Clause 13 - Revocation and revival of TPIM notices

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

I beg to move amendment 130, in clause 13, page 7, line 32, leave out ‘later’ and insert ‘different’.

The amendment makes a minor but important change to clause 13. Clause 13(2) currently states:

“The revocation of a TPIM notice take effect when the revocation notice is served or, if later, at the time specified for this purpose in the revocation notice.”

That would cover the majority of cases in which a revocation notice is served, since in most circumstances, it would not be appropriate to revoke something that had impacted on an individual with effect from an earlier date. We believe, however, that that does not provide sufficient flexibility for cases when the court directs the Secretary of State to revoke a notice with retrospective effect. The intention is that the court has the power to make such a direction. It has such a power under the control order regime, and we do not intend to reduce that power under the TPIM regime. I assure the Committee that the normal practice—when the Secretary of State revokes an order because she has reached the view that it is no longer necessary—will remain. The revocation notice will take effect when the notice is served or at a specified time.

The amendment will ensure that there is provision to deal with the rare cases when revocation from an earlier date may be necessary. That is likely to happen only in cases when the Secretary of State is directed to revoke a TPIM notice by the court. An example of that would be if the court concludes that while it had originally been necessary to impose a TPIM notice on an individual to protect the public from a risk of terrorism, that notice had became unnecessary at some point during its duration. The court may then direct the Secretary of State to revoke that order from that date.

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham 1:30, 30 June 2011

Given the Minister’s explanation of the amendment, it seems that clause 13(2) could simply specify that the revocation took effect at the time specified for this purpose in the revocation notice, thus placing an obligation on the Secretary of State to put a time in the revocation notice, which would be sensible. I will certainly not oppose the amendment, but I wonder whether further consideration could be given to the matter as the Bill continues its progress. Having a revocation notice that takes effect on service seems possibly unnecessary and undesirable. There may be disputes about when service takes place. The Government might find it more sensible to have a time set out in the notice as to when the revocation takes effect.

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

The amendment changes the word “later” to “different” in subsection (2). I underline that it is intended to address some comments that have been made in the High Court. We believe that it is necessary to ensure that there is sufficient flexibility within the operation, given that when the comments were made, the court sought to apply the revocation from a different time, rather than a later time. We believe that the  amendment addresses the necessary requirements. I will read my hon. and learned Friend’s comments with interest to satisfy myself that there is not some further technical point that we may need to consider, but I am advised that there is not.

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

My only concern—I do not know the answer to this, because I cannot remember it from my perusal of the Bill—is about when service takes place. Is personal service required? Is ordinary service sufficient? Does service take place at the time that this is posted through someone’s letter box? If personal service is required, is it sufficient if it is served on someone’s personal representative? Is it possible to obtain an order for substituted service from the court? The Government would not get into any of those difficulties if they simply set out a time at which the revocation takes effect. The only point that I am making is that the subsection should be amended to make it clear that revocation takes effect from the time set out in the notice.

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

I am advised that service can take place, as would often be the case in other circumstances, through the solicitor and so on. I am advised that the amendment deals with the relevant points appropriately. There is other provision in the Bill on this. I direct my hon. and learned Friend to clause 24, which might be relevant to this issue, and particularly on the service of notices on individuals, revocation notices and so on.

We believe that the measure deals appropriately with the matter. As I have said, however, I will read the comments of my hon. and learned Friend the Member for Sleaford and North Hykeham, and if there is any need further to address his point, no doubt I will be advised accordingly.

Amendment 130 agreed to.

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

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I have an exploratory question on how the clause will operate. Under clause 13(6)(a), the Secretary of State may agree a revival notice when a TPIM has expired and has not been extended for a further year under clause 5(2). I am unsure how that measure will interact with clause 13(9), which states:

“A TPIM notice which is revived…comes back into force when the revival notice is served or, if later, at the time specified for this purpose in the revival notice”.

Could that allow a TPIM notice to be served for a year, to expire, and then, after six months, to be revived by the Secretary of State on the grounds set out in clause 13(6)(b) if conditions A, C and D were met? The measure does not require condition B to be met, which provides that there must be new terrorism-related activity. We might have information about terrorism-related activity and serve a TPIM notice for a year. We might then have a fallow period for six or nine months. After that, could we revive the TPIM notice without having to show that condition B applied?

A core argument for the two year cut-off point might be that by the end of two years someone’s networks and associations have degraded to such an extent that the Secretary of State is content for TPIMs to come to an  end and surveillance to be enough. It would therefore appear contradictory to allow for an open-ended situation if the first TPIM had not been extended for a second year. In theory, we could come back five years later, without needing evidence of new terrorism-related activity, and use the same evidence to revive the TPIM notice. Will the Minister say whether such circumstances are envisaged? Perhaps five years is a bit extreme, but I can well envisage a six-month fallow period of intensive surveillance, after which people might seek to revive a TPIM notice without evidence of new terrorism-related activity because the surveillance has been insufficient.

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

I wish to raise two not entirely unrelated points, which develop my comments on clause 11. First, because there is no requirement to satisfy condition E, there will be no subsequent supervision by the court of the revival of the notice. Notwithstanding that, the Secretary of State would be seeking to revive a notice that had been revoked and removed, which would mean that she had previously concluded that it was unnecessary. Might the Government consider giving the court the same supervisory role at that stage, which would be consistent with the Bill’s principles, so that the Bill hangs together?

Secondly, subsection (3) gives the individual the right to make an application to the Secretary of State for the revocation of the TPIM notice. Again, I understand that at that stage there is no court supervision, whereas the TPIM notice under clause 11 will be regularly considered by the Secretary of State. It is entirely possible to contemplate circumstances in which there is a regular review by the Secretary of State, who comes to the legitimate conclusion that the TPIM notice should continue. Given a change in circumstances, however, that conclusion might be open to challenge. However, it would be open to challenge only if the individual knew the change in circumstances, but they will not, because they will not have access to the same information as the Secretary of State. I am concerned, in the context of subsection (3), about the fact that because under clause 11 there is no regular court review, the individual, who might have had a right to apply to revoke the TPIM notice, will not know that, because the evidence available to the Secretary of State on the regular review is not available to him or her, and there is no court oversight during the process. The Government need to consider that, given the way in which the Bill—and indeed the previous regime—interferes with the liberties of the citizen.

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

It may help if I set out some of the background. Clause 13 makes provision for the revocation of a TPIM notice, and for the revival of such a notice in particular circumstances. The individual who is subject to the notice may at any time apply to the Secretary of State for it to be revoked, and the Secretary of State is under a duty to consider such an application.

The Secretary of State may also revoke a notice at any time, whether or not such an application has been made. That is important as it ensures that, where a notice is no longer necessary, it can be revoked without delay. As we have already discussed, the Bill makes it clear that a notice and its constituent measures can and should remain in place only when necessary, with a requirement for a review of ongoing necessity, as set out in clause 11, being a key element of the process. It is  vital that we can respond flexibly to any change in circumstances, or any assessment of risk that may affect the need for the notice.

There are some circumstances in which a notice may no longer be necessary and may therefore be revoked, or where a notice may subsequently become necessary again. An example would be when an individual who was subject to a TPIM notice was detained in custody, at which point the measures might cease to be necessary. In such circumstances, it would only be right that the notice be revoked. However, if the individual were subsequently released from custody, perhaps after only a few months, and still posed a threat, the measures might again become necessary to protect the public.

To ensure that there is no public protection gap in those circumstances, subsection (6) provides a power to revive a previously revoked notice where conditions A, C and D under clause 3 are met. Those conditions require the Secretary of State reasonably to believe that the person is or was involved in terrorism-related activity, and to consider that the notice and each of the measures are necessary.

The individual would have the right of appeal to the High Court against any decision by the Secretary of State to revive a TPIM notice. That is provided by clause 16(1), and I direct my hon. and learned Friend the Member for Sleaford and North Hykeham to that provision. I am happy to examine the appeal rights in clause 16 if there is something that has not been addressed, but in framing that clause we always envisaged that the matter would be dealt with as I have explained.

The power of revival does not apply to a notice revoked on the direction of the court. Clause 14 provides a separate power for a new replacement notice to be imposed in such circumstances if necessary. In those circumstances, not only must conditions A, C and D be met, but the court must grant permission before any new measures may be imposed.

The power provided in subsection (6) allows the Secretary of State to revive a notice that has expired after 12 months. That is intended to cover a situation in which a notice is imposed, as all notices will be, for 12 months, at the end of which period it is not necessary to extend it for a further 12 months. In addition, because those circumstances have come about at the time at which the notice is due to expire, it is allowed to expire, rather than being revoked.

Such a situation is likely to be rare, but could arise, for example, if an individual were taken into custody at the point when the TPIM notice would otherwise have been extended for a second year. In such a case, it might subsequently become necessary to revive the notice if the individual was released from custody but continued to pose a threat at that point. Again, conditions A, C and D would have to be met for that power to be exercised.

A notice revived under clause 13 does not start the clock on a new two-year time limit. To ensure that the time limit—a key part of the Bill—is not circumvented, subsection (9) makes provision for the duration of a revived notice. In the case of an order that expired at the end of the first year, the revived TPIM notice would be in place for a full second year.

In the case of an order revoked part-way through a year, the revived notice would be in force for the length of time for which the notice would have remained in  force if it had not been revoked. Therefore, if the notice had been revoked after four months, the revised notice would be in force for eight months. In effect, the clock will be stopped at the point of revocation and will continue where it left off if the notice is revived. That will ensure that an individual is not subject to the measure for more than two years without evidence of further engagement in terrorism-related activity. It will also ensure that the public can be protected by terrorism prevention and investigation measures for as long as necessary, subject to the two-year time limit.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles 1:45, 30 June 2011

The Minister has given us an illustration in which a notice might expire and then be revived when someone is taken into custody. Clearly, if someone is in custody, the public are being properly protected. The scenario that I put to him was slightly different and I would welcome his view on that. Let us say that a notice for one year expires and is not renewed at that point. There may then be a period of surveillance, perhaps for six to nine months, which results in no new evidence of involvement in terrorist activity. However, it is still open to the Secretary of State to revive the TPIM for a further year. The effect will be to have a protective regime for longer than the two-year cut-off point in the Bill. That is contradictory to some extent, if the main reason for having a two-year cut-off is that by the end of two years, the networks will have degraded and the association will not be strong, so the public will be safe. However, the Minister is contemplating a longer period without new evidence of involvement in terrorist activity.

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

I hear the point that the right hon. Lady is making. I have given a scenario where we believe that the measure is appropriate for someone who is in custody and released in that way. While we are always able to consider scenarios in Committee, I think she accepted that that was unlikely to happen, because of the requirement in condition C that it must be “necessary”. That is one of the factors underlying the revival provisions in the Bill.

It would seem strange if someone had been out in the community in the way that she suggested and had their TPIM, which was no longer deemed necessary at the end of the year, revived or retriggered at a later point. I will reflect on the point made by the right hon. Lady. The provisions are quite technical, and my hon. and learned Friend the Member for Sleaford and North Hykeham has highlighted some technical points. We want to ensure that the Bill is as it needs to be. In the spirit in which I dealt with the matters raised by the right hon. Member for Wythenshawe and Sale East, I will look at the scenario raised by the right hon. Member for Salford and Eccles. There is a need for flexibility for the reasons that I have outlined, but I will consider her example further.

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

We have just had a statement in the House regarding bail, which unfortunately Committee members could not attend. We all thought that we knew how the Police and Criminal Evidence Act 1984 worked regarding the revival of police bail, particularly when there was no new evidence. We have exactly the same problem in subsection (9)(b)(ii), which refers to

“the period of time for which the TPIM notice would have continued in force if it had not been revoked”.

That phrase can bear two meanings; either the clock stops and starts again for the period remaining on the TPIM notice, or it refers to the original time at which it expired. That ambiguity must be removed. Otherwise, we will end up in precisely the same position as we now find ourselves on police bail, which may—I do not know what my right hon. Friend the Minister for Policing and Criminal Justice said—require emergency legislation next week.

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

I am grateful to my hon. and learned Friend for the insight that he is always able to provide. I can assure him that we will consider the issues carefully. As he will know, some of these matters are being considered carefully in a broader context. I accept the advice this morning from your co-Chair, Mr Scott, not to stray into those issues. Certainly, I want to be assured that there is no crossover or any other issues that may arise, so in that context I am grateful to my hon. and learned Friend for bringing this to the Committee’s attention. If any ambiguity can be construed, we will look at it further to ensure that it does not arise.

Question put and agreed to.

Clause 13, as amended, accordingly ordered to stand part of the Bill.

Clauses 14 to 15 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clauses 16 to 17 ordered to stand part of the Bill.