Clause 10 - Criminal investigations into terrorism-related activity

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 9:45 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)

It is important that we spend a little time on this clause because it has significance for what the Minister said about the difference between TPIMs and control orders. The Government are trying to achieve prevention and to get prosecutions. The clause, which is  long and detailed, sets out the requirements on the Secretary of State to consult the chief officer of the appropriate police force, and then what is expected of the Secretary of State and of the appropriate police force.

The clause may cause some confusion, so it is important to hear what the Government see happening here. I am concerned about confusion on who the nominated officer might be. The clause says that that is the chief officer and goes through what is meant by “appropriate police force”. It is my understanding that the Association of Chief Police Officers terrorism and allied matters committee is principally in charge of security issues across the country, working with the different police forces, so there are issues about the relationships. I should preface my remarks by saying that we all agree that prosecution is the ideal way forward, that every attempt must be made to get to that prosecution, and that control orders as they were, or TPIMs as they will be, should be used only if we cannot get the prosecution.

There will be concern about the clause, because we have 43 police authorities and 43 chief constables. What is the relationship between those chief officers? In many police forces, they are not the chief officer responsible for counter-terrorism—that perhaps is usually an assistant chief constable. In West Yorkshire, the deputy chief constable has that responsibility. Will the Minister tell us about the relationships between the individual police forces, the security services nationally and ACPO?

To add potential confusion, we will have elected police commissioners in the future. What will their role be? What terrorism issues will he or she be entitled to be aware of? The Minister may say that it is nothing to do with the elected representative, but these commissioners will feel that they have to be involved because the resources that are required for police forces to deal with everything like the extra surveillance will reflect on those individuals when they are held to account through the democratic process.

This is an important clause. I understand what the Government are trying to achieve, but I wonder about the possibilities for confusion and concern. Perhaps the Minister can tell us—perhaps we should have asked Mr Osborne about this; I regret that I did not do so—what discussions he has had with the police on this? What were their views on the review process? The Bill says that the process has to be kept under continual review by the Secretary of State and the chief police officer. Will that hinder things or make them better? I am not sure how the clause will work, so I will be grateful if the Minister spends a bit of time going through it and explaining its effects.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham 10:00, 30 June 2011

I should have said earlier that it is a pleasure to welcome you back to the Chair, Mr Caton.

I want to make two points, one of which is a general point. I agree with the hon. Member for Bradford South that the clause is important. Even if it is not acted on by the security services and the police, the temptation under the 2005 Act with the control order regime was to consider that once a control order had been successfully imposed on a controlee, and once it had been challenged unsuccessfully in the courts, with the result that the controlee remained subject to it, the  problem had, effectively, been dealt with—the potential terrorist had, in the words of the Act, been controlled and it was, therefore, unnecessary to devote a great amount of resources to gathering the evidence necessary to ensure that a prosecution took place. The problem had been managed and dealt with and, in those circumstances, the temptation for the police and the security services must have been to devote their resources, limited as they are, to defending the country from terrorism.

One of the salutary things the Bill does is to make it clear that it is the strong view of Parliament and, I think, of Members on both sides of the Committee that those subject to certain measures in the context of Executive control—subject to the oversight of the courts—should be prosecuted where possible. The police and the security services should therefore be under a duty, as they are in the Bill, to continue to collect evidence so that prosecutions can be brought in circumstances where, one rather suspects, they might not have been under the 2005 Act, for the simple reason that no real effort was directed at generating the evidence necessary for prosecutions to take place.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

The hon. and learned Gentleman is making an important point, which goes to the essence of earlier discussions. Government Members have sought to conclude that the Bill puts greater emphasis on collecting evidence and bringing people to prosecution. However, I direct the hon. and learned Gentleman’s attention to section 8(2) of the 2005 Act, which provides that, before a control order is made or applied for, there must be a police consultation about whether a prosecution can be brought. Section 8(4)—I will be putting these points to the Minister directly—is absolutely key. It says:

“It shall then be the duty of the chief officer to secure that the investigation of the individual’s conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.”

That provision is identical to the one in clause 10(5)(a) of the Bill. I have been through the Bill with a fine-toothed comb, and clause 10 is almost a mirror image of section 8. When I make my contribution, I will press the Minister to go through those issues in detail.

The hon. and learned Member for Sleaford and North Hykeham is wrong. He expresses his view in a very erudite way and with a degree of certainty but, on this point, he is wrong. The previous legislation provided that matters had to be kept under review with a view to prosecution and that they had to be constantly scrutinised. That is a key message; the previous Government were not about housing people under control orders, but about continuing to investigate.

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

As always, I am grateful to the right hon. Lady for her contribution and for pointing out that I am wrong. The point I was making was that the previous measure was called a control order, and the temptation on the part of the security services and the police was to think that once such measures had been imposed, the controlee was being controlled, so it was not necessary to seek to further a prosecution, with the result that resources would be deployed elsewhere. Names are important, and one of the salutary things the Bill will do if it becomes law is impose an investigation  measure. It makes it crystal clear that the security services and the police should redouble their efforts after a TPIM has been imposed, to ensure that a successful prosecution takes place. That was the only point I was seeking to make, although I am grateful for my education on the 2005 Act, which I have of course read.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

I am not an expert, but is not the whole of the TPIM environment to do with investigation? Someone who is subject to a TPIM is by definition under investigation. That is the understanding that I take from the provisions, and I wonder whether the Minister or my hon. and very learned Friend would confirm that.

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

My hon. and gallant Friend makes the point better than I could ever do. The point about the previous regime was that suspects were being controlled, and now they are to be investigated. Those things are important. There is a clear direction, by virtue merely of the change in name, to the police and the security services, that there is a change in culture, and that we expect the people in question to be prosecuted where possible.

Clause 10(5) requires the chief officer of police to

“secure that the investigation of the individual’s conduct, with a view to a prosecution of the individual for an offence relating to terrorism, is kept under review” and to

“report to the Secretary of State”.

In so doing, under subsection (6), the chief officer is obliged to

“consult the relevant prosecuting authority before responding to consultation under subsection (1).”

It is possible to conceive of circumstances in which an individual who is a serving member of the armed forces is considered for prosecution for an offence related to terrorism. The difficulty, for the purposes of subsection (8), is that the relevant prosecuting authority would be the Director of Service Prosecutions, not the Director of Public Prosecutions, the procurator fiscal or the DPP for Northern Ireland. I invite the Minister to deal with that point and to suggest whether the Government will consider adding to subsection (8) a new paragraph (d), which would state that the relevant prosecuting authority would be, in the case of offences that would be likely to be prosecuted in a court martial, the Director of Service Prosecutions.

Photo of Shabana Mahmood Shabana Mahmood Shadow Minister (Home Affairs)

I wanted briefly to refer the Minister to subsection (9), on the duty to consult, which might be

“satisfied by consultation that took place wholly or partly before the passing of this Act.”

I assume that that is a context point—I know that the Minister is fond of context—designed to ensure that there will be no gap, when the Act comes into force, affecting individuals whom the police and security services have had under review, with a view to their becoming subject to TPIM notices.

How would the provision affect people who are subject to control orders? Presumably there is a process for reviewing whether those individuals would migrate from  a control order to a TPIM notice. What consultation will take place, and what interplay will there be with subsection (9) with respect to the current 12 or so control orders?

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I want to pursue with the Minister the issue that was the subject of my debate with the hon. and learned Member for Sleaford and North Hykeham.

Much has been made, in the process of introducing the Bill, of a renewed—and indeed welcome—emphasis on the necessity of bringing people to prosecution. That has been presented almost as if it were the case that under the previous regime there was no requirement for the Secretary of State to press the police, security services and prosecuting authorities to do everything in their power to ensure that where possible people would be arrested, charged and brought through the criminal justice system; for evidence to be presented and tested in open court; for everything to be done to avoid the necessity of a review hearing with closed evidence and special advocates; and for that process to be reduced to the absolute minimum where it was not possible to bring people through the criminal justice system.

It is really important for the Minister to explain what he considers to be different in the Bill. There may well be some differences between clause 10 and section 8 of the 2005 Act, and I am keen to hear about them.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I will leave it to the Minister to discuss the importance of subsection (5)(b). I thank the right hon. Lady for drawing my attention to the detail of section 8 of the 2005 Act, which states that it applies only

“where it appears to the Secretary of State…that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism”.

Will she explain what sort of activity which might be related to terrorism and is sufficiently serious to require a control order would not be an “offence relating to terrorism”?

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

Much would depend on the nature of the intelligence and the information available. In order to maximise the number of prosecutions, the previous Government introduced legislation related to a series of new offences, such as acts preparatory to terrorism and acts facilitating, encouraging and glorifying terrorism. That was an attempt to go upstream of the criminal regime to try to catch as many people as possible in the conventional criminal justice system. There may well be cases where the intelligence available is not sufficient to formulate a criminal charge. The intelligence may be bits of a jigsaw that come together, on which people then take an opinion and make a recommendation, which may not constitute a criminal offence even when we have gone as far upstream as we can with facilitating and encouraging.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I absolutely understand the purpose of upstream offences. However, the right hon. Lady has slightly missed the point on evidence. The issue is not about what is admissible in court. The provision in the 2005 Act that we are hopefully getting rid of talks about an activity that

“may have involved the commission of an offence relating to terrorism”.

It is not about what can be proven in open court, but what may have involved terrorism. I find it slightly bizarre that she wants to hang on to something that says that there should be a control order even if the Secretary of State does not think an activity may have involved any sort of offence on even the broadest terms.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

Section 8(1) of the 2005 Act, which is about continuing to investigate, states that

“where it appears to the Secretary of State…that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism” there is a requirement for ongoing investigation. I accept that the hon. Gentleman is asking whether there are other circumstances in which people would be subject to a control order even if they were not involved in an offence related to terrorism. I have explained that on the intelligence available something might not constitute an offence as currently stipulated, so there may well be such circumstances. I am not aware that there ever were such circumstances, so that may be a drafting point. The emphasis in section 8 is largely mirrored in clause 10 of the Bill. For example, clause 10(2) is a repeat of section 8(2) of the 2005 Act. Clause 10(5), other than paragraph (b)—I am sure that the Minister will discuss about that—absolutely mirrors section 8(4). Clause 10(6) and (7) mirror section 8(5), clause 10(9) mirrors section 8(6) and the definition subsection mirrors section 8(7). I am struggling to find substantive differences.

I take the point made by the hon. and learned Member for Sleaford and North Hykeham that there is a different name, which will send a message, but I would welcome an answer from the Minister as to what additional measures in clause 10 are substantively different, other than the requirement to report to the Secretary of State, which I am sure he will explain, from the provisions in section 8. We have all said in Committee that we want to maximise prosecution, but I cannot see a substantive difference between the Bill’s provisions and the legislation that is already in place. I would welcome the Minister’s detailed explanation on each and every point about why the clause is so much better at moving towards prosecution.

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

I, too, look forward to the Minister’s response to my right hon. Friend’s question. I wish to raise one or two further points. To build on comments made by my hon. Friend the Member for Bradford South, we would all appreciate a better understanding of what the phrase,

“The Secretary of State must consult the chief officer”,

will mean in practice. It may refer to officials consulting senior police officers, but not the chief constable, of a particular area. Perhaps the powers will be so wholly exceptional that the Secretary of State may want personally to be involved—at least in some of the initial discussions, let alone the ongoing ones. It would be helpful to hear a fuller explanation about how Ministers intend to involve themselves in practice in the process .

There is a potential conflict between the oversight of the TPIM and the ongoing investigation. Clause 10 requires the Secretary of State to consult the chief officer in relation to the possibility of a prosecution, the officer being the

“chief officer of the appropriate police force”,

and the police force being the one investigating the offence. If there is an offence, there will be an ongoing investigation and the Home Secretary will have to continue to consult the chief officer of that area.

The chief officer may not, however, be the chief constable of the area where the individual resides when they are subject to the TPIM notice. I detect the potential at least for a slight conflict. The chief constable who is responsible for the ongoing investigation may want less stringent conditions imposed to allow more flexibility and freedom to move, fewer exclusions, and less barring on different associations. He may have an interest in a more flexible approach to the conditions than is wanted by the chief constable responsible for the surveillance and oversight of the individual in the place where they are residing. Understandably, that chief constable might want conditions, overnight residence, and exclusions and associations conditions to be as strict and stringent as possible.

I have great respect for chief officers of police and I am sure that they would have ways of resolving many such issues, but the Minister must be able to see the potential for a conflict of interests. If a chief constable who is responsible for an ongoing investigation has a different view from the chief constable in the area where the individual resides when subject to the TPIM notice, how would that be resolved? Would it be the responsibility of the Secretary of State to make a decision? I can imagine some real difficulties, because that would begin to stray into operational policing matters, and it would not, of course, be appropriate for the Secretary of State to involve herself in those kinds of decisions. I would be interested to hear the Minister’s comments on how the Secretary of State would resolve a conflict of interests.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham 10:15, 30 June 2011

I want to say how good the 2005 Act was in the circumstances of the time. I supported it as a member of the public, because it was introduced fast and properly to try to deal with a specific situation. I do not have a problem with the fact that there is replication of the 2005 Act in some of the clauses in the Bill, because that is a compliment to the original drafters, the right hon. Member for Salford and Eccles and other Members who were involved. I do not have a problem with cribbing sections. As we go through the Bill, we shall see that there are differences between it and the Act.

I think of TPIMs as a slightly more sophisticated and measured way to build on the 2005 Act with the passage of time. I thank the Opposition for the way in which they acted in 2005, which was entirely proper. I have no difficulty whatever with taking little bits of the Act to put in the Bill, because all of us in Committee and throughout Parliament are trying to do our best to make good law. TPIMs are a step change—they are different because of the different environment, so I hope that they will be good law, building on the 2005 Act, which was excellent at the time.

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

We have had a useful debate on clause 10, which relates to criminal investigations into terrorism-related activity. As I have said in previous sittings, we are absolutely committed to the priority of investigating and prosecuting suspected terrorists. The best place for a terrorist is a prison cell; I think we all agree on that. The police and the security and intelligence  agencies work tirelessly with the Crown Prosecution Service to investigate and prosecute those whom they suspect of being guilty of terror offences and to put them in prison if they are convicted. Right hon. and hon. Members recognise that, and I emphasise it once more.

We accept that there are—and, sadly, will continue to be—dangerous individuals whom, despite our best efforts, we can neither prosecute nor, if they are foreign nationals, deport. That is a challenge with which we and previous Governments have wrestled, which is why we believe that there is a need for preventive measures to protect the public from the threat posed by that small number of dangerous individuals. We believe that the provisions in the Bill represent the most appropriate, proportionate and effective powers for dealing with that risk.

There should be no doubt about our unwavering and absolute commitment to investigation and prosecution where possible. The hon. Member for Birmingham, Ladywood has commented on my focus on context and, again, I apologise to her for discussing it. Investigation and assessment take place before a TPIM is obtained, in the same way as for control orders. A decision has to be made at a certain point about whether there is sufficient admissible evidence to bring a prosecution, and of course we will always apply that so that if the evidence is there, a prosecution can be brought.

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

I hear what the right hon. Lady says, and I do not wish to imply that the previous Government had any other motivation. Once a TPIM  notice has been obtained, we must do all that we can to continue the investigation of an individual’s conduct to see whether further evidence or information can be obtained about previous or subsequent activity. We must consider the context of what happens before the TPIM notice and the context of what happens thereafter.

There are similarities between the provisions in the Bill and those in the 2005 Act, and I make no apologies for that. What is important, however, is the consultation that we envisage, and the requirement for the report to the Secretary of State on the ongoing review of each investigation. Such framing of the legislation is an important way of keeping everyone’s mind focused on our continuing desire to bring people to justice where appropriate; to bring people before the courts where appropriate; and to do our utmost to prosecute individuals where there is evidence that we can adduce and bring before the court. Clause 10 requires consultation with the police, before the imposition of a TPIM notice, about the question of whether there is evidence available that could realistically be used for the purposes of prosecuting the individual for an offence relating to terrorism. That provision reflects the 2005 Act. The police must consult the Crown Prosecution Service on that matter before responding to the Secretary of State. That provision will ensure that a TPIM notice is not imposed on an individual when prosecution for a terrorism-related offence is viable.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One o’clock.