18A: Page 35, line 3, leave out “one or more” and insert “up to four”
18B: Page 35, line 5, leave out paragraph (b) and insert—
“(b) in the heading, for “Two” substitute “Five”.”
18C: Page 35, line 7, leave out from “measures),” to the end of line 8 and insert “in subsection (9)(a), for “without being extended under section 5(2)” substitute “as mentioned in section 13(6)(a)”.”
18D: Page 35, line 10, leave out from “(6)(a)” to the end of line 15 and insert “—
(i) the words “without being extended under section 5(2)” become sub-paragraph (i);
(ii) at the end of that sub-paragraph insert “, or
(ii) having been extended under section 5(2) on fewer than four occasions,”;
(b) in subsection (7)(b), at the end insert “(and regardless of how many times it has been so extended)”;
(c) in subsection (9)—
(i) omit the “and” at the end of paragraph (a);
(ii) after paragraph (b) insert “; and
“(c) is treated as having been extended under section 5(2) on the same number of occasions (if any) as on which the revived notice had been so extended.””
18E: Page 35, line 16, leave out “omit subsection (3)” and insert “for subsection (3) substitute—
“(3) The replacement TPIM notice is to be treated as having been extended under section 5(2) on the same number of occasions (if any) as on which the overturned notice had been so extended (including any extension that was quashed).””
My Lords, I beg to move Motion A. Commons Amendments 18A to 18E, tabled by Her Majesty’s Government in lieu of your Lordships’ Amendment 18, would set a new upper limit of five years on the duration of a TPIM, in contrast to the four years proposed by the noble Lord, Lord Anderson of Ipswich.
As I said on Report, the Government are pleased that your Lordships’ House has acknowledged the inadequacies of the current two-year time limit. On more than one occasion, it has resulted in a cliff edge, leaving dangerous individuals in the community without suitable risk management measures in place while a new TPIM was prepared.
We do not share the concerns that were raised in respect of the Bill’s original proposal to enable TPIMs to be renewed for as long as is necessary for public protection, which included lessening the incentive to prosecute subjects or the risk of individuals being warehoused. None the less, we recognise the clear strength of feeling expressed by your Lordships’ House that TPIMs should have a finite limit.
The Government believe that a five-year limit would be more effective than a four-year limit in supporting our operational partners’ efforts to manage the enduring risk that some subjects pose. This reflects our experience of operating the TPIM regime, as well as historical experience from control orders. As I have set out previously, during the lifespan of the control order regime, there were three individuals who were sufficiently dangerous to be subject to an order for between four and five years.
As well as further reducing the prospect of a cliff edge when the measure comes to an end, a five-year limit will also ensure that the other benefits of a TPIM can be maximised, including providing more time to rehabilitate the individual and, if necessary, identify alternative risk-management and disruption options. In cases of charismatic radicalisers, it will also provide additional time to degrade their networks and reduce the wider threat from others who may have been influenced by the subject, were it not for the TPIM measures.
I emphasise that it will not become routine practice for TPIMs to last five years. The Home Secretary will not hesitate to revoke a TPIM notice, to remove measures specified within the notice or to choose not to renew the notice when it is no longer necessary or proportionate. As we have discussed in detail, TPIMs will continue to be subject to regular scrutiny, including through quarterly and annual review meetings, and the judicial oversight that your Lordships have heard about will continue to be in place, providing for another layer of independent scrutiny.
Motion A1 (as an amendment to Motion A)
From these Benches, at previous stages of the Bill, we have explained to the House our opposition to the extension of TPIMs through the package of changes to the 2011 Act contained in Part 3 of the Bill. We acknowledge that the Bill is not quite as it arrived originally with us, in that “reasonable grounds for suspicion” has become “reasonable grounds for belief”—that is still a long way from the current balance of probabilities—and the Independent Reviewer of Terrorism Legislation will have a duty to carry out annual reviews for five years. As the Minister confirmed at the last stage, that is what could be done in any event, without that amendment.
We indicated our views by a number of Divisions, as well as in debate, but it was only the amendment from the noble Lord, Lord Anderson, with the authoritative support of the noble and learned Lord, Lord Thomas of Cwmgiedd, that was agreed by your Lordships, reining back indefinite TPIMs to four years. That is the issue with us today.
As I said, Part 3 as it relates to TPIMs is a package. Its main components are the length of the TPIM, residence measures—in other words, detention—where that detention or residence is to be, and the curfew. Without limits on the period referred to at a previous stage by the Government as “enduring detention”, that would have amounted to indefinite house arrest, without trial let alone conviction, and on the basis of the Home Secretary having reasonable grounds for belief that there is or has been terrorism-related activity.
We saw, and still see, no need to extend TPIMs, a view taken by the current independent reviewer, and we have heard from the police that they had been unable to apply TPIMs as they needed. Of course, five years must be better in our view than detention without statutory limit. The Minister called it “more effective”. Obviously, it is a longer period, by definition, and so closer to the Government’s original indefinite proposal. I am a little taken aback by the suggestion that it is better because it allows more time for rehabilitation—this may not be the moment to go into what rehabilitation is made available and was proposed to be made available on an indefinite basis, or whatever basis. In any event, it is five years compared with four years or the original two years, which we debated, and compared with the period that noble Lords asked the Commons to consider.
The Minister said that it would not be routine and, happily, it cannot be routine, because there are some other safeguarding provisions in the original legislation. The Minister—I refer to the Minister in the Commons—said that this
“represents a reasonable compromise between a desire to set a reasonable limit on the maximum duration of TPIMs and protecting our fellow citizens”.—[Official Report, Commons, 22/3/21; col. 714.]
There are a lot of points to debate within that sentence, but I shall not try your Lordships’ patience by rehearsing them or the arguments that I and other noble Lords, particularly my noble friends, have made during the course of this Bill. Five years sounds less like a compromise than acknowledging that to stick to no limit would cause the Government trouble at a point in the parliamentary Session when they really do not have time for it, coupled with a concern not to lose face, which I suppose is simply human, but there does not seem to have been a lot of intellectual rigour applied to the proposal that we now have.
The views of our Benches are clear: we have not changed our views, but we recognise the parliamentary realities. We do not support what the Government are doing, but we will not seek to divide the House today.
My Lords, behind today’s limited and so far rather civilised debate lies perhaps the most divisive and hard-fought civil liberties dispute of this century. In the frenzied weeks after 9/11, we saw the British answer to Guantanamo—a scheme of indefinite detention in Belmarsh prison at the behest of the Executive for foreign nationals who could be neither deported nor put on trial. When that scheme was declared by our highest court to discriminate unlawfully on grounds of nationality, the control order regime of 2005, applicable to British citizens also, was put in its place.
Control orders were replaced by the more liberal TPIMs regime in 2011, after intense debate within the coalition Government. Then the pendulum began to swing back: relocation of subjects was restored in 2015, and this Bill, as it was first presented to your Lordships, would have allowed these uniquely draconian measures, now including the possibility of daytime curfews, to be imposed indefinitely and on the basis of nothing more than a reasonable suspicion of involvement in activity only indirectly related to terrorism.
It is not fashionable to claim that the institutions of our liberal democracy are in good health but, on this occasion, I suggest that they have succeeded in their function of resolving strongly felt differences in public opinion decisively, firmly and in a rights-compliant manner. Let there be no mistake: the measures about to be passed into law are severe and indeed draconian, as public opinion no doubt demands. But it is at least something that a 20-year struggle to reconcile the requirements of security and civil liberties, a struggle in which Belmarsh, control orders and TPIMs have been on the very front line, has been reduced to a dry-sounding choice between Motion A and Motion A1 on the Marshalled List.
In supporting the Government on the compromise that is Motion A, I first acknowledge the consistency and moral force of the Liberal Democrat position. The addition of the fifth year to the maximum duration of a TPIM may have been the straw that broke their back, and, as I indicated to the Minister, it came close to breaking mine. However, I hope that the noble Baroness, Lady Hamwee, is consoled by the fact that during the passage of this Bill her party has helped to restore two of its earlier vital achievements in government: the time-limiting of TPIMs and the requirement of at least a reasonable belief that a TPIM subject should have been involved in terrorism-related activity.
I further thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for co-signing the relevant amendments, and the Labour Front Bench for their support and votes—not perhaps a foregone conclusion, given that it was Labour which devised the original control orders back in 2005. I thank the Government for the equal flexibility which they displayed when confronted with the mood of this House, for the important assurances given just now by the Minister, in particular for the assurance that five years will not become the new normal, and for the accessibility and courtesy of all Ministers towards me. On one call with the noble Lords, Lord Parkinson and Lord Wolfson, and the noble and learned Lord, Lord Stewart, I was impressed to see that no less a figure than the noble Earl, Lord Howe, had also been fielded, presumably as a kind of sweeper in the event that any of his freshly capped young ministerial colleagues might be tempted to give away the ball. What drills are performed on the ministerial training ground I cannot know, but I mean it as a compliment to all concerned when I say that no intervention by the noble Earl came close to being needed.
I finish with a reference to the latest report of the Independent Reviewer of Terrorism Legislation, published on Tuesday and not, I think, previously brought to the attention of your Lordships’ House. Of Jonathan Hall QC’s 13 recommendations across the whole field of counter-terrorism law, numbers 9, 10 and 11 relate specifically to TPIMs. He recommended that the possibility of prosecuting TPIM subjects, not for breach of their TPIMs but for terrorism-related activity, be kept under closer review than is currently the case. He recommended that the cumulative period for which TPIM restrictions had already applied be expressly recognised as a factor going to their proportionality. He also recommended that legal funding be swiftly made available to all TPIM subjects for the purpose of participating in Section 9 review hearings, as appears, most unfortunately, not to be the case currently. That is the bare minimum, as he rightly recognised, for ensuring the access to court that can alone render these highly intrusive measures consistent with the rule of law.
Each of the independent reviewer’s concerns, as expressed in those three recommendations, can only be deepened by the extension to the maximum length of TPIMs that will be effected by this Bill. The Minister will, I am sure, tell us that the recommendations of the independent reviewer will receive careful consideration. But the Home Office has already had them for more than four months, and I notified the Minister this morning of my intention to mention them. I invite the Minister to go further this afternoon, by assuring the House that the Government accept these recommendations and will implement them.
My Lords, in view of the eloquent and comprehensive speech of the noble Lord, Lord Anderson of Ipswich, I can confine my remarks to three points. First, it seems to me that the position taken by the noble Baroness, Lady Hamwee, must be right as a matter of principle. Both the areas which the House has examined in detail—namely the burden of proof required and the length of time—are essential for ensuring that this is a regime that does not disproportionately affect the fundamental right of liberty.
Secondly, the considerable importance of the current amendment is that we have moved away from the prospect of orders of an indefinite renewal period. Not only would those have been discouraging and demoralising to the individual and made it more difficult to ensure that he could, on removal of the TPIM, return as an ordinary member of society, but, as importantly, they would have been perceived as unfair by the community. The perception of fairness by the community safeguards us to a much more considerable extent than any other matters.
Thirdly, I profoundly welcome the pragmatic approach of the Minister, supported as he has been in this by the noble Lord, Lord Wolfson of Tredegar, and the noble and learned Lord, Lord Stewart. It is wonderful that a proper compromise has been reached here and I thank them for their considerable part in bringing this about. It may not be perfect, but it gets rid of those areas that would have been most damaging to our civil liberties.
My Lords, at Second Reading, I made the point that it is very important that we restate the arguments for these draconian measures. I took the opportunity of talking to my son and others of his generation of young people in their early 20s about these measures which we take in our country. We had an interesting discussion about the proportionality of this and the right of a state to protect itself from potential terrorism. It is right that these arguments are revisited, as they are every year. It is a tribute to this House that many of the Peers who have taken part in these debates have a long-standing involvement in these issues—unlike me. It is, nevertheless, important that these arguments are remade, as they have been.
I too thank the Minister, the noble Lord, Lord Wolfson and the noble and learned Lord, Lord Stewart, for their engagement; it was an interesting process. They also made it possible for me and other noble Lords to meet some of the experts in the Home Office who are dealing with these issues on a day-to-day basis. It was certainly instructive to meet the psychiatrists and psychologists who are involved in the various programmes that take place in prison and look at how TPIMs are managed outside prisons.
I also acknowledge that the Minister has made a concession in time-limiting TPIMs to five years. The noble Baroness, Lady Hamwee, put the point well—as she always does—about the principle of having a time limit rather than the issue running on indefinitely. My noble and learned friend Lord Falconer of Thoroton, who was responsible for the introduction of the original control orders in 2005, has changed his view on this, in light of the change in circumstances and the growing learning of how to handle people who are potentially very dangerous. Although the noble Lord, Lord Anderson, proposed four years, we of course accept the Minister’s counterproposal of a five-year limit.
I conclude by paying tribute to the noble Lord, Lord Anderson. He has led us on this, in some ways, supported by the noble and learned Lord, Lord Thomas, who also has tremendous experience in this area. If I were to direct my son to read a speech, it would be the final one from the noble Lord, Lord Anderson, which is a very good summary of the situation we have arrived at and the considerations we have made in reaching this compromise.
My Lords, I am grateful to all noble Lords for their thoughtful contributions to the debate today and, indeed, throughout the Bill’s passage through your Lordships’ House. As the noble Lord, Lord Anderson of Ipswich, said, we have had some very civilised debates about some very important issues of civil liberties, and we are grateful for the tone in which they have been conducted, as well as for the points that they have covered. Noble Lords asked a few questions which I shall cover briefly.
The noble Baroness, Lady Hamwee, while this may not be the time to open the debate about rehabilitation, asked about rehabilitative measures. We have seen, under the current two-year time limit, the problem of TPIM subjects riding out their maximum two years without changing their extremist mindset and with an unwillingness to engage with rehabilitative measures. This is an issue that has been reported on by a former independent reviewer. This change will, we think, create a genuine incentive for the subject to demonstrate that they have rehabilitated themselves and that extending the TPIM notice is not necessary.
The noble Lord, Lord Anderson of Ipswich, raised the latest annual report by the current independent reviewer, Jonathan Hall, and some of the points he has recommended. He is right that the response will be considered and published in full in the usual way, but let me address the points he raised. On reviewing the case for prosecution, we welcome Mr Hall’s recommendation that the case for prosecution should be kept under review. The Government have been clear throughout the passage of the Bill that prosecution is our preferred option and the best way to manage risk. As has been noted through our debates on the Bill, TPIMs are resource-intensive tools and often an option of last resort. Before a TPIM is imposed, Section 10 of the TPIM Act first requires that confirmation be provided by a senior police officer that there is insufficient evidence for a prosecution and, under Section 11, the Government “must keep under review” the necessity and proportionality of all TPIM notices. A key consideration at all TPIM review group meetings is whether there is sufficient evidence to support a prosecution for terrorism-related activity or the breach of a TPIM measure.
On the passage of time between TPIM review groups, about which the noble Lord will know from his time as independent reviewer, we also welcome Mr Hall’s recommendation that, when considering the proportionality of a TPIM and its measures, the TPIM review group should expressly identify the passage of time since the previous TPIM review group meeting as a factor weighing against continuation. We are confident that the review group already routinely considers this matter, but we are considering whether it can be more formally adopted into this process.
Finally, on legal aid, such decisions are a matter for the Legal Aid Agency. They are made independently of the Government, in accordance with the legislative framework. I hope that gives some answers to the points that the noble Lord raised between now and the publication of the government response in full.
Returning to the Motions before us, although at times opposing opinions have been expressed about the provisions of the Bill, not least the changes being made to TPIMs, my noble and learned friend Lord Stewart of Dirleton, my noble friend Lord Wolfson of Tredegar and I have been very grateful for the co-operative spirit in which these debates have taken place. We particularly thank noble Lords with whom we have discussed the Bill directly to share their thoughts on key issues regarding some of its provisions, particularly the noble Lord, Lord Anderson of Ipswich, the noble and learned Lord, Lord Thomas of Cwmgiedd, and his colleagues on the Cross Benches and the Labour and Liberal Democrat Front-Bench speakers for the constructive approach they have taken. We are grateful to the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Ponsonby of Shulbrede, for Labour, and the noble Baroness, Lady Hamwee, and the noble Lords, Lord Paddick, Lord Marks of Henley-on-Thames and Lord Thomas of Gresford, for the Liberal Democrats. As the noble Lord, Lord Anderson of Ipswich, rightly pointed out, this has all been done under the watchful eye of our noble friend Lord Howe, to whom we are extremely grateful for his support, as well as to the Bill teams in both the Home Office and the Ministry of Justice.
I am very pleased that consensus has been reached today on this specific amendment and that the noble Baroness, Lady Hamwee, has indicated that she does not intend to press her Motion A1. The position that we have reached forms an important part of a suite of changes that will enhance an important risk management tool and ensure that our operational partners are supported in their vital mission to keep the public safe from terrorism. So, with thanks to all noble Lords, I invite the noble Baroness, as she indicated she would, to withdraw her Motion A1.
My Lords, on the Minister’s last point, I am not sure it can be called consensus, but we recognise the realities. He compared the opportunity for rehabilitation under a potentially five-year regime with one of two years. I was comparing it with one of four, but that whole issue is one for another day, and I have no doubt we will come back to this before too long. I am grateful to the noble Lord, Lord Ponsonby. We have recognised that the thinking among our Labour colleagues has developed somewhat. I am sorry that we have not been able to meet face-to-face to discuss all this.
The House benefits enormously from the experience and wisdom of the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Thomas. I so much agree with the noble and learned Lord, Lord Thomas, about the importance of the attitude of the community that is affected—not in the same way, but nevertheless substantially affected—when a member of the community is made subject to a TPIM. The noble Lord, Lord Anderson, as ever, put the situation far better than I can, even though we arrive at different, very slightly different, conclusions. I thank the Minister, all his colleagues and the officials in the Home Office. This is not over as a matter that we will be keeping our eyes on, because the country has to. I beg leave to withdraw Motion A1.
Motion A1 withdrawn.
Motion A agreed.