My Lords, TPIMs, or terrorism prevention and investigation measures, are the successors to, and relatives of, control orders. They may be imposed at the discretion of the Secretary of State, unless a court, on a preliminary look, considers them “obviously flawed”, if specified criteria are satisfied. They are summarised like this in the March 2020 annual report of the Independent Reviewer of Terrorism Legislation:
“There are up to 14 measures that can be imposed including overnight residence requirements; relocation to another part of the United Kingdom; police reporting; an electronic monitoring tag; exclusion from specific places; limits on association; limits on the use of financial services and use of telephones and computers; and a ban on holding travel documents. Breach of any measure is a criminal offence.”
It is common for all or substantially all of those measures to be imposed, severely limiting the basic freedoms of the subjects and impinging heavily on their families. Relocation—removed by the coalition in 2012—was reinstated in 2015. Additional measures are, of course, contained in the Bill.
The issue raised by Clause 37 and by these amendments, including Amendment 27 in my name and that of my noble and learned friend Lord Thomas of Cwmgiedd, is: how strongly must the Secretary of State suspect a person of involvement in terrorism before choosing to impose a TPIM on them? Since TPIMs succeeded control orders in 2012, the Secretary of State has been
required to have a reasonable belief that the intended subject is or has been involved in terrorism-related activity—a belief, in other words, that the person has been involved in some capacity in the wide range of activity spelled out in Section 4 of the TPIM Act 2011. That range is not limited to the commission, preparation or instigation of acts of terrorism; it extends also to those who encourage, support and assist such behaviour. Nor need any specific act of terrorism be in prospect.
The “reasonable belief” formulation was amended in 2015 to one of satisfaction on the balance of probabilities, but the meaning is to all intents and purposes the same. The bottom line is that, before imposing this most extreme of all executive measures, the Home Secretary needs to have formed the view only that someone is, or was, probably involved in terrorism. That is already an easy standard to satisfy in the case of anyone who is likely to be a candidate for a TPIM—resource-intensive measures, as they are, that are not lightly applied for.
It is not a court that has to apply the balance of probabilities, on the basis only of admissible evidence. The judgment is entrusted to the Secretary of State, and she makes it, crucially, on the basis not just of admissible evidence but of the intelligence assessments with which she is provided by the Security Service and others. Such intelligence far exceeds what could be placed before a civil or criminal court. It is likely to include intercept material, or material supplied by foreign liaison partners who are unwilling to see it deployed in a public setting, or reports from a covert human intelligence source, whose existence could never be publicly disclosed. The Secretary of State sees all that in the form of documents, which, when I reviewed these things, I repeatedly described as thorough and conscientious. Everything is available to her, and she is required to conclude only that it probably demonstrates some involvement, past or present, in terrorism-related activity.
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Policy-making is often a question of taking a stab at an uncertain future, but not in this case. The Government have experience of six years with control orders and nine years with TPIMs. They have had to consider whether to impose them on, among others, the hundreds of British citizens who have returned to this country from war zones in Syria and Iraq. I suggest that it is of great significance that the Minister Chris Philp candidly accepted on Report in the other place, consistent with the evidence of Assistant Chief Constable Tim Jacques before the Commons committee, that
“there has not been an occasion on which the security services wanted to give a TPIM but could not do so because of the burden of proof.”—[Official Report, Commons, 21/7/20; col. 2093.]
That precisely conforms with my own observations as Independent Reviewer of Terrorism Legislation: that the existing standard is satisfied in every case where a TPIM might possibly be thought useful. It is not simply that the case for reducing the standard has not been made out—that case is refuted by the police evidence and by the words of the Commons Minister himself. The change that is none the less proposed is to substitute “reasonable suspicion” for “reasonable belief”. The difference between those tests was explained by
the late and much-lamented Lord Justice Laws in the Court of Appeal, which I take the liberty of quoting in full:
“Belief and suspicion are not the same, though both are less than knowledge. Belief is a state of mind by which a person thinks that X is the case. Suspicion is a state of mind by which the person in question thinks that X may be the case.”
Under the proposal in this Bill, the Home Secretary will no longer need to have formed the view that somebody probably did encourage, support or assist a terrorist. It will be enough that she thinks they may have done one of those things. Reasonable suspicion is most familiar as the arrest standard: the state of mind which must be present before someone can be detained by the police, often in the heat of the moment. Arrest may be followed by detention prior to charge for a few days only. Even in terrorist cases, the maximum, which is rarely used, is 14 days if a court continues to so permit.
This Parliament famously and rightly rejected an extension of that period to 90 days, and then to 42 days, during a period following the London attacks of 2005 when our intelligence agencies were trying to adapt to a new reality and the terrorist threat level was higher than it is now. Yet it is now proposed that the same threshold of reasonable suspicion should be the benchmark for an indefinite period of relocation to a strange town, accompanied by comprehensive surveillance and the most severe restrictions on freedoms to associate, to communicate, to work and to study; and with judicial supervision which, because of the highly classified nature of the intelligence that tends to be relied on, can operate only long after the event and with all the well-known constraints that attend closed material proceedings.
The Minister will point out, fairly enough, that other criteria must also be satisfied before TPIMs can be imposed. It is perfectly true that, under the terms of the Terrorism Prevention and Investigation Measures Act 2011, the Secretary of State must reasonably consider a TPIM notice to be necessary to protect the public. But it would be a brave court which—applying the judicial review test as it is directed to do—would second-guess such an evaluation by an elected Minister with full access to the intelligence. The only truly fact-dependent element of the test is the Minister’s assessment of involvement in terrorism-related activity. That is why Clause 37 is so significant: it makes legal challenge harder by lowering the bar that the Minister must surmount on the element of the test that is best suited to adjudication.
In view of what I have just said, some of your Lordships may be surprised by the modesty of Amendment 27. Unlike its companions in this group, it leaves in place the lower, reasonable suspicion standard for the first year of any TPIM. It does so in an attempt to meet a point previously made by the Government: that there may be urgent cases in which the higher standard cannot be met immediately. Whether that is a merely theoretical point or whether there is a basis for it in experience, I do not know, and I will keep my ears open. However, the words that I have quoted from the Minister in the Commons tend to suggest the former.
I am conscious that the standard to which the Government wish to return is that which was in place when control orders were first introduced in 2005. At that time, we had little experience of the deadly new threat from al-Qaeda-inspired and al-Qaeda-directed terrorism in the UK and no experience of orders of this kind. But the competing standards of proof have been tested over a period of years. The evidence is now in and the results seem to be, by the Minister’s own admission in the Commons, incontrovertible: the lower standard restricts basic liberties without keeping us any safer. In that connection, I was interested to see that the noble and learned Lord, Lord Falconer, from the Opposition Front Bench has put his name to Amendment 28, which is even a little stronger than mine. I beg to move.