Terrorism Prevention and Investigation Measures Bill

My Lords, as we all know, the Bill replaces the Prevention of Terrorism Act 2005. It substitutes TPIM notices for control orders. Of course, control orders are a highly contentious subject. They have led to a great deal of legislation going before the Supreme Court and before its predecessors in your Lordships' House—two of whom I see in their place this afternoon. Differences between TPIM notices in the Bill and control orders under the 2005 Act are not great. Where they exist, the Bill is in some respects an improvement. For example, under the 2005 Act it was necessary only for the Secretary of State to show reasonable grounds for suspicion that the defendant was or had been involved in terrorism. Under Clause 3 of this Bill, the Secretary of State must reasonably believe that the defendant is or has been involved in terrorism. Of course, belief is a stronger matter than suspicion. Again, under Schedule 1 to this Bill, there is a specific list of all measures that can be imposed on the defendant under the 2005 Act. It is a list of examples but it is not exclusive. However, this Bill retains the controversial provision in the 2005 Act under which defendants may be excluded from information about the case and may not be allowed to attend the hearing, and must be represented by a special advocate who cannot tell them what is happening in court. Whether this is in breach of human rights is a difficult matter, taking into account decisions of courts that have interpreted the 2005 Act. I am prepared to accept that special proceedings of the kind that happen in this country are not necessarily in breach of human rights, having regard to the decision of the Supreme Court on these issues, though in some cases the Supreme Court, as in the AF case, may come to the conclusion that human rights are not satisfied. However, there is one matter I want to concentrate on, where this Bill has not gone far enough. This matter was fought over strongly in the debate in your Lordships’ House during the 2005 Act but does not seem to have been taken up during debates on this Bill; that is, whether a control order or a TPIM notice should be imposed by the Secretary of State or by a court. Many Members of your Lordships’ House will remember a debate in March 2005, the final stage of ping-pong of the 2005 Act, which began at 11.30 am on 10 March and ended at about 7.30 pm on 11 March. Anybody who took part in that will be only too reminiscent of it. The amendment proposed by my noble friend Lord Thomas of Gresford, who I am very glad to see here now, and by myself on behalf of the Liberal Democrats, and the late and greatly regretted Lord Kingsland on behalf of the Conservatives, proposed that control orders should be made by judges, not by the Home Secretary, and that the standard of proof should be on the balance of probabilities. I point out that this was the joint view of the Conservatives and my own party and that it was opposed by the Labour Party. That amendment eventually failed when the Conservatives surrendered, for reasons that I find understandable, but I regret that the Government are not acting now on the principles that both we and the Conservatives pressed for in 2005. The amendment contained two requirements. The second of these—that the balance of probabilities should be a basis for a control order—seems to have been, to some extent, accepted by this Bill, although I am less than satisfied that that is what is actually meant by condition A in Clause 3. The first requirement—that orders restricting activities of defendants should be made by judges and not by Ministers—was refused in 2005 and is being refused again. The power for Ministers to make TPIM notices is, I believe, a fundamental breach of the rule of law. That is the case even if the courts can set aside, as they could under this Bill, a TPIM notice if they were satisfied, as in Clause 6(7), that the Minister’s notice is ““obviously flawed””, whatever that expression may mean. I will explain why there is a breach of the rule of law. If there is proof beyond reasonable doubt that the defendant has committed an act of terrorism, he will be charged, prosecuted by lawyers and convicted by the judge and jury. Ministers will play no part in this because prosecution and conviction of individuals is not within their duty. This is a central rule of English law but it is not limited to cases which are simply beyond reasonable doubt. What happens under the 2005 Act, and will happen again if this Bill is passed in its present form, is that the Minister will be responsible for the prosecution and the sentence of those who are believed to be—not proved to be—involved in terrorism. Of course, a TPIM notice is not a criminal sentence but it is quite plainly a civil penalty. The penalties here are severe and are surely a matter for a court to decide and not for a Minister. The Secretary of State may consider that a penalty should be imposed and begin proceedings for that purpose. But it must be for the court and not for the Secretary of State to decide that a penalty should be imposed. To give the courts the power to cancel the penalty only if they are satisfied that the Secretary of State’s decision to do so is obviously faulty is simply not enough. That is doubly important in a case where the defendant cannot have presented his own case before the penalty was imposed. In the Bill as it stands, we have an intrusion of Ministers on what should be the powers only of the law and the courts. For centuries, we have been proud in this country about the rule of law. One can only recommend that everybody reads the short book The Rule of Law by the late, great Tom Bingham. This is something that goes back to Magna Carta. But this Bill, like the 2005 Act, breaches the rule of law.