My Lords, before I turn to the amendments to which I have not yet spoken, I will address a question from the noble Baroness, Lady Hamwee, on government Amendment 22, about the requirement for the independent reviewer to produce an annual report every year for the next five years. She is right to say that the independence of the independent reviewer means that he could, if he so wished, provide such a review, but we want to ensure that he does so, because of the changes that are being made by the Bill. We, like a number of noble Lords who cited his work and that of his predecessors, find them useful and would find it useful to receive them over the next five years. We do not think that is unduly burdensome, as the noble Baroness suggested it might be. Indeed, that is evidenced by the support of the current independent reviewer, Jonathan Hall, for the amendment. I hope that that reassures her on that point.
I turn to the amendments. Amendment 15, in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would remove Clause 34 in its entirety, and in doing so prevent the Government lowering the standard of proof for imposing a TPIM to “reasonable belief” of involvement in terrorism-related activity. As I set out earlier, the Government have listened to the concerns raised in Committee and brought forward a compromise, by lowering the standard of proof to a lesser extent than originally envisaged; namely, “reasonable belief” instead of “reasonable grounds for suspecting”. We are confident that this approach represents an appropriate middle ground, one that ensures we are taking action to protect the public from an evolving and more diverse terrorist threat, while addressing the concerns that were expressed in Committee. Of course, “reasonable belief” is a standard which has been used in the past, having first been introduced in 2011 by the coalition Government, which included the Liberal Democrats as well as my own party.
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The Government are committed to ensuring that our operational partners have the necessary tools at their disposal to support them in their crucial work. As I explained in Committee, the operational pace for these partners is faster now than ever before. Demonstrating that a person has carried out terrorism-related activity will frequently depend on incomplete intelligence rather than hard evidence. The Public Bill Committee in another place heard from Assistant Chief Constable Tim Jacques the Security Service’s assessment of the benefits of lowering the standard of proof. I will not repeat at length the three scenarios he outlined where a lower standard of proof could make a tangible difference—the Syria returnee, a known radicaliser, or a rapidly escalating risk linked to an individual consuming online content—but I emphasise again that these are credible scenarios which our operational partners will often encounter.
That the Security Service has not so far been prevented from imposing a TPIM under the current standard of proof does not mean, as the noble Lord, Lord Strasburger, suggested, that there is no justification for the change the Government are making. It is entirely right that the Government should seek to future-proof the TPIM regime to ensure that our operational partners can continue to be able to protect the public. As I said in our earlier debates, when it comes to countering terrorism, even marginal benefits can help save lives.
As I set out in Committee, the standard of proof is just one of five conditions that need to be met in order to impose a TPIM. The other four conditions will remain unchanged, with strict conditions around the measures that can be imposed and robust safeguards for the civil liberties of the subject. That includes the courts continuing to consider, at a permission hearing, whether the Home Secretary’s initial decision to impose a TPIM notice was “obviously flawed” and preventing her imposing the notice where that is the case. Following the changes made by this Bill, TPIMs will remain a sparingly used but highly valuable tool for protecting the public from the risk posed by a small number of dangerous people. I therefore urge the noble Lord to not move that amendment.
Amendment 16, in the name of the noble Lord, Lord Anderson of Ipswich, would, as he explained, prevent a TPIM notice being renewed for as long as it is necessary for the purposes of public protection by setting a new upper limit of four years. While the Government respectfully disagree with the amendment, we support its principle in so far as it recognises that the current two-year limit is too short. In Committee, I set out the policy and operational justifications for Clause 35 and I shall summarise them again very briefly now.
First, experience has shown that there are TPIM subjects who pose an enduring risk beyond the current 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. ACC Jacques spoke of this risk, and the challenges it creates, during the Public Bill Committee in another place.
Secondly, extending the maximum duration of a TPIM beyond two years will provide more time and incentive for the TPIM subject to engage in rehabilitative programmes, adopt a different lifestyle, break away from their previous extremist contacts 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 subject’s involvement in terrorism-related activity, supporting efforts to degrade their wider network, should they belong to one, and reducing the wider long-term threat from others who might have been influenced by them were it not for the TPIM in the case of known charismatic radicalisers. I acknowledge that the noble Lord’s amendment would provide for some of these benefits, but not all and only to a more limited extent. By imposing a maximum length—which would, of course,
be known by the subject—there would still be a potential cliff edge at the end of the TPIM, rather than it being a tool that can be renewed for as long as it is needed.
During the operation of control orders, which could, of course, be rolled over indefinitely, there were three exceptionally dangerous individuals who were subject to an order for between four and five years. The Government have been pressed on numerous occasions during scrutiny of the Bill to refer to concrete examples from the past: I hope this experience underscores why the Government cannot accept a four-year limit. 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.
Clause 35 will not alter condition C of the TPIM Act, which requires that the Home Secretary reasonably considers that it is necessary for the purposes of protecting the public from a risk of terrorism to impose a TPIM. If necessity can no longer be demonstrated, then the TPIM must be removed, regardless of the fact that there is no time limit. The Government have no desire to keep individuals on TPIMs any longer than is necessary and proportionate for the purposes of protecting the public from a risk of terrorism; nor do our operational partners. TPIMs are resource-intensive tools and the Security Service and counterterrorism policing possess huge expertise in focusing resources on the highest risks. When a subject no longer poses a significant risk to public safety, operational partners will be the first to seek removal of the TPIM. The Home Secretary rightly places great confidence in the expertise of the Security Service and counterterrorism policing. We should trust their judgment as to whether a TPIM remains necessary or not.
TPIMs are, of course, subject to regular scrutiny, including through quarterly and annual review meetings, which the Independent Reviewer of Terrorism Legislation is invited to attend. Through these regular meetings, key considerations such as the case for the individual’s prosecution—always our first preference—and their TPIM exit strategy are kept under careful review. Removing the time limit will not change this. I remind the noble Lord, Lord Strasburger, in particular that under Section 9 of the TPIM Act 2011 all TPIM subjects are granted an automatic review on the imposition of their TPIM notice, while Section 16 provides an avenue of appeal for subjects who wish to challenge the decision to extend their TPIM notice for a further year. Moreover, as I outlined earlier in relation to Amendment 22, to strengthen independent oversight further the Government tabled that amendment, requiring the independent reviewer to produce annual reports for the next five years. I hope that for those reasons the noble Lord, Lord Anderson of Ipswich, might even at this late stage be willing not to move his amendment.
Amendment 17 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would remove Clause 35 from the Bill entirely, and the Government must therefore reject it in the strongest terms for all the reasons that I have just set out. I hope that they will not press that amendment, as they indicated that they might.
Lastly, I turn to Amendment 18, also in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. It relates to Clause 37, which amends the existing overnight residence measure in Schedule 1 to the TPIM Act 2011 to enhance the ability of the Home Secretary to specify certain hours when a TPIM subject must remain at a specified residence. The amendment would remove the clause from the Bill entirely and prevent the operational benefits from being realised. That is why the Government cannot accept it. Operational partners have in the past confirmed that, with respect to some specific TPIM cases, greater flexibility than is currently provided for by the existing overnight residence measure would have been desirable. Again, we heard from the noble Baroness, Lady Hamwee, some of the examples given.
In the case of attack planners, there may be circumstances in which it is necessary to control their whereabouts during the day to prevent that attack from being carried out. In the case of charismatic radicalisers, it may be necessary to limit their contact with other people such as schoolchildren on their way to and from school. That is the issue that we are addressing by introducing the ability to impose a requirement for a TPIM subject to remain within his or her residence at specific times during the day, as well as overnight, when this is assessed as necessary and proportionate for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. As with all measures, its applicability will be carefully considered on a case-by-case basis in the context of each individual TPIM subject. It will not be part of a blanket approach.
There has been understandable interest in how that amended residence measure will operate in practice. I can provide reassurance in response to the question raised by the noble and learned Lord, Lord Falconer of Thoroton, that in the context of TPIMs there is no exception to Article 5 of the ECHR, the right to liberty. Instead there is an established body of case law that guides that, in practice, the residence measure placed on a TPIM subject could not ordinarily exceed 16 hours a day without breaching an individual’s right to liberty. We are clear that this measure should not and will not amount to an unlawful deprivation of the individual’s liberty. I therefore urge noble Lords also not to move this amendment.