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Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2021

Volume 816: debated on Tuesday 30 November 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2021.

Relevant document: 19th Report from the Secondary Legislation Scrutiny Committee

My Lords, I beg to move that the order, which provides for the continuation of the Secretary of State’s TPIM powers, or terrorism prevention and investigation measures, for a period of five years, be approved.

The Government take all necessary steps to protect the public. The threat we face from individuals and groups who wish us harm is significant and enduring. It is vital that we have the tools necessary to keep this country safe. It is right that our first response to terrorism-related activity should be to prosecute or deport those involved, but it is not always possible. That is why we continue to require the powers conferred on the office of the Home Secretary within the Terrorism Prevention and Investigation Measures Act 2011. Section 21(1) of the Act states that the Secretary of State’s TPIM powers will expire at the end of five years from the date the Act was passed. Due to the continuing threat to the UK from terrorism, and following consultation with the Independent Reviewer of Terrorism Legislation, the Investigatory Powers Commissioner and the director-general of the Security Service, there can be no doubt that TPIMs remain an essential component of our toolkit to manage the threat from terrorism.

The Act provides the Secretary of State with powers to impose a TPIM notice on an individual if the conditions set out in Section 3 of the Act are assessed by the Secretary of State to have been met: namely, that she reasonably believes that the individual is, or has been, involved in terrorism-related activity, and reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, to impose the measures on the individual.

In addition to the power to impose a TPIM notice, the Secretary of State has powers to extend and vary a TPIM notice that is in force, and to revive a TPIM notice that has been revoked. Since the introduction of the Act in 2011, 24 TPIMs have been imposed. As of the last published set of figures on 21 October, five TPIMs were in force. If the TPIM powers are not extended, these five dangerous individuals will be at large without any measures in place to reduce the risk they pose to the public. TPIMs are imposed as a tool of last resort, when the Security Service judges that there are no other means, or that a TPIM notice is the only satisfactory means, to manage that risk.

I shall now outline some of the background to TPIM powers for the Committee. TPIMs are civil preventive measures designed to manage the threat posed by individuals who cannot be prosecuted for a terrorism-related offence, or deported in the case of foreign nationals. There is no question that TPIMs are extraordinary measures. That is why the 2011 Act provides for broad judicial oversight, including a requirement for High Court permission to impose the measures, except in urgent cases where the notice must be immediately referred to the court for confirmation; an automatic review hearing in each case, unless the individual requests that the hearing be discontinued; and rights of appeal for the individual against the refusal of a request to revoke or vary a measure.

The TPIM legislation also places a duty on the Secretary of State to consult on the prospects of prosecuting an individual before measures may be imposed, and a duty to keep the necessity of measures under review while they are in force. The Counter-Terrorism and Sentencing Act 2021, which amended existing measures and introduced new TPIM measures, also reintroduced a requirement on the Independent Reviewer of Terrorism Legislation to publicly report on the operation of the TPIM Act.

The TPIM Act has been extended once, in 2016, by this House. Unless a new order is made under Section 21(2)(c), the powers in the Act will expire at midnight on 13 December this year. Just as was the case five years ago, it is absolutely essential that we have all the necessary powers to protect the public from terrorism-related activity. Having consulted as required by the Act, the Home Secretary has decided, due to the significant terrorist threat facing this country, to make this statutory instrument to provide for the continuation of TPIM powers for a further five-year period, which is the maximum allowable in the legislation.

It is essential that our counterterrorism strategy enables us to tackle the full spectrum of activity. TPIMs have been endorsed by the courts and successive Independent Reviewers of Terrorism Legislation, while the police and the Security Service believe that they have been effective in reducing the national security risk posed by those subject to the measures.

Our message is clear: we remain steadfast in our determination to defeat terrorism and we will take every necessary action to counter the threat from those who hate the values that we cherish. The safety and security of the public is our number one priority, and I commend the order to the Committee.

My Lords, here we are again: the five-yearly renewal of the TPIM scheme, which has been in place since 2006. I oppose these restrictive measures, which are an extrajudicial way of interfering with the rights and liberties of people who cannot be convicted of any crime.

I am curious to know whether the Home Office has explained to the Prime Minister that it is doing this. I ask because, while MP for Henley in 2005, Boris Johnson wrote of the Act in his Telegraph article of 10 March:

“It is a cynical attempt to pander to the many who”—

forgive my language here—

“think the world would be a better place if dangerous folk with dusky skins were just slammed away, and never mind a judicial proceeding; and, given the strength of this belief among good Tory folk, it is heroic of the Tories to oppose the Bill. We do so because the removal of this ancient freedom is not only unnecessary, but it is also a victory for terror.”

I hope that the Minister will at least pass this back to the Home Office to make sure that the Prime Minister is happy with this renewal. It must be so difficult for Ministers to do anything without Boris Johnson having opposed it somewhere at some point in the past; there is always an article somewhere that one can track down. Our Prime Minister is so very often so wrong, but on this rare occasion he was so right: it is heroic to oppose these measures, and the Greens in your Lordships’ House will register their opposition every five years when this continuation order comes round. I actually hope this will be the last time.

As Independent Reviewer of Terrorism Legislation in 2016, I had no hesitation in recommending the second renewal of TPIMs in that year. I share the Government’s view that TPIMs, although they involve a particularly severe deprivation of liberty and intrusion into private life, may be an appropriate tool for dealing with a small number of individuals who are believed to endanger the public but whom it is feasible neither to prosecute nor to deport.

However, close scrutiny of TPIMs is important, all the more so since the maximum duration of a TPIM was significantly increased by the Counter-Terrorism and Sentencing Act 2021. I am here to raise with the Minister one concerning development that has arisen since my time as independent reviewer: the refusal of legal aid to TPIM suspects who cannot afford to progress the automatic review of each TPIM that is provided for in Section 9 of the TPIM Act 2011.

Jonathan Hall QC, the current independent reviewer, reported to the Government in November 2020 that, in the previous year, three subjects of so-called light-touch TPIMs, known as JD, HB and HC, requested the court to discontinue the reviews in their cases and that

“the absence of funding was a factor”.

In each case, they had been refused legal aid. The independent reviewer’s report, published in March 2021, recommended that, subject of course to means, legal funding should swiftly be made available to TPIM subjects for the purpose of participating in Section 9 review hearings. Mr Hall informed me this afternoon that, more than eight months after publication, there has still been no response from the Home Office to this recommendation. Can the Minister say when a response will be provided?

In the hope that it may influence the substance of any response, which, I might add, I do not expect today, I shall make four points. First, on 12 October 2020, the Government wrote to the UN High Commissioner for Human Rights, defending the TPIM regime on the basis that, among other things,

“all TPIM subjects have an automatic right to have a court review the imposition of their TPIM and each of the measures imposed. This hearing also provides an opportunity for the subject to hear the national security case against them.”

I assume that in the last sentence the reference is to the gist of the national security case, which is now provided to the TPIM subject. It is plain from what I have said, and from what the independent reviewer has said, that there is, in reality, no automatic right to review and that there will be no such right for as long as legal aid is refused to TPIM subjects on grounds other than means.

Secondly, it would be unacceptable if funding were to be denied because of a misapprehension that a Section 9 review is a form of challenge that requires a TPIM subject to establish reasonable prospects of success. As the independent reviewer explains in his report, Section 9 review was designed not as an add-on but as an integral part of every TPIM. Furthermore, it is not feasible to apply a merits criterion to the grant of legal aid, because the requirements of national security mean that TPIM subjects do not know, and will never be told, the full reasons for the Secretary of State’s decision to impose a TPIM.

Thirdly, if the aim is to save money or a desire to avoid giving money to lawyers for suspected terrorists, that aim is not only misguided but likely to be counterproductive. The legal aid issue affects very few cases—just three in 2019, as I indicated—but is bound eventually to lead to prolonged litigation about the fairness of proceedings.

Fourthly, and finally, I ask the Minister to reflect that judicial consideration of TPIMs, and in particular light-touch TPIMs, can help MI5, CT policing and the Home Office to work out when future TPIMs will be proportionate and how much evidence will be required to support them. The courts have generally been very supportive of TPIMs, but if light-touch TPIMs, which I welcome in principle, are to go unreviewed because funding for review is not available, it will be more difficult to calibrate the effort that is required to achieve the measures that are judged appropriate. Light-touch TPIMs may, for example, impose a lower burden on the Government in exculpatory review, disclosure and witness evidence. Without review in the courts, we will never know.

The independent reviewer recorded in his last report that steps were being taken by Home Office, which is not itself responsible for funding decisions, to understand the reasons for the Legal Aid Agency’s decision-making. I hope that these steps have been fruitful and that the Home Office will soon be in a position to respond positively to the highly pertinent points made by the independent reviewer—points that illustrate not only the quality of the current reviewer but the considerable value of independent review in this area.

My Lords, I thank the Minister for introducing this statutory instrument. As she explained, the sunset clause means that every five years the TPIM powers need to be reviewed. I say in response to the noble Baroness, Lady Jones of Moulsecoomb, that we support the measures because they are necessary. I think she said that they are extrajudicial. Yes, there is no criminal trial in the way somebody who is deprived of their liberty would normally be subject to a criminal trial, but these proceedings are not extrajudicial in that they still have to be approved by the court; there is some sort of judicial involvement.

We support the measures, but it is essential that there are safeguards. As the noble Lord, Lord Anderson of Ipswich, said, the Government are, when challenged, citing defences of TPIMs that do not appear to be completely the case. If three subjects have abandoned their review, citing lack of funding for legal aid, clearly some of the safeguards are not being upheld.

The other issue is that, if the Government are citing to the UN body the fact that TPIM subjects will hear what the national security case is against them in those court proceedings, clearly that is not true either. TPIMs are usually for cases where the security services have intelligence on an individual but do not have evidence that they can present in open court, so it is very unlikely that a TPIM subject will hear what the national security case is against them. On the face of it, it sounds as if the Government are misrepresenting the safeguards that should be part and parcel of the TPIM process.

What worried me about the noble Baroness’s comments, which were very similar to those made by the Minister in the other place this morning, was that TPIMs are cited as being for cases where people cannot be prosecuted or deported. My understanding is that these terrorism prevention and investigation measures were intended as a stopgap while evidence was collected in order to prosecute the individual, not as a permanent replacement for prosecution.

There is a continual refrain: “Well, if we can’t deport or prosecute somebody then we’ll deprive them of their liberty on an almost permanent basis through TPIMs.” That strikes me as going against the sort of rights and freedoms that the noble Baroness said we need to protect through combating terrorism. We are almost taking away people’s rights and freedoms by the use of TPIMs in that way.

We have heard about some worrying developments from the noble Lord, Lord Anderson of Ipswich, about reviews, a crucial safeguard as part of TPIM measures, and we have heard about the apparent misrepresentation by the Government of what the safeguards are and how what the Government appear now to be using TPIMs for goes beyond what they were intended for when they were initially envisaged. We are clearly concerned about the safeguards, but not to the extent that we feel that TPIMs are not necessary in exceptional cases as a temporary measure. Bearing in mind that the Investigatory Powers Commissioner, the security services and the independent reviewer have been consulted and are content with the renewal of the use of this power for another five years, and despite those reservations, we support the continuation of TPIMs.

My Lords, I, too, thank the noble Baroness for introducing this statutory instrument, which has vital implications for our national security. It keeps our citizens, their families and our communities safe. We will not oppose the instrument, which renews the Secretary of State’s powers to impose, extend, vary and, where elapsed, revive a TPIM notice. This is a technical measure and is required every five years by the 2011 Act. It would be incomprehensible to let these powers elapse on 13 December.

TPIMs are a tool in an arsenal to combat terrorism. The TPIM system needs to be agile and robust to respond to the ever-changing terrorist threat. Individuals with no criminal conviction can have these exceptional measures applied against them. It follows that there need to be strong safeguards to balance the protection of our citizens with the rights of an individual to be treated within the law and in a human rights compliant manner.

Does the Minister believe that TPIMs are effective? As she said, there are five TPIMs in force as of this October. Does she believe that the resources necessary to properly administer them are in place? What impact have the recent changes had operationally? We have seen the impact of so-called lone-wolf terrorism tragically recently. The Labour Party has called on the Government to look at this specifically and to publish a review. How does a TPIM combat this type of lone-wolf terrorist threat?

I also ask the Minister about funding for community counterextremism projects and the recommendations of the Government’s own commission of experts, in particular the ISC proposals on precursor chemicals for explosives. My honourable friend Conor McGinn in the other place referred to the Government not following the recommendations of their own experts. I will widen the question: can the Minister say something about their use of experts? How do the Government believe outside experts can be best used to develop and implement a strategy to combat terrorism?

Today’s SI deals with the renewal of TPIM powers, but can the Minister say something about the Prevent scheme? It is concerning that referrals to the scheme have dropped to just below 5,000, which I understand is a 22% drop and a record low. What is the status of the independent review of Prevent and when does she expect it to be published?

I will pick up some of the points that noble Lords have made in this short debate. The noble Baroness, Lady Jones, quoted from an article by the Prime Minister in the Telegraph. She went on to express her hope that this is the last such debate. I agree with that sentiment. We all know that the Prime Minister sometimes uses colourful language to make strong points, but she agreed—I see that she is nodding her head—as I do, with what the Prime Minister said in that article. But I am not driven to the same conclusion as the noble Baroness. We need these measures and we need them now, which is why we support a renewal of this SI.

The noble Lord, Lord Anderson, is undoubtedly the most expert among us today. He raised four questions and I would be interested to hear the response to them, because I thought that they were very pertinent.

The noble Lord, Lord Paddick, put his questions succinctly and I will reiterate a couple of his points. My understanding of TPIMs agrees with his: they were not seen as a permanent replacement but as an intermediary step before prosecution, yet we see people being kept on this type of regime for long periods. The noble Lord, Lord Paddick, essentially also made the same point as that of the noble Lord, Lord Anderson, about the safeguards not being properly funded, so that, for example, it is not possible for people to take advantage of legal aid to review the TPIMs on them. I thought that the questions from the two noble Lords were important and the Government need to answer them.

My Lords, I thank all Members of the Committee who have spoken in today’s debate. First, I will correct the noble Baroness, Lady Jones of Moulsecoomb: the TPIMs have been in place not since 2006 but since 2011, I understand, so this is their 10-year anniversary. But I will certainly pass the noble Baroness’s point to the Home Office.

The noble Lord, Lord Anderson, asked me a few questions, but his main thrust was on legal aid. He outlined the opinion of Jonathan Hall QC on this. I can confirm that he has raised those concerns and that the Government will respond to both the 2019 and the 2020 reports shortly. It is for the Legal Aid Agency to assess any application for legal aid for a TPIM review and its decisions are made independently of government, in accordance with the legislative framework, but I do not think that that was the noble Lord’s point—I will get on to that. It is right that both means and merits tests are applied to all applicants for TPIM reviews to ensure that the legal aid scheme meets its dual objective of targeting funding at those who need it most and providing value for money for the taxpayer.

To that end, the noble Lord, Lord Anderson, asked a specific question on people who do not know what the case against them is—therefore, how can they respond? The merits test is a key part of the legal aid scheme. The Legal Aid Agency applies the merits criteria on the open evidence alone and there are provisions to help applicants where it is difficult to establish prospects, so closed evidence should not disadvantage applicants from satisfying the merits test.

The Home Office keeps the prospects of prosecution under review and each case is regularly reviewed. TPIMs can be imposed for a set time period only and people are not kept on them indefinitely.

On that specific point, when the Minister says that TPIMs are regularly reviewed with a view to prosecution, how often is that? Is it once a year or once every six months? How often are they reviewed?

It is quarterly. I turn to the review of Prevent. Sorry, I did not quite finish the previous point. As to the effectiveness of resources, clearly, I cannot comment on individual cases. I can, however, assure the Committee that they have the support of the police and of the Security Service. Successive courts have ruled that TPIMs are lawful and effective tools for managing individuals engaged in terrorism. The Home Office is confident that the TPIM regime is fully resourced to manage any number of TPIMs, although they are few in number. The review of Prevent will be laid in the Houses of Parliament by 31 December.

I thought the question from the noble Lord, Lord Ponsonby, about lone wolf terrorism was very pertinent. We are seeing increasing numbers of lone actors. How can TPIMs help? If a lone actor is not on the radar, it is very difficult to pre-empt what that person will do. The intelligence that our various agencies have is there to help identify people who may be vulnerable to such acts. The TPIM is threat-agnostic, and goes across a range of threats.

How can we best use external experts? I have spoken to a number in the field not just of counterterrorism but of counterextremism. The noble Lord was pointing towards this. Our current independent reviewer of Prevent is clearly an expert in his field. We are lucky to have the experts we do, giving advice to the Home Office and the Government. I think I have answered all questions.

I am grateful to the Minister. The noble Lord, Lord Anderson of Ipswich, raised a couple of issues. He suggested that the Government had justified the TPIM regime on two bases. The first is that reviews take place. Whether this is an independent decision by the Legal Aid Agency or not, we have heard that people are abandoning their reviews because they are not being funded for legal representation. Presumably they feel it is a waste of time unless they have representation. Secondly, they say that these hearings give the subject the opportunity to hear the national security case against them. Clearly, the TPIM subject does not hear the national security case in court. Perhaps there is a hint of what might lie behind it, but they do not hear the case. The Minister did not answer those particular questions. Perhaps she could write to noble Lords.

Motion agreed.