My Lords, I thank all noble Lords who have spoken in the debate on this group. Amendment 29, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would require the Home Secretary to secure the permission of the court before signing a TPIM extension notice. We do not think that that is a necessary amendment to the Bill. To demonstrate why, it might be helpful to the Committee if I explain first the process by which the Home Secretary considers whether a TPIM notice should be extended, a process that will remain in place after the removal of the time
limit as proposed by the Bill. I hope that that provides some reassurance to the Committee both about the thorough consideration which goes into whether the continuation of a TPIM is necessary and about the robust judicial oversight that is already built into the process.
At this stage, I should say in response to the question from the noble Lord, Lord Anderson of Ipswich, which I was certainly hoping to treat as rhetorical but which the noble Lord, Lord Ponsonby of Shulbrede, rightly picked on, these are rightly not matters in which special advisers are involved. They are questions for the Secretary of State and Ministers.
When extending a TPIM, the Home Secretary will consider the Security Service’s assessment as to whether it remains necessary. It is true that significant weight is placed on the professionalism and expertise of the Security Service, but the process is not simply a tick box exercise. The Home Office routinely challenges the Security Service’s assessments to ensure that they are robust. The scrutiny is demonstrated by the public comments which have been made by successive former Independent Reviewers of Terrorism Legislation, who, for instance, have noted that through the quarterly TPIM review group meetings all TPIM notices in force are reassessed, including whether the measures imposed or the TPIM notice itself are necessary and proportionate, and what the exit strategy is for the notice.
If the Home Secretary considers that the extension of a TPIM notice is necessary, she will then consider whether the current measures remain necessary and proportionate to restrict the individual’s involvement in terrorism-related activity, or whether any of them need varying. To address the point raised by the noble Baroness, Lady Hamwee, this can be in the form of a removal, a relaxation, or further restrictions.
This might be a good point to talk a little more about rehabilitation. To answer the question that the noble Baroness asked about whether somebody who has been subject to a TPIM could theoretically be subject to another, yes, they could, although that would have to rely on a separate national security case or evidence of terrorism-related activity. TPIMs are not designed as a tool of punishment; they are a tool of prevention and rehabilitation. Part of them involves encouraging subjects to attend what are known as desistence and disengagement programmes to assist with their rehabilitation and to turn them away from behaviour that leads them to be subjects of concern.
Decisions to extend a TPIM notice are not taken lightly but are based on detailed assessments by the Security Service and counterterrorism policing’s experience of managing the subject. The assessment that the Security Service provides will not only be based on the original national security case put forward for the imposition of the TPIM; it will also include the intelligence, both covert and overt, gathered over the course of the preceding 12 months. This could include evidence of further terrorism-related activity or non-compliance that does not reach the criminal threshold or which cannot be exhibited in open court. When extending a TPIM notice, the TPIM subject is invited to make representations before a decision is made. These are put before the Home Secretary.
As I outlined in our debate on the previous group, the 2011 Act established robust judicial oversight of the TPIM process. I will set out what that means. I hope to reassure the noble Lord, Lord Paddick, on some of the existing safeguards. The court will consider at a permission hearing whether the Home Secretary’s initial decision to impose a TPIM was “obviously flawed” and will overturn a notice or its measures where that is the case. This is known as a Section 9 hearing. If I understand the amendment, this is a process that the noble Baroness and the noble Lord would like to see replicated when a notice is extended beyond a second year.
Section 16 of the TPIM Act provides an appeal route for TPIM subjects to challenge any refusal to vary their notice or to extend it, in addition to the Section 9 hearing. The in-built appeal route available through Section 16 makes it difficult to see in practice what the amendment would achieve in establishing an additional safeguard beyond that.
In addition to the Section 9 hearing and the Section 16 appeal process, the TPIM Act also requires the Home Secretary to keep under regular review the ongoing necessity of a TPIM notice under Section 11. This responsibility is also taken seriously. It is why the Home Office runs the quarterly TPIM review groups, where all TPIM subjects are discussed, including the notices to which they are subject and whether these remain proportionate and necessary.
I turn to Amendment 30, in the name of the noble Lord, Lord Anderson of Ipswich. I thank him for outlining it. His amendment would amend the 2011 Act so that a TPIM notice can be extended on “one or more” occasions if the conditions in Section 3 of that Act continue to be met. Currently, a TPIM notice can be extended only once and therefore has a maximum duration of two years. However, we respectfully disagree with the noble Lord on the need for his amendment. It would prevent a TPIM notice being renewed for as long as it is necessary for the purposes of public protection. Instead, it would set a new upper limit of four years. While we disagree with the noble Lord’s amendment, I should say at the outset that we support its principle in so far as it recognises that there are circumstances where it may be necessary to impose a TPIM beyond the current two-year limit, which the Government contend is too short.
There are several policy and operational justifications for Clause 38. First, experience has shown that there are TPIM subjects who pose an enduring risk beyond the two-year limit. This has meant that a new TPIM has had to be imposed after reaching the current limit and, as a consequence, a dangerous cliff edge has been created while the individual is at large in the community without the appropriate risk management tools in place before a new TPIM can be imposed. That has happened on more than one occasion. ACC Tim Jacques spoke to this risk when he gave evidence to the Public Bill Committee in another place.
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Secondly, extending the maximum duration of a TPIM beyond two years will provide more time for the TPIM subject to engage in rehabilitative programmes, adopt a different lifestyle and break away from their previous extremist contacts, which is a key part of the
intention. Unfortunately, within the current time limit, we have seen that certain TPIM subjects are only biding time—that is, waiting for the current maximum of two years to expire with no change to their mindset. This is an issue on which another former Independent Reviewer of Terrorism Legislation publicly reported. There needs to be more incentive—a carrot-and-stick approach, if you like—for subjects to engage with rehabilitative measures and demonstrate that the TPIM notice is no longer necessary.
Thirdly, removing the time limit will multiply the benefits of the TPIM by restricting the TPIM subject’s involvement in terrorism-related activity, supporting efforts to degrade the subject’s wider network—should they belong to one—and reducing the wider long-term threat from others who may have been influenced by them, were it not for the TPIM measures, particularly in the case of known charismatic radicalisers. I acknowledge that the amendment in the name of the noble Lord, Lord Anderson, still provides for those benefits. However, I should also be clear that it does so to a more limited extent than the Government would like, which is why they cannot accept it.
The Government believe that a TPIM imposed for the purposes of public protection should be removed only when the risk to the public has been managed. By imposing a maximum length, even four years as the amendment would do, which would be known by the TPIM subject, there would still be a potential cliff edge at the end of the TPIM rather than it being capable of renewal for as long as is needed. Clause 38 will not alter condition (c) of the TPIM Act, which requires, as I said previously, that the Home Secretary reasonably considers it necessary to impose a TPIM for the purposes of protecting the public from a risk of terrorism. If necessity can no longer be demonstrated, the TPIM must be removed, regardless of the removal of the time limit in Clause 38.
There is clear precedent for the Government’s approach under the control order regime, as I have mentioned, the framework for which was heavily tested in court and found to be compatible with the European Convention on Human Rights. As was acknowledged in the report of the noble Lord, Lord Anderson, on control orders in 2011, there were many cases in which the Government either revoked or decided not to renew a control order on the grounds that the necessity test was no longer satisfied. A similar approach will be taken with TPIMs following the commencement of Clause 38.
Within the lifetime of control orders, three exceptionally dangerous individuals were subject to an order for between four and five years. That underscores why the Government are not prepared to accept a four-year limit, as proposed in this amendment. All TPIM notices are subject to regular scrutiny, including through quarterly and annual reviews, and where it is no longer considered necessary and proportionate to extend or maintain a TPIM notice, it will not be extended or will be revoked. The Independent Reviewer of Terrorism Legislation is invited to attend the review meetings. Through those regular meetings, key considerations such as the case for the individual’s prosecution and their TPIM exit strategy, both of which are extremely important, are kept under careful review. The former independent reviewer
Max Hill’s report, The Terrorism Acts in 2017, provided a positive assessment of TPIM review group meetings, including the careful monitoring of the proportionality of the measures in place and the exit strategy for the individual. Again, this will not change with the changes proposed in this Bill.
The TPIM Act includes safeguards for the protection of the civil liberties of those subject to TPIM notices. All TPIM subjects are granted an automatic review on the imposition of their TPIM notice, and Section 16, as I say, provides an avenue of appeal for subjects who wish to challenge the decision to extend their TPIM notice for a further year. The Government have no desire to keep an individual on a TPIM any longer than is necessary and proportionate. However, protecting the public is the Government’s foremost priority and we must be able to restrict and prevent an individual’s involvement in terrorism-related activity for as long as necessary, rather than being confined by an arbitrary time limit on the length of a TPIM, which could put people at risk. These are the reasons why I respectfully urge noble Lords to withdraw their amendment.