Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.Donate to our crowdfunder
‘(1) If the Secretary of State considers that it is necessary to do so by reason of urgency, the Secretary of State may make a temporary enhanced TPIM order during any period that—
(a) begins with the dissolution of Parliament, and
(b) ends with the first Queen’s Speech of the Parliament which first meets after that dissolution.
(2) A temporary enhanced TPIM order is an order which makes provision for, or in connection with, giving the Secretary of State power to impose enhanced measures by notice on individuals whom the Secretary of State is satisfied, on the balance of probabilities, are, or have been, involved in terrorism-related activity.
(3) An enhanced measure is a requirement, restriction or other provision which is of any of the following kinds—
(a) a restriction on an individual in relation to the residence in which the individual resides, including—
(i) a requirement to reside at a specified residence in the United Kingdom;
(ii) a requirement not to allow others to reside at that residence without the permission of the Secretary of State;
(iii) a requirement, applicable between specified hours, to remain at that residence;
(b) a restriction on an individual in relation to leaving a specified area;
(c) a requirement, restriction or other provision which corresponds to provision within any of these paragraphs of Schedule1—
(i) paragraphs 2 to 6;
(ii) paragraph 7(1) and (2) and (4) to (6);
(iii) paragraphs 9 to 12;
(d) a requirement, restriction or other provision which corresponds to provision within paragraph 8(1) of Schedule1 (as read with paragraph 8(3) of that Schedule), including—
(i) a requirement not to associate or communicate with other persons without the permission of the Secretary of State, which includes provision allowing the individual (without seeking permission) to associate and communicate with such persons or descriptions of persons as the Secretary of State may specify;
(ii) a requirement to give notice to the Secretary of State before associating or communicating with other persons, which includes provision allowing the individual (without giving notice) to associate and communicate with such persons, or descriptions of persons, as are specified.
(iii) a requirement of the kind referred to in sub-paragraph (c) of paragraph 8(2) of Schedule1, which may in particular relate to association or communication which is allowed by virtue of provision of the kind referred to in sub-paragraph (i) or (ii) above;
(e) provision which corresponds to provision within Part 2 of Schedule1;
and for this purpose “specified” means specified by the Secretary of State in an enhanced TPIM notice.
(4) Except as provided for in subsections (5) to (10), the provision made by a temporary enhanced TPIM order must correspond to the relevant provisions of this Act.
(5) A temporary enhanced TPIM order—
(a) must secure that enhanced TPIM notices and standard TPIM notices are separate notices;
(b) must secure that, at any particular time, an enhanced TPIM notice and a standard TPIM notice are not both in force in relation to a particular individual; and
(c) may secure that the application of a temporary enhanced TPIM order to a particular individual does not affect the application of this Act to that individual (and vice versa).
(6) The provision of a temporary enhanced TPIM order which corresponds to section 3 must include appropriate variations from the provision contained in that section to secure—
(a) that condition A is replaced by a condition which secures that the enhanced TPIM power may not be exercised in relation to an individual unless the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity; and
(b) that condition D is replaced by a condition which secures both—
(i) the same result as condition D, and
(ii) that the enhanced TPIM power may not be exercised in relation to an individual unless some or all of the measures imposed by the enhanced TPIM notice are measures that may not be imposed by a standard TPIM notice.
(7) The provision of a temporary enhanced TPIM order which corresponds to section5(1) must include appropriate variations from the provision contained in that subsection to secure that each enhanced TPIM notice ceases to be in force at the time when the enhanced TPIM power ceases to have effect in accordance with section (Temporary power: supplementary provision)(1) (subject to earlier revocation or quashing of the notice).
(8) The provision of a temporary enhanced TPIM order which corresponds to Schedule 1 must include appropriate variations from the provision contained in that Schedule to secure that it is enhanced measures which the Secretary of State has power to impose.
(9) A temporary enhanced TPIM order may make appropriate provision (including appropriate variations from the provision contained in the relevant provisions of this Act) in consequence of, or in connection with, the creation, in accordance with this section, of the enhanced TPIM power.
(10) A temporary enhanced TPIM order may make appropriate provision for the purposes of securing that transitional and saving provision relating to a temporary enhanced TPIM order ceasing to have effect may be made (including provision for enhanced TPIM notices to continue in force for a period, which does not exceed 28 days, after the enhanced TPIM power ceases to have effect).
(11) The provision that may be made by a temporary enhanced TPIM order includes—
(a) provision amending any enactment (including an enactment contained in this Act);
(b) provision applying (with or without modifications) any enactment (including an enactment contained in this Act);
(c) provision conferring functions on the Secretary of State or any other person (including, in the case of the Secretary of State or any other Minister of the Crown, functions of a legislative nature).’.—(James Brokenshire.)
Brought up, and read the First time.
With this it will be convenient to discuss the following:
Government new clause 6—Temporary power: supplementary provision.
12A (1) The Secretary of State may impose measures additional to those contained in Schedule 1 if—
(a) there is a serious terrorist threat; and
(b) they are necessary for the protection of the public.
(2) Any measure under paragraph 13(1) can only be imposed if the Secretary of State is satisfied on the balance of probabilities that the individual is involved in terrorism-related activity.’.
Amendment 2, page 22, line 31, at end add—
‘Additional measures introduced by Secretary of State
12A (1) The Secretary of State may by order introduce measures additional to those contained in this Part.
(2) An order under sub-paragraph (1) may be made only if a draft has been laid before and approved by resolution of each House of Parliament.’.
Amendment 3, page 22, line 31, at end add—
‘Emergency additional measures introduced by Secretary of State
12A (1) The Secretary of State may by order introduce measures additional to those contained in this Part.
(2) An order under sub-paragraph (1) shall have immediate effect but must be approved retrospectively by a resolution of each House of Parliament.
(3) If either House declines to approve a resolution under sub-paragraph (2), the order shall cease to have effect on the date of such disapproval.’.
Amendment 4, page 22, line 31, at end add—
‘Additional measures introduced by Secretary of State during dissolution of Parliament
12A (1) The Secretary of State may by order introduce measures additional to those contained in this Part during a dissolution of Parliament.
(2) An order under sub-paragraph (1) shall have immediate effect but must be approved retrospectively by a resolution of each House in the new Parliament.
(3) If either House declines to approve a resolution under sub-paragraph (2), the order shall cease to have effect on the date of such disapproval.’.
This group of amendments relates to the enhanced TPIM provisions and the circumstances in which measures additional to those contained in the Bill might need to be imposed. The Government and Opposition are taking different approaches.
The Government have made it clear that we believe that in future there might be exceptional circumstances in which it is necessary to introduce additional and more restrictive measures to those contained in the Bill. I emphasise that we hope never to need them, but, in the event of a very serious terrorist risk that cannot be managed by any other means, it would be irresponsible of the Government not to act to protect the public appropriately.
Will the Minister make it clear that he and the Government would not consider the Olympics, in and of themselves, to be such an emergency risk? There might be circumstances that would become such a risk, but will he confirm that the simple fact we are hosting them would not be sufficient to trigger the new legislation?
I am grateful to my hon. Friend for highlighting that point. The security arrangements for the Olympics are being planned on the basis that the additional powers envisaged under the enhanced TPIM Bill will not be needed. This is about considering exceptional circumstances and exceptional risk, which is why we have sought to take the approach that we have. In exceptional circumstances we will, where possible, bring forward emergency legislation to introduce such powers. That is why we have drafted and published in draft the Enhanced Terrorism Prevention and Investigation Measures Bill, which will now be subject to pre-legislative scrutiny. That will give Parliament the opportunity to examine its terms closely. In some ways, this underlines the point made by Jeremy Corbyn in the previous debate about seeking to do this in a considered and measured way rather than in a febrile atmosphere—the draft Bill has been introduced to facilitate that.
If the enhanced TPIM Bill is introduced while Parliament is in recess, Parliament can be recalled to debate it, but there is a small gap in our ability to introduce this emergency legislation in periods where Parliament is dissolved and where a new Parliament has been appointed but the first Queen’s Speech has not been delivered. This gap was identified during pre-legislative scrutiny of the draft emergency Bills to extend periods of pre-charge detention for terrorist suspects to 28 days.
Government new clauses 5 and 6 take the same approach to addressing that gap as we are proposing to take with pre-charge detention. They introduce a power to the standard TPIM Bill that would allow the Secretary of State—where necessary by reason of urgency—to bring the enhanced TPIM regime into force by making a temporary enhanced TPIM order. This power would be exercisable only in the periods I have mentioned: while Parliament is dissolved and in the period between the appointment of a new Parliament and the first Queen’s Speech. A temporary enhanced TPIM order would make provision directly equivalent to that in the enhanced Bill. I shall not delay the House by reciting the detail of that Bill’s provisions; it has been published and is available to all Members to read. It will be subject to rigorous pre-legislative scrutiny, following which it will no doubt be amended and improved.
I am grateful to the Minister for giving way and for the way in which he has managed so far to present the enhanced TPIM Bill. Would he not accept that the TPIM legislation, like the control order legislation, is in and of itself exceptional legislation that we have all said should be used as a last resort? It is not something that any party would want to adopt; it is outwith the normal criminal justice system and it is not part of the normal legislative process. Why, for goodness’ sake, does not he include the enhanced measures in the existing legislation—not so that they are required to be used by the Home Secretary, but so that she would be able to use them if circumstances were to arise in which it was necessary to have a power of relocation, curfew, association or exclusion? This is the most convoluted, awkward, difficult and strange way of legislating that I have ever seen. We are going to have exceptional legislation to exceptional legislation in exceptional circumstances. Why cannot the Minister legislate properly and put these powers into existing legislation?
I think that underlines the fundamental difference between us on the nature of the powers that are contemplated and their impact on individuals and counter-terrorism. A number of contributions have been made about radicalisation. Given the stringent nature of the powers that are contemplated under the enhanced provisions, we believe it is absolutely right that Parliament should determine whether the circumstances are so exceptional that emergency powers are needed. That is the right way to do things, rather than seeking to suggest that this is all business as usual and that the powers should be on the statute book. That is why I disagree with the right hon. Lady.
Does the Minister have any idea just how ridiculous the Government look with these enhanced TPIM measures and, more importantly, how disappointed civil libertarian groups are with the Government? The system is probably worse than what the previous, anti-civil libertarian Labour Government proposed. Why cannot we have proper legislation, and why cannot the Government continue the good work they started instead of going down this route?
I absolutely reject the assertion that this Bill is in some way more draconian and cracks down more on liberty than the approach of the previous Government. That is precisely why we have sought to rebalance the counter-terrorism legislation, and that has been at the heart of the counter-terrorism review. I should have hoped that the hon. Gentleman recognised that. We have recognised the very nature of the enhanced measures and why it is appropriate not to have them as business as usual—why it is appropriate to have them in a Bill that can be subject to pre-legislative scrutiny and can be considered calmly and rationally rather than rushing and not having powers available to deal with extraordinary and extreme circumstances. That is why we have taken the view that we have in the structure of the approach in the draft enhanced Bill and in this Bill.
I am saying that because this legislation remains and resides on the statute book, subject to the new clauses that we have rightly put in place following the previous debate with the five-year renewal. The powers that are available under the enhanced measures are such that they require a further considered approach by Parliament before they are introduced. That is why we have rationally and reasonably, as reflected in the counter-terrorism review, sought to adopt the approach that we have.
I have no wish to add to my hon. Friend’s difficulties, but he knows I have concerns about this issue. The simple truth is that had the 90-day measure been put before the House in July 2005, when the atrocity occurred, the House would have taken a much more emotional, rather than rational, decision. I have a general concern—I know that he is thinking through the legislation—that the House does not make its best decisions in the immediate aftermath of atrocities. There is a risk, in going down this route, that we will get not rational, but irrational, decisions.
I hear that argument, which is why we have sought to produce the draft Bill—to ensure that it can be considered rationally, calmly and coldly by the Joint Committee. Approaching it in that way means that in circumstances similar to those that have, sadly, arisen in the past, there is a defined mechanism and method that has been subject to scrutiny in advance. In many ways, we are seeking to recognise some of the challenges to which my right hon. Friend Mr Davis has alluded and to address them by having the draft Bill available now for consideration.
The Minister is being very generous in giving way. May I ask him a specific question? Will we have to wait until this country is subject to exceptional circumstances, which Lord Macdonald has said could be a series of catastrophic attacks in every major city in Britain, until we have a power of relocation on our statute book?
I shall not second-guess the circumstances in which the draft Bill and those provisions would be required. Clearly, it would be in exceptional circumstances in which we were faced with a serious terrorist risk that could not be managed by any other means. That is the sort of situation we are contemplating, but I am not prepared to second-guess future developments in the threat picture. The right hon. Lady and I disagree on this, but, as I have said quite clearly, we believe that the TPIMs regime in its entirety—the standard TPIMs regime and the supportive resources around it—is sufficient to manage the threats that we face. Only in exceptional circumstances would the enhanced measures be required. That is the conclusion we have reached as part of the counter-terrorism review. I appreciate that she and I differ on that, but that was the conclusion we came to. The counter-terrorism review recognised that enhanced measures might be required in exceptional circumstances, which is why we have taken the view we have.
The counter-terrorism review carefully concluded that there might be exceptional circumstances—a very serious terrorist risk—in which the Government would have to seek parliamentary approval for additional restrictive measures. That is what we are seeking to do and that is why we believe that the overall approach taken by this Bill is appropriate.
With the publication of the draft Bill, the Government have conceded that they have no argument in principle against the extra powers in the enhanced TPIMs regime. What will the Minister say to the victims of terrorism in the emergency circumstances that he sets out and that might give rise to their introduction? Will he say that we had the extra powers but we decided not to use them until the incident happened? Does he really believe that the Government could survive in those circumstances? Does he not see the nonsense of that position?
The right hon. Gentleman’s question is premised on various assumptions that I just do not accept. He can make his point but the Bill and the enhanced measures that sit alongside it have been part of a very considered approach in relation to the overall legislative framework, which has not been rushed but has been considered. It has very much at its heart our responsibility to protect the public, but it also recognises that there is a balance to be struck. We believe that the balance has previously been wrong and that it needs to be adjusted, as contemplated by the Bill, to ensure that our counter-terrorism measures are appropriate, necessary and focused on delivering safety and security in a way that is judged appropriate on the basis of the evidence.
The draft enhanced TPIM Bill contains provisions that mean that if it is brought into force while a temporary enhanced TPIM order is in force, a decision taken under that order should be treated as a decision under the new enhanced Bill. The regime provided by the emergency TPIM order is intended to be the same as that provided by the enhanced Bill. In other words, the new clauses are intended to be complementary. They set out the various provisions and matters that may, or in some cases that must, be secured by a temporary enhanced TPIM order, to give effect to the regime set out in the emergency Bill. This includes in particular setting out the more stringent restrictions that would be available, and the fact that an enhanced notice may be imposed only where the Secretary of State is satisfied on the balance of probabilities that the individual is or has been involved in terrorism-related activity. Once made, the temporary enhanced TPIM order would remain in force for 90 days, or a shorter period if specified in the order. It must be laid before Parliament as soon as practicable. While it is in force the Secretary of State can repeal its provisions at any time.
The 90-day period is intended to cover, but not significantly to exceed, the period during which Parliament would be unable to pass the emergency legislation. After parliamentary business resumes, the Government can introduce the enhanced TPIM Bill, if they judge it appropriate, to replace the powers conferred by the order with powers under primary legislation.
These are essential provisions. The power that they provide may never need to be used. Indeed, we would all prefer that the exceptional circumstances for which it and the enhanced TPIM Bill are intended never arise. None the less, it is necessary for a responsible Government to ensure that the enhanced TPIM powers can be brought into force in all circumstances in which they may be necessary.
Does the Minister not recall that when the previous Government introduced the Counter-Terrorism Bill with provision, at that stage, for 42-day detention, which was to be the subject of a parliamentary debate and vote when the powers were activated, the then Opposition rightly argued that it would create dangers for Parliament and eventually for the judiciary, potentially, to activate parliamentary control in relation to measures that were being taken against known individuals? Questions were asked, such as how a parliamentary debate in such a situation would be informed. What information would be in the media and in Parliament, and how could we ensure that, if there was a prosecution, that did not destroy the basis for a fair trial? Exactly the arguments that the Opposition used against the previous Government’s measures surely apply in respect of the arguments that the Minister has just made for his enhanced TPIMs.
I understand the hon. Gentleman’s case, and care will be required, but the House often considers topics in relation to which matters are before the courts. The emergency legislation deals with the principles, not with individuals. The House has demonstrated clearly that it is able to do that and to consider and debate matters where care is required.
Amendments 1 to 4 address situations where more stringent measures are needed to protect the public than those available under the Bill. Amendment 1 would in effect place a version of the enhanced TPIM proposals formally on the statute book through the Bill. We debated an almost identical amendment in Committee. It would add a new paragraph to schedule 1, allowing the Secretary of State to impose any measure, in addition to those otherwise specified in schedule 1, on an individual where
“there is a serious terrorist threat” and where such measures are
“necessary for the protection of the public.”
It reflects the position in the enhanced TPIM Bill that the test for imposing such additional measures would be raised from “reasonable belief” of involvement in terrorism-related activity to being satisfied on the “balance of probabilities” that this is the case.
Amendments 2 and 3 offer an alternative approach to providing for the use of additional measures to that set out in amendment 1. Instead of provision being made on the face of the Bill, the Government would be able to add further measures to schedule 1 by order. Amendment 2 envisages that Parliament would approve those measures in advance; amendment 3 provides for retrospective parliamentary approval and so seeks to address other concerns. Amendments 1, 2 and 3 highlight a difference in approach between those on the Opposition Benches and my right hon. and hon. Friends on the Government Benches.
The Government’s position is that the Bill provides a robust and effective set of measures to manage the risk posed by suspected terrorists whom we cannot prosecute or deport, and it will be complemented by additional funding for the police and Security Service for covert investigation. The Government consider that more stringent powers will be required only in exceptional circumstances. So although the Government agree with the Opposition that there may be a need for additional measures to those contained in schedule 1, we believe, as we flagged up in our counter-terrorism review, it is right that those more stringent powers are not on the statute book or available at all times through an order-making power, as amendments 1, 2 and 3 would provide, but are contained in draft emergency legislation that is introduced only if required. This is also reflected in the Government’s approach to extended pre-charge detention.
Furthermore, the Government consider that it is appropriate for the measures available to the Secretary of State to be set out on the face of primary legislation, and to have been agreed in advance by Parliament. That is the clear approach adopted in the Bill before us, and it is also the approach that we have taken in the enhanced Bill. Indeed, I would argue that the more stringent nature of measures available under the enhanced Bill is an even greater reason for them to be clearly defined and agreed by Parliament, rather than decided on an ad hoc basis by the Secretary of State. The Government are therefore not in favour of amendments 1, 2 and 3. For the reasons that I have set out, I ask hon. Members not to press them.
Amendment 4 is specifically concerned with what would happen if the additional measures are required during a period when Parliament is dissolved. The same issue was raised during pre-legislative scrutiny of the emergency Bills for extended pre-charge detention. The Government have listened to the concerns expressed and new clauses 5 and 6, which I have already outlined, directly address the point. I trust that this means that Opposition Members will be content to withdraw their amendment.
I shall speak to amendments 1 to 4 and voice my support for Government new clauses 5 and 6. Throughout Second Reading and consideration in Committee, I have supported the principle of placing in schedule 1 a list of conditions that would be available to the Secretary of State under the TPIMs regime. Under control orders there is no such list. The Home Secretary can impose any condition, subject to accountability to the court. As my right hon. Friend Hazel Blears has continued to remind the House throughout the debate, there is that continued oversight over the existing regime.
The problem with schedule 1 is that the list of conditions that it provides is inadequate. For example, it requires that the Home Secretary must—not may, as I hope we will discuss later—allow someone subject to a TPIM to have access to the internet and to have a mobile phone and a land line. There is no option; the Home Secretary must do that. Equally, the Home Secretary has no power to relocate an individual away from an area if she judges that to be necessary. I hope that we will soon debate that aspect as well.
The nagging concern that hon. Members—on both sides of the House, I hope—have is what happens when the Home Secretary has intelligence about an individual that requires a certain measure to be put in place, and she cannot do so because it is not in schedule 1. The good news since we considered the issue in Committee is that the Home Secretary has clearly recognised that there may be circumstances where the list of measures in schedule 1 is not sufficient, and she has now published draft legislation, the enhanced TPIMs Bill, that will allow relocation and curfew and will prevent access to mobile phones and the internet where that is necessary. I support the fact that in that Bill she is giving herself the powers to introduce an enhanced TPIM if Parliament is dissolved and she judges it necessary at the time.
The bad news is that the only way that the Home Secretary could exercise these enhanced powers when Parliament is sitting is via fresh primary legislation. I assume that the Home Secretary intends that there should be a rigorous process of pre-legislative scrutiny in relation to the enhanced TPIMs Bill that has been published. Presumably it will be scrutinised by a cross-party Committee and presumably the Committee will be made up of Members from both Houses. Perhaps the House will consider making the Committee Chair a well-respected Cross Bencher, such as a former Cabinet Secretary with huge experience of Government business. The Committee would be expected to take evidence from all the experts and, on the basis of that evidence, it would then be asked to come to a unanimous view on the matters before it.
That is what we did just a few weeks ago in relation to the draft legislation on pre-charge detention—exactly that process. The report, which I know the Minister will have read with great care, concludes that the route of using emergency legislation in that way is unsatisfactory and unreliable. Those are not my words; those are the words of the Joint Committee, having considered the evidence very carefully, indeed.
There are at least three major problems with the route that the Minister wishes to take. First, there is the wide variation in the threshold, or the trigger, that will apply to the emergency legislation, and it is not good enough for him to stand at the Dispatch Box and say that he will not second-guess the circumstances in which it may be necessary. He is the Minister who, along with the Home Secretary, will decide whether the legislation should be brought before the House.
Lord Macdonald of River Glaven, in evidence to the Joint Committee, said that it would take a national catastrophe before emergency legislation could be brought forward. Other experts thought that such legislation might be necessary in one or two individual cases. In either scenario, it will be wholly unsatisfactory. My right hon. Friend Mr McFadden made the point very clearly: if we have had the national catastrophe, we have missed the boat.
The whole point of the enhanced TPIMs legislation is to prevent a catastrophe in the first place, so are we really meant to believe that we need the whole panoply of primary legislation going through this House and the House of Lords, with all the necessary deliberations, on the basis of one or two individual cases? I regard that almost as an abuse of the parliamentary process.
Secondly, the passage of legislation would be fraught with difficulties. The individuals who are subject to control orders now and who will be subject to TPIMs in future are subject precisely because there is intelligence on them that cannot be shared in an open court and, therefore, certainly cannot be shared in an open debate in Parliament. The Home Secretary would therefore be able to tell us almost nothing about the detail of what had led her to the conclusion that emergency legislation was necessary, and anything she said say in the debate would have to be said with great care.
Members from both sides of the House talk of the need always to prosecute criminal charges where possible, but in such a debate the Home Secretary might say something that prejudiced a future trial—if at a later date there were a successful attempt to bring a prosecution. So the practical passage of any Bill through Parliament would be fraught with difficulty. Parliament would also be none the wiser when it considered such legislation, because it could not be told anything about the specific circumstances that had led the Home Secretary to conclude that such measures were necessary.
Thirdly, and importantly, there is the issue of practicality, on which there is considerable detail in the Joint Committee’s report. I should have thought that this Home Secretary would have learned a lesson about emergency legislation from the past few months, because she had to introduce some on police bail to the House, and she got it through by the skin of her teeth—a couple of weeks before we went into recess. I asked her then what she would have done if we had been in recess and had needed emergency legislation, and the question arises again. If she concludes that an enhanced TPIM is necessary and we are in recess, will she recall Parliament so that we can have an enhanced regime for one or two individual cases?
I support the new clauses that the Minister has introduced, and I welcome the fact that he has seen it necessary and important to ensure that, when Parliament has been dissolved, the Home Secretary can make an enhanced order, because Parliament cannot be recalled in those circumstances.
Let me remind the Minister that in Committee on
“should not be introduced or passed until it is needed”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee,
But, if that is the point at which the legislation is brought to the House, and if there is then consideration, deliberation and Royal Assent a week later, a week later may be seven days too late. The Minister should consider that point carefully.
The Minister gave his view about the four amendments in my name and those of my right hon. and hon. Friends, and he is quite right that amendment 4 is superfluous, because he has accepted the arguments in relation to Dissolution, so I will not pursue it.
On amendment 1, the Minister is right to say that as a result of the Bill the Home Secretary is empowered to take additional measures: she does not have to come back to Parliament; she can just take them, because the legislation gives her the power to do so. I am reflecting carefully on what right hon. and hon. Members have said about the need for parliamentary accountability and scrutiny, however, because there would not be any direct accountability to Parliament.
There would be direct accountability in relation to amendment 2, because the Secretary of State would be able to introduce the additional measures only by order, meaning that she would have to come to Parliament, send the order through both Houses and gain the affirmation of both. The problem with that process is the same as the problem with primary legislation: it all means delay and time, which she may not have; she may need to put the condition into a TPIM immediately. That is a concern for me, even though I speak in favour of amendment 2.
Amendment 3, however, is worthy of more consideration than the Minister’s brief summary of it. It would allow the Home Secretary to introduce additional measures in an urgent or emergency situation, but crucially she would be able to do so immediately, because proposed subparagraph (2) would give her the power to do so with “immediate effect”. In bringing it forward with immediate effect, however, she would have to submit to parliamentary scrutiny, and both Houses would at a later date have to affirm to her decision to invoke the additional measures. Indeed, if either House declined to give such affirmation, the Home Secretary’s original decision would fall, so amendment 3 would give her the immediate powers that she would need to impose the conditions, but it would also provide for some degree of scrutiny by Parliament at a later date.
I am following the right hon. Gentleman very carefully. Is he arguing that the Secretary of State should be able to do anything that he or she wants, but that, if Parliament later gets around to saying that it disagrees, because of course there is no time limit on when it has to agree, the condition has to end? Until that point, any measure whatever could be imposed on somebody who had not been convicted of any crime. Is that what he is arguing for?
I want the Home Secretary, having the insight, information and intelligence that she has and knowing the risks involved, to have the power to do something about the situation—and to do so immediately. It is important that there is some accountability to Parliament at a later date, and under amendment 3, when Parliament considered the matter at a later stage, it would be possible for either the House of the Lords or this House to decline to give an affirmation, at which point the power would lapse. It is important also, however, that the Home Secretary has the power to act.
This is a very interesting situation. Here am I, an Opposition Member, trusting the Home Secretary to exercise her judgment as the Home Secretary in relation to individual cases, and, by the way, her record on relocation in particular is first-class, and I applaud the way in which she has pursued the two cases that we know about. So I trust her judgment. Interestingly, however, her right hon. and hon. Friends do not seem to share my confidence in her. I trust her to exercise her judgment. She has access to intelligence and information, and she has a huge responsibility. I do not want to tie her hands so that she has a limited range of powers and is unable to exercise her responsibilities properly; I want to give her the powers that she needs.
Government Members seem to forget that because we live in a country that has a proper judicial system, should the Home Secretary exceed the reasonable use of her powers and impose a condition on somebody who is subject to a TPIM that is not justified by the evidence, it would be a matter for the judges. An application could be made to say that the specific measure was outwith the terms of the legislation. In every order, the Home Secretary has to show that the particular measures that she is imposing are necessary for the protection of the public. The idea that the Home Secretary could act in an arbitrary manner, without reference to the information and intelligence that she has, is absolutely ludicrous. The process will be subject to proper judicial oversight in our democratic country.
First, I was going to comment that I have perhaps had experience of more Home Secretaries whom I did not trust on these issues than those I did. Perhaps that will change over the years and there will be more Home Secretaries who are more trustworthy on civil liberties. I hope that that is the case.
There is a point about judicial oversight, but there is also a point about Parliament having the chance to comment on what powers it thinks are acceptable. There is a range of things that the Home Secretary could argue are necessary but that Parliament would find simply unacceptable. Will the right hon. Gentleman also confirm that under—
Order. The interventions in this debate are rather long. Perhaps the right hon. Gentleman will be generous enough to let the hon. Gentleman in for a second bite.
I am bringing my remarks to a conclusion now, Mr Deputy Speaker. In response to the hon. Gentleman, I have worked with a number of Home Secretaries and I have seen this Home Secretary in operation. They—even those colleagues in my party—have represented a range of different political views, but I have trusted every single one of them with the difficult decisions that they have had to make about terrorist suspects and others. That is bar none, including the current holder of the post. I ask the hon. Gentleman to reflect on that. We have to trust our senior politicians sometimes. That has to be within limits, of course, such as the judicial scrutiny and the powers in the Bill.
Frankly, I think that this Government are in the worst of all places. They have acknowledged that the measures in schedule 1 may not be sufficient in certain circumstances, yet they are tying the Secretary of State’s hands behind her back and will not give her the powers that she needs against the risk posed by a small number of individuals. The Government are in a terrible place and they need to think intelligently to get themselves out of it.
Thank you very much for calling me, Mr Deputy Speaker, particularly given that I went on slightly too long. I apologise for that.
I agree to some extent with Paul Goggins in that I am uncomfortable with new clause 5, but it is for completely different reasons, as he might imagine. On the issue of trusting the Home Secretary, it is not a question of trusting an individual; I would not trust anybody with that kind of power unchecked by this Parliament. For me, that is a matter of principle, and it is not a reflection on any individual. I am quite sure, despite what was said earlier in the debate, that I will never have that responsibility—I am sure that he is very glad about that—but I would not trust myself to have those powers either.
I would like the Minister to clarify some issues, because we have not had the chance to go through this in detail in Committee. I am uncomfortable with the idea of having emergency legislation to step up the powers, because I simply cannot envisage any circumstance in which I would want to see it used. However, in the review the Government have taken the line that there are some hard to foresee possibilities where it might be needed. If that is the case, I think it is right to proceed in this way. I do not necessarily agree with the Government and would have liked the review to have gone even further, but I can understand where they are coming from.
If that is where we are coming from, there is clearly a need to have some way of installing the measure when Parliament is not sitting. Some have misunderstood this point as meaning that the power will be available to the Secretary of State when Parliament is in recess. It is clear that if the situation was so urgent that we needed to reduce the civil liberties that we give people during recess, we should be recalled. It would be important that we were recalled. However, there is a difference when there is no Parliament that can be recalled. If there is to be such a system, although I am not happy about it, I am pleased with this system and understand it. I am also pleased that the Government have accepted the need for parliamentary scrutiny. That is a move forward from their previous position, as I mentioned earlier.
There are a few things that I would like to understand about how the system will work. First, the clause does not say enough for my taste about what kind of emergency would be required for the Secretary of State to take such a temporary power during a period when there was no Parliament. There is the term “by reason of urgency”. Perhaps I am naive about how parliamentary legislation works, but I would like to hear more about the fact that it must be a serious case and not just something that has to be done now. There is a difference between “urgent” and “important”, as we all know. There is also a difference between “urgent” and “emergent”, if that is a valid word to use—I am sure that Hansard will tell me.
I would like to know why the Minister has chosen not to use the Civil Contingencies Act 2004 in this case. I am sure that he will be able to give a detailed response to that.
I am also interested to understand what sort of consultation there would be if the Secretary of State were to make an order during such a time, whether in terms of statute or a commitment from the Government. We must bear it in mind that we are talking about the time of a general election, when there might be particularly fevered political debate. I am sure that this would not happen with any Home Secretary whom we can envisage, but the power could be used as a political gambit—as a tool to show how tough they are on the causes of crime. What sort of consultation would there be? Would there be some kind of Privy Council process through which a few people are nominated to be asked? Would there be judicial oversight of the process? How would that work and what safeguards would there be?
I notice that under new clause 6, a temporary enhanced TPIM order will last for 90 days. I should be grateful if the Minister would explain why it is 90 days. It seems to me that the starting point should be the shortest period possible until fresh legislation can be passed. That would include the period of the election until after the Queen’s Speech. Perhaps there could be a time period after the Queen’s speech, even though it may not be done on day one. I would like it to be as short a time as possible and would at least like some justification for it being 90 days.
I will say a little about Opposition amendments 1 to 4. I am keen that the enhanced emergency powers should not be available easily. I do not want them gradually to become one of the normal things that a Home Secretary uses, with one having to be used slightly unexpectedly and then one being quite useful on another occasion, until gradually they become more common, as has happened with so many other things. For that reason I disagree, as I am sure Opposition Members will not be surprised, with giving the Home Secretary these powers, whether under amendment 1 with no parliamentary checks, under amendment 2 with an order first—I would rather see the whole, tougher parliamentary process, rather than a simple order—or under amendment 3 with the retrospective orders.
I am still concerned about proposed new subsection (2) in amendment 3, which says that the Secretary of State can make an order and essentially do anything they want, subject to judicial checks, with it being approved retrospectively and with no time limit. If they wished, the Government could make sure that the Commons and the Lords did not get around to voting on it for a year or two years. That is a real concern. I will not say anything further on amendment 4 because the right hon. Member for Wythenshawe and Sale East has made it clear that it has been subsumed.
This again seems to be an effort by the Opposition to keep as much as possible of control orders. It is clear that what they would like is for control orders to continue ad infinitum. If they cannot have that, they want either TPIMs with control order powers or control orders for a bit longer followed by TPIMs with control order powers, or some such mixture. For those reasons, I disagree with their proposals.
I will not vote against the Government’s new clauses because I understand where they are coming from. I hope that the Minister will respond on the detail. I hope that the other place will have more of a chance to consider these important issues on how we deal with emergency rules during the period of a general election when there has been a serious terrorist attack. That is a complex set of things that bears more attention than we are able to give it here.
I will keep my remarks brief, because I know we all want to get on to the debate about relocation. However, I wish to say a word about new clause 5, which shows the difference between the Bill before us and what the Government know they might have to do. The new clause and the draft Bill on enhanced TPIMs measures published last Thursday represent the Government taking out an insurance policy against the failure of the Bill before us this evening.
My right hon. Friend Keith Vaz reminded us that we are debating the matter around the 10th anniversary of
We did not get here entirely by choice. We got here partly because of court judgments shaping the regime for us in an involuntary way. The problem is simple: what do we do when we cannot bring someone to prosecution, but we have a good and reasonable suspicion that that person would engage in terrorist activity if they could, and there may be inadmissible evidence that they have tried to do so? There has been an assumption running through this debate that such people are necessarily less dangerous than those who have been convicted. That is not necessarily so. If they were able to carry out their intent, they may in fact be far more dangerous than people who have been convicted of other terrorist events.
The Government have published draft legislation that is an insurance policy against the Bill, and they cannot have an in-principle objection to the measures within their own draft Bill. Whereas the Bill before us states, unbelievably, that the Secretary of State must grant terrorist suspects access to mobile phones and the internet, the draft Bill would give the Secretary of State discretion over that. Whereas the Bill before us disarms the Government from giving the public the protection that relocation can provide, the draft Bill would reinsert that possibility. The question that the public will ask, and which the Minister must believe they will ask very seriously should the draft legislation be needed in future, is why the Government did not include those powers in the Bill before us. Why wait until an incident has happened?
I repeat the question that I put to the Minister before. What would he say to the victims of terrorism in such circumstances? Would he say, “We knew we might need these powers, and we could have legislated for them, but we chose not to because we believed that the balance of civil liberties was wrong”?
Not at the moment.
Let us deal with the point about civil liberties. The Minister has said several times that the motivation behind the Bill was a perceived imbalance in the last Government’s civil liberties legislation. The notion that we are some sort of quasi-police state or overly authoritarian state is complete nonsense. In this country we enjoy freedom of expression, religion and association that is the envy of the world. That is why so many dissidents from regimes around the world have sought refuge here.
Indeed, the criticism that is sometimes levelled, and perhaps with validity, is that we have been very generous in accommodating dissidents from other regimes, and that sometimes our freedoms have been abused by some of those individuals. It is simply the wrong analysis and the wrong starting point to say that civil liberties in this country have been fundamentally compromised. That is not the case, but because the Government believe it and have carried forward into government the wrong analysis that they developed in opposition, that is leading to the wrong policy and to greater risk for the public. New clause 5 addresses that to some extent, but people will not understand why it, and the draft emergency legislation, were not put into the Bill.
I endorse the remarks of my right hon. Friend Paul Goggins about the draft Bill. He spoke having been a member of the Committee that considered the draft Detention of Terrorist Suspects (Temporary Extensions) Bill, the findings of which are important and directly relevant to the draft emergency legislation that the Government printed a few days ago. As he pointed out, although that Committee understood the Government’s reasons for proposing that contingency powers to extend the maximum period for pre-charge detention should be provided in primary legislation so that they could be subject to parliamentary scrutiny, it still found a number of problems. Those problems exist also in relation to the draft enhanced TPIMs Bill, and it is important that we take a moment to remind ourselves of what the objections were.
The first objection was in relation to parliamentary scrutiny of a draft Bill as primary legislation. The debate that would take place would be so circumscribed by the difficulties of explaining the reasons for introducing primary legislation that it would not be possible for the House to be given proper reasons why we needed to proceed along that route. In relation to the 28-day detention powers, the risk was that a court case might be prejudiced. In this case the objection is even more important, because we are talking about intelligence evidence that has been gathered by the security services, which of course cannot be discussed openly. That is the whole reason why we have closed sessions of courts to consider such matters—they cannot enter into the public domain. That rather defeats the purpose of having any debate on the Floor of the House.
The second objection was that there would be an unacceptable degree of risk that it would be impossible to introduce and pass the legislation quickly when Parliament was in recess. Although that objection referred to the 28-day detention power, it is also important in this case. Counter-terror investigations are fast-moving, and it is not acceptable to say to the police that their reaction to investigations should be hampered while Parliament debates the matter, perhaps in a limited way, and decides to pass an Act. That would not be an acceptable way to proceed.
The third objection related to the period when Parliament has been dissolved, but as we can see, that is precisely what new clauses 5 and 6 are intended to address.
I say to the Minister that it is clear from the draft Bill that the Government have no principled objection to the control order powers that would suddenly be available once again. As my right hon. Friend Mr McFadden said, the draft Bill is an insurance policy that the Government are taking out on their TPIMs regime, which will decrease and weaken the powers available to the police and the Home Secretary to control the behaviour of terror suspects. It is extremely unacceptable for legislation to be conducted in such a way. Control order powers are either needed or they are not. This Bill has used up many hours of parliamentary time to take us round in a circle and bring us back to exactly where we started, with control orders.
Rather than introduce this confused and fudged Bill, which raises many more questions, the Government should have been honest and admitted that sometimes, stringent control order measures such as relocation and 16-hour curfews are necessary. They should therefore have put them in the Bill that we are debating today.
I am afraid that the “argument on context”—that there is a standard context that would require only the standard TPIM, and an emergency context in which the enhanced TPIM might be required—does not hold up to any kind of scrutiny, because control orders and TPIMs, if they are introduced, are at the emergency end of what we do. They are not brought in lightly and have always been emergency measures.
I was disappointed that the Minister chose to describe control orders, and indeed TPIMs, as “business as usual”. That was a disappointing way of characterising them: it was lazy and potentially dangerous, because it implies that it is par for the course to apply such measures, and that that happens in the normal run of things. Control orders never happened in the normal run of things; they were and always have been exceptional. TPIMs will also be exceptional, so saying that they are an exceptional version of something that is already exceptional, or for use in an “emergency emergency”, simply will not work. The Minister should be up front with the House and the public on that point.
The framework in which we expect our police and security services to operate is also important. In our discussion on sunset clauses, the Minister spoke of the importance of a settled position, so that the police can plan, but the provisions are creating a more unsettled position, which prompts the question of how the police can plan for the terrorist risk that we face. We should have a more settled framework, but the draft legislation does not bring that about—it raises many more questions.
When replying to the debate I ask the Minister to turn his mind to the specifics of when those powers will be used. In particular, would the circumstances of the case of CD trigger the passing of the draft Bill? That individual was relocated because he needed to be removed from London, where he was trying to gather weapons and engage in a Mumbai-style attack. Would that be an emergency situation in which the Home Secretary would choose to trigger the draft Bill?
Dr Huppert asked whether the mere fact that we are having the Olympics next year would be enough to trigger the draft Bill. What if resources are stretched? What if the impact of the cuts is too great for the police, even given the additional resources that will be available to them under the TPIMs regime? Would that be classed as an emergency that requires the passing of the draft Bill? We need clear answers from the Minister on how that will work. Without them, the House will be expected to legislate in the dark, which is an unacceptable way for us to proceed.
The Opposition do not want the Secretary of State to be in a position in which she does not have the powers she needs to cope with an emergency when Parliament is dissolved, so we will not oppose Government new clauses 5 or 6. However, we have grave concerns about how the Government are proceeding with their draft legislation. They are exposing the fiction that has been at the heart of the control orders debate, which is based more on a political fudge than on an assessment of the security needs of the country. We need clearer answers from the Government on that point.
I am not quite sure how to respond to the lack of coherence in the previous contribution—the Opposition fundamentally oppose something, but then say that they support new clauses 5 and 6—but I shall seek to respond to the points that have been raised in the course of the debate.
I again return to the counter-terrorism review. The measures are not a surprise—it is not as though they were not set out clearly back when the counter-terrorism reported in the early part of this year. The review concluded that
“there may be exceptional circumstances where it could be necessary for the Government to seek Parliamentary approval for additional restrictive measures. In the event of a very serious terrorist risk that cannot be managed by any other means more stringent measures may be required.”
Therefore, to suggest that this situation has just happened and that it was not foretold highlights the lack of reading of the counter-terrorism review when it was published earlier this year.
The Government consider that the enhanced powers will not routinely be needed, and that the standard TPIM Bill will provide robust powers to protect the public. We also consider that there may be circumstances in which more stringent powers will be needed. However, such powers should be introduced only at that time—they should not be routinely available on the statute book.
Obviously I accept that there is a clear difference of opinion. During previous contributions from Opposition Front Benchers, I was minded to believe that control orders were the default. That appeared to be the approach taken by the previous Government, which is why this Government undertook our counter-terrorism review and why we have sought to rebalance the provisions contained in the legislation.
I appreciate the points made by right hon. and hon. Members about the term “exceptional circumstances”. As I have said, that would be when we are faced with a serious terrorist risk that cannot be managed by any other means. It would be inappropriate to say, “Would it apply in this or that control order case?” I am not prepared to second-guess future developments in the threat picture, and the circumstances might be hard to predict. However, credible reporting could point to a series of concurrent attack plots, all of which appear imminent, or it might apply in the wake of a major terrorist attack when there is the prospect of further attacks to follow. Parliament will need to approve the emergency legislation for it to come into force. Ultimately, therefore, it would be for Parliament to determine whether the circumstances are exceptional in that way.
In response to the points made by my hon. Friend Dr Huppert, I would highlight the fact that clearly there are additional safeguards for the new clauses to cover the period during a general election, when the House is unable to pass emergency legislation. The enhanced measures will be subject to a higher legal test. The Secretary of State must be satisfied that the person is or has been involved in terrorism-related activity on the balance of probabilities, which is a higher threshold than reasonable belief, which is the test for imposing standard TPIMs.
The comprehensive judicial oversight of standard TPIM notices will also apply to the enhanced measures, including a requirement for court permission before imposing measures; an automatic and full High Court review of the decision to impose the enhanced TPIM notice, and each of the measures specified in it; and rights of appeal against decisions taken by the Secretary of State when the measures are in force. Therefore, the intent is that the broader safeguards will apply in the context of those situations.
I hear what my hon. Friend the Member for Cambridge says about his discomfort with the contexts in which we would need such provisions. We are all in that situation. Equally, we have considered carefully the potential of alternatives. He highlighted the possibilities of the Civil Contingencies Act 2004. However, careful reflection on both sides of the House leads us to consider that that would not be a useful or usable route in dealing with the circumstances that we are contemplating. The 2004 Act has been considered on both sides of the House, but its mechanisms and its structure do not lend themselves easily to the scenarios and situations in which we would consider using TPIMS—indeed, the Act was in many ways directed more to dealing with floods, epidemics and those sorts of problems. Although I understand why my hon. Friend raises that point, as hon. Members have done in the past, we consider that the 2004 Act does not provide a workable mechanism to cover such circumstances.
We believe that the draft emergency Bill would provide a mechanism to deal with a situation while Parliament was either sitting or in recess, although we accept the need to legislate in this Bill to cover a period during a general election. I am pleased to note that the Opposition are prepared to support the new clauses that are contemplated, although clearly there are differences over the emergency Bill itself. However, a Joint Committee will obviously be established to consider, scrutinise and examine the matter in detail in the way one would expect from the House and no doubt to improve, make suggestions and make amendments to the daft Bill.
The Minister has talked about these extra bat belt powers, shall we say, that might be available to the Home Secretary and activated by a draft Bill. I have a question about the parliamentary situation that would then be created. If those powers were activated in relation to a particular threat, hon. Members would receive all sorts of instructions and advice not to mention specific cases in the Chamber, but the chances are that the media would be full of suggestions and innuendos against particular individuals or locations. In those circumstances, how would Parliament discharge the awkward responsibilities that the clause would give it? The Opposition in the previous Parliament made exactly those valid arguments against the then Government’s measures in respect of 42-day detention activated on the basis of parliamentary approval.
I know that the hon. Member has made that point before. I responded to him then as well. I think that the House is able to debate the principle of the underlying issues, although in relation to detailed, confidential briefings and so on, we would seek to provide more detailed information to Opposition spokespeople on privy counsellor terms, as appropriate, in order to assist debate. However, we believe that Parliament is able to consider emergency legislation in that way. In many ways, it is important to put out the draft legislation now to ensure that there is a mechanism—a tool—that has been considered coolly and calmly outside some of the febrile situations that understandably arise in the sorts of horrendous situations that, sadly, we have seen in the past. That is why it is important that we have the scrutiny that would be applied by a Joint Committee—and obviously it is for the House to resolve the matters around that. That is an important way of ensuring that legislation is considered in a more rational way.
The Minister has been very generous in giving way this evening. He has refused to be drawn on “second-guessing”, as he put it, the level of threat that would lead him or the Home Secretary to believe that these enhanced TPIM powers were necessary. However, he said that part of his consideration would be whether the threat was “imminent”—that was the word he used. An “imminent threat” could mean the next 12 hours, the next 24 hours, the next 48 hours or the next week. How does he square that level of risk with the fact that he is prepared to put measures in the Bill that would require separate primary legislation that might take at least a week to procure—perhaps even longer during recess? How can he square those two things? In my view, they simply cannot be squared.
It was precisely to ensure that legislation could be secured quickly that we have published the draft Bill now—to aid in that consideration and to ensure that matters could be dealt with swiftly. I recognise that the right hon. Gentleman does not accept the principle of emergency legislation, and I know that he has taken that approach consistently. There is a difference of view about the enhanced powers and the basis on which they are set, and I do not think that we are likely to resolve that difference between us.
We believe that the provisions in the Bill are appropriate, and that they provide the necessary assurances about the risks and enhanced capabilities that the police and security services will have. However, as I have said, we sadly have to accept that there may be exceptional circumstances, which is precisely why we believe that it is appropriate for the Government to put in place the measures in the Bill and the draft Bill published last week. I am not going to second-guess anything, however, and I very much look forward to the scrutiny that will be applied to that draft Bill in the weeks ahead.
This has been a useful debate on a number of issues that I am sure the Joint Committee will consider further in relation to the draft Bill. I welcome the support for the new clauses contemplated in this group. It is, in our judgment, the appropriate way to proceed in framing the powers available under the TPIM Bill and why we equally believe, given the nature of the impositions that would otherwise be imposed, that those measures should be put on a different basis, why Parliament should be engaged in activating those measures in extreme circumstances and why we have sought to structure the Bill and the draft emergency Bill in the way that we have.
Question put and agreed to.
New clause 5 accordingly read a Second time, and added to the Bill.