Clause 21 - Offence

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 2:15 pm on 30 June 2011.

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Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department 2:15, 30 June 2011

I beg to move amendment 131, in clause 21, page 12, line 15, leave out ‘an’ and insert ‘the’.

Photo of Lee Scott Lee Scott Conservative, Ilford North

With this it will be convenient to discuss Government amendment 132.

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

These Government amendments are technical drafting amendments. They do not represent any change to policy. Amendment 131 simply ensures that the offence is more clearly and consistently framed, so that both subsections (a) and (b) of clause 1(1) refer to the “the individual”. Amendment 132 may look more significant, but in fact simply ensures that there is no potential ambiguity as to whether the drafting of the Bill delivers the existing policy intention as explained in the explanatory notes.

The explanatory notes explain that the offence extends to the breach by the individual of any permission granted to the individual by the Secretary of State in respect of a measure in a TPIM notice. If the Secretary of State grants permission under schedule 1 for the individual to do something that the TPIM notice otherwise prohibits that individual from doing, and grants that permission subject to conditions, a breach of those conditions without reasonable excuse will constitute an offence. For example, should the Secretary of State allow the individual to attend a place from which he is otherwise excluded by his TPIM notice, subject to the condition that he is escorted by a constable, if the individual attends that place other than under police escort, that would constitute a breach of the exclusion measure in the TPIM notice and therefore, in the absence of a reasonable excuse, it would be a criminal offence.

Having considered the detailed drafting of clause 21, it became clear that there might be ambiguity as to whether a breach of the terms of a permission would definitely be caught. As it is undesirable to have any such ambiguity about what constitutes a criminal offence, the Government amendment will ensure that the Bill clearly reflects the stated policy objective.

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

Will the Minister be candid with the Committee about clause 21? What thought has he given to the additional challenge and difficulty presented to the law-enforcement agencies as a result of the changes in the Bill and the fact that it means that there will be greater reliance on surveillance than under the control order regime, which may make it far more difficult to sustain a prosecution?

We are dealing with individuals about whom we have information that is not admissible as evidence in court, so we cannot prosecute, although we may continue to try to do so. That is why they are subject to a control order or, in the future, to a TPIM. If an individual contravenes the conditions placed on him, he is liable to prosecution. With the overnight residence measure, such a contravention can be objectively measured, because he would presumably have an electronic tag. If he broke that condition, there would be a proper record and that could be used as evidence in court. However, the evidence for a contravention might be based on intercepted telephone conversations or intelligence provided by someone working under cover in a surveillance operation, and such information would not be admissible in a prosecution.

The Minister should be candid with the Committee about what thought he has given to that issue. To return to the mantra that we have repeated many times in Committee, because the restrictions are less stringent, the risk is greater. The Minister argues that that is mitigated by the additional money but, in my submission, it will be more difficult to sustain the prosecution of someone who has contravened the conditions in the  TPIM. Will he be straightforward and tell us how he intends to address that deficit? We all agree that someone who is not keeping to the conditions should be subject to the law, prosecuted where possible and imprisoned. I look forward to hearing the Minister’s comments.

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

There is little merit in rehashing or rehearsing arguments that we have already had. However, I say to the right hon. Gentleman that additional police and surveillance might make it more likely that an offence is triggered—information might be identified that shows an offence has been committed under clause 21. We have had a range of debates over the nature of the regime and the additional support that we see as mitigating the challenges that could arise. I hear the point of principle that he has consistently made in Committee, but we have been through that several times.

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East 2:30, 30 June 2011

This is a very serious issue. If the individual who is watching to see whether a suspect keeps to the conditions operates under cover or if their information is based on a sensitive source that could not possibly be compromised, that evidence could not be used to prosecute the individual for contravening those conditions. In some circumstances, the additional police presence might assist, but the Minister must be candid and say that it might not. An officer might be operating under cover and might not wish to have his identity revealed. He might be working with a source that is sensitive and cannot be compromised. It might not be as straightforward as the Minister suggests in his argument.

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

I hope that the right hon. Gentleman will accept in equal candour that I have always sought to underline in my comments the law that applies in relation to intercept evidence. He will know well the further consideration in which the Privy Council is engaged to examine the potential to use intercept evidence. It reflects the challenges in the area, of which right hon. and hon. Members will be well aware. Obviously, other provisions apply—we might come to them in due course—on powers of entry to check compliance with the terms of the TPIM notice and identify whether breaches have taken place that are actionable under clause 21, but the duty is on the Secretary of State to bring a prosecution and make out the case in the ordinary way, with admissible evidence, in order to persuade the court that a breach has taken place for which no reasonable excuse can be proffered in defence of the individual’s actions.

I hope that the right hon. Gentleman will accept from my comments that there are complexities on both sides involving the limitations of law on admissible evidence with which we in the Committee are all familiar. Equally, additional support to the police and security services mitigates risk and, in certain circumstances, might enable breaches and offences under the Bill to be identified and prosecuted. I accept that limitations apply under the law as to the admissibility of evidence and the need to adduce the evidence that can be brought before the court. We do not take such matters lightly. No doubt we will continue to return to the issue during the passage of the Bill, but on the basis of my comments, I hope that right hon. and hon. Members will support the amendments.

Amendment 131 agreed to.

Amendment made: 132, in clause 21, page 12, line 16, leave out

“measures specified in the notice.”

and insert

“any measure specified in the TPIM notice.

‘(1A) If the individual has the permission of the Secretary of State by virtue of Schedule 1 for an act which would, without that permission, contravene such a measure, the individual contravenes that measure by virtue of that act if the act is not in accordance with the terms of the permission.”.—(James Brokenshire.)

Clause 21, as amended, ordered to stand part of the Bill.