Terrorism Prevention and Investigation Measures Bill

The factual answer to the noble Lord’s question is no. Of course I have not asked the Lord Chief Justice about this matter, but under the Bill, it is, in any event, the responsibility of the judge at the reviewing stage to decide whether the TPIM should be maintained. The Government accept in the Explanatory Notes that that should be akin to an appeal procedure, not just a judicial review test. The judges will have that responsibility at the end of the process. It seems to me that they should have that responsibility from the outset of this process. I would say to the noble Lord and to the judges, with genuine respect, that it really is not for judges to determine what responsibility they should have in relation to this fine balance between the public interest and civil liberties. It is surely for Parliament to decide how the balance should be struck and for us to decide whether it is best struck by the courts having the role that I suggest. There is a third respect in which the Bill offends against the rule of law. It allows for sanctions to be imposed without any proof of wrongdoing, even proof to the civil standard of the balance of probabilities. A TPIM notice may be issued by the Secretary of State where she, "““reasonably believes that the individual is, or has been, involved in terrorism-related activity””." When he winds up, will the Minister please explain why these sanctions should be imposed on a person if the Secretary of State is unable even to show that it is more likely than not that the wrongdoing has been committed or will be committed by the individual concerned? If the security services, with all their resources, and even with the use of evidence that could not be disclosed in a criminal court, cannot satisfy the judge on the balance of probabilities that the individual is involved in terrorist-related activities, there is surely no justification for taking these legal measures against that person. Of course, surveillance measures may well be appropriate against such persons, but that is not what we are discussing in this Bill. There is a fourth respect in which the Bill departs from the rule of law: it allows for sanctions to be imposed although the individual has no right to see the material on which the allegation is based. In the AF case in 2009, which has already been mentioned, the Appellate Committee considered how the principle of fairness under the rule of law should apply in the context of control orders. I declare an interest: I represented AF in the Appellate Committee. The Law Lords decided that a control order is invalid unless sufficient of the case against the individual is disclosed to him personally to enable him, if he can, to give instructions to his lawyers to answer the allegations against him, and if the Home Secretary is not prepared to disclose that much, the control order cannot be maintained. The TPIM, like the control order, involves severe restrictions on the personal liberty of the individual. Therefore, it seems to me that a TPIM will inevitably be unlawful unless the AF principle—you must disclose as much as enables the person to have a proper opportunity to answer the allegations—is satisfied. Does the Minister accept that? If so, does he agree that the Bill should be clarified by stating that point clearly? I make one final point. Like the noble Lords, Lord Hunt of Kings Heath and Lord Dubs, I think that it is appropriate, given all the matters that I have mentioned, the sensitivity of the issue and the extent to which matters will develop from year to year, that this House and the other place have the opportunity to consider these important matters every year, not only at the expiry of another five years.