Schedule 4 — Proceedings relating to terrorism prevention and investigation measures

Terrorism Prevention and Investigation Measures Bill – in the House of Commons at 9:15 pm on 5th September 2011.

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Amendment made: 19, page 30, line 19, leave out ‘56’ and insert ‘56(1), (2) and (4)’.—(James Brokenshire.)

Third Reading

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department 9:28 pm, 5th September 2011

I beg to move, That the Bill be now read the Third time.

I would like to begin by thanking the right hon. and hon. Members who sat on the Public Bill Committee. I can genuinely say that it was one of the best Public Bill Committees that I have been involved in. The Bill underwent tough and detailed scrutiny. There was active participation and there were excellent contributions from both sides. I am sure Members who sat on the Committee will agree that it was lively and robust, but good natured. That is when Parliament excels and does its job properly. The Public Bill Committee certainly did that.

The Committee benefited from the considerable knowledge and expertise of several Members including my hon. and learned Friend Stephen Phillips and the right hon. Members for Wythenshawe and Sale East (Paul Goggins) and for Salford and Eccles (Hazel Blears). I am grateful for the contributions of those Members and other Members of the Committee to this debate. I also thank the Chairmen of the Committee and the officials, Officers and staff of the House who enabled the Committee’s work to take place. We have had a full and detailed discussion of this important piece of legislation on Report, with many excellent contributions from all parts of the House.

We have made it clear from the outset that we are committed to prosecuting and deporting terrorists wherever possible and that our starting point will always be that terrorists should be behind bars. I know that that is the position of everyone in the House. We recognise, however, that there are likely, for the foreseeable future, to be a small number of individuals who we believe are involved in terrorism but whom we cannot successfully prosecute or deport. The purpose of the Bill is to put in place the measures needed to deal with them.

The Government have thought long and hard about what legislation is needed. We conducted a comprehensive and detailed review of all the key counter-terrorism powers, including control orders. As a result of that review, we concluded that control orders were not properly targeted and not entirely effective, and that they should be replaced with the system of prevention and investigation measures that is set out in the Bill.

The Bill includes all the measures that we believe are necessary to deal with those we cannot prosecute or deport, including an overnight residence requirement; a travel measure allowing the banning of overseas travel without permission; measures restricting individuals from entering particular areas or places; an electronic communications device measure that will restrict the individual’s ability to use communications devices; and a financial services measure that will allow individuals to be limited to only one bank account, for which they will have to provide statements. The transfer of money and goods overseas without prior permission could also be prohibited.

The Bill also includes an association measure, under which a list of prohibited associates would be provided to the individual in advance, with the possibility that advance notice might be required for meeting other individuals; a reporting measure that would require the individual to report to a particular police station at a particular time; and a monitoring measure that would require the individual to co-operate with arrangements, including electronic tagging, to monitor their movements, communications, and other activities.

The Bill includes additional safeguards, including an increase in the threshold for the imposition of a TPIM notice from reasonable suspicion of involvement in terrorism-related activity to reasonable belief, and a two-year overall time limit for a TPIM notice. We believe that TPIMs, together with the significant extra resources that are being given to the police and Security Service for covert investigation, strike the right balance between robust measures to protect the public and the protection of civil liberties.

I do not intend to go over the issues that we discussed in detail on Report, but I wish to say something about the draft Enhanced Terrorism Prevention and Investigation Measures Bill, which we published for pre-legislative scrutiny on 1 September. Some have claimed that publishing it means that the Government have made some sort of U-turn, and that we are trying to reintroduce more stringent powers through the back door. That is absolutely not the case.

The review of counter-terrorism and security powers that was announced on 26 January made it clear that additional restrictive measures may be required in exceptional circumstances, and that we would produce draft legislation to cover such a situation. That is exactly what we have done. We do not believe it is necessary to have those additional measures in the current Bill, and we sincerely hope that they will never be required, but we think it is right to have the draft legislation available should there be exceptional circumstances that require it, and that Parliament should have the chance to consider it in detail now.

The Government believe that the approach that the Bill sets out is the right one. It protects the public and civil liberties, it is both robust and fair and I commend it to the House.

Photo of Yvette Cooper Yvette Cooper Shadow Home Secretary, Shadow Minister (Equalities Office) (Women and Equalities) 9:33 pm, 5th September 2011

I join the Minister in commending those who have participated in the debates both in Committee and in the House today. This debate has been serious and important, and we have heard considerable expertise from all parts of the House in the discussions that have taken place.

Counter-terror policies are extremely important. They are vital to public safety, so our approach is, wherever possible, to seek to support the Government in their counter-terror policy. However, tonight we cannot. We cannot vote for the Bill because we do not believe it is the right thing to do for our national security. We do not take that decision lightly, but we are afraid that the Government are taking unnecessary risks with national security and public safety by introducing the Bill, and we do not believe that Parliament should support that approach tonight.

Control orders are not desirable but, sadly, they are needed. That is why they were introduced. However, the Bill, in its response to control orders, raises some serious problems: it weakens counter-terror protection in important ways; it weakens the safeguards—the checks and balances—that are needed to prevent abuse; it does not live up to the promises that were made about it; and it creates a shambolic legislative process and legal framework that will make it harder, not easier, for the police and the security services to do their job and keep us safe.

From the start, concerns were raised that the Bill was simply a fudge. Control orders are being replaced with something very similar. Curfews are being replaced with overnight residence requirements, and restrictions on movement and communications are being replaced with prescriptions on movement and communications. However, in key areas, the Bill weakens the powers of the Home Secretary to deal with very difficult cases.

My hon. Friends the Members for Birmingham, Ladywood (Shabana Mahmood) and for Bradford South (Mr Sutcliffe) set out in Committee a series of our concerns and tabled amendments. Today we heard my right hon. Friend Paul Goggins set out his concerns and very powerfully speak to amendments on additional measures. My right hon. Friend Hazel Blears spoke to amendments on relocation, and my right hon. Friend Mr McFadden spoke of specific Opposition security concerns. That is particularly important in Olympic year.

I shall focus particularly on our concerns about relocation—they were discussed on Report, but they are fundamental on Third Reading. In some cases, the courts, the security services and this Home Secretary have agreed that the power to relocate someone to prevent terrorist activity is needed and justified. In May this year, just four months ago, the Home Secretary argued in the case of CD that he needed to be removed from Greater London to protect the public from a terrorist attack. The judge said:

“I have concluded that the relocation obligation is a necessary and proportionate measure to protect the public from the risk of what is an immediate and real risk of a terrorist attack.”

That was just four months ago, but now the Home Secretary believes that those powers are not needed. What has really changed since May?

In July of this year, just two months ago, the Home Secretary said in the case of BM that relocation outside London was “fundamental” to preventing terrorist activity. In that case, BM admitted that he was committed to terrorism. The Home Secretary now believes that those powers are not needed. Again, what has really changed since July?

Ministers claim that they will put more surveillance in place, but the Met expert on this, when giving evidence to the Public Bill Committee, said:

“To get the resources that we anticipate we need will take more than a year, in terms of being able to get people trained and to get the right equipment.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 9, Q27.]

It is simply not credible that the security environment has changed so substantially in the past two or four months that the powers were needed then but are not needed now. Are the Government really telling us—in Olympic year, of all years—that the powers are less needed in the coming year than they were last year, when this Home Secretary has felt that she needed to use them five times?

Ministers have conceded that the powers could be needed, but they are promising only emergency legislation to solve the problem. However, that is a deeply disorderly and shambolic response. It is not fair on the police or security services—or, ultimately, on the public—to say, as the Minister has today, that the Government cannot tell us in what circumstances the emergency legislation will be passed. When pressed, he suggested that it might be passed in the case of multiple threats or in the wake of a terrorist attack, but neither circumstance applied in the cases of CD or BM, when the Home Secretary decided that the powers to relocate were needed.

Ministers know that it is hard to predict how long primary legislation will take, even when there is an imminent threat. The Joint Committee on the emergency legislation, which the Home Secretary set up, concluded that it was a flawed response to difficult counter-terror situations. That is not the way to set a stable framework for our security services to operate, and removing powers in one Bill and promising to reinstate them in unspecified circumstances is a chaotic way to treat Parliament.

While the Government are weakening the counter-terror powers, however, they are at the same time weakening the safeguards, the checks and balances and the parliamentary oversight. Our view is that we need strong powers but also strong checks and balances, so the Government are wrong to remove the annual vote and recourse to Parliament. These powers should be treated as exceptional, not routine. If Parliament is prepared for such powers to be used, as I believe it should be, it should also be prepared and required to reflect on those exceptional powers each year, rather than waiting until 2017. Indeed, the Liberal Democrats should reflect carefully on what they have really achieved in this process, because if this emergency legislation is passed, not only will we be back where we started—round the Houses, through two new laws and back again—but we will have restored all the same security powers, but with fewer checks and balances in place than we had when we started with control orders.

Instead of amending or withdrawing the Bill in the face of these problems, the Government have tied themselves in knots because they are still in thrall to their irresponsible pre-election promises. Legislation that began as a political fudge now looks more like treacle. This is not a responsible approach to national security, and nor is it a responsible approach to Parliament. I hope that the decisions that the Home Secretary and the House are taking tonight do not prove dangerous, but on the basis of the evidence and expert advice that we have, the Opposition do not believe that it is right to take the risk. We will not be supporting the Bill on Third Reading tonight.

Several hon. Members:

rose —

Photo of Richard Fuller Richard Fuller Conservative, Bedford

Unlike the shadow Home Secretary, many of us regard this as a lost opportunity to put behind us legislation that is a scar on our constitutional and judicial structures. References have been made to 9/11, which we will be remembering this Sunday. I was in New York on that day, and the memory is still visceral. The event has unleashed a decade of sometimes good, sometimes poorly thought through legislative responses to real and apparent and sometimes not-so-real threats. Over the years, there has been growing opposition to some of those more extreme measures—the push for 90 days’ detention without trial, the preamble to the Iraq war, with the promotion of non-plots, such as the ricin plot, and the sexing up of dossiers as a basis for our going to war, and of course the control orders. These are all part of an approach to the control of terror that says there is never enough doubt.

This is not a point of balance. We need to have a balance for the rights of all people in this country, and one of the most sacred rights is the right to a free and fair trial. That opportunity has been lost today, but I believe that my right hon. Friend the Home Secretary has done her best to have a thorough and meaningful review of the measures that the Government consider appropriate for the times. This is not a mere nod-through of legislation. The debate has been robust.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I am grateful to the hon. Gentleman. I know that he does not have much time. These are obviously incredibly difficult issues for anybody to determine. What would he do with the handful of people for whom prosecution is not an effective route—because of the need to safeguard intelligence—and who cannot be deported or taken through the criminal justice system, but who pose a significant threat to the safety of the decent, law-abiding people in our country?

Photo of Richard Fuller Richard Fuller Conservative, Bedford

That is an interesting challenge. I will be brief. I simply would not accept the premise that we cannot take them through the criminal justice system. The whole thrust of my perspective is that we should always seek to do that. That is what I would try to persuade Governments of all hues to do. When people, of any hue, get to the Front Bench, they always have access to more information than the rest of us. It is hard for the Executive branch ever to give up counter-terrorism powers, because they would face the sort of challenge that we have heard from the Opposition Front Bench this evening—that perhaps there is some risk or that someone will be caught out as a result of the changes. However, it was always a risk that something could go wrong, even under control orders. The reason it is wrong to give such powers exclusively to the Executive and why they should rightly be in the hands of the judiciary is that the judiciary can make a fair, non-political response to the matters of fact before it.

However, that opportunity has been lost. We shall again have to go through secret evidence, secret hearings, special advocates and no access for the suspect to the evidence against them. I trust our Home Secretary in her review, as many other hon. Members have said they do. We trust that she has done this for balance, and we hope that she is right. However, let me end with a quotation by Shami Chakrabarti of Liberty, which has been strongest in its opposition to the legislation:

“But under that Act”— the Bail Act 1976—

“you are heading for a charge…It may be a long process…but at least you can stand outside the Old Bailey saying, ‘Justice has been done’…The problem with these administrative, shadowy, quasi-judicial systems is that they potentially go on for ever and you never know why.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 50, Q137.]

We will put this Bill to a vote this evening, and I am sure that the Government will succeed. We will review the position again in five years and hopefully lose this part of our legislation.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East 9:46 pm, 5th September 2011

I thank the Minister for his generous remarks about right hon. and hon. Members on the Opposition Benches. In return, let me say that whatever differences we have had—and we have had a few, in Committee and again today—he has been courteous, generous, thoughtful and constructive throughout. I thank him for that. Indeed, it is quite ironic that Opposition Members keep arguing that he and the Home Secretary should be trusted more. It is Members on the Government Benches who do not seem to want to do that.

When the Bill was first published and when we debated it on Second Reading, some commentators described it as “control orders lite”. Many comments were made to that effect and, indeed, on close examination much of the wording in the Bill appears—shall we say?—to be very similar to the wording of the Prevention of Terrorism Act 2005. However, it has become absolutely clear in our debates that there are substantial differences between us in relation to the two-year limit, relocation, which has been debated again today, access to telephones and crucially—this is increasingly important—the timing of the commencement of the Bill’s provisions. We in the Opposition have tried through amendments to make constructive suggestions.

Let me say that party advantage in this case is cast aside, and I know that the Minister understands and believes that. This is about protecting the public: that is the only thing that motivates me and my right hon. and hon. Friends to get the legislation right. However, I now fear that the Government are in the worst of all places, because in publishing the detailed draft legislation last week they conceded that the provisions in the Bill that we are now debating are not sufficient in certain circumstances. There may be circumstances where the enhanced powers would be required, yet because primary legislation would be required to bring them into force, the hands of the Home Secretary are tied. Time is crucial, and my right hon. and hon. Friends and I would certainly want to give the Home Secretary those powers, so that she can use them when she judges that to be appropriate. I hope that further consideration in the other place will lead to at least some changes, so that the Home Secretary is empowered to protect the nation rather than having her hands tied behind her back.

I would caution hon. Members on pre-legislative scrutiny, because, as I told the Minister earlier, I was on the Committee that considered the draft legislation for pre-charge detention. That Committee came to a unanimous view—that such legislation is unsatisfactory and unreliable —but apart from one concession, I do not think that it found a listening ear among Ministers.

Let me finish. I have paid tribute to the way in which the Minister has conducted these debates, but surely he must find it at least ironic, if nothing else, that two days after we completed consideration of the detail of the Bill in Committee the Home Secretary wrote to the court in the case of BM to say that a relocation condition was essential. Thank goodness she was successful and the judge found in her favour. Relocation may be necessary on occasions; it should be in the Bill, as should the other measures I have mentioned.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge 9:49 pm, 5th September 2011

On Second Reading, I said that I supported clause 1 wholeheartedly, but that I had reservations about clauses 2 onwards. I feel exactly the same now. We still have the same problems in that Executive power is being used and that it is outside our legal system. I wholeheartedly disagree with the approach being taken by the Opposition. The shadow Minister, Mr Sutcliffe, has said, astonishingly:

“Unfortunately, there are times when people have to be outside the legal framework.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 23 June 2011; c. 57.]

I find that absolutely horrific. It is possible to do all this within a legal framework, as my hon. Friend Richard Fuller has said. In Committee, I tabled amendments on police bail. I proposed a different model on Report, but unfortunately we did not have an opportunity to discuss it. They were slightly different models—the details were different—but they showed that there is a way forward, and that we can find a normal, legal way of pursuing this process.

I do not welcome TPIMs—I certainly do not welcome enhanced TPIMs—but they are a step forward. I thank the Government for taking that step. It is rare for me to quote Mr Cash, who on Second Reading used an interesting phrase on which hon. Members might wish to reflect. He argued:

“The coalition is simply giving in to Lib-Dem pressure for this Bill to comply with the Human Rights Act”.—[Hansard, 7 June 2011; Vol. 529, c. 69.]

I am delighted to agree with him on this occasion, although I think that Ministers are actually a bit more sympathetic than he gave them credit for.

The Bill is an improvement. We have already heard Opposition Members describe the benefits that it will bring compared with control orders. Relocation will go. There will be no more internal exile, although there will be some judicial oversight. That move was opposed by the Opposition—or, at least, by the majority of Labour Members; there were some honourable exceptions. Curfews are over, but again that move was opposed by the

Opposition. The proposals involve time limits. Nobody will be able to be held indefinitely; there will be a two-year maximum. Again, the Opposition tabled amendments to enable people to be held for longer. People will have regulated access to phones and computers, but again that was opposed by Labour. Those measures will allow people who have not been convicted of any offence to have a semblance of normal life. The Leader of the Opposition has admitted that Labour made errors over civil liberties, but it is clear that his party has not listened to him and has not learned from its mistakes.

The Bill represents a small step forward, but it is definitely a step in the right direction. The addition of the sunset clause makes it a step forward that I am willing to take, and I am delighted—not overjoyed; that would be overstating it—that we can take steps towards improving our civil liberties. I will vote for the Bill tonight.

Photo of Pat McFadden Pat McFadden Labour, Wolverhampton South East 9:52 pm, 5th September 2011

I believe that the Bill is based on a fundamentally mistaken premise—that liberty in our country was undermined by laws passed by the previous Labour Government in their efforts to protect the public and to combat terrorism. We have heard the Minister advance that argument many times during the debate. It is not, however, the laws passed by the last Labour Government that threaten liberty. Liberty is threatened by the ideology that fed the bombers of the London underground, by the acts that they took part in, by plots including those of the shoe bomber and the underpants bomber, as well as by other plots that have mercifully either not worked or been foiled before they reached fruition.

Both parties in the coalition have in different degrees shared in that fundamentally mistaken premise, and they have now brought it into the Government as the foundation for this Bill. I wonder whether, if we were talking about this in a year or two’s time, the Government would still introduce such a Bill. I genuinely do not know the answer to that. What we have here is a mistaken premise giving us wrong policy that will lead to increased risk for the public. The Bill will give new rights to terrorist suspects. It will allow them freedom of movement. It will grant them access to mobile phones and the internet. It will also put a two-year time limit on even the weakened provisions that TPIMs represent.

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

I want to challenge the right hon. Gentleman’s point that any form of legislation could prevent a terrorist attack. If someone is convinced that that is what they want to do, wherever they are based in the UK and however they communicate, and whether they target the Olympics or somewhere else, they will conduct that attack, and possibly kill themselves as well. No legislation that we create in this House can prevent that. It is wrong to mislead the House and to suggest that we can somehow over-legislate or protect ourselves by what we do here. We cannot do that.

Photo of Pat McFadden Pat McFadden Labour, Wolverhampton South East

If that is what the hon. Gentleman believes, he should vote against the Bill because the Minister is pretending that this offers some measure of protection. These measures not only put the public at increased risk, but put the police and security services under increased pressure at the very time that their budgets are being cut. They mean less control and more surveillance. Surveillance itself compromises liberty, but does so simply in a more expensive and riskier way than do some of the extra powers that the Government have chosen to reject.

To cap it all, in recent days we have seen the spectacle of the Government taking out an insurance policy against their own Bill by publishing draft emergency legislation but then refusing to add the powers to this Bill. The Government have failed utterly in today’s debate to specify the circumstances under which that insurance policy will be used. It is hard to escape the conclusion that my right hon. Friend Hazel Blears eloquently reached in her speech—that trade-offs within the coalition have shaped this policy. That is not good enough. We should not compromise the safety of our citizens on that basis. I echo the hope and prayer of my right hon. Friend the shadow Home Secretary that none of the terrorist suspects who are granted increased freedoms under the Bill use them to kill innocent people. I have to say in all sincerity that if they do, the public will not forgive the Ministers or the Government who have passed this measure tonight.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham 9:56 pm, 5th September 2011

There is little time, so I shall try to put my speech in bullet point form. I have no problem with TPIMs being called “control orders lite”. I believe we should think of evolution in security and I certainly think that we should look at experience.

I do not think terrorists will be able to get away with terrorist acts when they are under investigation. I used to watch them in Northern Ireland, but they could not do anything once we had them under proper surveillance. If they are really innocent, they can always fully co-operate with the Government and get off a TPIM, control order or whatever as soon as possible.

The threat comes from unknown people. We all know that, as all these attacks have come from people whom the security services have not been able to identify.

I had a big problem with relocation, but I was reassured by what the Minister said about enhanced TPIMs—that we could do something about the matter quite quickly. I do not think that we have by any means reached a definitive solution as yet. We are in an evolutionary process. No one likes control orders, TPIMs or anything like them, but we do not have any choice.

The threat will change over time and our reaction to it will have to change over time. We will revisit many times in future the problem of what to do with people who want to destroy our people.

Question put, That the Bill be now read the Third time.

The House divided:

Ayes 297, Noes 221.

Division number 334

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Bill accordingly read the Third time, and passed, with amendments.