Terrorism Prevention and Investigation Measures Bill

My Lords, one of the attractions of these debates is that we get not one but many legal opinions—different opinions from distinguished legal practitioners, at no charge and expressed with some force. The effect of many of these amendments is to significantly alter the Bill. One set within the group we are talking about gives the power to impose specified terrorism prevention and investigation measures on an individual to a court, rather than to the Secretary of State. It also appears to require that before such measures can be imposed, the individual concerned has to be or has been involved in terrorism-related activity, which, if that is the case, sounds a bit like shutting the prevention of terrorism door after the horse has bolted. Most people would prefer to see action taken against the small minority minded to commit acts of terrorism before they carry out the deed, rather than afterwards. The second set of amendments we are discussing continues to give the Secretary of State a role but appears to raise the bar that has to be cleared by the Secretary of State before he or she can impose specified terrorism prevention and investigation measures. As far as the Government are concerned, the bar has already been raised under this Bill from ““reasonably suspect”” to ““reasonably believes””. Amendment 17 raises it higher to, "““is satisfied on the balance of probabilities””," a term with which the judicial system is more familiar and with which, no doubt, its practitioners are more at ease. The outcome of all these amendments is quite likely to be that the number of people subject to the renamed control orders is less than it would have been under either of the thresholds—the Government’s proposed ““reasonably believes”” or the current legislation’s ““reasonably suspect””—for the Secretary of State to cross before imposing a TPIM. That may be one, but surely only one, of the intentions of these amendments, since their authors are clearly unhappy with both the present arrangements and the amended arrangements set out in the Bill—so unhappy, indeed, that the first set of amendments largely takes the Secretary of State out of the equation. We do not share the view of the Joint Committee on Human Rights that the courts are the best judges of what needs to be done to protect national security, and thus of when and on whom to impose specified terrorism prevention and investigation measures. However, we want the courts to have a vital and extensive role in ensuring that the Secretary of State has not exceeded the powers given by Parliament and has neither acted, nor proposes to act, in an unreasonable manner in the light of the information available. Neither do we sense that the amendments transferring responsibilities to the courts are prompted by a view that Secretaries of State have exercised their powers in relation to control orders in an irresponsible and unacceptable way, and that such powers should therefore be taken away from them. It remains our view that when and on whom to impose such measures as control orders—to address the exceptional situation in which we now find ourselves—is in essence a ministerial decision, based on the intelligence available, and should be made by a Minister responsible for national security, accountable to Parliament and the electorate, and open to challenge in the media.