Terrorism Prevention and Investigation Measures Bill

My Lords, I shall speak also to Amendment 49. These amendments concern the disclosure of information to a person who is the subject of a TPIM. As the Committee knows, in the AF case in 2009 the Appellate Committee of your Lordships' House considered what the principles of fairness require as to the disclosure of information in the context of control orders. I repeat my declaration of interest—I represented AF in the Appellate Committee. The Law Lords decided that a control order is invalid as a matter of law unless sufficient of the case against the individual is disclosed to him so as to enable him to give instructions to his lawyers to answer the allegations against him. If the Home Secretary is not prepared to disclose that much, the control order cannot be maintained. Disclosure to the special advocate does not suffice, said the Law Lords, because the special advocate cannot of course disclose the information to the subject of the order and obtain a response from him. In the recent Supreme Court case of Tariq v The Home Office, the noble and learned Lord, Lord Hope of Craighead, explained the principle of law at paragraph 81 of his judgment. He said that in AF, "““the fundamental rights of the individual were being severely restricted by the actions of the executive. Where issues such as that are at stake, the rule of law requires that the individual be given sufficient material to enable him to answer the case that is made against him by the state””." The TPIM, like the control order, involves severe restrictions on the personal liberty of an individual. Therefore, a TPIM is going to be unlawful unless the AF principle is satisfied. This was addressed in today’s report of the Joint Committee on Human Rights. At paragraph 1.20, it addressed the Government’s argument that the AF disclosure obligation, "““does not necessarily apply to all TPIMs because some will not be sufficiently ‘stringent’ to engage Article 6””," of the human rights convention. The Joint Committee points out: "““This is an argument that the Government has already made and lost””," in the context of control orders, "““in relation to ‘light touch control orders’””." The Joint Committee expressed the view, with which I agree, that the AF disclosure obligation applies in all TPIM cases, because they will all involve severe restrictions on personal liberty. I should add that if the TPIM is less stringent, it is likely to be because the subject of the order is not one of the most dangerous individuals and there will therefore be a weaker security argument for non-disclosure of the essence of the case against such an individual. Disclosure to the individual of the case against him is not just required by law, but is also of enormous importance as a matter of principle. Your Lordships will recall our earlier debate when one of the reasons given by the noble Lord, Lord Carlile, in his objections to the proposal of the noble and learned Lord, Lord Lloyd of Berwick, that the imposition of the TPIM should be a judicial process, was precisely that the subject is protected by the important disclosure obligations that will be imposed on the Secretary of State. The noble Lord emphasised that. Amendment 38 would require disclosure of the essence of the case against the individual at the directions hearing. Amendment 49 would make clear that the rules of court must provide for such disclosure. I have two questions for the Minister. First, does he accept that the AF principle requiring disclosure of the essence of the case against the subject applies in the context of a TPIM, as it does in the context of a control order? Secondly, does he agree that it would be preferable for the matter to be stated in the Bill, to avoid the expensive, protracted litigation which will otherwise inevitably occur? The Joint Committee's report, which I mentioned, gave its support at paragraphs 1.21 and 1.23 to my two amendments. The Joint Committee added the valuable point that the disclosure obligation should be at the earlier stage of the preliminary hearing, to ensure that the subject of the TPIM can instruct his lawyers—or indeed give information to the special advocate—before the directions hearing. The noble Baroness, Lady Hamwee, has tabled drafting amendments to my two amendments. I shall certainly want to consider them and the suggestion of the Joint Committee before Report but, for today's purposes, I welcome the opportunity to hear the Minister's response to my amendments. I beg to move. Amendment 39 (to Amendment 38) Moved by