Clause 26 - Interpretation etc

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 11:00 am on 5 July 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)

The hon. and learned Member for Sleaford and North Hykeham—[ Interruption. ] If I ever have the opportunity, I would be delighted to visit his constituency. In the debate on schedule 8, he made the point that we were discussing clause 26, but this debate gives us the chance to go into even more detail on the clause. My right hon. Friend the Member for Salford and Eccles is exactly right. Paragraph 129 on page 24 of the explanatory notes explains that TPIMs can extend beyond two years. It is extraordinary that, for the reasons we have given, Liberal Democrat Members have not kicked up a fuss about that. The Government have tried to sell the Bill as bringing in a different regime.

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

Will the hon. Gentleman explain how clause 26 will enable a TPIM notice to go on beyond two years? Will he point to the relevant provision in the clause that would allow that?

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

I might be wrong, but the explanatory notes state that the TPIM notice can go beyond two years if new activity occurs. [ Interruption. ] Well, I look forward to the Minister’s clarifying the position. The clause is about interpretation and the Government have  sold the Bill as being different from control orders. We are concerned about that, and we will return to the matter in our discussions of the new clauses. The Minister may say that I am wrong, but it appears that there is an inconsistency in the Bill, because a TPIM notice can last more than two years.

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

The point made by the hon. Gentleman may be valid, and it may give rise to the point of order that I made in reverse form, but my point related to schedule 8, and we are discussing clause 26.

We come to the point that the right hon. Member for Salford and Eccles made, which is, perhaps, not a substantive point but a matter of drafting that the Minister might need to grapple with after Committee stage. Under clause 2, the Secretary of State must be satisfied that conditions

“A to E in section 3 are met” before a TPIM notice can legitimately and lawfully be imposed. Condition B in clause 3(2) requires that

“some or all of the relevant activity is new terrorism-related activity.”

The measure may create a difficulty that might give rise to litigation, so it is important either for the Minister to set out a clear position today, or for the Department to go away and think about the content of clause 26. Subsection (2), which, as a matter of drafting, is an odd place for an interpretation provision, provides for a case in which a TPIM notice has come into force. As a result, for the purposes of clause 3, any terrorism-related activity is not new terrorism-related activity. None the less, under clause 26(2), the Secretary of State is entitled to take that activity into account for the

“purposes of the continued imposition, or subsequent imposition, of measures on that individual.”

My hon. Friend the Member for Beckenham has rightly referred to the fact that the Government should be entitled to take into account for the purposes of the imposition of a TPIM notice previous terrorism-related activity. Will the Minister confirm that position, which would be consistent with the explanatory notes? The difficulty in the drafting relates not only to the location of the provision in the Bill, but to the fact that it is not clear what is meant by

“taking account of that activity” for the purposes of the continued imposition, or subsequent imposition, of measures. Does that mean that old terrorism-related activity, to coin a phrase, can override the primary provisions, so that condition B in clause 3(2) is to some extent undermined? Alternatively, does it mean that although new terrorism-related activity is a condition that must be met before a TPIM notice can be imposed, under clause 26(2) the Secretary of State is entitled to take into account previous terrorism-related activity?

The position is ambiguous, and I suspect that the Government intend the measure to be used as part of the transitional measures between the two regimes. In addition, we have focused on the primary provisions in clause 3 because they are key to the Bill and to the change in regime. The Government may believe that although those provisions should have primacy, the Secretary of State is none the less entitled to take into account—to have regard to, for want of a better phrase—what the controlee or the individual subject of a TPIM  notice has previously been up to so that she can decide whether the measure should continue or whether it should be imposed in the first place.

With her extraordinary grasp of this area and her full, detailed knowledge and consideration of the Bill, for which I pay her enormous tribute, the right hon. Member for Salford and Eccles has raised an important matter. More than anything, however, the problem is one of drafting. It is not a point of substance. I look forward to hearing from the Minister—with the right hon. Lady having raised it and my having leapt on her coat tails—that he will look at this again.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles 11:15, 5 July 2011

I am grateful to the hon. and learned Member for Sleaford and North Hykeham for his masterly grasp of the way in which these various clauses interact—that is clearly a result of his experience. I would not describe him as a bear of little brain; he has just shown us that he is a bear with a large brain. I found his picking apart of those clauses instructive.

Clause 3(2) might resolve the issue, as it states:

Condition B is that some or all of the relevant activity is new terrorism-related activity.”

When the Secretary of State is considering whether to make a TPIM, some old terrorism-related activity might form the background, but there would have to be sufficient new terrorism-related activity for the TPIM to grip on that new activity. That must be substantial enough to resist any application or appeal.

I am interested in the Minister’s view on the proportions that the Secretary of State might have regard to. If there was a wealth of old terrorism-related activity and a minor incident of new terrorism-related activity, would that provide a substantial foundation for a TPIM to be made? I am sure that he cannot do an 80:20 division, but these matters, as the Minister knows, will be intensely litigated from all sides, so the Minister must contemplate the balance of activity that could form the foundation under condition B for a TPIM. How much new terrorism-related activity is required for the TPIM to be made?

The hon. and learned Member for Sleaford and North Hykeham made a point about drafting. There is a similar point in clause 26(2), which states that

“the Secretary of State is not prevented from taking account of that activity”.

That is slightly confusing, and it may well be that that wording must be amended. I agree with the hon. and learned Gentleman that an interpretation clause is an odd place for something that interacts with, and possibly overrides, clause 3.

I want to raise another matter with the Minister arising from clause 26(3). I would be grateful if he explained how that measure and the possible revival of a notice interacts with other clauses. Subsection (3) states that

“if a TPIM notice is revived under section 13(6), a reference to the notice coming into force is a reference to it coming into force by virtue of section 5(1) (and not to it coming back into force by virtue of section 13(9)).”

From reading the Bill, I am not sure whether that has an implication for how long the TPIM lasts. I would appreciate it if the Minister explained the need to make a distinction between a TPIM coming into force under clause 5(1) or its revival under clause 13(9) and what the material  effect of that distinction is in clause 26(3). I have read the measure a number of times, and I am not currently able to reconcile those positions in the Bill. I am sure that there is a clear and transparent explanation for the drafting and I would be grateful to hear it from the Minister.

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

I, too, look forward to hearing the Minister’s answer to this particular line of inquiry. I pay tribute to the hon. and learned Member for Sleaford and North Hykeham and to my right hon. Friend the Member for Salford and Eccles for putting their finger on an important issue. It demonstrates how we have tried as a Committee to be constructive on all sides to improve the Bill where we can. We are relying on the Minister to go away, consider the matter and being prepared to come back with alterations and amendments to make his Bill a better Bill. If hon. Members have played a part in that, that is to be welcomed.

The Committee may wish to probe the Minister on the definition of “measures” in clause 26:

“‘measures’” means terrorism prevention and investigation measures (which has the meaning given in section 2);”.

Section 2 refers to the list of measures in schedule 1 that can be imposed on an individual subject to a TPIM. I choose this moment because it might be the last opportunity for the Minister to give the Committee some indication that he has been reflecting hard over the weekend and in recent days on what those measures currently constitute. It has become increasingly clear during our deliberations that there is a difference between the arguments made by the Minister and by other Committee members about the adequacy of those measures. It is not just members of this Committee who have spoken about the inadequacies. We heard evidence from Mr Osborne during our first sitting that the challenges would increase as a result of the impossibility of relocation under the measures outlined in schedule 1. Lord Carlile, former independent reviewer of terrorism legislation and a respected authority on such issues, mentioned his concerns about the lack of a relocation measure. Lord Howard, a former Home Secretary, also expressed clear concerns about that omission.

The clause says that the definition of “measures” is as stipulated in section 2 and schedule 1, but I submit that those provisions are not adequate. We need confirmation from the Minister that he is still considering the issues. The definition might apply through the lifetime of the Bill and after it is enacted, but it is still possible that in our remaining deliberations, we could refine and add to those measures to provide a greater degree of public safety.

I have mentioned relocation. That is the principal concern—without doubt, it is the issue that all of us who have concerns would pick—but it is not the only one. My right hon. Friend the Member for Salford and Eccles mentioned her concerns about the two-year time limit, and she has persuaded me of the importance of having an end in sight to such restrictions. It is important that we remain open-minded, but I still see the inconsistency between the Minister’s denial of her request for a three-year extension and the possibility that somebody could be under a control order for up to six years, or perhaps even more. That is a clear inconsistency, and it needs to be addressed.

There is no measure in the Bill to allow the imposition of any curfew outside the overnight period. Again, we still have no definition of what “overnight” means. That is another inadequacy. I tabled an amendment relating to a reserve power in exceptional circumstances, and I still hope that the Minister will come back with an amendment that at least reflects the same commitment that the Secretary of State gave on pre-charge detention, and hopefully goes much further than that.

There is a great deal more to hear from the Minister. I hope that he is still reflecting and will indicate, even at this stage, that during further debates on the Floor of the House on Report, he is prepared to be open-minded enough to accept some of the concerns that have been expressed and ensure that when measures are defined in clause 26, they are more adequate to control the threat from such individuals than they currently are.

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

It is fair to say that we have already debated some of the final points made by the right hon. Member for Wythenshawe and Sale East at great length. He will have heard what I said in response to a number of issues, for instance on the report by the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills. We will consider the report carefully in the context not only of extended pre-charge detention and emergency legislation but of the relationship between them, and of what consideration might need to be given to the Bill in the light of the report. I think I have been quite straightforward and open about the fact that we will carefully examine and respond to the Joint Committee’s report. However, I am sure there will remain differences between us on a number of the Bill’s provisions and that our discussion of them will continue on Report, as they should.

I thank hon. Members on both sides of the Committee for their discussion of the detail of the drafting of subsections (2) and (3) of clause 26. As the right hon. Member for Salford and Eccles suggested, the read-across between clause 26(2) and clause 3(2) highlights the point that some or all of the relevant activity will be new terrorism-related activity. In the context of clause 26(2), old terrorism-related activity may be considered in the overarching arrangement, because it may still show a pattern of risk, but there would still need to be new terrorism-related activity to obtain the new TPIM at the end of the two years. Clause 26(2) is important to underline that and to ensure that there is clarity of operation with clause 3, and I think that it does so.

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

My hon. Friend was pursuing this issue a little earlier, and I wanted to raise an example. If the two-year period for a TPIM was coming to an end and evidence emerged that a terrorism-related event had taken place six years before—it might not be enough to convict, but it might be a serious event—how would that fit with the Bill? Would the individual be subject to a continuation of the TPIM, or would the information be deemed to have decayed or to be too old to use?

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

Again, it is a question of looking at the definition of new terrorism-related activity in clause 3(6), which states that such activity takes place

“if no TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring at any time…if only one TPIM notice relating to the individual has ever been in force, terrorism-related activity occurring after that notice came into force”.

It is always a question of the balance of risk and ensuring that all the relevant conditions have been satisfied, as set out in clause 3(6).

The right hon. Member for Salford and Eccles made a point about clause 26(3) under which, if there is evidence of new terrorism-related activity at any time after the first imposition of a TPIM notice, a new TPIM notice may be imposed beyond the two-year time limit. To be clear, if there is a TPIM notice, new terrorism-related activity takes place and the notice is revoked and subsequently revived, a new TPIM notice may be imposed after the end of the revived notice, provided that the conditions in clause 3 are met. If the new terrorism-related activity takes place after the revival of the notice, it, too, will count as new terrorism-related activity, which would allow for a new notice after two years.

The explanation I have just read into the record is obviously quite complex for all Members to take on board, to compute and to consider. It would therefore be appropriate—I have not done this so far in Committee—to write to Members so that they can see in black and white the explanation I have just given and any amplification I can offer. I entirely respect the right hon. Lady’s point, but it is important that we put these things properly on the record and allow right hon. and hon. Members to come back to us on Report if the explanation that I have given, as amplified by the letter that I will write, is not sufficient. The issue is a technical one, with distinctions with respect to revival, revocation and time periods. It would be helpful if I set out the detail in a letter to the Committee.

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles 11:30, 5 July 2011

I am grateful to the Minister for saying he will write to hon. Members on this point, for two reasons: first, because he has confirmed that I do not have a completely mushy brain making me incapable of working out the interaction of the clauses; secondly because it would be helpful to have a worked example of how the interaction might take place, showing someone’s journey through the TPIM process. The hon. Member for Bournemouth East raised an issue about old evidence. Those things are, I think, always easier to understand if it is possible to show what would happen when the clauses affected an individual case.

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

I appreciate the spirit in which the right hon. Lady sought clarity on the interaction of some technical aspects of the Bill. It is important that we provide assurances on that. I think I can offer an explanation in Committee, but on reflection it would be helpful all round if I wrote to hon. Members about the detail. I am very happy to consider the points made about clause 26(3) and write clarifying matters.

In the light of the comments and assurances that I have given, I trust that hon. Members will agree to the clause.

Question put and agreed to.

Clause 26 accordingly ordered to stand part of the Bill.