Terrorism Prevention and Investigation Measures Bill Debate
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James Brokenshire
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Terrorism Prevention and Investigation Measures Bill
James Brokenshire Excerpts(12 years, 7 months ago)
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The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Government new clause 4—Section (Expiry and repeal of TPIM powers): supplementary provision.
New clause 7—Annual renewal
‘(1) Except in so far as otherwise provided under this Clause, Clause 2 and all other consequential clauses in this Act will expire at the end of the period of 12 months beginning with the day on which this Act comes into force.
(2) The Secretary of State may by order made by statutory instrument—
(a) repeal Clause 2 and all other consequential clauses in this Act; or
(b) provide that Clause 2 will not expire at the time when it would otherwise expire under subsection (1) of this Clause but will continue in force after that time for a period not exceeding one year.
(3) Before making an order under subsection (2)(b) of this Clause the Secretary of State must consult—
(a) the Independent Reviewer of Counter-Terrorism Legislation;
(b) the police; and
(c) the security services.
(4) No order may be made by the Secretary of State under this Clause unless a draft of it has been laid before Parliament and approved by a resolution of each House.
(5) Subsection (4) of this Clause does not apply to an order that contains a declaration by the Secretary of State that the order needs, by reason of urgency, to be made without the approval required by subsection (4).
(6) An order under this Clause that contains such a declaration—
(a) must be laid before Parliament after being made; and
(b) if not approved by a resolution of each House before the end of 40 days beginning with the day on which the order was made, ceases to have effect at the end of that period.
(7) Where an order ceases to have effect in accordance with subsection (6), that does not—
(a) affect anything previously done in reliance on the order; or
(b) prevent the making of a new order to the same or similar effect.’.
Government amendments 11 and 13.
Amendment 8, page 15, line 41, clause 27, leave out from ‘Act’ to end of line and insert
‘will come into force on 1 January 2013’.
Amendment 20, page 15, line 41, clause 27, leave out from ‘Act’ to end of line and insert
‘will come into force the day after the Home Secretary reports to Parliament to confirm that paragraphs (a), (b) and (c) below have been complied with—
(a) no later than one month after the day on which this Act is passed, the Senior National Co-ordinator for Counter-terrorism will produce a report to the Home Secretary detailing the additional required resources (“required resources”) that will be needed to manage the increased risks arising from the repeal of the Prevention of Terrorism Act 2005 and the passing of this Act;
(b) no later than two months after the day on which this Act is passed the Home Secretary will agree with the Senior National Co-ordinator for Counter-terrorism the required resources under paragraph (a) and the timetable for such required resources becoming deployable for use in implementing and managing measures relating to TPIM notices;
(c) this Act cannot come into force until the required resources as agreed under paragraph (b) above are made available and ready for deployment.’.
James Brokenshire
In starting our consideration of the Bill, we will be reflecting on a number of points and issues that were debated in Committee. I look forward to continuing some of the debates that we had with Members who were part of that Committee, and with other Members joining today’s consideration.
This group contains two related but distinct sets of amendments. The first deals with expiry and renewal of the legislation, and the second with its commencement. On expiry and renewal, the Government new clauses and amendments return to an important matter that was raised on Second Reading and in Committee: the duration of the Bill’s provisions and whether they should be subject to any form of sunset or renewal.
A number of arguments have been advanced. The Government previously set out their view that the Bill is the product of a lengthy and considered review, that it makes significant improvements to the control orders system, and that it establishes a framework that ought to be able to operate stably and effectively on a permanent basis. The point has been well made that we are legislators, and that we are fully competent to review the necessity of legislation, and to amend or repeal it if it is no longer necessary or if changes are needed. However, it has also been argued with some force that the nature of the powers in the Bill makes some form of regular review appropriate, both to reflect the weighty responsibility on Parliament when it accords the Government such powers, and to focus minds on the need to ensure that the legislation remains in force only as long as is necessary.
Mr Pat McFadden (Wolverhampton South East) (Lab)
If this Bill is the product of a long and considered review, why did the Government think it necessary to publish an alternative Bill last Thursday night?
James Brokenshire
I will come to that point during consideration of further amendments, but I draw the right hon. Gentleman’s attention to the Government’s counter-terrorism review—which specifically contemplated the necessity of enhanced measures, should exceptional circumstances require them—and to the specific paragraphs and references in that review. That is why I have said that the product of this legislation has been subject to that careful consideration.
Keith Vaz (Leicester East) (Lab)
I believe that this is the hon. Gentleman’s first time at the Dispatch Box with his new responsibilities as counter-terrorism Minister, so may I congratulate him on his appointment and on taking on that portfolio?
I am concerned about Lord Macdonald’s role in the Government’s latest suggestions. He was their reviewer of counter-terrorism policy, he produced a report and there were differences between him and the Government on a number of important points. Has he had the opportunity to comment on the Bill? Has the Home Secretary spoken to him about the substance of what is before the House today?
James Brokenshire
The right hon. Gentleman is probably aware that Lord Macdonald produced a separate report alongside the counter-terrorism review document to which I have alluded. That analysis and ancillary documentation fitted alongside the review, which was published earlier this year. We will deal in further detail with the points I made about the Bill’s provisions and with the concept of the need for exceptional emergency measures when we discuss the second group of amendments.
James Brokenshire
I am sorry if I have not satisfied the right hon. Gentleman’s inquiries.
James Brokenshire
As the right hon. Gentleman will know, the foreword to Lord Macdonald’s report said that he was invited
“to provide independent oversight of the Review”.
That is the role that he conducted. He was asked to
“ensure that it is properly conducted, that all the relevant options have been considered and the recommendations are balanced.”
That was the role he was required to carry out in the counter-terrorism review, which, obviously, led to the preparation of this Bill.
James Brokenshire
I will give way one further time and then I will make some progress.
Dr Huppert
I am not comfortable with the draft Bill, but will the Minister accept my congratulations on moving the Government forward from the position set out in comments made by his former colleague, Baroness Neville-Jones? She said that this emergency power would be discussed only with the Opposition and would not be scrutinised by Parliament, so will he accept my congratulations on moving to a much more democratic process?
James Brokenshire
We have made it clear that the draft Bill will be subject to review and scrutiny by a Joint Committee of the House, and we believe that to be the right way forward.
Let me return to the new clauses in this group. We have carefully considered the various debates in Committee on the length and duration of the Bill. An amendment was tabled that would have introduced an annual renewal of the powers, equivalent to that currently contained in the Prevention of Terrorism Act 2005 in relation to control orders. An amendment with the same effect is before us today as new clause 7. Members of the Committee will recall that we had a helpful debate and that I made a commitment to consider the matter further and return to it. I thank the hon. Member for Cambridge (Dr Huppert) and other members of the Committee for the manner in which that discussion was held and for the points made. In line with that commitment, I reflected carefully on those points, noted the feelings and introduced new clauses 3 and 4. They specify that the operative powers under the Bill will expire after five years, unless they are renewed by the Secretary of State, by order, subject to the affirmative resolution procedure.
There would also be an order-making power to repeal the powers or to revive them when they had been allowed to expire without their having been renewed. We consider that that approach strikes the right balance. It ensures that there will be a statutory requirement regularly to review the need for the legislation and each new Parliament will have the opportunity to debate it in the context of the situation at the time and to take its own view. We do not believe, however, that such a review is necessary annually.
The requirement for a review every five years, rather than every single year, as with control orders, seems to us to strike the right balance. It will avoid what the right hon. Member for Wythenshawe and Sale East (Paul Goggins) referred to on Second Reading as
“the constant arguing and bickering on this issue year after year when we should be seeking consensus in the face of the terrible threats that terrorists bring”.—[Official Report, 7 June 2011; Vol. 529, c. 84-85.]
The Bill will be subject to full parliamentary scrutiny, according to the usual timetable, which will allow such a settled position to be reached. That is in contrast to the control orders legislation that it replaces, which was pushed through with little opportunity for debate, making annual renewal an appropriate safeguard—but one that we do not believe is necessary for this Bill.
Renewal every five years therefore provides an appropriately balanced approach. It reflects not only the seriousness with which we take these powers and the need to build in effective safeguards to ensure that they do not remain in force longer than necessary but the competence of this House and the other place to apply intense scrutiny to legislation and to arrive at a position that will not need to be reviewed annually. It also recognises the sustained nature of the threat and the fact that, sadly, these measures are likely to continue to be necessary for the foreseeable future.
Dr Huppert
I thank the Minister for giving way and for accepting the idea I floated in Committee. Will he give me some reassurance that if in five years’ time he and his party are part of the Government they will approach the question in the spirit of carrying out a full review, as this Government did? That would enable detailed analysis and preparation before any further votes were taken.
James Brokenshire
As the hon. Gentleman will be aware, one Parliament cannot bind another. It would not be appropriate for me to suggest or require that a future Government act in a particular way when addressing such points. It would be reasonable and appropriate, however, to consider these matters carefully and in a measured and appropriate way, examining the security issues at that point in time in the same way as this Government sought to do in our counter-terrorism review, which led to the creation of this Bill. We consider that a five-year renewal period, allowing each Parliament the opportunity to take a view on this important issue, strikes the right balance.
Richard Fuller (Bedford) (Con)
I join my hon. Friend the Member for Cambridge (Dr Huppert) in welcoming this measure. May I probe the Minister a little further on the spirit of the renewal every five years? Will he give some guidance about whether, in his view, we should have a thorough and complete review of these measures every five years rather than sending them through on the nod for another five years, saying that they seem to be working? Many of us would have liked to have seen the Government go further to undo some of the damage done by the previous Government and it is important that we hear whether the Minister anticipates the review every five years to be more thorough than the annual on-the-nod review.
James Brokenshire
As I said to the hon. Member for Cambridge, I would certainly anticipate a considered review of counter-terrorism powers when the time arrived. That would be the appropriate way to proceed and to examine the renewal. The time period will also allow further and broader consideration of the security position at that point and of what measures might be required, necessary and appropriate to deal with the risks, challenges and issues that face our country.
I do not wish to detain the House, but I should explain briefly that amendments 11 and 13 make necessary technical changes to clauses 19 and 20 in consequence of Government new clauses 3 and 4. Amendment 11 ensures that the Secretary of State is not under a nugatory duty to report on the exercise of her powers under the Bill at a time when her powers have expired or been repealed. Similarly, amendment 13 ensures that the independent reviewer is not under a duty to report on the operation of the Act for periods when the operative powers are not in force.
Amendments 8 and 20, which were tabled by the Opposition, relate to when the Bill may come into force —currently, the day after it receives Royal Assent. It has been suggested, and I have consistently and strongly refuted such suggestions, that the police and the Security Service will not be ready to implement the new system when the Bill is expected to receive Royal Assent because the additional investigative resources that will complement the new system will not be in place. On that basis, and on the basis of wider suggestions that the powers under the new system will be insufficient to protect the public, it has also been suggested that the new system should not be introduced before the 2012 Olympics.
Hazel Blears (Salford and Eccles) (Lab)
Does the Minister recall that when Deputy Assistant Commissioner Osborne gave evidence to the Committee, he said:
“To get the resources that we anticipate we need will take more than a year, in terms of being able to get people trained and to get the right equipment. Until we have got that, we will not be able to start to bed things in and see how it works and how it transpires”?—[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 9, Q27.]
Clearly, the Minister is rejecting DAC Osborne’s evidence that it will take more than a year to get the agents trained to have the necessary skills and to get the electronic equipment that will be required to meet the increased risk that will inevitably be caused by the Bill. Does he believe that Mr Osborne is entirely incorrect?
James Brokenshire
I will certainly come to that point because it is at the crux of the amendments relating to this part of the Bill and to the points that the right hon. Lady and other right hon. and hon. Members made in Committee. The Metropolitan Police Service has confirmed that arrangements will be in place effectively to manage the transition from control orders to TPIM notices when they become effective. During the summer I had a number of conversations with the Metropolitan Police Service and I went to see the team that has responsibility for managing those who are subject to control orders and for managing terrorists who have been released from prison and are subsequently being managed. It has been very humbling to see the work that they do on a weekly basis to ensure that we are all properly protected. I have spoken personally to those who will be involved in managing the transition and the new regime. I cannot go into detail about the plans that are at hand, but I assure the House that I have been impressed by the range of excellent work that is under way. I reiterate that the Metropolitan Police Service has confirmed that arrangements will be in place effectively to manage the transition from control orders to TPIM notices when that change takes place.
Hazel Blears
I have no doubt that the Metropolitan Police Service is doing everything it can to try to ensure the risk to the public is properly managed—it would absolutely be committed to doing that. However, we have on record DAC Osborne’s evidence to the Committee that it would take more than a year to get these resources into place. If the Minister is now saying that the Metropolitan police have revised their view and that it will not take a year, may we have something similar in writing, as evidence, for all Members who are concerned about these matters, so that we can see that DAC Osborne’s original statement was incorrect?
James Brokenshire
The right hon. Lady has consistently made this point and we debated this issue at length in Committee, but I have been quite clear to the House about the statements that the Metropolitan Police Service has made to the Home Office. It has confirmed that arrangements will be in place effectively to manage the transition from control orders to TPIM notices. I am being quite specific and explicit in relation to that and the work that has been undertaken to prepare for that transition. Although I accept the points that the right hon. Lady has made, I have been quite clear about the assurances that we have gained in that regard and, similarly, the work that the Security Service has developed in its detailed plans for its additional allocation over the next four years, which it too is implementing.
Shabana Mahmood (Birmingham, Ladywood) (Lab)
The Minister will recall from Committee that one of the issues regarding additional resources was the fact that we are talking not just about money but about the extra surveillance officers who will be required to meet the increased risk under the TPIMs regime, which did not exist under control orders because we had relocation and longer curfews. DAC Osborne was clear that it takes about a year to train the extra surveillance officers. Will the Minister explain how that will be truncated and how the training will now take less than a year?
James Brokenshire
Let me make it clear that the additional resources are not simply about providing additional human surveillance capacity. The police and Security Service will use the additional money to enhance their use of a range of covert investigative techniques, including human and technical surveillance. It is not simply about that one point. Although I am unable to go into the detail of the preparations that are in hand, the police service and the Security Service have been engaged in work to ensure that appropriate measures are in place to provide us with the assurance that the TPIMs regime will work as we intend, so that we as a Government can fulfil our responsibilities and provide assurances on this important point.
Mr Gerry Sutcliffe (Bradford South) (Lab)
This crucial point came up in Committee. I understand what the Minister is saying. He sought reassurances from the Met, as we would expect, but we had the evidence of DAC Osborne. If the process is to work, surely we should have before us a letter of confirmation from the Met stating what the Minister is telling us and assuring us that the Met have revised their position as set out in DAC Osborne’s evidence to the Committee, and that they are happy with that. I fully respect the Minister’s word and I understand what he is saying, but for the benefit of the process that should be put in writing from the Met to the Committee or to the House.
James Brokenshire
I have made clear the assurances that we have received. I know how the hon. Gentleman approaches these matters, and we have had numerous debates on numerous issues over the years. We have sought assurance. In preparing the Bill and the change to current practice, the Government have proceeded by seeking to assure ourselves that appropriate measures are in place to mitigate the risk posed by those who are suspected of being involved in terrorism but cannot be deported or prosecuted. As I have said consistently in relation to TPIMs, the legislation and the enhanced capabilities that the police and the Security Service will have ensure that there is a balanced package of measures that will operate as we intend. We are satisfied that the preparations in hand will lead to the changes envisaged by the Bill following Royal Assent.
Paul Goggins (Wythenshawe and Sale East) (Lab)
I commend the Minister for the visit that he made to the Metropolitan police, but his assurances this afternoon go nowhere near far enough. Since his visit to the Metropolitan police, has he had a chance or has his right hon. Friend the Home Secretary had a chance to talk to the Prime Minister about the matter? On 11 August, when Parliament was recalled, I asked the Prime Minister to consider delaying or preferably cancelling the new provisions, particularly in relation to relocation. The Prime Minister said:
“I will certainly look very carefully and closely at what he says.”—[Official Report, 11 August 2011; Vol. 531, c. 1074.]
I have not had a chance to speak to the Prime Minister about that, but I am sure the Minister has. Will he update us?
James Brokenshire
I am aware that the right hon. Gentleman had that exchange with the Prime Minister and has subsequently written to him. He raised the point in a fair and balanced way and, from my reading of the record, the Prime Minister said that he would look carefully and closely at what he said. I can tell the right hon. Gentleman that we have looked carefully and closely at what he said, but the approach that we are taking is as I have set out in relation to the Bill and as I set out this afternoon.
Right hon. and hon. Members will appreciate that we cannot provide detailed breakdowns of what money we provide for specific security activities. This could provide detailed information about our capabilities and techniques, which could undermine national security. But the Government continue to consider that the TPIMs regime and the additional resources for the police and Security Service for covert investigation provide an acceptable balance between the needs of national security and civil liberties, and that the overall package mitigates the risks that we face. Indeed, the additional resources for covert investigative techniques could increase the opportunities for the collection of evidence that may be used in a prosecution.
It would be irresponsible of the Government to introduce the new system when it was not safe to do so. I am sure that there is absolute consensus on that, and I appreciate that the proposed changes are intended to ensure that the Government are not able to take such a risk with public safety, but I have been clear in what I have said and about the assurances that we have obtained, and, on the introduction of the new regime, the Government would not take such a risk if they were not satisfied about the steps and approaches being taken by the Metropolitan Police Service and Security Service.
I have moved new clause 3, and I look forward to further debate about the other new clauses and amendments.
Shabana Mahmood
May I welcome the Minister formally to his place? It is a pleasure to continue on Report the debate that we had in Committee.
I shall speak to new clause 7 and amendment 20, which stand in my name and those of my right hon. and hon. Friends. I am grateful to the Minister for his explanation of the Government’s movement in relation to the introduction of new clause 3 and new clause 4, which, as he explained, envisages a five-year sunset clause and moves us somewhat further on than did our debate in Committee.
New clause 7 would replicate the position under the Prevention of Terrorism Act 2005, which brought in the control order regime, and the amendment would limit to 12 months the powers under the TPIMs regime and would, therefore, require their annual renewal by Parliament.
Our new clause began in Committee as an amendment, which I moved, and was based on oral evidence given in Committee by Liberty, Justice and others. It was introduced to reflect our concerns that the Government’s legislation will mean fewer checks and balances on what are exceptional measures. Many in the House agree that they are undesirable and in an ideal world we would not have to have them, but they have proved necessary, given the serious terrorist risks that we face.
I do not often agree with Liberty, particularly on control orders, because our starting points for the debate are different, but I was struck by its evidence in Committee, when the organisation made it clear that it would rather—to be fair to Shami Chakrabarti, she said that she would choke on these words—take existing control orders, with their annual renewal, meaning a 12-month limit on their power, over the new TPIMs regime. The reasons for that—and why I agree with that position—primarily relate to the importance of bringing such exceptional measures back to the House for regular, annual review and, if Parliament deems it appropriate, for renewal.
James Brokenshire
Let me begin by addressing the points made by the hon. Member for Islington North (Jeremy Corbyn), who cut to the heart of a number of arguments surrounding this Bill and the measures that we judge appropriate. We would all like to live in a world where the measures contemplated in the Bill were not needed. The sad reality is that they are, as a continuing threat will be posed to this country and its citizens by people who we cannot prosecute, deport or take other action, against, so preventive measures are required. I wish that that were not the case but it is, which is why we are introducing the measures in this Bill. They follow on from the counter-terrorism review and are in recognition of this continuing risk to the citizens of this country. The Bill is certainly not about protecting the security services; it is about protecting the public. That is the driver behind these measures.
Let me deal with the duration of the legislation and the Government’s sunset clause. Our starting point was that this legislation was not being considered in a fevered state but in a measured way so, like other legislation, it did not require a sunset clause. However, we listened carefully, we reflected on the Bill’s measures and the impact they could have on individuals, and we judged it appropriate that each Parliament should be able to review the measures in the context of the security situation at the time and consider whether their continuation was appropriate. That is why we have introduced the five-year sunset clause in the way that we have.
It has been interesting to hear this evening’s debate about annual renewal. The hon. Member for Islington North has been a consistent participant in these debates—I respect the contributions that he has made year on year—and he implied that some of them have been “perfunctory”. That is not what we would wish in relation to legislation such as this, which is why the point made by my hon. Friend the Member for Cambridge (Dr Huppert) about the need for a serious and considered review of legislation was well made and strongly put. We took that approach when we sought to conduct a counter-terrorism review in preparation for this Bill.
I understand the point that the hon. Member for Brighton, Pavilion (Caroline Lucas) makes. In some ways, she sympathises with the line of argument taken by the hon. Member for Islington North. She makes a point about Executive action, but I repeat that circumstances and situations continue to arise that mean, sadly, that legislation of this type is necessary and continues to be required. She made a point about secret evidence, and the Government will shortly be introducing a Green Paper to consider further its use in court and to consider this matter in further detail, given a number of associated issues that have been raised.
Caroline Lucas
Will the Minister explain why he is so certain that the TPIMs regime will be effective, given that it is very similar to the control orders regime and nobody who has been placed under a control order has ever subsequently been prosecuted for a terrorism offence?
James Brokenshire
In some ways, this relates to the package of the measures before us. This is about not only this Bill, but the capabilities and resources being made available to the police and security services to allow them to monitor people and seek to bring them to justice. I absolutely agree with the hon. Lady, and it is our preferred option, that people who commit acts related to terrorism should be prosecuted and brought to justice in the normal way. However, the Government need to assess risk and seek to protect the public, and we judge that, for a number of reasons, it is not possible to achieve that aim in all circumstances. That is why preventive measures of the type contemplated in this Bill are required and will continue to be needed for the foreseeable future. We therefore argue that it is for Parliament to consider, on a per-Parliament basis, the necessity of these types of measures. I am aware that the hon. Lady has raised the issue of bail in this context, and we considered it in the counter-terrorism review. However, we had clear guidance from the police who recommended against bail being available for terrorist suspects because of the risk to public safety that might be involved.
Mr David Davis
If I may, I will pursue the point raised by the hon. Lady. Will the Minister tell us why he thinks that the number of convictions in this country is so low? In the 10 years or so since 9/11 there have been about 230 convictions relating to terrorism offences, which is less than 10% of the number in the United States during the same period, and similar comparisons can be drawn with other countries. Why does this country have such a low conviction rate compared with everybody else?
James Brokenshire
My right hon. Friend has taken a very consistent line on ensuring that those suspected of terrorism offences are brought to justice and that the courts are used appropriately. We need to do all we can to ensure that that happens, which is why we are taking forward measures such as post-charge questioning, which he has advocated clearly, and why we are continuing to examine the way in which intercept evidence might be usable in the courts and how the Privy Council review continues in relation to that. I agree with him that we need to be looking at a package of measures, that this is not about one instrument in itself and that it might be appropriate to take a range of steps. I would not want to suggest in this evening’s debate that this is about one issue. The Government are taking forward a range of measures as part of their counter-terrorism review and this Bill is just one part of that.
Richard Fuller
Before the Minister moves on, may I ask about the point made by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and the hon. Member for Brighton, Pavilion (Caroline Lucas)? The hon. Lady mentioned that there had been no convictions of people on control orders. By supporting the Government today, we will be extending the TPIMs regime by five years. What comfort can the Minister give us that that record of no convictions will be improved by a more thorough prosecution of the evidence and by bringing to trial the people under control orders? Can he say anything to give us some assurance that that system of containment rather than prosecution will change to one of prosecution and bringing to justice rather than one of just containing a problem and leaving people on one side?
James Brokenshire
I would point my hon. Friend in the direction of the Bill’s provisions, which clearly underline our desire to prosecute people when the evidence is available. That is part and parcel of the additional investigative capabilities intended to be available to the police and the security services. I believe that this approach will contribute to our being able to achieve the sorts of steps that he is advocating in terms of seeking to prosecute where there is admissible evidence that could be brought before the courts.
I deal now with some of the other issues raised in this useful and constructive debate, which has been a symbol of some of the other consideration of the Bill. My hon. Friend the Member for Cambridge raised the issue of Libya and he will doubtless have heard clearly the comments made by the Prime Minister during the statement preceding this debate. It is the Government’s long-standing policy not to comment on intelligence matters, but I can make it absolutely clear that the Government’s clear policy is not to participate in, solicit, encourage or condone the use of torture or inhumane or degrading treatment for any purpose.
James Brokenshire
May I just finish the point? We have published the consolidated guidance to intelligence personnel, including on the passing and receipt of intelligence relating to detainees. The Government took early and decisive action to set up the Gibson inquiry, precisely to examine whether Britain was implicated in the improper treatment of detainees so that we can better understand what happened and allow all involved closure.
Jeremy Corbyn
I thank the Minister for giving way and I am grateful to him for allowing this point to be made. Is he concerned that the exchange of letters made by former Prime Minister Blair with a number of countries that allowed removal to those that had not signed the convention on torture should be ended? We should only ever remove people to a country that recognises the relevant sections of that convention and that would not carry out the death penalty against those people.
James Brokenshire
The hon. Gentleman will have heard what the Prime Minister said in his statement about the investigation being undertaken by the Gibson inquiry. These matters will be looked at closely, but I certainly do not intend to expand this debate to cover them in such a way because time is pressing and we have a number of other issues to do with this mini-debate to get through.
The right hon. Member for Leicester East (Keith Vaz) asked me about a couple of issues. The first was to do with the role of Lord Macdonald, who was not appointed to review counter-terrorism legislation generally or on an ongoing basis but was asked to oversee the counter-terrorism review, which completed in January. It is obviously open to him to look at and comment on the draft Bill; we have published it with the purpose of allowing it to be considered.
Let me turn to the central issue raised by those on the Opposition Front Bench as well as other Opposition Members. I want to make it very clear that the TPIM system will provide appropriate, proportionate and effective powers for dealing with the risk posed by suspected terrorists whom we can neither prosecute nor deport. The new system introduced by the Bill will be accompanied by an increase in funding for the police and security services to enhance their investigative capabilities. As I have said, this will complement the new regime and, we believe, maintain public confidence. To repeat what I have said, the Metropolitan Police Service has confirmed that arrangements will be in place effectively to manage the transition from control orders to TPIMs. I have heard what Opposition Members and other Members have said and I can say to the right hon. Member for Leicester East—or I would have done, if he was in his place—that I will take the issue away and consider further with the police what further information may be provided.
As right hon. and hon. Members will recognise, there is a challenge here and we do not provide detailed breakdowns of what money we provide for specific security activities as that would provide detailed information about our capabilities and techniques that could undermine national security. There is a delicate balance to be struck, but I will certainly consider carefully the comments that have been made during this debate and consider with the Metropolitan police what further information might be appropriate.
Shabana Mahmood
I thank the Minister for giving way and for the indication that further written evidence will be available. I am still minded to press amendment 20 to a vote later this evening, but I have been advised by the Clerks that if new clause 3 is passed we cannot have a vote on new clause 7. May I clarify that although we would have liked to vote on annual renewal—we still believe it is an important measure—we will not oppose new clause 3? However, Labour Members will take the issue forward when the Bill reaches the other place.
James Brokenshire
I appreciate the hon. Lady’s clarification of the official Opposition’s stance. I have given the House clear assurances about the preparations for the transfer from control orders to TPIMs and we will reflect on the debate further, but we believe that the Government’s amendments for the review are appropriate, and, on the basis of the assurances we have received, we do not believe that the Opposition amendments are required. Even at this stage, I ask the hon. Lady to reflect on the debate and to consider withdrawing those amendments.
Question put and agreed to.
New clause 3 accordingly read a Second time, and added to the Bill.
New Clause 4
Section (Expiry and repeal of TPIM powers): supplementary provision
‘(1) This section applies if the Secretary of State’s TPIM powers expire or are repealed under section (Expiry and repeal of TPIM powers).
(2) A TPIM notice which is in force immediately before expiry or repeal is to—
(a) continue in force for the period of 28 days beginning with expiry or repeal; and
(b) be treated as if revoked by the Secretary of State at the end of that period.
(3) Subsection (2)(a) is subject to—
(a) any variation under section12(1)(a) or (b), and
(b) any revocation or quashing.
(4) Except as provided for in subsection (5) or (6), TPIM proceedings may neither continue nor be begun after expiry or repeal.
(5) TPIM proceedings of a kind set out in subsection (7) may continue, or be begun, after expiry or repeal, but only for the purpose of determining one or more of the following matters—
(a) whether a TPIM notice should be quashed;
(b) whether measures imposed by a TPIM notice should be quashed;
(c) whether to make a declaration under paragraph 4(4) of Schedule2.
(6) Proceedings for an award of damages or other relief arising out of any TPIM proceedings of a kind set out in subsection (7)(a) to (c) may continue, or be begun, after expiry or repeal.
(7) The TPIM proceedings referred to in subsections (5) and (6) are—
(a) a reference made under paragraph 3 of Schedule 2 before expiry or repeal;
(b) a hearing in pursuance of directions under section 8(2) or 8(5);
(c) an appeal under section16;
(d) an appeal, or further appeal, relating to a decision in any proceedings mentioned in any of paragraphs (a) to (c).
(8) If, after expiry of the Secretary of State’s TPIM powers, the powers are revived under section (Expiry and repeal of TPIM powers)(2)(b)—
(a) all TPIM notices, including any which were in force before expiry, are to be taken into account in determining whether there is new terrorism-related activity for the purposes of section3(6);
(b) the expiry of those powers does not prevent them from being exercised after revival in relation to any TPIM notice which—
(i) expired or was revoked before the expiry of the powers or during the relevant 28 day period, or
(ii) is, in accordance with subsection (2)(b) of this section, treated as if revoked at the end of the relevant 28 day period;
and for this purpose “relevant 28 day period” means the period of 28 days beginning with the expiry of the powers that is mentioned in subsection (2)(b).’.—(James Brokenshire.)
Brought up, read the First and Second time, and added to the Bill.
New Clause 5
Temporary power for imposition of enhanced measures
‘(1) If the Secretary of State considers that it is necessary to do so by reason of urgency, the Secretary of State may make a temporary enhanced TPIM order during any period that—
(a) begins with the dissolution of Parliament, and
(b) ends with the first Queen’s Speech of the Parliament which first meets after that dissolution.
(2) A temporary enhanced TPIM order is an order which makes provision for, or in connection with, giving the Secretary of State power to impose enhanced measures by notice on individuals whom the Secretary of State is satisfied, on the balance of probabilities, are, or have been, involved in terrorism-related activity.
(3) An enhanced measure is a requirement, restriction or other provision which is of any of the following kinds—
(a) a restriction on an individual in relation to the residence in which the individual resides, including—
(i) a requirement to reside at a specified residence in the United Kingdom;
(ii) a requirement not to allow others to reside at that residence without the permission of the Secretary of State;
(iii) a requirement, applicable between specified hours, to remain at that residence;
(b) a restriction on an individual in relation to leaving a specified area;
(c) a requirement, restriction or other provision which corresponds to provision within any of these paragraphs of Schedule1—
(i) paragraphs 2 to 6;
(ii) paragraph 7(1) and (2) and (4) to (6);
(iii) paragraphs 9 to 12;
(d) a requirement, restriction or other provision which corresponds to provision within paragraph 8(1) of Schedule1 (as read with paragraph 8(3) of that Schedule), including—
(i) a requirement not to associate or communicate with other persons without the permission of the Secretary of State, which includes provision allowing the individual (without seeking permission) to associate and communicate with such persons or descriptions of persons as the Secretary of State may specify;
(ii) a requirement to give notice to the Secretary of State before associating or communicating with other persons, which includes provision allowing the individual (without giving notice) to associate and communicate with such persons, or descriptions of persons, as are specified.
(iii) a requirement of the kind referred to in sub-paragraph (c) of paragraph 8(2) of Schedule1, which may in particular relate to association or communication which is allowed by virtue of provision of the kind referred to in sub-paragraph (i) or (ii) above;
(e) provision which corresponds to provision within Part 2 of Schedule1;
and for this purpose “specified” means specified by the Secretary of State in an enhanced TPIM notice.
(4) Except as provided for in subsections (5) to (10), the provision made by a temporary enhanced TPIM order must correspond to the relevant provisions of this Act.
(5) A temporary enhanced TPIM order—
(a) must secure that enhanced TPIM notices and standard TPIM notices are separate notices;
(b) must secure that, at any particular time, an enhanced TPIM notice and a standard TPIM notice are not both in force in relation to a particular individual; and
(c) may secure that the application of a temporary enhanced TPIM order to a particular individual does not affect the application of this Act to that individual (and vice versa).
(6) The provision of a temporary enhanced TPIM order which corresponds to section 3 must include appropriate variations from the provision contained in that section to secure—
(a) that condition A is replaced by a condition which secures that the enhanced TPIM power may not be exercised in relation to an individual unless the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity; and
(b) that condition D is replaced by a condition which secures both—
(i) the same result as condition D, and
(ii) that the enhanced TPIM power may not be exercised in relation to an individual unless some or all of the measures imposed by the enhanced TPIM notice are measures that may not be imposed by a standard TPIM notice.
(7) The provision of a temporary enhanced TPIM order which corresponds to section5(1) must include appropriate variations from the provision contained in that subsection to secure that each enhanced TPIM notice ceases to be in force at the time when the enhanced TPIM power ceases to have effect in accordance with section (Temporary power: supplementary provision)(1) (subject to earlier revocation or quashing of the notice).
(8) The provision of a temporary enhanced TPIM order which corresponds to Schedule 1 must include appropriate variations from the provision contained in that Schedule to secure that it is enhanced measures which the Secretary of State has power to impose.
(9) A temporary enhanced TPIM order may make appropriate provision (including appropriate variations from the provision contained in the relevant provisions of this Act) in consequence of, or in connection with, the creation, in accordance with this section, of the enhanced TPIM power.
(10) A temporary enhanced TPIM order may make appropriate provision for the purposes of securing that transitional and saving provision relating to a temporary enhanced TPIM order ceasing to have effect may be made (including provision for enhanced TPIM notices to continue in force for a period, which does not exceed 28 days, after the enhanced TPIM power ceases to have effect).
(11) The provision that may be made by a temporary enhanced TPIM order includes—
(a) provision amending any enactment (including an enactment contained in this Act);
(b) provision applying (with or without modifications) any enactment (including an enactment contained in this Act);
(c) provision conferring functions on the Secretary of State or any other person (including, in the case of the Secretary of State or any other Minister of the Crown, functions of a legislative nature).’.—(James Brokenshire.)
Brought up, and read the First time.
Mr Deputy Speaker (Mr Nigel Evans)
With this it will be convenient to discuss the following:
Government new clause 6—Temporary power: supplementary provision.
Amendment 1, page 22, line 31, in Schedule 1, at end add—
‘Additional measures
12A (1) The Secretary of State may impose measures additional to those contained in Schedule 1 if—
(a) there is a serious terrorist threat; and
(b) they are necessary for the protection of the public.
(2) Any measure under paragraph 13(1) can only be imposed if the Secretary of State is satisfied on the balance of probabilities that the individual is involved in terrorism-related activity.’.
Amendment 2, page 22, line 31, at end add—
‘Additional measures introduced by Secretary of State
12A (1) The Secretary of State may by order introduce measures additional to those contained in this Part.
(2) An order under sub-paragraph (1) may be made only if a draft has been laid before and approved by resolution of each House of Parliament.’.
Amendment 3, page 22, line 31, at end add—
‘Emergency additional measures introduced by Secretary of State
12A (1) The Secretary of State may by order introduce measures additional to those contained in this Part.
(2) An order under sub-paragraph (1) shall have immediate effect but must be approved retrospectively by a resolution of each House of Parliament.
(3) If either House declines to approve a resolution under sub-paragraph (2), the order shall cease to have effect on the date of such disapproval.’.
Amendment 4, page 22, line 31, at end add—
‘Additional measures introduced by Secretary of State during dissolution of Parliament
12A (1) The Secretary of State may by order introduce measures additional to those contained in this Part during a dissolution of Parliament.
(2) An order under sub-paragraph (1) shall have immediate effect but must be approved retrospectively by a resolution of each House in the new Parliament.
(3) If either House declines to approve a resolution under sub-paragraph (2), the order shall cease to have effect on the date of such disapproval.’.
James Brokenshire
This group of amendments relates to the enhanced TPIM provisions and the circumstances in which measures additional to those contained in the Bill might need to be imposed. The Government and Opposition are taking different approaches.
The Government have made it clear that we believe that in future there might be exceptional circumstances in which it is necessary to introduce additional and more restrictive measures to those contained in the Bill. I emphasise that we hope never to need them, but, in the event of a very serious terrorist risk that cannot be managed by any other means, it would be irresponsible of the Government not to act to protect the public appropriately.
Dr Huppert
Will the Minister make it clear that he and the Government would not consider the Olympics, in and of themselves, to be such an emergency risk? There might be circumstances that would become such a risk, but will he confirm that the simple fact we are hosting them would not be sufficient to trigger the new legislation?
James Brokenshire
I am grateful to my hon. Friend for highlighting that point. The security arrangements for the Olympics are being planned on the basis that the additional powers envisaged under the enhanced TPIM Bill will not be needed. This is about considering exceptional circumstances and exceptional risk, which is why we have sought to take the approach that we have. In exceptional circumstances we will, where possible, bring forward emergency legislation to introduce such powers. That is why we have drafted and published in draft the Enhanced Terrorism Prevention and Investigation Measures Bill, which will now be subject to pre-legislative scrutiny. That will give Parliament the opportunity to examine its terms closely. In some ways, this underlines the point made by the hon. Member for Islington North (Jeremy Corbyn) in the previous debate about seeking to do this in a considered and measured way rather than in a febrile atmosphere—the draft Bill has been introduced to facilitate that.
If the enhanced TPIM Bill is introduced while Parliament is in recess, Parliament can be recalled to debate it, but there is a small gap in our ability to introduce this emergency legislation in periods where Parliament is dissolved and where a new Parliament has been appointed but the first Queen’s Speech has not been delivered. This gap was identified during pre-legislative scrutiny of the draft emergency Bills to extend periods of pre-charge detention for terrorist suspects to 28 days.
Government new clauses 5 and 6 take the same approach to addressing that gap as we are proposing to take with pre-charge detention. They introduce a power to the standard TPIM Bill that would allow the Secretary of State—where necessary by reason of urgency—to bring the enhanced TPIM regime into force by making a temporary enhanced TPIM order. This power would be exercisable only in the periods I have mentioned: while Parliament is dissolved and in the period between the appointment of a new Parliament and the first Queen’s Speech. A temporary enhanced TPIM order would make provision directly equivalent to that in the enhanced Bill. I shall not delay the House by reciting the detail of that Bill’s provisions; it has been published and is available to all Members to read. It will be subject to rigorous pre-legislative scrutiny, following which it will no doubt be amended and improved.
Hazel Blears
I am grateful to the Minister for giving way and for the way in which he has managed so far to present the enhanced TPIM Bill. Would he not accept that the TPIM legislation, like the control order legislation, is in and of itself exceptional legislation that we have all said should be used as a last resort? It is not something that any party would want to adopt; it is outwith the normal criminal justice system and it is not part of the normal legislative process. Why, for goodness’ sake, does not he include the enhanced measures in the existing legislation—not so that they are required to be used by the Home Secretary, but so that she would be able to use them if circumstances were to arise in which it was necessary to have a power of relocation, curfew, association or exclusion? This is the most convoluted, awkward, difficult and strange way of legislating that I have ever seen. We are going to have exceptional legislation to exceptional legislation in exceptional circumstances. Why cannot the Minister legislate properly and put these powers into existing legislation?
James Brokenshire
I think that underlines the fundamental difference between us on the nature of the powers that are contemplated and their impact on individuals and counter-terrorism. A number of contributions have been made about radicalisation. Given the stringent nature of the powers that are contemplated under the enhanced provisions, we believe it is absolutely right that Parliament should determine whether the circumstances are so exceptional that emergency powers are needed. That is the right way to do things, rather than seeking to suggest that this is all business as usual and that the powers should be on the statute book. That is why I disagree with the right hon. Lady.
Pete Wishart (Perth and North Perthshire) (SNP)
Does the Minister have any idea just how ridiculous the Government look with these enhanced TPIM measures and, more importantly, how disappointed civil libertarian groups are with the Government? The system is probably worse than what the previous, anti-civil libertarian Labour Government proposed. Why cannot we have proper legislation, and why cannot the Government continue the good work they started instead of going down this route?
James Brokenshire
I absolutely reject the assertion that this Bill is in some way more draconian and cracks down more on liberty than the approach of the previous Government. That is precisely why we have sought to rebalance the counter-terrorism legislation, and that has been at the heart of the counter-terrorism review. I should have hoped that the hon. Gentleman recognised that. We have recognised the very nature of the enhanced measures and why it is appropriate not to have them as business as usual—why it is appropriate to have them in a Bill that can be subject to pre-legislative scrutiny and can be considered calmly and rationally rather than rushing and not having powers available to deal with extraordinary and extreme circumstances. That is why we have taken the view that we have in the structure of the approach in the draft enhanced Bill and in this Bill.
Shabana Mahmood
How does the Minister say that control orders or TPIMs are business as usual?
James Brokenshire
I am saying that because this legislation remains and resides on the statute book, subject to the new clauses that we have rightly put in place following the previous debate with the five-year renewal. The powers that are available under the enhanced measures are such that they require a further considered approach by Parliament before they are introduced. That is why we have rationally and reasonably, as reflected in the counter-terrorism review, sought to adopt the approach that we have.
Mr David Davis
I have no wish to add to my hon. Friend’s difficulties, but he knows I have concerns about this issue. The simple truth is that had the 90-day measure been put before the House in July 2005, when the atrocity occurred, the House would have taken a much more emotional, rather than rational, decision. I have a general concern—I know that he is thinking through the legislation—that the House does not make its best decisions in the immediate aftermath of atrocities. There is a risk, in going down this route, that we will get not rational, but irrational, decisions.
James Brokenshire
I hear that argument, which is why we have sought to produce the draft Bill—to ensure that it can be considered rationally, calmly and coldly by the Joint Committee. Approaching it in that way means that in circumstances similar to those that have, sadly, arisen in the past, there is a defined mechanism and method that has been subject to scrutiny in advance. In many ways, we are seeking to recognise some of the challenges to which my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) has alluded and to address them by having the draft Bill available now for consideration.
Hazel Blears
The Minister is being very generous in giving way. May I ask him a specific question? Will we have to wait until this country is subject to exceptional circumstances, which Lord Macdonald has said could be a series of catastrophic attacks in every major city in Britain, until we have a power of relocation on our statute book?
James Brokenshire
I shall not second-guess the circumstances in which the draft Bill and those provisions would be required. Clearly, it would be in exceptional circumstances in which we were faced with a serious terrorist risk that could not be managed by any other means. That is the sort of situation we are contemplating, but I am not prepared to second-guess future developments in the threat picture. The right hon. Lady and I disagree on this, but, as I have said quite clearly, we believe that the TPIMs regime in its entirety—the standard TPIMs regime and the supportive resources around it—is sufficient to manage the threats that we face. Only in exceptional circumstances would the enhanced measures be required. That is the conclusion we have reached as part of the counter-terrorism review. I appreciate that she and I differ on that, but that was the conclusion we came to. The counter-terrorism review recognised that enhanced measures might be required in exceptional circumstances, which is why we have taken the view we have.
Dr Huppert
Contrary to the right hon. Lady’s point, does the Minister share my pleasure that we will be able to keep the powers of internal exile with judicial oversight off the statute book for as long as we can?
James Brokenshire
The counter-terrorism review carefully concluded that there might be exceptional circumstances—a very serious terrorist risk—in which the Government would have to seek parliamentary approval for additional restrictive measures. That is what we are seeking to do and that is why we believe that the overall approach taken by this Bill is appropriate.
Mr McFadden
With the publication of the draft Bill, the Government have conceded that they have no argument in principle against the extra powers in the enhanced TPIMs regime. What will the Minister say to the victims of terrorism in the emergency circumstances that he sets out and that might give rise to their introduction? Will he say that we had the extra powers but we decided not to use them until the incident happened? Does he really believe that the Government could survive in those circumstances? Does he not see the nonsense of that position?
James Brokenshire
The right hon. Gentleman’s question is premised on various assumptions that I just do not accept. He can make his point but the Bill and the enhanced measures that sit alongside it have been part of a very considered approach in relation to the overall legislative framework, which has not been rushed but has been considered. It has very much at its heart our responsibility to protect the public, but it also recognises that there is a balance to be struck. We believe that the balance has previously been wrong and that it needs to be adjusted, as contemplated by the Bill, to ensure that our counter-terrorism measures are appropriate, necessary and focused on delivering safety and security in a way that is judged appropriate on the basis of the evidence.
The draft enhanced TPIM Bill contains provisions that mean that if it is brought into force while a temporary enhanced TPIM order is in force, a decision taken under that order should be treated as a decision under the new enhanced Bill. The regime provided by the emergency TPIM order is intended to be the same as that provided by the enhanced Bill. In other words, the new clauses are intended to be complementary. They set out the various provisions and matters that may, or in some cases that must, be secured by a temporary enhanced TPIM order, to give effect to the regime set out in the emergency Bill. This includes in particular setting out the more stringent restrictions that would be available, and the fact that an enhanced notice may be imposed only where the Secretary of State is satisfied on the balance of probabilities that the individual is or has been involved in terrorism-related activity. Once made, the temporary enhanced TPIM order would remain in force for 90 days, or a shorter period if specified in the order. It must be laid before Parliament as soon as practicable. While it is in force the Secretary of State can repeal its provisions at any time.
The 90-day period is intended to cover, but not significantly to exceed, the period during which Parliament would be unable to pass the emergency legislation. After parliamentary business resumes, the Government can introduce the enhanced TPIM Bill, if they judge it appropriate, to replace the powers conferred by the order with powers under primary legislation.
These are essential provisions. The power that they provide may never need to be used. Indeed, we would all prefer that the exceptional circumstances for which it and the enhanced TPIM Bill are intended never arise. None the less, it is necessary for a responsible Government to ensure that the enhanced TPIM powers can be brought into force in all circumstances in which they may be necessary.
Mark Durkan
Does the Minister not recall that when the previous Government introduced the Counter-Terrorism Bill with provision, at that stage, for 42-day detention, which was to be the subject of a parliamentary debate and vote when the powers were activated, the then Opposition rightly argued that it would create dangers for Parliament and eventually for the judiciary, potentially, to activate parliamentary control in relation to measures that were being taken against known individuals? Questions were asked, such as how a parliamentary debate in such a situation would be informed. What information would be in the media and in Parliament, and how could we ensure that, if there was a prosecution, that did not destroy the basis for a fair trial? Exactly the arguments that the Opposition used against the previous Government’s measures surely apply in respect of the arguments that the Minister has just made for his enhanced TPIMs.
James Brokenshire
I understand the hon. Gentleman’s case, and care will be required, but the House often considers topics in relation to which matters are before the courts. The emergency legislation deals with the principles, not with individuals. The House has demonstrated clearly that it is able to do that and to consider and debate matters where care is required.
Amendments 1 to 4 address situations where more stringent measures are needed to protect the public than those available under the Bill. Amendment 1 would in effect place a version of the enhanced TPIM proposals formally on the statute book through the Bill. We debated an almost identical amendment in Committee. It would add a new paragraph to schedule 1, allowing the Secretary of State to impose any measure, in addition to those otherwise specified in schedule 1, on an individual where
“there is a serious terrorist threat”
and where such measures are
“necessary for the protection of the public.”
It reflects the position in the enhanced TPIM Bill that the test for imposing such additional measures would be raised from “reasonable belief” of involvement in terrorism-related activity to being satisfied on the “balance of probabilities” that this is the case.
Amendments 2 and 3 offer an alternative approach to providing for the use of additional measures to that set out in amendment 1. Instead of provision being made on the face of the Bill, the Government would be able to add further measures to schedule 1 by order. Amendment 2 envisages that Parliament would approve those measures in advance; amendment 3 provides for retrospective parliamentary approval and so seeks to address other concerns. Amendments 1, 2 and 3 highlight a difference in approach between those on the Opposition Benches and my right hon. and hon. Friends on the Government Benches.
The Government’s position is that the Bill provides a robust and effective set of measures to manage the risk posed by suspected terrorists whom we cannot prosecute or deport, and it will be complemented by additional funding for the police and Security Service for covert investigation. The Government consider that more stringent powers will be required only in exceptional circumstances. So although the Government agree with the Opposition that there may be a need for additional measures to those contained in schedule 1, we believe, as we flagged up in our counter-terrorism review, it is right that those more stringent powers are not on the statute book or available at all times through an order-making power, as amendments 1, 2 and 3 would provide, but are contained in draft emergency legislation that is introduced only if required. This is also reflected in the Government’s approach to extended pre-charge detention.
Furthermore, the Government consider that it is appropriate for the measures available to the Secretary of State to be set out on the face of primary legislation, and to have been agreed in advance by Parliament. That is the clear approach adopted in the Bill before us, and it is also the approach that we have taken in the enhanced Bill. Indeed, I would argue that the more stringent nature of measures available under the enhanced Bill is an even greater reason for them to be clearly defined and agreed by Parliament, rather than decided on an ad hoc basis by the Secretary of State. The Government are therefore not in favour of amendments 1, 2 and 3. For the reasons that I have set out, I ask hon. Members not to press them.
Amendment 4 is specifically concerned with what would happen if the additional measures are required during a period when Parliament is dissolved. The same issue was raised during pre-legislative scrutiny of the emergency Bills for extended pre-charge detention. The Government have listened to the concerns expressed and new clauses 5 and 6, which I have already outlined, directly address the point. I trust that this means that Opposition Members will be content to withdraw their amendment.
Paul Goggins
I shall speak to amendments 1 to 4 and voice my support for Government new clauses 5 and 6. Throughout Second Reading and consideration in Committee, I have supported the principle of placing in schedule 1 a list of conditions that would be available to the Secretary of State under the TPIMs regime. Under control orders there is no such list. The Home Secretary can impose any condition, subject to accountability to the court. As my right hon. Friend the Member for Salford and Eccles (Hazel Blears) has continued to remind the House throughout the debate, there is that continued oversight over the existing regime.
The problem with schedule 1 is that the list of conditions that it provides is inadequate. For example, it requires that the Home Secretary must—not may, as I hope we will discuss later—allow someone subject to a TPIM to have access to the internet and to have a mobile phone and a land line. There is no option; the Home Secretary must do that. Equally, the Home Secretary has no power to relocate an individual away from an area if she judges that to be necessary. I hope that we will soon debate that aspect as well.
The nagging concern that hon. Members—on both sides of the House, I hope—have is what happens when the Home Secretary has intelligence about an individual that requires a certain measure to be put in place, and she cannot do so because it is not in schedule 1. The good news since we considered the issue in Committee is that the Home Secretary has clearly recognised that there may be circumstances where the list of measures in schedule 1 is not sufficient, and she has now published draft legislation, the enhanced TPIMs Bill, that will allow relocation and curfew and will prevent access to mobile phones and the internet where that is necessary. I support the fact that in that Bill she is giving herself the powers to introduce an enhanced TPIM if Parliament is dissolved and she judges it necessary at the time.
The bad news is that the only way that the Home Secretary could exercise these enhanced powers when Parliament is sitting is via fresh primary legislation. I assume that the Home Secretary intends that there should be a rigorous process of pre-legislative scrutiny in relation to the enhanced TPIMs Bill that has been published. Presumably it will be scrutinised by a cross-party Committee and presumably the Committee will be made up of Members from both Houses. Perhaps the House will consider making the Committee Chair a well-respected Cross Bencher, such as a former Cabinet Secretary with huge experience of Government business. The Committee would be expected to take evidence from all the experts and, on the basis of that evidence, it would then be asked to come to a unanimous view on the matters before it.
James Brokenshire
I am not quite sure how to respond to the lack of coherence in the previous contribution—the Opposition fundamentally oppose something, but then say that they support new clauses 5 and 6—but I shall seek to respond to the points that have been raised in the course of the debate.
I again return to the counter-terrorism review. The measures are not a surprise—it is not as though they were not set out clearly back when the counter-terrorism reported in the early part of this year. The review concluded that
“there may be exceptional circumstances where it could be necessary for the Government to seek Parliamentary approval for additional restrictive measures. In the event of a very serious terrorist risk that cannot be managed by any other means more stringent measures may be required.”
Therefore, to suggest that this situation has just happened and that it was not foretold highlights the lack of reading of the counter-terrorism review when it was published earlier this year.
The Government consider that the enhanced powers will not routinely be needed, and that the standard TPIM Bill will provide robust powers to protect the public. We also consider that there may be circumstances in which more stringent powers will be needed. However, such powers should be introduced only at that time—they should not be routinely available on the statute book.
Obviously I accept that there is a clear difference of opinion. During previous contributions from Opposition Front Benchers, I was minded to believe that control orders were the default. That appeared to be the approach taken by the previous Government, which is why this Government undertook our counter-terrorism review and why we have sought to rebalance the provisions contained in the legislation.
I appreciate the points made by right hon. and hon. Members about the term “exceptional circumstances”. As I have said, that would be when we are faced with a serious terrorist risk that cannot be managed by any other means. It would be inappropriate to say, “Would it apply in this or that control order case?” I am not prepared to second-guess future developments in the threat picture, and the circumstances might be hard to predict. However, credible reporting could point to a series of concurrent attack plots, all of which appear imminent, or it might apply in the wake of a major terrorist attack when there is the prospect of further attacks to follow. Parliament will need to approve the emergency legislation for it to come into force. Ultimately, therefore, it would be for Parliament to determine whether the circumstances are exceptional in that way.
In response to the points made by my hon. Friend the Member for Cambridge (Dr Huppert), I would highlight the fact that clearly there are additional safeguards for the new clauses to cover the period during a general election, when the House is unable to pass emergency legislation. The enhanced measures will be subject to a higher legal test. The Secretary of State must be satisfied that the person is or has been involved in terrorism-related activity on the balance of probabilities, which is a higher threshold than reasonable belief, which is the test for imposing standard TPIMs.
The comprehensive judicial oversight of standard TPIM notices will also apply to the enhanced measures, including a requirement for court permission before imposing measures; an automatic and full High Court review of the decision to impose the enhanced TPIM notice, and each of the measures specified in it; and rights of appeal against decisions taken by the Secretary of State when the measures are in force. Therefore, the intent is that the broader safeguards will apply in the context of those situations.
I hear what my hon. Friend the Member for Cambridge says about his discomfort with the contexts in which we would need such provisions. We are all in that situation. Equally, we have considered carefully the potential of alternatives. He highlighted the possibilities of the Civil Contingencies Act 2004. However, careful reflection on both sides of the House leads us to consider that that would not be a useful or usable route in dealing with the circumstances that we are contemplating. The 2004 Act has been considered on both sides of the House, but its mechanisms and its structure do not lend themselves easily to the scenarios and situations in which we would consider using TPIMS—indeed, the Act was in many ways directed more to dealing with floods, epidemics and those sorts of problems. Although I understand why my hon. Friend raises that point, as hon. Members have done in the past, we consider that the 2004 Act does not provide a workable mechanism to cover such circumstances.
We believe that the draft emergency Bill would provide a mechanism to deal with a situation while Parliament was either sitting or in recess, although we accept the need to legislate in this Bill to cover a period during a general election. I am pleased to note that the Opposition are prepared to support the new clauses that are contemplated, although clearly there are differences over the emergency Bill itself. However, a Joint Committee will obviously be established to consider, scrutinise and examine the matter in detail in the way one would expect from the House and no doubt to improve, make suggestions and make amendments to the draft Bill.
Mark Durkan
The Minister has talked about these extra bat belt powers, shall we say, that might be available to the Home Secretary and activated by a draft Bill. I have a question about the parliamentary situation that would then be created. If those powers were activated in relation to a particular threat, hon. Members would receive all sorts of instructions and advice not to mention specific cases in the Chamber, but the chances are that the media would be full of suggestions and innuendos against particular individuals or locations. In those circumstances, how would Parliament discharge the awkward responsibilities that the clause would give it? The Opposition in the previous Parliament made exactly those valid arguments against the then Government’s measures in respect of 42-day detention activated on the basis of parliamentary approval.
James Brokenshire
I know that the hon. Member has made that point before. I responded to him then as well. I think that the House is able to debate the principle of the underlying issues, although in relation to detailed, confidential briefings and so on, we would seek to provide more detailed information to Opposition spokespeople on privy counsellor terms, as appropriate, in order to assist debate. However, we believe that Parliament is able to consider emergency legislation in that way. In many ways, it is important to put out the draft legislation now to ensure that there is a mechanism—a tool—that has been considered coolly and calmly outside some of the febrile situations that understandably arise in the sorts of horrendous situations that, sadly, we have seen in the past. That is why it is important that we have the scrutiny that would be applied by a Joint Committee—and obviously it is for the House to resolve the matters around that. That is an important way of ensuring that legislation is considered in a more rational way.
Paul Goggins
The Minister has been very generous in giving way this evening. He has refused to be drawn on “second-guessing”, as he put it, the level of threat that would lead him or the Home Secretary to believe that these enhanced TPIM powers were necessary. However, he said that part of his consideration would be whether the threat was “imminent”—that was the word he used. An “imminent threat” could mean the next 12 hours, the next 24 hours, the next 48 hours or the next week. How does he square that level of risk with the fact that he is prepared to put measures in the Bill that would require separate primary legislation that might take at least a week to procure—perhaps even longer during recess? How can he square those two things? In my view, they simply cannot be squared.
James Brokenshire
It was precisely to ensure that legislation could be secured quickly that we have published the draft Bill now—to aid in that consideration and to ensure that matters could be dealt with swiftly. I recognise that the right hon. Gentleman does not accept the principle of emergency legislation, and I know that he has taken that approach consistently. There is a difference of view about the enhanced powers and the basis on which they are set, and I do not think that we are likely to resolve that difference between us.
Richard Fuller
It is a pleasure to be able to make a brief contribution to this debate.
I listened to the rhetoric of the right hon. Member for Salford and Eccles (Hazel Blears) in her opening speech in support of her new clause, and it made me even more scared about giving Administrations a fiat on the treatment of people in our judicial system, rather than leaving that with the judges. On many occasions, both in this debate and in Committee, the right hon. Lady talked about the importance of balance, but I feel that, in the sharpness of her rhetoric and the blithe way challenges were laid down and comments were made about loosening and potentially putting us at risk, her speech did not betray any balance whatever. That highlights one of the risks in giving the Executive the power to restrain and control people who have not been brought to justice. Both in the specific instance of relocation and more generally in the tone of Opposition Members, a disservice is being done to this Government’s attempts to return us to some semblance of the traditions of British justice that we achieved before the period of the so-called “war on terror”—before 2001—and we should remember that control orders were not introduced until 2005, and that therefore they were not in place between 2001 and the Iraq war, which some would argue was the period of greatest risk.
I wish to make a couple of comments on the specific issue of relocation. I have a lot of respect for the right hon. Lady and I do not mean to pick on her; I am just picking on her point. I challenged her earlier about democratic countries from which she drew inspiration. I could not think of any either, so I did some research on a well-known search engine. I looked up forced relocation of individuals. Kazakhstan featured prominently. There were also a few honourable mentions for Cambodia—not the current Cambodian Government, but I think we can work out which Government—and for Burma. Kazakhstan, Cambodia and Burma are not exactly the paragons of virtue in this respect that I would like our Government to follow as they attempt to strike the difficult balance of maintaining both the security of the nation and the liberty of the individual.
May I also refer to one not particularly tabloid-friendly comment on relocation? A number of Members have talked about meeting people who are subject to a control order or its equivalents and who have been subject to relocation. We must remember that those subject to control orders have not yet gone through full justice in our country. Many other countries, including the United States, have laws against cruel and unusual punishment. Relocation has the most significant negative impact on the mental health of these individuals. In evidence in Committee, Dr Korzinski said:
“What I am concerned about…is the absence of any sort of safeguards with respect to the impact on the mental health of the individuals who are subjected to these regimes. I can say quite unequivocally that it has been catastrophic in all the cases that I have worked on.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 43, Q121.]
That may not be the most popular of reasons to oppose the right hon. Lady’s new clause, but there are also many others, such as support for our justice system and achieving that balance that she advocates, but which I do not think she spoke to today. I shall support the Government on this new clause.
James Brokenshire
My hon. Friend the Member for Bedford (Richard Fuller) made some powerful and important points in his succinct contribution.
As I think the right hon. Member for Salford and Eccles (Hazel Blears) accepted in her opening comments, we are revisiting a subject that we debated in detail in the Public Bill Committee, when amendments with the same effect were tabled by Opposition Members and the same arguments were made in support of them. As was made clear following the carefully considered counter-terrorism review, despite the aspersions that the right hon. Lady seeks to cast, the Government concluded that it should not routinely be possible under the TPIM system to require an individual to relocate, without consent, to another part of the UK.
The debate in Committee frequently turned to the question of balance—specifically, the balance between protection of individual liberty and security for the wider population. This is an area where there is a very careful balance to be struck, and where views on where the right balance is may differ. The previous Government took the view that compulsory relocation was necessary as one of a wide range of potential obligations under the control order provisions. Our conclusion, as we made clear in January, is that a more focused use of the restrictions available under the Bill, together with the significantly increased funding we are providing for covert investigation, will allow us to protect the public effectively without the need for this potentially very intrusive power to be routinely available. That is where our approach departs from the Opposition’s, and why we are seeking to strike a different balance from that marked out by them.
Bob Stewart
The Minister used the word “routinely”. Does he mean that this is something that does not normally happen, but could?
James Brokenshire
To be clear, when I say “routinely” I am talking about powers routinely available under the TPIM Bill, accepting that there is a draft Bill that we tabled last week, and the exceptional circumstances when those powers may be available, which we discussed earlier today. Of course, we will be able to use the robust powers in this Bill to disrupt an individual’s involvement in terrorism-related activity by, for example, requiring them to reside and stay overnight at a particular address in their locality, so that they can be easily monitored; requiring them to abide by other restrictions on their movements overnight; banning them from areas or places where they might meet extremist associates or conduct terrorism-related activities; prohibiting their association with individuals of concern and requiring prior notice of association with other individuals; requiring them to report regularly to a police station and to co-operate with electronic tagging; restricting and monitoring their financial activities; and limiting their communications to a small number of approved devices.
That is why I say clearly that the TPIM Bill provides robust measures to address the risks posed by such individuals, allied to the additional resources being provided to the police and the Security Service, and that that is the right package of measures to have in place. Indeed, as the House is aware, the director general of the Security Service has told the Home Secretary that he is content that the TPIM Bill provides an acceptable balance between the needs of national security and civil liberties, and that the overall package mitigates risk.
Mr David Winnick (Walsall North) (Lab)
As someone who had many reservations about the previous regime and the methods that were used, I, for one, can see very little difference between what this Government are doing and what the previous Government did. At the end of the day, despite all the criticism that was made, particularly by the Liberal Democrats in the last Parliament, by and large, what happened before the election is happening again.
James Brokenshire
I ask the hon. Gentleman with all due respect please to read the Bill. He will see that there are significant and important differences that I cannot address in the two minutes remaining to me. However, we have always been clear that there may be exceptional circumstances where the measures in the Bill, together with the additional resources, may not be sufficient to manage effectively the risk we face. National security is the primary duty of any Government, and we will not put security or the public at risk. That is why we concluded, as announced by the Home Secretary in January, that there may be exceptional circumstances where it would be necessary to seek parliamentary approval for additional, more restrictive measures. The review included a commitment that emergency legislation would be drafted, and that is what we tabled last week.
In a free society, we must challenge ourselves to fight terrorism using a targeted set of powers, safeguarding our hard-won civil liberties and prosecuting terrorists wherever possible. However, we must also ensure that those powers are sufficiently robust to meet the threats we face and sufficiently flexible to protect the public in changing circumstances, including in exceptional circumstances. I believe that the Government’s approach to this difficult issue is the right one and—I come back to balance being the essence—does strike the proper balance in giving us that right mix of disruption and ensuring protection for civil liberties. I am sorry that the Opposition do not appear—
James Brokenshire
I beg to move, That the Bill be now read the Third time.
I would like to begin by thanking the right hon. and hon. Members who sat on the Public Bill Committee. I can genuinely say that it was one of the best Public Bill Committees that I have been involved in. The Bill underwent tough and detailed scrutiny. There was active participation and there were excellent contributions from both sides. I am sure Members who sat on the Committee will agree that it was lively and robust, but good natured. That is when Parliament excels and does its job properly. The Public Bill Committee certainly did that.
The Committee benefited from the considerable knowledge and expertise of several Members including my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) and the right hon. Members for Wythenshawe and Sale East (Paul Goggins) and for Salford and Eccles (Hazel Blears). I am grateful for the contributions of those Members and other Members of the Committee to this debate. I also thank the Chairmen of the Committee and the officials, Officers and staff of the House who enabled the Committee’s work to take place. We have had a full and detailed discussion of this important piece of legislation on Report, with many excellent contributions from all parts of the House.
We have made it clear from the outset that we are committed to prosecuting and deporting terrorists wherever possible and that our starting point will always be that terrorists should be behind bars. I know that that is the position of everyone in the House. We recognise, however, that there are likely, for the foreseeable future, to be a small number of individuals who we believe are involved in terrorism but whom we cannot successfully prosecute or deport. The purpose of the Bill is to put in place the measures needed to deal with them.
The Government have thought long and hard about what legislation is needed. We conducted a comprehensive and detailed review of all the key counter-terrorism powers, including control orders. As a result of that review, we concluded that control orders were not properly targeted and not entirely effective, and that they should be replaced with the system of prevention and investigation measures that is set out in the Bill.
The Bill includes all the measures that we believe are necessary to deal with those we cannot prosecute or deport, including an overnight residence requirement; a travel measure allowing the banning of overseas travel without permission; measures restricting individuals from entering particular areas or places; an electronic communications device measure that will restrict the individual’s ability to use communications devices; and a financial services measure that will allow individuals to be limited to only one bank account, for which they will have to provide statements. The transfer of money and goods overseas without prior permission could also be prohibited.
The Bill also includes an association measure, under which a list of prohibited associates would be provided to the individual in advance, with the possibility that advance notice might be required for meeting other individuals; a reporting measure that would require the individual to report to a particular police station at a particular time; and a monitoring measure that would require the individual to co-operate with arrangements, including electronic tagging, to monitor their movements, communications, and other activities.
The Bill includes additional safeguards, including an increase in the threshold for the imposition of a TPIM notice from reasonable suspicion of involvement in terrorism-related activity to reasonable belief, and a two-year overall time limit for a TPIM notice. We believe that TPIMs, together with the significant extra resources that are being given to the police and Security Service for covert investigation, strike the right balance between robust measures to protect the public and the protection of civil liberties.
I do not intend to go over the issues that we discussed in detail on Report, but I wish to say something about the draft Enhanced Terrorism Prevention and Investigation Measures Bill, which we published for pre-legislative scrutiny on 1 September. Some have claimed that publishing it means that the Government have made some sort of U-turn, and that we are trying to reintroduce more stringent powers through the back door. That is absolutely not the case.
The review of counter-terrorism and security powers that was announced on 26 January made it clear that additional restrictive measures may be required in exceptional circumstances, and that we would produce draft legislation to cover such a situation. That is exactly what we have done. We do not believe it is necessary to have those additional measures in the current Bill, and we sincerely hope that they will never be required, but we think it is right to have the draft legislation available should there be exceptional circumstances that require it, and that Parliament should have the chance to consider it in detail now.
The Government believe that the approach that the Bill sets out is the right one. It protects the public and civil liberties, it is both robust and fair and I commend it to the House.