Schedule 8 - Transitional and saving provision

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 10:30 am on 5 July 2011.

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Question proposed, That the schedule be the Eighth schedule to the Bill.

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

Good morning to you, Mr Scott, and to the Committee.

We continue our deliberations on this very important Bill. Will the Minister explain the thinking behind the schedule and the circumstances in which it will apply, as that would be helpful not only for me but for the Committee?

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

May I, too, welcome you to the Chair this morning, Mr Scott? We are entering the last lap of this interesting process, although, as I am getting on a bit in years, I find that the last lap takes longer.

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

Ending up going round in circles.

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

The hon. Gentleman makes a very good intervention, but the finishing line for the Committee is in sight.

I am interested in the Minister’s response to the question asked by my hon. Friend the Member for Bradford South, but I want to make a few observations. The schedule looks rather innocuous—it covers the obvious practical arrangements for moving from one system to another—but it throws up one or two important issues, which the Minister will want to address.

Section 2 of the Prevention of Terrorism Act 2005 makes it clear that a control order can last for up to 12 months, and can be renewed on one or more occasions. As things stand under the Act, it can continue indefinitely. We have had some well-informed debates in Committee about the merits of limiting the time for which a control order or a terrorism prevention and investigation measure can operate. Last week, my right hon. Friend the Member for Salford and Eccles moved a constructive amendment, which offered the opportunity for a further extension of one year beyond the two-year maximum. I hope that the Minister has given thought to that and to the other issues that we have raised.

Under the schedule, the transitional period is set at 28 days, beginning on the day of commencement. I look forward to the Minister’s explanation, but I understand that existing control orders will remain in force throughout the transitional period. However, when I first read paragraph 4, I wondered how on earth the Minister had  got it past his Liberal Democrat colleagues, because it will give the Secretary of State a rather interesting power. The paragraph, headed “New powers not affected by previous control order”, states:

“The Secretary of State’s powers under this Act in relation to an individual are not affected by a control order having been made in relation to that individual.”

That provokes several interesting questions.

How does the paragraph square with the Government’s policy—it is apparently written in stone, according to the response that we received the other day—that requirements imposed on a suspect should last no longer than two years? The Minister may want to advise us about some of the current control orders and how long they have lasted. May I ask him straight out what the longest period is that a control has now been running? As we enter the transitional period, how long will that control order last? Under the Bill, the Minister will give the Secretary of State the power to extend the period of restriction in a control order—let us assume that it has run for four years—for a further two years, which means that, in that hypothetical case, the restrictions under the two different regimes will last for six years. In earlier exchanges with my right hon. Friend the Member for Salford and Eccles, the Minister’s avowed position was that two years had to be the maximum, yet he is giving the Secretary of State powers to make a much longer term.

Also, is it fair that some individuals who are subject to conditions under the TPIM regime would by definition not have to be subject to those requirements for more than two years, while others who were subject to the TPIM requirements would be subject to restrictions for a much longer period? What legal advice has the Minister received and does he think he is on safe ground? If I were under a control order and then subject to the TPIM, I would be talking to my lawyer. Given that the Government’s policy is that nobody should be under such arrangements for more than two years, I would try to construct a case to challenge the Government, so I am interested to know what legal advice the Minister has had and whether he can share it with the Committee.

If the Minister is giving the Secretary of State the power to take someone subject to the control order, perhaps for a two or three-year period, into the new arrangement, perhaps for as long as two years, why could he not accept my right hon. Friend’s perfectly sensible proposal to have the option to extend for a maximum of one further year where the terrorist threat was such that that was felt to be both necessary and proportionate? Somebody can be on a control order for four years, subject to TPIMs for two years and therefore under restrictions for six years. How can that be right when the Minister is not allowing the Secretary of State to extend it up to three years in the case of someone who has not been on a control order and comes into the TPIM system? Schedule 8 appears innocuous, but I think that the Minister needs to address some pretty substantial questions.

I have one more important issue to raise with the Minister, which is the case of an individual who may have been subject to a control order in the past but who either previously or at the point of transition is no longer subject to requirements. In other words, they are released from the conditions of their control order. However, what if the Secretary of State receives intelligence  from the Security Service, backed up by the police, that the person who was previously on a control order now poses a serious threat? They cannot be prosecuted for all the reasons that we have previously debated, but they pose a serious threat. It is a factual question. Under the definition of “new terrorism-related activity” in clause 3, will the information that led to the making of the control order count as new information in relation to the making of a TPIM? The Committee—and the wider public—would want reassurance that a TPIM would be possible in such circumstances.

Schedule 8 appears straightforward, but it throws up many pressing issues of a practical nature and of principle too. I look forward to the Minister’s response.

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

It is a pleasure to welcome you to the Chair this morning, Mr Scott, to continue our debate on this important Bill. I listened with interest to the remarks of the right hon. Member for Wythenshawe and Sale East. I was initially slightly perplexed by paragraph 4, given the Government’s settled position, which I think is correct, that a TPIM should last no longer than two years. However, a moment’s reflection indicated to me that the measure is warranted, because of the change of regime between control orders and TPIMs. As I understand it, what is proposed by the Government is to some extent a change in culture, which will result in a greater focus on the investigation of terrorism. Having reflected on the matter, I do not foresee any objection to a controlee who has been subject to a control order for a number of years becoming subject to a TPIM notice for a maximum of two years.

I was slightly surprised by the right hon. Gentleman’s objections to the provision, given that amendments tabled by the Opposition have, at least partly, suggested that the Bill is unnecessary and that the existing regime was adequate. The Opposition’s position has been that a controlee could remain subject to a control order under the old regime for as long as necessary. In those circumstances, the right hon. Gentleman’s protest that the Government’s position is inconsistent reveals an inconsistency in the Opposition’s position, which depends on the argument that someone subject to a control order should remain so for a period greater than two years.

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

It is for Ministers to answer questions about the detail and inconsistencies of a Bill and it is for the Opposition to explain their position. There is a clear inconsistency, which the Minister must explain.

Had Labour won the election, there would have been a further terrorism review similar to the one carried out by this Government. Such a review might have reached different conclusions—I have told the Committee that I changed my position on pre-charge detention. There was always room for a policy review, whoever won the election, but the Government have reviewed policy and introduced a Bill with a big inconsistency.

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

The right hon. Gentleman will forgive me not only for being a bear of very little brain, but also for being a new Member and perhaps not always expressing myself well. I am trying, however, to explain my position rather than that of the Government, which I shall leave to the much abler capabilities of my hon. Friend the Minister.

Initially, I read paragraph 4 with the same concerns that the right hon. Member for Wythenshawe and Sale East has set out. I am trying to do two things: first, to explain why I overcame those problems and, secondly, to hint politely that there is an inconsistency in the right hon. Gentleman’s position.

The right hon. Gentleman also asked—I offer my own view on this; it is for the Government to set out their position—what legal advice the Minister had received. He saw inconsistency between the policy of having a TPIM for two years and the possibility of someone who is subject to a control order, and subsequently to a TPIM, challenging that in law on the basis of the Government’s policy position. I shall leave the Minister to answer that, but any controlee subject to a TPIM who wants to make some sort of legal challenge should do so on the basis of the law and not on the basis of the Government’s policy provision. The courts may be many things, but they seek to apply the law rather than the Government’s policy—the law is the law as written. Paragraph 4 is useful, because if it becomes law it will make clear Parliament’s position that a controlee who has been subjected to a control order for any period can subsequently be made subject to a TPIM for two years.

I made some points in relation to the amendment tabled by the right hon. Member for Salford and Eccles last week. I see no merit in the TPIM period being three, four, six or eight years instead of two; two years strikes the right balance. For those reasons, I understand the Government’s drafting in schedule 8. As powerful as the points made by the right hon. Member for Wythenshawe and Sale East seem at first glance, I am satisfied that paragraph 4 is not objectionable for the reasons that I have sought to develop, albeit inadequately. I look forward to hearing whether the Minister agrees.

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

Far be it for me to describe the contributions of my hon. and learned Friend the Member for Sleaford and North Hykeham as in some way inadequate; the Committee has been well informed and he has added to the debate. I welcome his comments and support, which have aided scrutiny—and that is what this Committee is intended to be all about. I very much welcome contributions from Members on both sides of the Committee, and it is healthy and positive to have such a debate. Members will accept that that is not always the case in Committee. [ Interruption. ]

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East 10:45, 5 July 2011

The Conservative Whip has now returned, but I will still make my remarks. I strongly agree with what the Minister has just said. I first came to the House in 1997, and I vividly remember my first Committee, in which I sat for hour after hour and said absolutely nothing on the content of the Bill. I pay tribute to all members of the Committee, particularly Government Members, who have made the effort to stand up and ask sometimes difficult questions of the Minister. That has added enormously to our proceedings, and I pay tribute to them.

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

I am grateful for the right hon. Gentleman’s comments. When our concluding remarks are made in the House about the scrutiny given to the Bill, I am sure that the welcome manner in which the Committee has comported itself will be noted, because it has added value to our consideration of the Bill.

The hon. Member for Bradford South asked me what the schedule will do. Obviously, it provides for the necessary transitional and saving provisions, and particularly for the transitional period of 28 days during which existing control orders may remain in force following the commencement of the Bill. The transitional period is essential to ensure a safe and managed transition to the new system that gives prompt effect to Parliament’s wishes, but does not put the public at risk.

The provision allows time for control orders to remain in place—a limited period of 28 days—during which the Secretary of State will consider the cases of those subject to them, including whether it is appropriate to impose a TPIM notice on them, and, when appropriate, apply to the court for permission to do so. When such a person is served with a TPIM notice, the control order will be revoked at the same time.

The right hon. Member for Wythenshawe and Sale East asked about the Government’s confidence in the legal drafting and the manner in which the schedule will be interpreted. We are confident about our approach, and the provision in paragraph 4 underlines the fact that when a TPIM notice takes effect, it will not be fettered by a previous control order, which is an important part of the schedule. Although the right hon. Gentleman rightly identified that such schedules often appear to be not so significant at first sight, they can have relevant and important elements built into them, which is why I welcome this debate.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

I am seeking clarification because, unlike my hon. and learned Friend the Member for Sleaford and North Hykeham, I do not possess a legal brain. Will the Minister confirm that when TPIMs come in, someone on a control order will automatically be transferred off it and on to a TPIM, or have I got that wrong? I am not as clever as hon.—and hon. and learned—Members serving on the Committee, and we ex-Army Government Back Benchers need things explained carefully. Such an approach, however, would be logical, and I think the Minister is saying that there will be such a transfer.

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

I would not in any way question my hon. Friend’s intellect or the practical and real-life experience that he has brought to his contributions.

The Secretary of State will determine in individual cases whether the TPIM requirements apply in relation to each individual. Obviously, clear consideration will be given to those who are subject to an existing control order. The Secretary of State will need to review the provisions for each individual to ensure that the requirements of clause 3 are satisfied in each case. As we have indicated previously, there is a requirement for reasonable belief, and the Secretary of State will need to be satisfied that the relevant conditions will be met for a particular individual.

We touched on this in our debates on clauses 3 and 4, but it is worth clarifying the position on acts that occur prior to the Bill coming into effect. I refer the right hon. Member for Wythenshawe and Sale East to clause 3(6)(a), which I hope will give him the assurance that he was seeking about existing activity and the definition of what constitutes “new terrorism-related activity” under the clause.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I apologise for arriving a few minutes late, Mr Scott.

I am sure that we will go on to debate clause 26, which is another seemingly innocuous provision about interpretation. However, I am a little confused about the interaction between clause 26(2) and the definition of “new terrorism-related activity”. If I am following the Minister correctly—I am trying to follow him closely—there will be a situation in which, as the hon. Member for Beckenham said, someone could be on a control order and the Secretary of State could then look afresh at whether it was necessary to impose measures under a TPIM. We could therefore have a situation whereby someone had been held for three years under a control order and then perhaps another two years under a TPIM. However, within the definition of new terrorism-related activity, clause 26(2) states:

“the Secretary of State is not prevented from taking account of that activity for the purposes of the continued imposition, or subsequent imposition, of measures on that individual.”

Are we saying that the acts of terrorism-related activity could be perhaps three or more years old and still be taken into account when considering the imposition of a TPIM? That seems contradictory. The thrust of the Bill is that we need new evidence of new involvement in terrorism before we impose such intrusive measures, yet that provision suggests that some of the incidents could be three or more years old but could still be relevant for the purposes of imposing a TPIM. Will the Minister address that apparent inconsistency?

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

We have addressed clause 3(6) and the way in which the approach is intended to operate with the two-year time period. If a further TPIM is sought, new terrorism-related activity would be required for it to be imposed. I think that the position is quite clear. I promise the right hon. Lady that I will consider what she has said so that we ensure that the drafting reflects my understanding of its intent on the imposition of a TPIM for the first time. We would be able to look back on the actions that had taken place prior to the Bill coming into force. Obviously, if a further TPIM was then sought, we would have to look further to new activity that might have occurred.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I am grateful to the Minister for giving way again, which reflects the spirit in which the Committee has been conducted, but I want to press him on this point. Is he saying that there could be circumstances in which evidence that was at least three or four years old could be used as the foundation for the imposition of a TPIM that could then be renewed again for a further year after its expiry? At the end of the period, that TPIM would be based on acts of terrorism-related activity from five or even six years previously. I do not say whether that is right or wrong, but it seems to go against the spirit of how the Bill has been introduced—the idea that what is required is a higher threshold and for people to have been involved in recent terrorism-related activity. I would welcome direct confirmation from the Minister of whether it is possible for a TPIM, which expires at the end of two years, to be based on evidence of terrorism-related activity that is at least five years old?

Photo of Lee Scott Lee Scott Conservative, Ilford North

Order. May I ask that interventions be kept as interventions?

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

I am grateful for your clarification, Mr Scott, and I am grateful to the right hon. Member for Salford and Eccles for making her point clear. I appreciate that it is sometimes difficult to be succinct when discussing technical issues, but I am sure that members of the Committee will have clearly heard your desire, Mr Scott, to ensure that interventions are succinct.

As we have indicated all the way through our proceedings, we need arrangements to move from one regime to another. On the imposition of a TPIM, as the Bill implies, there will be no specific limit on the duration over which we can look back with regard to when a piece of intelligence or evidence arises. I again point the right hon. Lady to clause 3(6), which sets out the definition of “new terrorism-related activity” and the timings to be considered.

Paul Goggins rose—

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

I might be misunderstanding the point, so I apologise. The right hon. Gentleman might be able to assist me further.

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

I refer the Minister to page 24 of the explanatory notes, in which paragraph 129 clearly states:

“‘new’ activity must take place at some point after the original imposition of the measures”.

However, that does not apply to control orders. I know that the Government’s intention is to pretend that Labour was never in government and to remove everything, but should not control orders count for something?

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

I will happily reflect and look at Hansard to see whether I properly understand the issues raised by Opposition Members, but the provisions in the Bill look clear to me.

Hazel Blears rose—

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

The right hon. Lady will no doubt be able to assist further.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I shall be as direct as possible. Will the Minister confirm that it will be possible under his regime to make a TPIM notice on the basis of evidence that was gathered three or four years ago?

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

My clear understanding is that that will be possible in those circumstances. I was not trying to skirt around the right hon. Lady’s question. I thought that it was about what would happen when seeking a further measure that might be subsequently required, and how that would relate to the provisions in clause 3(6). I hope that that has been helpful to her.

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

I do not mind what the words here say, but evidence of terrorism from three or four years ago is relatively recent. In my experience, one can go back 12 years to get an indication of intention. I hope that we do not pass a law that does not allow us to go back considerably in time. This is about getting evidence of intention, and such evidence from three or four years ago is pretty recent. To be honest, I would go back all the way through life because that, in truth, is what the security services sometimes have to do. I support what the Minister says.

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

My hon. Friend has fastened on an important point. Historical evidence might be relevant, but the Secretary of State will need to be satisfied that the TPIM remains necessary to protect the public and that the conditions under clause 3 are fulfilled. Old material alone might not necessarily show that there is a continuing risk and that therefore the relevant provisions in clause 3 are fully met. The information, the intelligence and the risk will have to be considered to ensure, on a case-by-case basis, that the conditions set out in clause 3 have been satisfied—[ Interruption. ]

Photo of Lee Scott Lee Scott Conservative, Ilford North 11:00, 5 July 2011

Order. If the hon. Member for Beckenham wishes to speak, will he intervene rather than calling out?

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

I hope that that gives my hon. Friend some confirmation.

Hazel Blears rose—

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

I have clearly stirred up something, so I am happy to give way to the right hon. Lady.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

The Minister appears to have exposed an inconsistency at the heart of his own Bill. If he wants to review a TPIM, he must have evidence of new terrorism-related activity after a defined period of two years, yet the hon. Member for Beckenham says rightly that there might be evidence from years gone by on which to base a decision. The Minister says that, for a TPIM, there must be new evidence from a defined period—this comes to a full stop after two years—yet he is prepared to make a TPIM on the back of evidence from a control order that might be five, six or seven years old.

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

On a point of order, Mr Scott. We are having a debate about clause 26, but we are actually on schedule 8. I know that the Minister has done his best to answer questions about schedule 8. We are about to move on to clause 26, and I think that the right hon. Lady can make her points then. I ask for guidance on whether she should do so. I have not spoken to such points because I wanted to discuss them in the context of the clause to which they relate, not schedule 8.

Photo of Lee Scott Lee Scott Conservative, Ilford North

I thank the hon. and learned Gentleman for that point of order. I have no doubt that the Minister will now relate his comments to schedule 8 only.

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

I appreciate your ruling, Mr Scott. No doubt we will return to that point shortly, and hon. Members from all parties will be able to continue the debate, should they wish.

Paragraph 4 of schedule 8 makes it clear that the Secretary of State may impose a TPIM notice on a person who has been previously subject to a control order. It would not be appropriate at this stage to pre-empt a decision about whether any individuals who are subject to a control order should be subject to a TPIM notice, but it would be irresponsible and inconsistent with protecting the public to rule that out. When the time comes, the Home Secretary will need to consider,  on a case-by-case basis, whether individuals who are currently controlled meet the statutory test for the imposition of measures under the TPIM regime, which includes whether imposing measures is necessary and proportionate.

Schedule 8 also provides for certain judicial proceedings under the Prevention of Terrorism Act 2005 to continue, or to be brought after the repeal of the Act, for the purposes of determining whether a control order or an obligation imposed under a control order should be quashed. The need for the provision is clear. Although the 2005 Act will be repealed when the Bill is commenced, so the control order powers will no longer be available, ongoing litigation will need to continue. It is right that individuals who have been subject to control orders should retain their right to have their order reviewed by the court, or to bring or continue appeal or damages proceedings relating to that control order. That is why schedule 8 is important, and it is why I hope that the Committee will agree to it.

Paul Goggins rose—

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

Before I conclude, however, I give way for one last time to the right hon. Gentleman.

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

I hope that it is one last time. There is an important point that the Minister should not underestimate. I asked him to tell the Committee the longest period for which somebody had been under a control order. If he can explain that, it will be helpful, but I warn him that I may need to intervene again once I hear the answer.

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

I think that I am correct in saying that the longest duration of a control order has been more than four years. I do not think that that is any particular surprise or secret. As we have discussed in our previous debates, we are moving to a new regime that will focus not on keeping people on orders indefinitely, but on instead exiting them from measures at the end of the period.

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

The Minister has been extraordinarily generous in taking interventions this morning, which is appreciated. He tells us that the longest period is more than four years. I do not know whether the individual concerned is currently subject to a control order, but if he is, at the transition he will have been subject to control order conditions for more than four years, and might then be subject to TPIM conditions for a further two years, which would mean more than six years. I have still not had an adequate response about the inconsistency between a controlee who might have had six years’ conditions and those who, under the new system, will have no more than two years’ conditions. I am amazed that we have not had any interventions from Liberal Democrat Members, because they must be appalled by that inconsistent policy, but I look forward to the Minister’s response.

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

It is interesting that the Opposition are latching on to that point because they have argued against having any controls. If they had their way, people could be kept on orders perhaps for ever. We are  introducing an important measure to make a transition from the control orders regime to the TPIM regime. I do not see any inconsistency, and the manner of moving from one regime to a new one is entirely appropriate. There might be a point of difference, and I accept that the Opposition feel that they wish to pursue it as a strong issue, but the Government’s approach to the transition from one regime to the next is reasonable. Following our counter-terrorism review, and for all the reasons that I have already given the Committee, we believe that the TPIM regime is the appropriate way to manage risk.

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

Does the Minister agree that the Opposition have slightly misunderstood some of the proposals? The two-year limit on a TPIM is not about the age of the evidence; it is an anti-warehousing provision. Under the system of control orders, people could be stuck for year after year, but we think that should not happen, unless someone has been convicted.

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

The point of difference between the Opposition and us is that they would have liked to have a year, another year and then another year, according to the control orders regime.

I do not wish to mischaracterise our lengthy debate because, to be fair, some comments have recognised that there should be an end point, and I do not wish to antagonise you, Mr Scott, by repeating previous debates or straying more widely than the provisions in the schedule. There may be a point of difference, but two years is an appropriate period. The schedule is an important part of the Bill, so it should be agreed to.

Question put and agreed to.

Schedule 8 accordingly agreed to.