Clause 5 - Two year limit for TPIM notices

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 6:00 pm on 28 June 2011.

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Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles 6:00, 28 June 2011

I beg to move amendment 127, in clause 5, page 3, line 6, at end insert

‘save in exceptional circumstances where the Secretary of State certifies that the person subject to the TPIM continues to pose such a substantial risk to the public that it is necessary for the TPIM to be extended for a further year.’.

I am not sure whether I can live up to expectations at this time of the evening after a fairly lengthy Committee sitting, but I shall do my best. The amendment proposes that we should insert a condition at the end of clause 5(3)(b) that is similar to that in the amendment 125, which was tabled by my right hon. Friend the Member for Wythenshawe and Sale East. It is a probing amendment to try to ascertain and expose the difficulties in the measure, and the cliff edge that we will reach. A TPIM will be imposed, with all its proportionate and necessary measures to contain and control the activity of the person who is subject to it, but suddenly, after a period of two years, everything will be discharged and that person will be completely free to walk the streets, carry on with their behaviour and perhaps continue to pose a significant and substantial threat to the public’s safety.

I want to explore with the Minister whether there is any possibility of providing for exceptional circumstances. Heaven forbid, there might be several terrorist attacks across the country, and the surveillance and monitoring capabilities of the security services and the police would be stretched to the limit. At the same time, two or three  TPIM notices might be coming to an end and those individuals might be released into that set of exceptional circumstances that the country faces. In those circumstances, can we provide for an extension of the TPIM notice, albeit with modified measures, to allow at least for some supervision, surveillance and disruption beyond pure surveillance?

I know that hon. Members on both sides of the Committee do not want TPIMs to be imposed indefinitely, and I do not pursue that argument. We all have tremendous qualms—I certainly have—about people being subject to intrusive measures for an indefinite time period, which does not sit well with our legal system or with people’s rights to have their case heard. I am concerned, however, that the TPIM notice can be extended for one year under clause 5, but unless there is evidence of new involvement in terrorist activity, it must come to an end.

I think it was Lord Carlile who told us in the first evidence session that he initially supported the provision of two years, but said that there must be a two-year cut-off point. Yet, on reflection, when he looked at some of the serious cases, he felt that in a tiny number it might be necessary, because of the continued risk that someone posed, for an order to continue to apply without evidence of new terrorist activity. We should take seriously Lord Carlile’s views, because he is the only person who has reviewed every single control order and looked at every set of circumstances. Indeed, he has also discussed about the effect of the orders on the people who are subject to them.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I have followed the right hon. Lady’s argument with great interest. I am trying to understand how we could be sufficiently sure that someone posed a great risk after two years when, during that two-year period, there was no new evidence of any terrorist involvement. I find it hard to imagine that to be a realistic situation. I am very concerned about the measure becoming a rolling punishment for someone who was never convicted.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

The hon. Gentleman takes an entirely principled position. I share his view that TPIMs should not be subject to automatic renewal year on year, irrespective of the risk that is posed. The purpose of TPIMs is to balance the risk with measures that intrude on people’s civil liberties, and to get that balance right.

The key question is whether, over the period in which a TPIM is in place, the risk has reduced such that it is no longer necessary to have the restrictions. People often argue that if someone who has been subject to measures for two years, their associations and networks will have degraded, they will not have used their mobile phone to keep in contact, they will not have met people outside their home and their relationships with those with whom they plotted and planned will have broken down to such an extent that it would be safe to remove the TPIM to allow them to be subject, perhaps to surveillance, but not to the measures in the order.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

The right hon. Lady has stated that this is a probing amendment, so there may not necessarily be a detailed logic behind what she is advocating. She proposes to allow TPIMs to be extended for one year, but how will that additional year—over and above the two years that apply—make a difference, and did she consider an  extension of more than one year to be certain that the networks she mentioned have been completely broken and that there is no risk of any further activity?

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I put in a further year because I was conscious that people would argue that, without an end point for the TPIM, the suggestion would simply amount to an annual renewal. The key question is whether the networks have degraded to such an extent that we can collectively be assured that removing the TPIM notice will not expose the public to too high a risk, and to be assured that we have got the balance right. I put in a further year, because it is right to have such an end point.

The hon. Member for Cambridge asked what kind of cases might fall within that definition. I draw to his attention the case of AM, in which a control order was imposed on a subject in June 2007 and came up for renewal in 2009. The evidence was scrutinised extremely closely by the High Court because, in relation to control orders, the courts are always conscious that they should keep in mind the minimum period necessary commensurate with public safety. Just as will be the case for TPIMs, control orders have to be renewed and subject to judicial scrutiny, and quite rightly so.

In the case of AM, Mr Justice Wilkie looked at the material—it was open rather than closed material—about someone who was part of the cell planning the transatlantic liquid bomb plot, who was an al-Qaeda sympathiser and who had connections with others involved in such plots. Mr Justice Wilkie, who had an opportunity to hear AM speak on his own behalf and personally to assess him on the strength of his evidence, said that he was

“highly intelligent, calm and cautious beyond his years. He was only prepared to say in oral evidence whatever was contained in his written evidence. He is strong minded and disciplined. In the face of the overwhelming evidence against him, his firm consistent denials are, in my judgment, simply untrue. They have been maintained with a degree of calmness and self confidence which, in my judgment, is consistent with the view of the Security Service that he is a disciplined, trained and committed person whose commitment remains unimpaired…He was and remains prepared to be a martyr in an attack designed to take many lives. He remains highly trained, security conscious and committed.”

There was no evidence of new involvement in that case, but the depth of the risk that AM posed and the likelihood that he would immediately return to his networks and to active planning were such that the judge, who had heard the evidence and the individual himself, reached that assessment. That is a rare case perhaps, but it is a recent one, and the decision was made that that person was likely to revert automatically. The judge also said that

“he has repeatedly, systematically and carefully lied. It is my judgment that he is an intelligent, capable, well trained individual who remains committed to terrorist activity.”

In such a case, I would have concerns, particularly if we were in the exceptional circumstances to which my amendment refers, with the prospect of his TPIM coming to an end and of him being out on the streets without there being any measures under TPIM legislation to monitor his behaviour, may be an unacceptable level of risk when we seek to balance the rights of the individual with the right of the community to be protected.

If, unfortunately—I hope that it does not happen—we faced exceptional circumstances, with multiple terror attacks and a small number of individuals who were, as  in the circumstances of AM, deeply committed to resuming terrorist activity, would it be possible to make a further one-year extension? It would be perfectly proper to vary the conditions and look at them again, but I am concerned about the automatic cliff-edge provision that would cause the TPIM to come to an end, with no mechanism other than surveillance to enable us to control the activities of such people.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham 6:15, 28 June 2011

I have been listening intently to the right hon. Lady’s argument, but there does not seem to be any principled basis to land on three years, rather than on two years, or 12 years or 50 years. What she is really saying, if she will have the courage of her convictions in her argument on AM, is that we should be able to roll over TPIMs for as long as the Home Secretary considers necessary. Three years is entirely arbitrary and, with the greatest respect, wholly unprincipled.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I think that the hon. and learned Gentleman’s descriptions are unfortunate.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I say to the hon. and learned Gentleman that it is not often in this House that I have been accused of being unprincipled. I wish he would not pursue that line of argument.

I recognise that Parliament must have an end point to this. It may well be that risk still continues, but it is right and proper that Parliament takes that view, because otherwise we would have a system of indefinite measures, which I would not want to promote. Whether it is a further 12 months or a further two years is a matter for debate. I tabled my amendment to find out whether the Minister shares my unease at the prospect in exceptional circumstances of a TPIM reaching a cliff edge, and in which someone may still be utterly committed, without evidence of new involvement in terrorist activity, to pursuing the plotting and the attack planning that he was doing before the TPIM was imposed.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

Does my right hon. Friend agree that the great merit of her proposal is that it is specific? I tabled an amendment to add new paragraph 13 to schedule 1, which would provide catch-all arrangements for new conditions. Some people may disagree with it and think that it goes too wide. Others may have concerns that fresh primary legislation is too complex and too risky. My right hon. Friend, in a practical and principled way—she said that indefinite arrangements do not sit easily with our legal system—is seeking to do something specific that would deal with a precise set of circumstances in which the Secretary of State feels that it is absolutely essential that the conditions are applied for a further period.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

As ever, my right hon. Friend is seeking to establish that sometimes there are practical considerations to which we have to have regard, as well as theoretical considerations about what we might like to see in the abstract. That is a practical proposition for a Minister faced with a set of circumstances that we cannot begin  to contemplate, where our country is in dire straits and facing terrorist attacks. There may be circumstances in which he would be loth to allow persons subject to a TPIM to suddenly not be subject to any measures whatsoever.

That takes into account the fact that many of the Minister’s arguments rest on the fact that the additional resources that he is giving to the police and security services will be sufficient to close the gap in increased risk. If he faces exceptional circumstances, with a number of simultaneous attacks on the country, the pressures on the Security Service and the police will be enormous. If I were making the decisions that he is making , I would want at least some flexibility so that, if a TPIM was about to come to an end and I had no prospect of renewal, I might be able to renew it for a limited fixed period of a year. At the end of that period, if the exceptional circumstances on terror attacks had abated, he would be able to make the decision. If they had not, a Secretary of State might want to come back to the House to introduce further legislation. At least the amendment would give him some flexibility in the exceptional circumstances that I have set out. It echoes many of the amendments that Opposition Members have tabled, and which give the Secretary of State flexibility in powers on relocation, access to mobile phones and computers, and the extension of a TPIM notice. In each circumstance, the Government are limiting the flexibility to cope with changing circumstances when national security is at issue. I genuinely believe that the amendments that we have tabled provide a little flexibility and discretion. In the case of a tiny minority of people and where the balance lies with the protection of the public, the Secretary of State would be able to take the necessary steps.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I do not intend to detain the Committee very long. The right hon. Lady said something along the following lines. I am afraid I did not write quickly enough, but we can consult Hansard in due course. Towards the end of her argument, she said that there may be circumstances in which the Home Secretary would be loth to permit someone subject to a TPIM not to be subject to any measures at all. That was how I heard it. According to her argument, the circumstances in which the Home Secretary might be loth to permit a person to come off a TPIM may occur 23 months after the TPIM has been imposed, or at 35 months if the amendment is accepted. They might occur thereafter if a different amendment were made enabling the TPIM to run on and on. It is for that reason, I am afraid, that I do not support amendment 127, because there is an arbitrary cut-off point at three years.

I described the argument—not the right hon. Lady—as unprincipled. It makes no more sense to have a three-year cut-off point than it does to have a two-year cut-off point. If we adopt the argument that the right hon. Lady urges on the Committee, we might as well have a five-year cut-off point or no cut-off point at all. The only point that I was making to the right hon. Lady was that if she actually believed the argument that she was advancing, she ought to have the courage of her convictions and develop it to it logical conclusion and say that there should be no cut-off point for TPIMs at all, so that they could be rolled over indefinitely. That was the point that  I was making, and it was for that reason that I described her argument as unprincipled—in other words, for the simple reason that it is.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I appreciate the comments made by the right hon. Member for Salford and Eccles. I also note the comments made by my hon. and learned Friend the Member for Sleaford and North Hykeham. The right hon. Lady said she accepted that it was not right and appropriate to warehouse people on a TPIM indefinitely. I welcome that comment. Under the control order regime, it is possible to continue the control order without limitation, subject to annual renewal. The regime that we set out in the Bill requires a TPIM to be granted and the relevant tests that we have just considered in clause 3 to be satisfied. The TPIM is then in operation for a year and a further assessment on whether to renew it for a second year has to be made by the Secretary of State at the end of the first year. Unless new terrorism-related activity comes to light at the end of the two-year period, the TPIM comes to an end. It demonstrates our belief that the measures should not be used to warehouse people and should not be imposed indefinitely on individuals who have not been convicted of any crime. The Secretary of State may be satisfied by the relevant test, and can impose the TPIM at the outset. That test needs to be satisfied at the end of two years for new terrorism-related activity as defined in clause 3, if it is to be extended.

That is important, because ultimately we want to see people coming off TPIMs in the same way that the previous Government wanted to see people coming off control orders, managing the process and preparations over that period. In some ways, having the two-year requirement focuses attention on the fact that this is intended to be a temporary measure, and that it is intended to allow time for such preparation to take place.

I note the right hon. Lady’s anxiety, which underpins her desire to add a further year. Her amendment is drafted in such a way that it could be interpreted as a wish to add a further year and a further year and a further year. She said that that is not the intention, and I understand that, and that the amendment intends to provide for a maximum period of three years. Ultimately, she accepted that there has to be an end point. We have carefully considered what the duration of a TPIM should be and have come to the conclusion that two years is the appropriate period. Careful consideration and close working with the police and the security services will be required to assess and manage the risk posed by an individual at the end of the two-year period, or, in the right hon. Lady’s analysis, at the end of the three-year period.

The two-year period is appropriate, as it strikes the right balance. It provides safeguards during the time period, enables preparations to be undertaken, and allows further extensions to be granted if there is new evidence of involvement in terrorism-related activity. It does not simply look back, as it recognises the important work that the security services and the police would need to undertake, during and after that period, to ensure that the appropriate support is provided.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

My right hon. Friend the Member for Salford and Eccles deserves an answer to the case that she raised of AM. The Minister seems to be saying,  “That is that,” when we get to the two years, and that the security services will have to find another way, which is unspecified, to deal with the threat. In the judgment that my right hon. Friend read out, the judge made it clear that that individual would still be committed to the cause. We have not heard what the Minister would do in those circumstances. Perhaps we need a little bit more.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I am sure that the right hon. Lady can speak for herself, but my understanding is that the amendment seeks a single one-year extension. The amendment does not deal with the point made by the hon. Gentleman. We have made it clear that where the individual does not re-engage in terrorism-related activity and it is not possible to impose further measures, but where they are assessed as having the potential still to pose some form of risk, they will, of course, be managed by the police and the security intelligence agencies through other arrangements. The additional resources that we are providing for covert investigation will help to deal with that, too, in the same way that the measure would work at the end of the three-year period suggested by the right hon. Lady. That is a means of dealing with the issue at the end of the appropriate period. Otherwise, we would be led down the path of saying that we have to warehouse people. That is why there is some confusion as to whether it is warehousing, or whether there is an end point to a TPIM. We have set out clearly our position that we need an end point, with support, which is being provided and will continue to be provided, to manage risk at the end of the TPIM period. The hon. Member for Bradford South seems to be suggesting that continual arrangements should be in place, which differs from the point made by his right hon. Friend the Member for Salford and Eccles. I think that that represents a clear distinction between us.

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

My right hon. Friend said right at the start that this is a probing amendment, because we want to tease out from the Government what happens in exceptional circumstances. To be fair, the Minister has responded by saying that there will be extra surveillance, which will rely on the additional resources. That is a fair answer. I think it is a tremendous risk, but the Minister thinks otherwise.

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department 6:30, 28 June 2011

There may be a point of difference between us and, perhaps, between the hon. Gentleman and his right hon. Friend. I recognise that difficult judgments have to be made from time to time, and that they are made on a day-to-day basis by the security services and the police, even as we serve on this Committee today. I pay tribute to their work. We have considered the issue carefully and believe that, at the end of a period of time, it will be possible to deal with the risk and the issues in this way.

The right hon. Lady highlighted the issue of extreme circumstances, and she might have been thinking about emergency situations. We have promised that the Joint Committee will be able to provide pre-legislative scrutiny of emergency legislation, so she might want to return to the matter at that time. We have considered the issue in the context of the TPIM regime, as constructed by the Bill, and believe that a two-year period is the right approach.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I am grateful to the Minister for his last point, because it is exactly what I sought to achieve with this amendment. That is why I framed it in terms of exceptional circumstances. If the country faces multiple threats and if we are to introduce emergency legislation that might include enhanced measures in the TPIM regime, the prospect of people coming off a TPIM is a cliff edge. How we manage the situation is a genuine scenario that we ought to consider. It should also include what the transition should be when a TPIM comes to an end. I am grateful to the Minister for his comments on that matter.

The only other issue that I have to deal with is that raised by the hon. and learned Member for Sleaford and North Hykeham. I am grateful for his clarification that he was referring to my amendment rather than me when he used the term “unprincipled.” Perhaps he will agree that the provision for a two-year TPIM is equally unprincipled, because it has an arbitrary cut-off point. The legislation frames it as a two-year order, rather than a three-year order. I am seeking to do a pragmatic and practical thing. I do not think that our British law can have a regime of indefinite detention without trial, as was the case with the Special Immigration Appeals Commission and the original detainees. That decision was overturned by the courts, which was the whole reason for control orders, and now we have TPIMs.

My position has always been that we need to make a practical and pragmatic decision about where the limit is. At the end of three years, I may not be happy that the networks have degraded to such an extent that I feel comfortable, relaxed and calm about somebody coming off the measures on a TPIM. I might feel slightly more  relaxed, however, than I would at the end of two years, if the country faced multiple attacks that would put immense strain on the security services and the police to carry out the kind of surveillance envisaged by the Minister. That is the basis of my amendment.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I do not agree with the right hon. Lady. Presumably, she would feel more content that the networks were likely to have been degraded after four years, and even more content after five years, and even more content after six years, so why three years?

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I do not think that the legislation will be framed according to the degree of my contentment with the measures. That would be difficult to draft. I am seeking to draw out from the Minister a recognition that sometimes somebody’s commitment to terrorism is not necessarily degraded simply by the expiration of a period of two years or, indeed, as the hon. and learned Gentleman has said, three years. However, a point has to be made that is commensurate with the principles of our legal system, as the hon. Member for Cambridge has said time and again. Those are matters of balance and judgment. I am grateful to the Minister for his comments, and on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.—(Mr Buckland.)

Adjourned till Thursday 30 June at Nine o’clock.