Clause 6 - Prior permission of the court

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 9:00 am on 30 June 2011.

Alert me about debates like this

Question proposed, That the clause stand part of the Bill.

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

Good morning to you, Mr Caton, and to Committee members on this bright and sunny day. I have to say I feel a lot better than I did yesterday morning, so I hope we will make progress in discussing the various measures in the Bill.

Clause 6 and some of the subsequent clauses are more or less direct lifts from the Prevention of Terrorism Act 2005, and I am sure that the Minister will tell us where they differ. The clause centres on the prior permission needed from the courts in relation to the measures imposed on an individual in keeping with condition E in clause 3.

I am slightly concerned that the Secretary of State can go to the court to ask for measures to be imposed on an individual, without that individual being aware of the measures. When we discussed overnight residence, it was clear that people had to live in an agreed place. However, if people have to stay in a particular agreed place, but they do not know that the measures have been applied, how do they deal with that?

As we know, the courts have a great role to play. As my right hon. Friend the Member for Salford and Eccles said, control orders are perhaps the most scrutinised provision to have been legislated for. It is interesting to see the courts’ impact on our legal system, and I am delighted that the hon. and learned Member for Sleaford and North Hykeham is with us. Perhaps the Minister would care to comment on a recent court judgment in relation to police bail, which we discussed earlier, and on the role that the courts play.

Will the Minister also talk me through what will happen, given his wish for an individual to lead a reasonable, near-normal life, and given that the Secretary of State will go to court for measures, which could include residency, but will not be able to discuss where an agreed locality is? I hope that I have made that clear; I am sure the Minister will understand what I am trying to say.

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

I welcome you back to the Chair, Mr Caton. I want to start with my hon. Friend’s observation that much of  this clause and subsequent clauses are similar to the 2005 Act. I hope that the Minister will express his generous appreciation of former Ministers, who did more than half his work for him by drafting that earlier legislation.

Mr Caton, you would admonish me if I read extensively from the Bill and the 2005 Act, but I want to give one example to explain what I am saying. Clause 6(3) says:

“The function of the court on the application is…to determine whether the relevant decisions of the Secretary of State are obviously flawed”.

If the Committee goes to section 3(3)(b) of the Act, it will find the following words:

“the function of the court on the reference is to consider whether the decision of the Secretary of State to make the order he did was obviously flawed.”

That is an absolute lift, and we see that time and time again. I hope, therefore, that the Minister will give generous recognition to the efforts of former Ministers.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

I hope the right hon. Gentleman will forgive me, but I am not a lawyer—I am working class and pretty simple. Why do we need the words “obviously flawed”? Is not saying “flawed” in plain English good enough? Is this some legalistic mumbo-jumbo? The words “obviously flawed” seem unnecessary—the decision is either flawed or it ain’t.

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

The hon. Gentleman makes an interesting point, and my right hon. Friend the Member for Salford and Eccles, who had a hand in the obvious flaw in 2005, might want to address it. The hon. Member for Beckenham might want to make a long speech later to draw out the point that he has cleverly made, and I am sure that the Minister will respond.

I suspect that the Minister will have to work even harder today than he has in previous sittings, as he explains to us how all the clauses will work. Few amendments have been tabled for debate today, so we will depend on his explanation of the clauses. First, will he explain how the process in clause 6 and in some later clauses will work? Paragraph 69 on page 13 of the explanatory notes states:

“Subsection (4)provides that the court may consider the Secretary of State’s application without the individual on whom the measures would be imposed being aware or having the opportunity to make representations.”

Again, the clause states that that “may” happen, not that it “must” happen, so a judgment clearly has to be made about whether the suspect is told about it. I would appreciate if the Minister explained in what circumstances the suspect would be made aware of it before permission is sought from the court. In reality, does he expect that a suspect would ever be made aware of it beforehand? If not, why is the word “may” used rather than the word “must”?

Secondly, on timing, we know from this and subsequent clauses that the directions hearing must take place within seven days, unless the suspect objects, in which case the period can be longer. We would all appreciate it if the Minister confirmed that should the suspect delay the hearing beyond seven days, the conditions imposed as a result of permission being granted would be in place and enforced throughout that period. Although the Bill states that it must be held within seven days,  how quickly will the directions hearing take place in practice? When it states that a review hearing should be held

“as soon as reasonably practicable”,

how soon will that be? On the radio this morning, there were discussions about the possible appeal against the ruling on police bail which, because the courts are in recess over the summer, might take many months and, in that case, a hearing held as soon as reasonably practicable” might be in November, which is a very long time away. We want assurance from the Minister that

“as soon as reasonably practicable” means what it appears to mean, which is “pretty soon”.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I welcome you to this sitting of the Committee, Mr Caton. I will be brief, because I do not want to substitute for the Minister, and I have a terrible feeling that some of the points raised may come to rest with me.

I have compared the provisions in the 2005 Act with the provisions in the Bill, and many of the measures have identical wording—for example, that applies to schedules 2 to 4 in the Bill. Members, including those who were not Members of Parliament when the 2005 legislation went through, will want an explanation from the Minister about how the system will work. I particularly welcome an explanation of any differences in the Bill’s language or intent. Certainly, the subsections mentioned by my right hon. Friend the Member for Wythenshawe and Sale East are directly taken—word for word—from section 3(5) and (7) of the 2005 Act. Perhaps that is an acknowledgment by the Minister that the drafting was sound, despite the scrutiny of, and litigation over, some of the provisions that have since been made.

We also want the Minister to take us through the reasons for requiring the prior permission of the court, and the circumstances in which it is appropriate to make ex parte applications, which are heard in the absence of someone subject to such an application. Clearly, there is provision for ex parte applications to be heard fully, with the person subject to the notice having access to at least the opening material and the special advocate process. I would therefore welcome an explanation of the safeguards in place to ensure that there is intense scrutiny as the matter goes through the judicial process. Sometimes, the legislation is seen as a kind of ex parte process almost in principle, when in fact the ex parte part is a minor part of it. There is full judicial scrutiny in the process.

I was talking to a group of international students at the Royal College of Defence Studies yesterday. They were particularly interested in looking at our legislation. Sometimes there are misperceptions about our legal system and the intensity of our judicial scrutiny. It was fascinating to hear from some delegates from France and other European countries, as they have entirely different legal systems and do not necessarily have the degree of judicial scrutiny that we have in our system. Perhaps the Minister would assure Committee members, particularly his Liberal Democrat colleagues, that there is a robust system of judicial scrutiny for this legislation.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

Good morning, Mr Caton. I want to raise the issue of the two words, “obviously flawed”, which were touched on by my hon. Friend the Member for Beckenham. I am not a lawyer—  I started a law degree, but unfortunately my first-year exams clashed with the elections in 2010, and I had to make a choice between career options. I am interested in the phraseology that has been used. I do not know whether there is a hierarchy of options. If we look at levels of evidential understanding, we know that there is a criminal standard, a civil standard, reasonable belief and reasonable suspicion. We have settled on reasonable belief for the Bill, but personally I would push it up towards a balance of probabilities, because I generally believe that knowing that someone is at least 50% likely to have done something is a good threshold. I am simply unaware as to whether there is an equivalent set of positions in such cases.

“Obviously flawed” strikes me as a strong term. It is possible for something to be flawed or clearly wrong, but not obviously so. I am sure that some of us would consider a number of pieces of legislation from the previous Government, and from all Governments, to be flawed, but I suspect that the Ministers who pushed them through would argue that they are not obviously flawed—certainly not at the time. A debate about flaws is not the same as a debate about obvious flaws. I would therefore be grateful to understand the role of the phrase. Is it the same thing as requiring the Secretary of State to behave reasonably? What other options were considered? Why was “obviously flawed” settled on?

Photo of Martin Caton Martin Caton Labour, Gower

I understand that Mr Sutcliffe has made a request for a statement on the recent court decision on bail. I am afraid that that is not relevant to the Bill, so I would be grateful if the Minister resisted the temptation to discuss it.

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

I am cognisant of your guidance, Mr Caton, and I will not be drawn down that line of response.

I note the comments made by Members on both sides of the Committee on the clause. The hon. Member for Bradford South has said that he will be working hard, perhaps with his right hon. Friend the Member for Wythenshawe and Sale East, and perhaps they will keep my officials working hard. I pay tribute to the work of my officials. I am sure that right hon. and hon. Members on both sides of the Committee will wish to do so, too, as they make so much effort and conduct so much activity behind the scenes. While Ministers are engaged in the process by giving directions and setting policy, I am sure that right hon. and hon. Members will recognise that much of the wording and drafting is down to the skill, expertise and knowledge of parliamentary counsel. I pay tribute to them for the work that they do in drafting legislation.

My hon. Friend the Member for Beckenham asked about the term “obviously flawed”. To be fair, that question was also raised by Opposition Members. An appropriate test at the permission stage acts as a check on the Secretary of State’s exercise of his or her powers. At that stage, it is clearly not appropriate for the court to make the final determination on the case, because it is likely to be an ex parte process, as the right hon. Member for Salford and Eccles indicated, and I will come back to that. The court cannot assess a case fully without the individual’s evidence being heard.

The full review by the court takes place at a later stage after the terrorism prevention and investigation measures notice has been served. At that stage, the court fully reviews the decisions by the Secretary of State. By that time, the test is well beyond “obviously flawed” and beyond the traditional concept of judicial review. The court makes its own determination on the facts in terms of reasonable belief, and it exercises intense scrutiny of the decisions. Such scrutiny in many ways reflects the Court of Appeal case of MB. In considering and preparing the legislation, we have reflected on the case law that has developed around the existing control orders regime.

On the issue of “may”, the right hon. Member for Wythenshawe and Sale East asked about the knowledge of the process by the individual who may be the subject of a TPIM. It is the case that individuals will not usually know about the permission hearing, as the right hon. Member for Salford and Eccles rightly stated because, for example, there may be a flight risk. A TPIM might be sought because information or intelligence indicates that someone might be about to leave the country, so it is necessary to intervene. There may be a situation or circumstances in which an individual might have knowledge—for example, if they are already the subject of a TPIM notice, but the court has quashed it on technical grounds, and the Secretary of State seeks permission for a new TPIM notice to be put in place. There are such circumstances but, as I think the right hon. Member for Wythenshawe and Sale East would accept, they are likely to be narrow, given the preventive nature of the process, and given that the ex parte process implies that it takes place without the knowledge of the person to whom the notice is likely to be issued. Such an arrangement is important and the court needs to be able to consider it on that basis. The drafting reflects that.

The court will consider a range of material: the proposed TPIM notice; a witness statement from the Secretary of State setting out the need for the proposed measures and obligations, and the matters that are being taken into account in determining them; a classified statement from the Security Service setting out the intelligence case; and an assessment of the risk posed by the individual and the need for a TPIM notice to manage the risk in that context. I hope that that explains the background and the basis for the way in which such notices are drawn up and sought, and the fact that the court will need to consider.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East 9:15, 30 June 2011

I find that reassuring, because the Secretary of State will be under enough pressure in making decisions about what is proportionate and necessary when going to court to seek permission. Determining whether to tell the suspect in advance would be an additional burden. If the court seeks to rule on whether that was flawed, that would add to the burden. The Minister’s reassurance that it would be wholly exceptional for the suspect to be notified in advance is welcome.

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

I am grateful for the right hon. Gentleman’s comments. The permission hearing will be part of a multi-layered approach to judicial scrutiny and a preliminary safeguard to ensure that the decision to impose measures is not “obviously flawed”. It does not replace the full, subsequent High Court review, during which all the evidence and information will be scrutinised. The decision that follows the High Court review will then be assessed from a broader perspective.

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

The Minister’s comments go back to my point. I understand that the Secretary of State will go to the court to apply for permission for the measures to be taken, but what about overnight residency? If that is one of the permissions for which she asks, could someone who received a notice claim that the process was flawed if they had not been given the opportunity to talk about an agreed locality? I am slightly worried that the Secretary of State will go through all that for nothing. Judicial scrutiny is important, and as my right hon. Friend the Member for Salford and Eccles has said, litigation has been evident in the process. Is that a weakness in the provision?

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

I understand the hon. Gentleman’s point. It is not a weakness in the measure or an “obvious flaw”, to use the term in the Bill. It is not intended that the provision and the overall framework of the Bill cover only what may be granted when the notice is issued at the outset. There must be contemplation of possible subsequent variations, at which point people may engage in discussions about arrangements, and consider the appropriate locality. I am confident that the provision is well considered, and I pay tribute to the work of the parliamentary counsel in achieving that.

It will be possible to agree the locality after the notice is served, which will be part and parcel of the stepped approach. After initial permission is granted, the process will move forward to the service of the notice and the directions hearing, with the full hearing thereafter. Steps will be taken and oversight will be applied, so the process will be very much tiered and considered.

We are confident that the drafting achieves the end results. It is based on previous legislation, so it reflects the careful drafting that was previously undertaken and the judicial scrutiny to which that drafting has been subjected. Lawyers on the Committee will understand that use of precedent and the desire to apply drafting that has previously been considered. The court will have oversight, and we recognise the work that has gone into preparing for that. On the basis of my comments, I hope that the Committee will be minded to agree to the clause.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.