Conclusions and recommendations
What are ETPIMs
1. 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.
(Paragraph 15)
2. 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. (Paragraph 16)
When will ETPIMs be introduced?
3. 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. (Paragraph 23)
4. 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. (Paragraph 25)
5. 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. (Paragraph 30)
6. 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. (Paragraph 31)
7. 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. (Paragraph 32)
8. 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. (Paragraph 37)
9. 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. (Paragraph 38)
How will ETPIMs work
10. 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. (Paragraph 50)
11. 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. (Paragraph 56)
12. 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. (Paragraph 60)
13. 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. (Paragraph 64)
14. 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. (Paragraph 67)
Are ETPIMs the best solution?
15. Time-limiting
ETPIMs and as a result focusing the prosecution efforts of the
security services, police and the CPS by giving them a deadline
to work against, undoubtedly brings both costs and benefits. It
is correct to note that restricting the movement and potential
associations of a terrorist suspect for a period of up to two
years could in many cases lead to a diminution of the individual's
value to terrorist organisations and assist in a process of "natural"
de-radicalisation. As an interim measure to facilitate and encourage
this process the ETPIM has merit. We further welcome the Government's
decision to time-limit these measures in so far as this creates
an imperative towards prosecution that was lacking under the previous
control order regime. (Paragraph 78)
16. While
a proportion of the threat posed by dangerous, radicalised individuals
could be contained for a two-year period under an ETPIM, it is
equally true to say a residual element of risk will remain. We
believe that if there were to be some individuals placed under
an ETPIM, there will almost certainly be some who will remain
radicalised and potentially dangerous but against whom no new
evidence of wrong-doing can be found. Under the legislation as
drafted such individuals will effectively be allowed to go free
at the end of their two year ETPIM period without restriction
on their movement or activity. The Government has not yet explained
how the threat posed by such individuals will be managed. We recommend
that they do so in response to this Report. (Paragraph 79)
17. It
is not our intention to pass comment on the admissibility of intercept
material as evidence. To make such a recommendation would be beyond
the scope of this Committee and our work. We are very aware of
the difficulties this problem raises and the ongoing efforts of
the Government to tackle these. Nevertheless, we echo the comments
of our witnesses that intercept evidence is not a "silver
bullet". The admissibility of intercept evidence would not,
in itself, solve the Government's problem of how to manage the
threat posed by terrorist suspects it was unable to deport or
safely prosecute. Regardless of its inherent merits, intercept
evidence would rarely be the decisive factor in a decision to
prosecute instead of imposing a measure like an ETPIM. As a result,
while we are clear that intercept evidence could be useful as
a tool to increase the number of prosecutions of terror suspects,
we accept that the admissibility of intercept material as evidence
could not itself act as an alternative to ETPIMs. (Paragraph 85)
18. Our
colleagues elsewhere in Parliament have scrutinised the compatibility
of these broad measures with the UK's human rights obligations.
It is not our intention to duplicate their work. We acknowledge
the inherent difficulty faced by the Government in ensuring that
this legislation is compliant with human rights law. Any ETPIM
will be a bespoke measure customised for each circumstance. Their
legality in each case can only be proven via a legal challenge.
However, the evidence we have received suggests that the Government
is correct to proclaim these measures human rights compliant and
we see no reason to contradict these statements. Regardless of
the accuracy of the Government's position we recommend that the
Government change its position on "gisting" and commit
to a de facto position of providing at least the gist of every
case against an individual. We do not understand why this is not
the current policy and suggest that there are strong moral reasons
to make such a change. Regardless of interpretations of the law,
it is wrong that an individual could have no knowledge of the
case against them and will be unable to instruct his Special Advocate
accordingly. We note that if the underlying presumption was changed
so that the gists were put forward, the Government would remain
able to apply to the court to prevent publication if so doing
would endanger national security, and we therefore urge the Government
to reverse its current bias against gisting and work with the
Special Advocates to devise a method by which this can be done.
(Paragraph 98)
Conclusion
19. In
an ideal world there would be no need for a controlling measure
such as ETPIMs, the Government would face a simple binary choice
to prosecute a dangerous individual or leave him at liberty. Sadly
this situation does not exist and the Government must devise a
system to tackle the ongoing terrorist threat from those individuals
who cannot—for whatever reason—be deported or safely
prosecuted. Almost by default such a system is sub-optimal solution,
but sub-optimal does not mean inadequate. We accept that these
measures are a suitable response to the challenge they seek to
tackle. (Paragraph 99)
20. While
we give cautious approval to these measures we cannot approve
of them in their entirety nor the process by which they will be
placed before both Houses for approval. We have concerns about
both the lack of certainty over the circumstances in which these
measures will be introduced and the ability of Parliament to scrutinise
adequately whether these powers are necessary to meet the particular
threat identified. We expect the Government to address our concerns
before the Bill is introduced formally. (Paragraph 100)
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