“(za) in subsection (3)(a), for “and D” substitute “, D and E”;”
“(za) in subsection (3)(a), after ‘met’ insert ‘and the court gives the Secretary of State permission’;
(zb) after subsection (3)(a), insert ‘(ab) In determining the extension, the court must apply the principles applicable on an application for judicial review.’”
Let me say at the outset that this amendment is intended to probe and provoke some of the debate that we had on the previous clause, although perhaps not in quite as lengthy a way. I will not be pushing any of the amendments in my name to a vote.
The amendments cover another critical aspect to the changes proposed by the Government, which we approach in a constructive manner in the hope of aiding the Government to make a case for them by understanding them and providing proper and effective scrutiny. I know the Minister accepts and welcomes that as the role of the official Opposition.
The proposed changes to TPIMs in clause 38, when taken together, have quite a profound impact on the regime as we currently understand it. If the standard of proof is to be lowered, while simultaneously making it possible to potentially indefinitely detain someone under a TPIM by removing the current two-year limit, scrutiny, oversight and safeguards take on a new-found and even more significant role.
We have therefore tabled a number of amendments to tighten the scrutiny, oversight and effectiveness of TPIMs where they are to be extended beyond the two-year period. We believe amendment 60 would help to ensure adequate scrutiny and oversight of notices that are in place for prolonged periods of time. As the independent reviewer made abundantly clear in his note of
“The prospect of individuals being subject to administrative measures for many years without robust scrutiny is unappealing”.
With this amendment, we seek to address that problem. As is the case where a TPIM notice is first issued, it would compel the Secretary of State, whether now or under a future Government, to seek permission from a High Court judge where a TPIM notice is to be extended beyond the critical two-year mark.
Let me be clear, if there is a compelling case for renewing a TPIM for a longer period on grounds of an individual’s threat to our security and public safety, we on these Benches absolutely support that action. The amendment does not seek to prevent that. It is important to stress, however, that it would ensure a robust but flexible approach, backed by an important sense of continuing judicial oversight. This would not only improve the quality of the TPIM process, but crucially ensure that a TPIM regime extended beyond the current limit of two years is proper, lawful and useful.
Amendment 61, at its core, is about securing those strong and robust safeguards, which we should promote rather than jettison in legislation of such grave importance. Under the proposals, we face the prospect of a TPIM notice enduring for a prolonged or indefinite period. But it is important that we remember what a TPIM can actually—
Thank you, Mr Robertson, for your guidance. I look forward to discussing amendment 61 later.
The Minister will not be unaware of the concerns raised around the extent of the two-year period, given what a TPIM entails. We hope to provide some scrutiny around that, to underscore the effectiveness and credibility of the entire process by judicial oversight review, and maintain those safeguards, to reassure the public that they are protected by TPIMs—we believe they are a hugely important part of this legislation and keeping the public safe—and that this is being done properly, with due diligence and oversight.
Allow me to explain why the current two-year maximum does not work from a security services perspective. As matters stand, if a TPIM comes to the end of two years and thereby automatically lapses, a brand-new application has to be made, requiring completely fresh evidence, without simply reusing the evidence used at the outset. New evidence must be obtained, which takes some time, particularly if during the two-year period of the TPIM, the subject has been careful to behave themselves, which is the purpose of the TPIM in the first place.
We have had examples of a gap caused by the renewal requirement. Jonathan Hall acknowledged that in answer to my question in his evidence on
“In one case it was a gap of a year, and in the second it was a gap of 16 months.”
In response, I said:
I was not asking about things that had actually happened; I was asking about risk—what might have happened. In response to that point, Jonathan Hall replied, “Yes.”
I went on similarly to ask Assistant Chief Constable Jacques whether a risk might exist in that gap. He said:
“Because we jointly manage TPIMs once imposed, I can speak on this. Yes, we do see an increase in the threat if that gap occurs, and that gap has occurred, as Jonathan has pointed out previously.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee,
We therefore have clear evidence, from both the independent reviewer, Jonathan Hall, and counter-terrorism expert Assistant Chief Constable Jacques, telling us that the gap that follows the two-year expiration of a TPIM poses a risk to the public. It is right that in the Bill we seek to close that risk by allowing for carefully considered annual extensions.
In terms of protecting the subject and ensuring that the extensions are not used unreasonably, let me make the following comments to reassure the Committee and, I hope, the whole House. First, the old control order regime did not have the two-year limit. In the period when the control orders introduced by the Labour Government in 2005 were enforced, 30 lasted for two years or less, eight lasted for between two and three years, four lasted for between three and four years, and only three lasted for between four and five years. The clear majority lasted for less than two years. Only a small number—15, according to the figures that I have—lasted for more than two years, and the bulk of those lasted for three or four years. Once again, when the powers are available, they are used circumspectly and sparingly.
Further protections are laid out in statutory provisions in the Terrorism Prevention and Investigation Measures Act 2011, which will continue. The first is found in section 11 of the Act, which requires the Secretary of State to keep TPIMs under review, in particular conditions C and D, which I mentioned earlier. That is given practical effect via a quarterly review process, once every three months, in which the security services and counter-terrorism police participate. Secondly, there is an ongoing right of appeal by the subject laid out in section 16 of the 2011 Act. Section 16(1), which will continue in force, says that if
“the Secretary of State extends or revives a TPIM”,
the right of appeal will apply, so every time a TPIM is extended, the subject, if they think the extension is unreasonable, has the right to go to court to seek protection.
Given that the current gap is posing a risk to the public, as Jonathan Hall and Assistant Chief Constable Jacques very clearly said, and given that there are good and strong safeguards in place, I believe that the provisions in clause 38, allowing considered, thoughtful annual extensions, serve the purpose of protecting the public.
I am not going to speak to amendment 64, but I will speak in support of Labour’s amendment 61 when we get to it.
“(za) for subsection (3)(a), substitute—
‘(a) may be extended under subsection (2) only if—
(i) the Secretary of State believes on the balance of probabilities that the individual is, or has been, involved in terrorism-related activity;
(ii) conditions C and D are met.’”
This amendment requires the standard of proof for renewing a TPIM notice beyond two years to be “on the balance of probabilities”, where no new terrorism-related activity can be demonstrated.
Thank you, Mr Robertson, for your gentle guidance in navigating our way through the numerous amendments. Although they are linked, it is important that we examine them on their own merits. At its core, amendment 61, like the amendment we have just discussed, is about securing strong and robust safeguards, which, as I said, we should use the Bill as an opportunity to promote rather than jettison. We should show confidence in the process and procedures that we are introducing to keep the public safe.
The prospect of a TPIM notice enduring for a prolonged or even indefinite period deserves scrutiny. It is important to remember what a TPIM can involve: overnight residence requirements, relocation to another part of the country, police reporting, an electronic monitoring tag, exclusion from specific places, limits on association, limits on the use of financial services, limits on the use of telephones and computers, and a ban on holding travel documents. Even in the dying part of the Labour party that is the traditional old right, I balk a little at some of that. I accept that it is necessary to monitor very dangerous individuals and keep the public safe, but these are some pretty fundamental liberties that we are talking about denying people. There is a responsibility on all of us to acknowledge that, and to make sure that we give it proper scrutiny. These are, rightly, robust measures, and to reiterate: we do not believe there should be impediments in cases where a longer TPIM notice that would genuinely be in the interests of keeping the public safe and secure, which is of course our first priority, should be extended. It is also important to say that these sanctions, effectively, are imposed on people who have not been convicted of any crime, and that they are being taken in addition to the lowering of the standard of proof and the extension of the period without, it appears, due oversight needs to be properly looked at.
The other point is that TPIMs are resource-intensive instruments. Assistant Chief Constable Jacques clearly said that additional resources would need to be provided. It would be good to hear a commitment from the Minister that that would the case and that, whatever law enforcement would need, and notwithstanding that a spike in TPIMs is not envisaged, the extension thereof and any addition to the current number will be properly and fully resourced.
As the hon. and learned Member for Edinburgh South West said earlier, there is testimony not just from the current reviewer of terrorism legislation, but also from previous ones. Someone as respected as Lord Carlile, for example, said that a differentiated standard of proof, effectively, would be created for extending a TPIM beyond the two-year point. That would add another layer to the complexity of what proof is required at what point, and to what extent. Jonathan Hall also noted on
As I said previously, not a single TPIM measure has been rejected to date based on insufficient evidence of the higher standard of proof, so the safeguard would not operationally hinder the TPIM regime, which we agree needs to be strong and flexible. We need to ensure that those TPIMs extended for prolonged periods are subject to an extra level of scrutiny and oversight and that they are applied in reasonable and proportionate terms, fundamentally in keeping with the thrust of what they are designed to do, which is to keep the public safe.
I am grateful for the opportunity to speak in support of amendment 61, and to remind hon. Members of what the current Independent Reviewer of Terrorism Legislation said in his evidence to us. I will look in particular at his response to my question 33, when he said that the combination of clause 37 and clause 38 is a “double whammy”,
Indeed, he suggested the very safeguards set out in amendment 60 and 61. I support to amendment 61 for that reason. I take hon. Members back to what he said in response to my question 33. I said:
“What about looking at balancing out the changes made in this Bill to TPIMs by introducing some safeguards to ensure that TPIMs do not breach the human rights of a subject of a TPIM? Have you thought about that? We should always remember that the subject of a TPIM has not been convicted of any crime.”
“As far as safeguards are concerned, you will probably have seen from my notes that here you have a double whammy. It is not just reducing the standard of proof but allowing TPIMs to endure forever. Something that was proposed by my predecessor”— he meant Lord Anderson, as the hon. Member for St Helens North said—is that
“if it were right that a TPIM should continue beyond two years, at least at that stage the authorities should be able to say, on the balance of probabilities, that the person really is a terrorist. That is an example of a safeguard.”
He went on:
“Turning to the question of enduring TPIMs, another safeguard could be to ensure that a judge would have to give permission—in other words, to treat going beyond the two years without any additional proof of new terrorism-related activity as requiring a higher threshold, or some sort of exceptionality or necessity test, as a further safeguard for the subject.”
Again, in fairness, he also said:
“I do not think the authorities will be unwise in the way that they use that, but there is a risk that people will be on TPIMs for a very long time indeed. As you say, they have not been prosecuted, and it seems to be right in principle and fair that there should be some additional safeguards for those individuals.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee,
As the hon. Member for St Helens North said, it is worth noting that the existing time limits were strongly supported by Mr Hall’s predecessors, including Lord Carlile. In 2011, in his sixth report, Lord Carlile agreed that there should be a maximum duration of two years for these interventions before a new order has to be applied for, and suggested that should only happen if there is new evidence that the individual has continued to be engaged or re-engaged in terrorism-related activities. In my respectful opinion, amendment 61 imposes the sort of additional safeguard envisaged by Lord Anderson and supported by the current independent reviewer of terrorism legislation and his predecessors. I therefore ask the Government to consider it very seriously indeed.
Amendment 61 seeks to introduce a higher standard of proof—the balance of probabilities—if a TPIM is to be extended beyond two years. We debated at some length the relative merits of reasonable suspicion and the balance of probabilities in relation to clause 37, so I do not propose to repeat those arguments at great length. However, I hope I established in my previous remarks the importance of the reasonable suspicion burden of proof, rather than the balance of probabilities.
On the issue of extension, I gave the reasons why it is important to avoid this two-year cliff edge a few minutes ago, during the debate on amendments 60 and 64. I also drew attention to the protections that exist, particularly the review process in section 11 of the TPIM Act, which is an internal process that goes on on a quarterly basis. I also drew attention to the right of appeal under section 16 of the same Act. Every time one of these orders gets extended by a year, the subject has a right to go back to the court if he or she feels they are being treated unreasonably and unfairly. For all those reasons, I think the annual renewal process, with a right of appeal should the subject feel the renewal is unreasonable, provides adequate protection.
The shadow Minister, the hon. Member for St Helens North, asked about counter-terrorism resources. As I am sure he is aware, counter-terrorism police expenditure was significantly increased earlier this year. The police have a great deal more resources than they had previously, and as Assistant Chief Constable Jacques said in evidence,
although as the shadow Minister said, some may endure longer. We are absolutely committed to making sure the resources required are available.
“(ab) after subsection (3)(b) insert—
(3A) Where a TPIM notice has been extended under subsection (3), the Secretary of State must review, at 6 monthly intervals, whether it is appropriate to issue a revocation notice under section (13)(1).
(3B) A review under subsection 3A will include a memorandum to—
(a) the chief officer of the relevant police force;
(b) the Security Service,
(c) the Secret Intelligence Service, and
(d) the Government Communications Headquarters outlining a tailored exit strategy.
(3C) A ‘tailored exit strategy’ under subsection (3B) shall include—
(a) an assessment of the individual’s current security threat, which must include an assessment of the current evidence and investigative steps as provided by the bodies listed in subsection (3B);
(b) a plan for agencies and public services to engage with the individual to promote rehabilitation for the duration of the TPIM; and
(c) a plan for how TPIM measures may be removed if no new evidence of terrorist related activity is provided.”
An amendment to require the Secretary of State to specify a provisional exit strategy for a TPIM notice, upon any renewal beyond the two-year mark.
It always struck me as a strange and inflexible design flaw of TPIMs that they had a set limit of two years. My right hon. Friend the Member for Normanton, Pontefract and Castleford, who chairs the Select Committee on Home Affairs, reminded the House on Second Reading that
“Control orders were set for a year but could be renewed”,
“TPIMs were fixed at two years.”—[Official Report,
As far back as 2011, my right hon. Friend was raising concerns about what that would mean for the small number of people who might be extremely dangerous after two years, and what provisions would be in place to ensure the public were protected.
It would be good to introduce a measure of flexibility to TPIMs, but my concern is that by doing so that way, the Government leave a very open-ended approach, which could see cases effectively kicked into the long grass, often at great expense and with no realistic strategy for resolution of any kind. When imposing a TPIM, we must always have sight of what resolution is—whether prosecution or the removal of the notice—rather than the idea that we can indefinitely extend the TPIM and leave those who are subject to them in a sort of terrorism-suspect limbo.
The amendment seeks to address the open-ended nature of the Government’s changes by requiring the Secretary of State to specify what we have called a provisional exit strategy for a TPIM notice upon any renewal beyond the two-year mark. Under the provision in the amendment, the Secretary of State would be obliged to undertake a review every six months to set out whether it is appropriate to issue a revocation notice and to draw up, with police and security services, a tailored exit strategy. That strategy would involve an assessment of the individual’s current security threat, which should be the most fundamental and overarching aspect to the TPIM; a plan for agencies and public services to engage with the individual to promote rehabilitation for the duration of the TPIM if possible; and a plan for how TPIM measures can be removed if no new evidence of terrorist-related activity is provided.
It is not in anyone’s interest to allow individuals to remain indefinitely on TPIMs, not just for their own sake but for that of wider society because, crucially, they should be brought to justice and put through the judicial process. As Jonathan Hall said:
“There is the risk that, once a TPIM has been made and someone has been identified as a risk, that takes priority—in other words, the TPIM is the best way of protecting the public—over trying to get criminal evidence to prosecute”.––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee,
Having heard the wide-ranging evidence from witnesses, as well as what the security services and others have said, I am in no doubt that that is far from being the motivation of anyone involved in overseeing a TPIM, but those are important points to bear in mind none the less.
The idea of an indefinite TPIM means that someone convicted of a terrorist offence could conceivably be free of constraints before someone who is placed on an enduring TPIM. As we legislate in this place, we need to be cognisant of the potential for that to occur, which would be quite perverse and bizarre, albeit quite unlikely. The idea of leaving someone subject to a TPIM indefinitely is not cost-effective for the taxpayer and, notwithstanding all the amendments that we have tabled, does nothing to tackle the issues that have brought the individual to the point that they are subjected to the TPIM—namely, entering dangerous extremism and being suspected, as the lower standard of proof would say, of becoming engaged in criminal and terrorist activity.
I worry that the indefinite TPIM discourages a move towards seeking a conviction when that is appropriate, and increases the risk of individuals slipping under the radar over time if their cases are not regularly reviewed by those tasked with implementing the TPIM. An exit strategy would keep that small number of cases at the forefront of the Secretary of State’s mind and would ensure that, if there were enduring or extended TPIMs, we would not allow them to become indefinite beyond that which is reasonable.
On the point about potential perpetuity TPIMs, once again I assure the Committee that history from the old control order regime teaches us that the number of TPIMs enduring beyond two or three years is exceptionally small, and the subject always has a right of appeal to the court. On the question about reviews and the exit strategy, which is the topic of the amendment, the Government essentially agree with the comments about their importance but, in fact, that is precisely what happens already. I have referred to the fact that section 11 of the TPIM Act requires the Secretary of State to keep under review whether conditions C and D are being met—that is, whether there is terrorist-related activity or whether the public need to be protected. That is given practical effect by a TPIM review group, a so-called TRG, that meets on a quarterly basis. The topics that it discusses are exactly those that the shadow Minister quite rightly and eloquently laid out a few minutes ago, including the exit strategy.
That was reviewed and commented on in the 2018 report of the then Independent Reviewer of Terrorism Legislation, Max Hill QC, who is now, of course, the Director of Public Prosecutions. In relation to the TPIM review group’s activity, he said that
“the TRG meets at three-monthly intervals”,
which is twice as often as the amendment calls for, and that
“very careful consideration is given to every aspect of the TPIM in force, including…the individual measures, each in turn…the exit strategy, in other words timely preparation for returning the TPIM subject to his”— or her—
“home life at the end of the TPIM.”
I am delighted to be able to say to the Committee that exactly the review mechanisms, including the exit strategy, that the shadow Minister is calling for are already in place and were validated by the then independent reviewer, Max Hill, in 2018.
‘(3A) After section 10 (Criminal investigations into terrorism-related activity) insert—
“Report on terrorism-related activity
10A (1) The chief officer of the appropriate police force must produce a report to—
(a) the Secretary of State; and
(b) the Intelligence and Security Committee of Parliament, as set out in section (1) of the Justice and Security Act 2013.
(2) A report under subsection (1) must address the—
(a) current evidence, and
(b) investigative steps that—
(i) have been, and
(ii) may still be taken in relation to the TPIM.
(3) A report under subsection (1) must be produced two years after the imposition or extension of a TPIM.
(5) After subsection (3)(1) insert—
‘(1A) An annual report to Parliament must contain a statement as to whether it is satisfied with the content of a report produced under section (10A) of the Terrorism Prevention and Investigation Measures Act 2011.’
(6) In this section—
(a) ‘appropriate police force’;
(b) ‘chief officer’; and
(c) ‘police force’ have the meaning as set out in section 10.”’
An amendment requiring the chief officer of the relevant police force to produce a report, at a TPIM’s two-year mark, to the Secretary of State and the Intelligence and Security Committee of Parliament on the current evidence and investigative steps that had been and may still be taken in relation to the TPIM.
This amendment, which I tabled on behalf of the official Opposition builds on previous amendments to ensure not only that there is judicial oversight of the extension, as well as an exit strategy, but that the latest evidence and investigative steps, as provided by the local police, can and are thoroughly explored by the Secretary of State.
We reference the Secretary of State directly because the Bill vests a lot of power in the individual who holds that office with regard to the decision about whether to impose a TPIM. I know that the Secretary of State is busy, certainly if she is doing even half the work of the shadow Secretary of State, but it applies only to a small number of individuals. It is right, given the authority that the Secretary of State has to impose TPIMs, that he or she is therefore responsible for their continuing oversight as well.
The Minister and Committee members will know that section 10 of the 2011 Act provides for a process of evidential review whereby the Secretary of State consults the relevant chief officer of the respective police force to determine whether a criminal prosecution at any given moment is viable, credible and practical, yet the independent reviewer writes in his note of
“for the review process I found that neither the Home Secretary nor her officials saw anything other than a tick in the box to show that the relevant chief officer had performed this role.”
If the relevant chief officer says that they have fulfilled that duty, I have full and total confidence in that. It may have become an unfashionable view in some quarters, but I trust the police, their judgment and their assessment on such matters, because they are the experts. They are the people who are tasked with overseeing, implementing and doing that work on the ground. Procedurally and practically, however, it would be of real benefit, not just for Ministers and officials in the Home Office, but for the police and the security and intelligence services more widely, if they had access to comprehensive and detailed information from the local police at that critical stage.
The amendment would, in effect, remedy an existing gap. It would strengthen the rigour of the existing process by compelling the chief officer of the appropriate force to produce a detailed report, once again at that crucial two-year mark, to the Secretary of State, outlining the latest evidence and the investigative steps that have been or might still be taken in relation to the TPIM notice. It would allow for a better informed view on the current circumstances of an individual TPIM, but also give greater encouragement and clarity to law enforcement more widely on what the next steps, including the chance of criminal prosecution, might be, which brings us back to the exit strategy that we talked about.
As the West Midlands police and crime commissioner David Jamieson made clear in his recommendations to the Committee, a strong sense of local oversight and review of the TPIM regime, as I believe the amendment would bring, would go some way towards ensuring that TPIMs, which we know are resource intensive measures, can be applied in proportionate ways wherever possible.
In addition, the report in question would go to the Intelligence and Security Committee. I think we used to have one of those, but it has not been seen in a while and I am not sure when it is coming back. Perhaps the Minister might enlighten us on when the ISC is to be reconstituted because it has not met since the election. It fulfils a critical role in relation to this and, more widely, its work in overseeing the work of the intelligence community is valuable. It would be compelled to make a statement on its own annual report, which I think would ensure a good level of parliamentary scrutiny and oversight in this procedure.
Overall, the amendment would put in place a more rigorous and substantial process than already exists; one which would ensure the focus of the police force, the Secretary of State and the vanquished and much-missed but hopefully soon returning Intelligence and Security Committee would remain in these significant cases. Fundamentally, as I have said, if a TPIM notice is to endure, it cannot simply mean putting it over there and forgetting about it. It must always be subject to a rigorous process of analysis and assessment.
I will be brief, because we have discussed at some length the question of extensions and an exit strategy. I echo the comments about section 10 of the 2011 Act. As the shadow Minister said, section 10 places a duty on the Secretary of State to consult the relevant chief officer of police as to whether there is sufficient evidence to prosecute a terrorism-related offence before imposing a TPIM. The chief officer must then consult the relevant prosecuting authority. Once the TPIM has been imposed, section 10 says that the chief officer
“must ensure investigations of the TPIM subject’s conduct is kept under review throughout the duration of the TPIM with a view to prosecution for an offence related to terrorism if the evidential threshold can be met”.
Essentially, I think that what the hon. Gentleman reasonably asks for is enshrined in section 10 of the 2011 Act. I point again to the operation of the TPIM review group, to which I referred to in the previous debate, which meets regularly every three months and has input from police and the security services to do exactly what the shadow Minister asks.
On oversight and reporting, the hon. Gentleman mentioned the ISC. I believe it will be constituted soon, but that is not in my gift or purview. I think the most suitable person to oversee, monitor and scrutinise the activities of the Government in this area is the Independent Reviewer of Terrorism Legislation, whom we have all been quoting very frequently. He clearly does a very energetic and active job in this sphere.