My Lords, I am grateful to noble Lords for having spoken in this debate. I say that I am grateful as a general courtesy. It has not been an easy debate to speak to, and I ponder whether my response will be sufficient to ease noble Lords’ and the noble and learned Lord’s concerns. I shall just raise some points with the noble and learned Lord on his amendment, but I give advance notice that this is one issue on which we need to reflect more.
I am particularly cognisant of the support that the amendment has received from my noble friend Lord Carlile, as a former Independent Reviewer of Terrorism Legislation, as well as from my noble friend Lord Macdonald, who reviewed the legislation in 2011. He looked at its adequacy, which led in a way to the introduction of the more focused TPIM. Then, of course, there is the noble and learned Lord, Lord Hope. So there has been a range of voices. I shall put some points and answer some questions and then take it from there.
I am grateful to the noble and learned Lord for raising this matter; he has tremendous expertise in this area. Replacing the previous text at the point in the Bill does not amend the standard of evidence that the Home Secretary must apply when considering whether the person is or has been involved in terrorism. I underscore the point that all noble Lords have made—the noble Baronesses, Lady Smith and Lady Kennedy, made it—that this is a regrettable necessity. The amendment would therefore have the effect of requiring, for TPIMs that include relocation, the court and the Home Secretary to make independent judgments on whether the person is or has been involved in terrorism, but on different bases. It is therefore highly likely to lead to some confusion. It also removes the enhanced safeguard of raising the standard to that of the “balance of probabilities” for TPIMs which do not include relocation.
The Government recognise that the enhancements to the TPIM Act in the Counter-Terrorism and Security Bill were not part of the package of measures agreed by Parliament in 2011. It is therefore right that we consider whether the current legal threshold of reasonable belief continues to be the appropriate test for the imposition of a TPIM. We have concluded that the threshold should be increased for all TPIM notices to recognise the stringent preventive measures that may be imposed. Given her remit in relation to a range of aspects of terrorism, the Home Secretary remains best placed to make the decision to impose a TPIM notice to protect the public from terrorism. It is therefore right and proper that it should continue to be for the Home Secretary to decide whether a TPIM notice should be imposed, as it has been since 2011 and as it was under the previous system of control orders established in 2005.
I well remember the noble and learned Lord’s speech at Second Reading. He apologised, but I think that we were all immensely helped when he talked about his experience of how control orders were often struck down by the courts when they were actually brought forward. The TPIMs were therefore an attempt to limit the incidents in which they could be introduced on that basis, by introducing time limits and raising the threshold test, as well as allowing them to have access under supervision to the internet and telephony.
The court will continue to be required to review the Home Secretary’s decision as to whether the conditions for imposition of a TPIM are met—and the court must now, as part of its review, satisfy itself that the Home Secretary could make that decision at the higher legal threshold. This comes to the point raised by the noble Baroness, Lady Smith, who asked whether it is a higher legal test to have a “balance of probabilities”.
Although I tread deferentially in the company of distinguished lawyers, certainly my understanding is that you have reasonable suspicion, then reasonable belief and then, above that, a higher threshold of the balance of probabilities, which is where we are heading now. The courts will continue to apply an intense level of scrutiny to the decision-making process on the issue.
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I turn to some of the specific points that were raised. A relocation measure will be included in an individual’s TPIM notice only if it is necessary to prevent or restrict the individual’s involvement in terrorism-related activity. This is in line with the long-standing use of this type of power under both the Prevention of Terrorism Act 2005 and currently under the TPIM Act 2011.
This clause also implements the Independent Reviewer of Terrorism Legislation’s recommendation that the definition of terrorism-related activity in the TPIM Act should be narrowed. As David Anderson stated, at present a TPIM notice could be imposed on someone who is three stages removed from actually committing a terrorist act: the giving of support to someone who gives encouragement to someone who prepares an act of terrorism. Therefore, we have tried to narrow this down in the TPIM.
Clause 16 amends the definition of,
“involvement in terrorism-related activity”,
so that it does not include conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct which facilitates or gives encouragement to the commission, preparation or instigation of acts of terrorism, or which is intended so to do.
On the courts’ involvement, there is general cross-party consensus that the Home Secretary is best placed to make the decision to impose a TPIM order to protect the public from terrorism, given her remit in relation to a number of terrorism-related activities. Following the increase in the legal threshold to a balance of probabilities, the court must, as part of its review, now satisfy itself that the Home Secretary could make that decision at the highest legal threshold—which is, in a sense, judicial oversight of the review of the Home Secretary’s decision.
As regards relocation, a TPIM’s subject’s family may move with them if they wish to do so. On a purely humanitarian level, support would be available to the individual and their family to assist in their move and with the costs of obtaining any additional property that they may have to acquire.
It is correct that enhanced TPIMs would be imposed to a higher standard of the balance of probabilities. This is exactly the same as the change being made in this Bill. The function of the court in the ETPIMs proposal is essentially the same as in this Bill. Therefore, I reassure the noble and learned Lord that there is no difference between the model in the draft ETPIMs Bill, to which he referred, and the measures which we are debating today.
I realise that I have skipped through a number of points. I have given an undertaking to reflect on the contributions made by noble Lords in this debate and perhaps to meet the noble and learned Lord before
Report, should he be willing to do so. In view of that, I ask him to consider withdrawing his amendment at this stage.