Clause 9 - Review hearing

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 9:30 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)

Again, the fact that I am not a lawyer leads me to ask a question. Paragraph 76 of the explanatory notes refers to the review and the function of the court in relation to reviewing decisions. It says:

“This review must apply the principles applicable on an application for judicial review”.

It would be helpful for the Minister to outline the thinking behind that, and to tell the Committee what the test means.

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

The Minister is doing a superb job of explaining the process. His reassurance is welcome to members of the Committee and the wider public, who want to be assured at all times that their safety and security is uppermost in the minds of Ministers.

Subsection (5)(c)(ii) states that it is possible for the court to vary the measures specified in the TPIM notice. That is a necessary power; the individual or their representatives may argue persuasively that a particular measure is disproportionate, and the court may wish to change it. Presumably, the court could also vary a condition upwards and make it more severe, if it were concerned that the original condition was too lax. I would like reassurance from the Minister that the provision will work both ways and that, if necessary, the court could make a condition more severe, rather than less.

If that is the case, I have one concern, which relates back to an earlier debate although it is relevant to this issue. A court might be concerned that the conditions linked to the TPIM notice were inadequate, but it could not order the relocation of the individual to another part of the country because, at the moment, the Bill would not allow that. The court is not in a position to impose a curfew during the day—that has been ruled out because a person can be forced to remain at home only overnight—and furthermore it could not compel circumstances in which the individual could not have  their mobile phone, computer or landline. The court has the power to vary the conditions, yet the Bill as drafted would close off various options that the court may wish to use.

The Minister has paid tribute to his officials, and I agree with him wholeheartedly—indeed, there are one or two familiar faces from previous days. I do not know whether the Minister’s officials advise him that there is merit in the argument being put forward, but he has to listen to that advice if it is given. Perhaps different advice has been provided, but I am sure the Minister will listen to it carefully. Amendment 125, which we discussed during our consideration of schedule 1, would have given the Secretary of State—and therefore, I presume, the court—the power to impose an additional condition if that was considered necessary and proportionate in particular circumstances.

Photo of Rebecca Harris Rebecca Harris Conservative, Castle Point

I am not a lawyer—it seems obligatory to state that when one stands up—but I am confused. The right hon. Gentleman seems to suggest that the court could rule on an operational decision made by the security services and the Secretary of State by saying that a poor decision had been made about how to deal with an individual case. Surely the court can rule only on the legality of the provisions that the security services and the Secretary of State wish to introduce.

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

The non-lawyers might be in a majority. I am not a lawyer either, so let us celebrate the growing numbers of self-declared non-lawyers on the Committee. I might be wrong—perhaps the Minister will correct me—but my understanding is that the Secretary of State will have sought permission and conditions will have been imposed. There will then be a review hearing at which the court will consider whether the conditions in the order are necessary and proportionate. Having heard all the information, however, the court may wish to vary the conditions by making them more stringent, rather than less. I am not saying that that is likely in most cases, but it could happen, and I assume that the court would have the power to do that.

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

The court, of course, will have access to all the information—both open and closed—and it will therefore be able to vary the order.

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

That is entirely right. I know that this is unusual. One associates courts with a tendency to reduce or lessen the burdens of conditions, but I would want reassurance that it would be possible to make a variation upwards.

Hazel Blears rose—

Dr Huppert rose—

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

If my right hon. Friend the Member for Salford and Eccles will forgive me, I shall take an intervention from the hon. Member for Cambridge first.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I shall not assume that any favouritism is implied.

I am interested in the case that the right hon. Gentleman makes. I am not familiar with exactly how the court proceedings would work, but I would expect that what he suggests is unlikely because I do not understand who would argue for stronger provisions. I presume that the Secretary of State would argue that her initial decisions were correct, and that the person subject to the TPIM notice would not argue for stronger conditions. Where would the pressure to increase the thresholds come from?

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

I accept that this is not likely, but I am just foreseeing circumstances in the review hearing in which all information, closed and open, is available to the court and, following an exchange between the different parties, it becomes clear that one of the conditions is not stringent enough. There would then be a choice. The Home Secretary could start the whole process again and re-impose new conditions, but a quicker solution would be for the court to impose a more stringent condition. That would imply that the Secretary of State had started to acknowledge that there was a need for something more stringent, but such an approach might be a speedier way of imposing a more stringent condition than going back to the start of the process. I acknowledge that that is unlikely, but we have to consider all circumstances in Committee, even the most unlikely.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

My right hon. Friend makes a fascinating and effective argument about to what might happen at a review hearing. Subsection (5)(c) gives the court the power to give directions to the Secretary of State, while sub-paragraph (ii) allows it to direct on the variation of the measures. I would be keen to hear from the Minister that “variation of measures” does not automatically mean relaxation. Let us consider the interplay with clause 12. Paragraph (a) of clause 12(1) states that the variation could consist of “relaxation or removal”, but the variation under paragraph (c) could consist of the Secretary of State saying that she needs to vary upwards rather than downwards. The power in clause 9(5)(c)(ii) is interesting, because it reads as if the court would have the power to order a variation that could involve a more stringent condition, rather than a relaxation, so I would be interested in the Minister’s view of that.

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

When one starts out with a certain line of argument in curiosity about whether it might develop into something of substance, it is always encouraging to receive various interventions in which there is at least a question or two for the Minister to answer. I am therefore perfectly happy to conclude my speech.

Stephen Phillips (Sleaford and North Hykeham) (Con) rose—

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

Does the hon. and learned Gentleman wish to intervene?

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

Given the hon. and learned Gentleman’s customary eloquence, I am sure that he will be well worth listening to.

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

It is an enormous pleasure to follow the right hon. Gentleman. When he reads the Bill, he thinks of things that none of the rest of us have thought of, and it is important that we deal with them.

This is a bit of a—I was going to say white rabbit—red herring, I am afraid. While it is true that, under subsection (5), the court has the power to vary the measures specified in the TPIM notice, the exercise in which the court is engaged, as set out in subsection (2), is essentially a review of the decision that has been reached by the Secretary of State, as it applies the principles applicable to judicial review. The scope of the exercise in which the court is involved is a consideration of whether the decision is disproportionate, irrational or subject to challenge on some other basis. Given that scope, it is unlikely that a court would vary a TPIM notice by imposing more onerous conditions, and doing so it would also be contrary to the clause, as properly construed.

It would be wholly unacceptable for an unelected judge to impose more stringent conditions than the Executive had asked for, subject to the review of the court. The judge would not be answerable to anyone, and that would undermine the entire spirit of what the Bill is intended to achieve. I hope that we will hear whether the Minister agrees. The right hon. Gentleman is right to raise the issue, but his clever position seems to me to be, in fact, an impossibility.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles 9:45, 30 June 2011

I understand the hon. and learned Gentleman’s argument, which is essentially that the court will be carrying out a review process rather than substituting its own decision for the Secretary of State’s, but if his argument is to hold true, is it not the case that the relevant word in subsection (5)(c)(ii) should be not “variation” but “relaxation”? The very fact that “variation” is used gives the court enough leeway to vary the measures up or down.

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

I am a lawyer and, according to the right hon. Lady’s colleague, the right hon. Member for Tooting (Sadiq Khan), whose constituents I met last week, a rather good one. “Variation” is used by lawyers to indicate that the remedy available to the court is not simply to continue or to strike down an order, but to change its terms. “Relaxation” would not be an appropriate word, because no lawyer would know exactly what it was supposed to mean.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

May I direct the hon. and learned Gentleman’s eye to clause 12(1)(a), which states

“the variation consists of the relaxation or removal of measures”?

Paragraph (c) of the same subsection says that that

“variation is necessary for purposes” that have been considered by the Secretary of State. There is a difference. In my view, “variation” is a generic word that covers varying the order to make the requirements more stringent, but there is also a specific inclusion of the word “relaxation”. I agree with the hon. and learned Gentleman that that word is seldom used in legal drafting, but it is in that provision.

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

Clause 12 deals with what the Secretary of State may do to vary an order, while clause 9, which is what we are debating, deals with what a court may do. No court will read “variation” as implying that a judge has the power to impose more severe restrictions on the liberty of an individual.

Perhaps the Government can consider a drafting clarification. I would not be against that per se, but I view the point made by the right hon. Member for Wythenshawe and Sale East as a red herring, because it does not need to be dealt with. The clause is clear, to my mind at least, but if it is not clear to the minds of others, the Government might wish to consider an extra piece of drafting, although that would not be necessary.

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

As always, I am grateful for the input of my hon. and learned Friend and for the insight and knowledge that he brings to our proceedings.

Opposition Members have already drawn attention to the similarity in some clauses to the structure, wording and drafting of the 2005 Act. That is the case in clause 9 as well, as we have learned from the experience, oversight and structure that was previously put in place. I am advised that that is the case for clause 12, too, so no doubt the right hon. Member for Salford and Eccles considered the point that she raised when the 2005 Act was being drawn up. Under a provision with similar structure and wording to that in clause 12, I am advised that a court has never sought to impose more severe restrictions under a control order.

The Secretary of the State, not the court, makes the TPIM notice and has the power to vary it. Judicial oversight protects the individual’s rights, but the role of the Secretary of State is to protect national security. Ultimately, there is distinction between the roles, so it is right that the terms of the TPIM notice remain for the Secretary of State to vary. As the right hon. Lady said, it is possible to increase the severity of the measures pursuant to clause 12(1)(c), which we shall no doubt consider later in our proceedings.

The court has the power to give directions to the Secretary of State following a review hearing. The terminology reflects the fact that, ultimately, it must always be appropriate for the Secretary of State to frame the terms of the measure, given his or her role for national security and the expertise in their Department. The directions made by the court may, however, give guidance to the Secretary of State about the factors that he or she must take into account when setting the measures. I hope that that was helpful by framing the structure and intent of the clause.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

May I ask the Minister for clarification? The details of the drafting of six years ago are not entirely at the forefront of my mind. Clause 9(5)(c) gives the court power “to give directions”. Does that go beyond providing guidance?

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

Directions will be given in relation to the specifics that I have discussed. I hope that I have explained the distinct role of the Secretary of State in examining and considering what directions may be given. I know from the right hon. Lady’s previous contributions in Committee that she is well aware of some of the directions that courts have given in the past on the control orders regime with regard to appropriateness, reasonableness and proportionality. They may give directions to the Secretary of State on the consideration of what is appropriate.

I hope that I have explained the process in a key feature of the regime. The involvement of the courts is an important safeguard for the rights of individuals  who are subject to the measures, so the Bill takes a multi-layered approach to judicial involvement. It provides appropriate safeguards to ensure oversight and an assessment of the reasonableness of the Secretary of State’s determination of provisions made under the TPIM notice and the factors that have been taken into account. We believe that the structure will be effective. I make no apology for the fact that it is based on experience, because the Government should learn from drafting, judicial process and court cases. We believe that the structure envisaged under the clause will be robust and give effect to the policy considerations at hand.

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

This intervention will be less fanciful than some of those that I have made throughout our proceedings. My right hon. Friend the Member for Salford and Eccles drew attention to subsection (5)(c), which refers to the

“power to give directions to the Secretary of State.”

If the court directs the Secretary of State to change the conditions to make them less stringent than those originally imposed—if the review varies it downward—but the Secretary of State receives information a week later from the Security Service and the police that the individual poses an ongoing and increasing risk, and therefore believes that the conditions need to be made more stringent, will she be able to re-impose the earlier conditions, given that intelligence indicates that the risk has increased, without being in contempt of the court that directed something different a few days earlier?

That is not fanciful; it could happen. We need reassurance that the Secretary of State will have such a power and would not hesitate to re-impose more stringent conditions. Under clause 11, the Secretary of State is required to keep TPIMs under review at all times. We need reassurance that she would not hesitate to make conditions more stringent, even if the court had earlier ordered her to make them less stringent.

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

I am grateful to the right hon. Gentleman for making that point, because various options are available. For example, clause 15(2), allows the Secretary of State to impose measures again, if necessary.

The right hon. Gentleman makes a fair point about changing circumstances. However, we believe that there is enough flexibility in the Bill and the envisaged structure to deal with that. His points are not fanciful. They are on real and challenging issues, and it is appropriate for the Secretary of State to be able to respond to those issues and to act on his or her need to protect national security. That is what we have reflected in the Bill.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.