My Lords, this group deals with changes to TPIMs. The current Independent Reviewer of Terrorism Legislation, someone who has unique access to secret intelligence, operational partners and government officials, has previously stated that the changes proposed in the Bill to the TPIM regime were not necessary. We agree, as my noble friend Lord Strasburger so powerfully set out in his speech.
In relation to Clause 34, the current independent reviewer says that he is not aware of any case where operational partners had wanted to impose a TPIM but were unable to do so because the burden of proof was too high, as confirmed by the representative of operational partners in the Bill Committee in the other place.
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In 2006, a former Labour Government claimed that detention of a terrorist suspect without charge for up to 90 days was necessary, on the basis that, although existing limits had not been a problem up to that point, it might be necessary in future. Parliament rightly rejected the Government’s proposals and, 15 years later, such a lengthy period of detention without charge so that evidence can be gathered sufficient to charge has not proved necessary. This Government are adopting exactly the same argument here: it has never been a problem in the past, but might be in future.
However, the Government have rowed back from their position in Committee. As my noble friend Lady Hamwee said, we do not want to test the patience of the House in light of the Government’s concession, so we will not oppose Amendment 14, despite there being no evidence that this change is necessary.
On Clause 35, the fundamental principle is that TPIMs should be only a temporary measure, to protect the public from a perceived threat while evidence is gathered to charge the suspect with a substantive offence. The government argument appears to be that the suspect could be very careful not to incriminate himself if he knows there is a time limit to the restrictions placed on him. No matter how long the TPIM is in force, the argument that, if your every move is limited—who you can associate with, where you can go, what you can look at on the internet, who you can call on the telephone—the chances are that you will allow your mask to slip, just given enough time, is unconvincing. This should be about looking for existing evidence or alternative sources of evidence that can be admitted in court, rather than hoping that the suspect might incriminate himself if only we give him long enough.
Should suspicion persist despite there being insufficient evidence to put before a court, surveillance of the suspect following the lifting of the TPIM is far more likely to provide self-incriminatory evidence—rather than the Government’s argument that such evidence is likely to be forthcoming if only the TPIM were indefinite.
If, as the Government seek, TPIMs can be extended indefinitely and there is suspicion—even inadmissible intelligence—of terrorist activity, but not enough evidence to prosecute, it would be a very brave Home Secretary who released such a suspect from a TPIM when she had the power to extend it indefinitely, as the noble and learned Lord, Lord Thomas of Cwmgiedd, just said.
As my noble friend Lady Hamwee said, if the noble Lord, Lord Anderson of Ipswich, whose arguments were comprehensive and compelling, divides the House on his extension of the TPIM limit to four years, we will support him, as it at least preserves the principle that TPIMs must be temporary. If he does not carry the House, we will vote on principle against TPIMs potentially becoming a means of permanently depriving an individual of his basic human rights without charge or trial.
On Clause 37, current legislation allows an overnight curfew, or remaining at a specified residence, and the courts have held that an overnight curfew may be up to 16 hours out of 24. The Government claim that “overnight” is not flexible enough and that, for example, operational partners might want to stop the suspect radicalising schoolchildren, as my noble friend Lady Hamwee said, and want to keep him at home during the day rather than at night. In that case, why is there no limit in the Bill, such as the one courts have placed on overnight curfews, to the number of hours such a curfew can be imposed?
Whatever the Government say might happen and whatever operational partners say they want the change for, the changes proposed by the Government in Clause 37 would allow a curfew of 24 hours out of 24—effectively house arrest. Were the conditions that can already be imposed by a TPIM not enough, Clause 37, with the changes the Government propose in Clause 35, could result in indefinite detention without charge or trial. The powers contained in these clauses could amount to the return of internment, albeit in someone’s own home. On this fundamental principle, we intend to seek the opinion of the House.
Government Amendment 22 to reinstate the requirement for an annual review of TPIMs is welcome—although, as my noble friend Lady Hamwee said, we are concerned about potential unintended consequences and, as the noble Lord, Lord Anderson of Ipswich, said, it must be provided the Independent Reviewer of Terrorism Legislation is given the necessary resources to conduct these reviews—but not sufficient for us not to oppose the changes to TPIMs that these clauses propose. Please add my voice and those of my noble friends in favour of any Divisions that might be called in this group.