMs would be comprehensive in meeting the threat presented
by terrorism.
62. ETPIMs were welcomed by DAC Stuart Osborne as
an effective tool in counter-terror preventative policing in as
much as it returned to the police the powers they had available
under the control order regime: "essentially we go back to
the old control order regime ... the old regime was bedded in,
and it worked very well".[65]
In particular, relocation was singled out by DAC Osborne as a
particularly effective aspect of the control order regime, which
will be usefully resurrected with this draft Bill:
... it is easier to police generally in some locations
in others. It is to do with associations and demographics, and
with the ease of operations. Surveillance in some areas is far
easier than in others. All those things come into play.[66]
This evaluation of relocation was shared by David
Anderson. He told us that while relocation may be in many ways
a repugnant notion, it was undoubtedly a useful tool in some cases.[67]
63. DAC Stuart Osborne noted, however, that the shift
from control orders to TPIMs and the consequent reduction in measures
available to the police powers had meant a "rowing back",
in terms of providing greater liberty to those individuals affected
by such measures, but at an increased cost to the public purse.
He accepted that increased resources had been provided to manage
the increased risk and that these resources had enabled the police
to manage this risk chiefly through increased use of surveillance.[68]
64. The shift
from control orders to TPIMs is a welcome step in terms of rebalancing
liberty against security but this rebalancing has come at an increased
cost to the taxpayer. We believe that this financial cost is justified
to ensure that measures like ETPIMs remain the exception and not
the norm.
An alternative model: police
bail
65. There was considerable debate during the passage
of the Terrorism Prevention and Investigation Measures Act 2011,
on whether there could be any alternative to preventative measures
like TPIMs and Enhanced TPIMs. Sophie Farthing informed us that
Liberty remained committed to the "police bail" model,
as first suggested by Lord Macdonald of River Glaven[69]
during the TPIM debate.
66. The police bail model would impose restrictive
measures on individuals, but would remain tied to the criminal
justice system. As such the system would be more open and more
focused on prosecutions. Ms Farthing explained:
...the benefit of it is that you are really tied
to prosecution. It is the police who are making those decisions
and therefore the aim will be to prosecute the person. That is
why we think it is a better system. It goes back to our original
premise that the safest public policy is to have prosecutions
of people who we are told are very dangerous. Therefore it is
much better for the system to be tied in with the police and prosecutorial
services rather than warehoused with no particular end result.[70]
67. We
are not presently convinced of the feasibility of police bail
as an alternative to ETPIMs. Although we note the case for a more
open system, tied visibly to criminal justice, we have doubts
as to how this alternative model would work in practice. For these
reasons, we take the view that there is not presently any alternative
to the sort of measures laid out in this draft Bill and on the
statute book as under the TPIM Act 2011.
41 Clause 3 of the draft Bill provides that certain
provisions from the TPIM Act 2011 apply to the ETPIMs regime.
As a result, the same court processes apply to the ETPIMs regime
as do to the existing TPIMs. Back
42
If the court determines that the Secretary of State's decision
is obviously flawed in relation to Conditions A, B or C, the court
would have to refuse permission to issue the notice. If, however,
the court considered that the Secretary of State's decision was
flawed in relation to Condition D, then the court may give directions
to the Secretary of State to vary the notice. Back
43
See paragraphs 17-18 on what happens if the ETPIM legislation
rather than the individual Order is not renewed after 12 months. Back
44
Q 7 Back
45
The same conditions apply if the Government wishes to move an
individual from a "standard" to Enhanced TPIM. Back
46
A standard TPIM requires the Home Secretary to have proved "reasonable
belief". Back
47
Q 77 Back
48
Q 4 Back
49
Q 112 Back
50
Q 153 Back
51
Q 210 Back
52
Q 261 Back
53
Section 9 of the TPIM Act 2011 applies to the draft Bill, by
virtue of Clause 3 of the draft ETPIMs Bill. Back
54
Written Evidence received from Justice Back
55
Q 164 Back
56
Q 117 Back
57
Q 246 Back
58
Q 246 Back
59
Q 247-248 Back
60
Q 119 Back
61
Q 119 Back
62
Q 207 Back
63
Q 244 Back
64
Q 245 Back
65
Q 40 Back
66
Q 42 Back
67
Q 14 Back
68
See: Q 86 Back
69
Former Independent Reviewer of Terrorism Legislation, and Director
of Public Prosecutions 2003-08. Back
70
Q 183 Back
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