Clause 12 - Variation of measures

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 1:15 pm on 30 June 2011.

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

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

I have a couple of questions for the Minister, whose clear explanations to the Committee we appreciate.

First, I am curious to know whether there are any limits on the extent of the variation that the Secretary of State may apply in any particular circumstances under subsection (1)(c). If the Secretary of State decided to add an extra place to the list of those from which the person was to be excluded, or to bar an association with one additional individual, we would understand that that was a minor variation. However, if the information available to the Secretary of State caused her to vary the TPIM substantially with many exclusions, many bars on associations and other measures, would she have to apply for a new TPIM, or could she simply vary the existing one? It is important for us to know whether the process is only for fine tuning a TPIM. If substantial changes are required, will it be necessary to start the whole process again?

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

When the Minister responds to my right hon. Friend’s question, he might want to deal with how the two-year limit on the time scale for a TPIM would be affected. If there is a variation, how will that affect the time limit?

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

I am sure that the Minister will want to address that pertinent point.

My second question concerns subsections (2) and (3). Elsewhere in this carefully layered process of applications for permission, directions hearings, review hearings and so on, clear time scales are laid out. The directions hearing must take place within seven days, for example, and the review hearing must be held as soon as practically possible. Subsections (2) and (3), however, include no time limits, as they simply state:

“The individual to whom a TPIM notice relates may make an application to the Secretary of State for the variation of measures specified in the TPIM notice”,

and then that the

Secretary of State must consider an application made”.

The provisions do not specify how quickly she must do that or set a time period. Does the Minister think that something is missing, because if the time scale were tighter, the individual suspect and the Secretary of State would know the time period under which they were operating?

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

The right hon. Gentleman suggests that a variation might create the need for a new TPIM. It is worth looking back to our debates on clauses 3 and 11 with regard to what the Secretary of State must be satisfied about. Obviously, tests are applied at the outset for granting a TPIM. To secure the TPIM in the first place, the Secretary of State has to be satisfied that the person is engaged in terrorism-related activity, which is condition A. Subsequent conditions then apply, including condition C, which is that

“the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public”,

and condition D, which is that she

“considers that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity”.

After the first hurdle of the Secretary of State being satisfied that a TPIM is required, there is the question of the terms and conditions or restrictions that sit alongside it. It is important that the Secretary of State has the ability to monitor and to consider in the context of clause 11 but, equally, that she may consider broader security issues and vary the measures. Clause 12 will retain the flexibility for the Secretary of State that, given their previous comments, right hon. and hon. Members will see as necessary and appropriate.

If the Secretary of State is minded to make a variation, it does not mean that a new TPIM is required; she can simply vary the conditions attached to the TPIM within the scope of schedule 1. Obviously, if other information comes to light, that might lead to prosecution or other steps. If a TPIM is granted, conditions will be attached to it and they can be varied under clause 12.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

May someone on a TPIM apply for a variation of the measures? When I used to watch certain individuals, one of their key ways of avoiding being observed too closely was changing their location every night. Under the regime, does someone subject to TPIMs have the right to say, “I will be here today, there tomorrow and somewhere else on Thursday. I don’t know where I will be on Friday, but I will be within the locality”? Is that acceptable under TPIMs? Will our law-making stop that kind of action, because otherwise watching will be a real bore for the security  services? If someone is going to be watched, they should have to stay in a certain place and not skip every night, so that is one of the loopholes that we must avoid.

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

My hon. Friend has huge practical experience of the issues. The point is that the TPIM regime enables the Secretary of State to impose the requirements set out in schedule 1.

The right hon. Member for Wythenshawe and Sale East also made a point about an application that may be made by the individual subject to a TPIM. In such cases, it would be open to that individual to come forward, as set out in clause 12(2). Clause 12(3) states:

“The Secretary of State must consider an application made under subsection (2)”,

so there would be an obligation to consider the case. Public law would mean that the Secretary of State must consider a variation request expeditiously, although the complexity of the request may affect the speed of that consideration. If an individual were to apply and say that certain changes were required, that might necessitate careful consideration by the Secretary of State in conjunction with the police and the Security Service. I would hesitate about acceding to a request for a specified time frame in which the matter should be considered, and I would prefer to rely on broader public law principles to ensure that the matter is considered fairly and in the appropriate time scale required for proper consideration.

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

It is probably fair to say that I have not made many speeches in favour of the suspect and their situation, but the Minister might want to look at the words

“as soon as reasonably practicable” in clause 8(6). It might be as well to add those words to clause 12. That term does not define a specific number of days, but it puts some onus on the Secretary of State to consider the case.

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

I hear the right hon. Gentleman’s point. It is intended that broader public law principles will apply. In that context, broader case law might be relevant, and the complexity of an individual case might be significant. In recognition of his point, however, I will think about whether a further requirement or duty is needed and take advice on the matter.

As the right hon. Gentleman will know, when it seems that a fair or interesting argument has been put forward, it may be that after further analysis and examination, additional issues may arise, such as complexities concerning case law. Given the fair way in which the point was made, I will certainly consider the matter—albeit without obligation, as the right hon. Gentleman will appreciate. Such language has read-across. This is a different context from the earlier clause, but I will reflect further on the issue.

Under clause 16, the Secretary of State must justify the terms of any variation before the court if the case is challenged, so when we reach to that clause, we may consider appeal rights further. With those comments, I trust that the Committee will be minded to support the clause.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.