UK Parliament / Open data

Terrorism Prevention and Investigation Measures Bill

My Lords, I am sorry if I misunderstood my noble friend; I am a simple soul in these matters. However, my understanding was that he had suggested that this measure was outside the rule of law. What I was trying to get over is that I do not accept that point. The Bill is going through a proper process and after it has been enacted, by the will of Parliament, it will be subject to review by the courts. That is the important point to remember. The group of amendments before us deal with four major points which I will deal with in order. The first one concerns the very simple point of whether the courts should make these orders rather than the Home Secretary. Secondly, we heard the arguments about where the standard of proof should be. A subsidiary part of that was in the amendments of the noble Lord, Lord Pannick, who said that even if we did not accept the first part—that is, shifting the argument to the courts—the standard of proof for the Home Secretary’s decision should be changed. Thirdly, we heard the arguments of the noble Lord, Lord Pannick, set out in Amendments 42 and 43, dealing with the full merits review. Fourthly, there were arguments about the time limit and how long the TPIM orders should last—whether one year, two years or beyond. I should like to deal at some length with all four points and I hope that I can get them in the right order. Perhaps my notes can assist me in that. It is important that I set out my points. I should deal first with the proposal for court-paid TPIM notices. I do not agree, as I made clear at Second Reading, that judge-imposed TPIMs represent the right approach for the new regime. I am grateful that on this at least, I have the support of the Opposition Front Bench. They might not like other parts of the Bill but I got the distinct impression that the noble Lord, Lord Rosser, agreed with me on that issue. Our view is that it is appropriate that TPIM notices should be imposed by the Home Secretary. As the noble Lord, Lord Rosser, put it, she is responsible for national security and is best placed to determine what is necessary in the interests of national security, with the benefit of the broader knowledge of the threat picture that sits with her role as Home Secretary. I emphasise that this is consistent with the approach taken to other executive actions in national security cases, and decisions based on sensitive material. This includes—an example given by my noble friend Lord Carlile—decisions to exclude, deport or deprive people of citizenship on the basis of national security considerations. It is also consistent with the approach taken on decisions to freeze terrorists’ assets—the new legislation which this House approved only last year. It is also consistent with the current provisions under which all control orders have been made. Noble Lords will appreciate that this is the view not just of the Executive; it is also consistent with views expressed by the courts on the roles properly played by the Home Secretary and the courts in national security matters. The Court of Appeal explicitly recognised in its 2006 judgment, in the case of the Secretary of State for the Home Department and MB, that, "““the Secretary of State is better placed than the court to decide the measures that are necessary to protect the public against the activities of a terrorist suspect””." In the same judgment, the Court of Appeal also noted that the principle that the courts should pay deference to the Executive on matters relating to state security has long been recognised by the courts in this country, including the Law Lords, and the European Court of Human Rights. This supports the argument that the proper division of responsibilities in the field of national security is for the Home Secretary to make the decisions but for the judiciary to review those decisions, and to review them rigorously, as it always does. The TPIM Bill provides for extensive, multi-layered court oversight and review of the Home Secretary’s decisions. This includes a requirement for court permission before imposing a TPIM notice, an automatic full review of every case in which a TPIM notice is imposed, and the right of appeal against the Secretary of State’s decisions in relation to, for example, requests to vary the measures imposed or revoke the notice. We think that this apportionment of roles best serves the interests of national security while ensuring that the civil liberties of those who are made subject to TPIM notices are properly protected. I turn now to the question of the standard of proof. Again, the noble Lord has suggested that his judge-made TPIM notices should be made on the balance of probabilities. The noble Lord, Lord Pannick, offered his alternative in Amendments 42 and 43 by suggesting that the same should be imposed on the Secretary of State, were she to be the one making that decision. Although the approaches are different, the question that we need to raise is the appropriate test for imposing a TPIM notice. The issue of a proper test for the preventive powers now included in the Bill was carefully considered as part of the counterterrorism review conducted by the Home Secretary and the Home Office. The conclusion reached was that it was right to raise the threshold for imposing a TPIM notice to ““reasonable belief”” from the test of ““reasonable suspicion”” required to make a non-derogating control order—which is the only kind that has ever been made. I am grateful to my noble friend Lord Carlile for reminding the House that no derogating orders have been made. The decision was made as part of that review that the standard should be raised to reasonable belief from the test of reasonable suspicion. We believe that raising the threshold to reasonable belief provides an additional safeguard in the new regime compared to the current control order regime. As we made clear when we announced the outcome of the review in January, it is also consistent with the approach that we have taken to the provisions relating to terrorist asset freezing in the Terrorist Asset-Freezing etc. Act 2010. The TPIM regime is a preventive regime intended to protect the public from the risk of terrorism. In reaching the decision to move to reasonable belief, we therefore considered whether changing the threshold in that way could put the public at risk. Our conclusion was that it would be unlikely that any of the cases where we would want to impose a TPIM notice would fail to meet the higher test of reasonable belief. We are therefore satisfied that the change to reasonable belief is unlikely to be prejudicial to national security. At the same time, that represents an increase in the protection for the civil liberties of the individuals concerned. Those favouring the amendment take the view that the threshold should be further raised to ““the balance of probabilities””. In that review, we considered that option. However, we concluded that a move to the balance of probabilities for the main TPIM regime would not give us the right balance to ensure that the public will be protected. Again, I stress that it is a question of getting the balance between ensuring the protection of the public and protecting the liberties of individuals.
Type
Proceeding contribution
Reference
731 c310-2 
Session
2010-12
Chamber / Committee
House of Lords chamber
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