The Terrorism Prevention and Investigation Measures Bill ("TPIMs Bill") gives effect to the recommendation of the Government's Review of Counter-Terrorism and Security Powers that the current system of control orders should be repealed and replaced with a system of less restrictive and more focused measures. In March 2011 the current control order regime was renewed until the end of December this year. The Government wants TPIMs to be available by the time the control orders legislation lapses.
The committee first reported on this Bill on 19 July 2011, welcoming those aspects of the Bill which would make it less likely that the regime will be operated in a way which would give rise in practice to breaches of individuals' human rights. However, the committee also expressed some significant human rights concerns about the proposed TPIMs regime, centring upon the lack of a requirement for prior judicial authorisation; the need for the process to incorporate a "full merits review"; the need to assure the right to a fair hearing in terms of those subject to a TPIMs notice being given sufficient information about the allegations made against them; and the lack of a requirement for the new system to be debated or agreed annually by Parliament.
The Government responded to the Report on 1 September 2011. The committee is reporting again on the Bill in the light of this response and the views expressed during the debate on Second Reading in the House of Lords. The report focuses principally on the issues on which the Government response gave little or no reassurance and on which amendments are likely to be debated during the Bill's committee stage in the Lords.
On the issue of prior judicial authorisation, the committee supports the amendments tabled in the House of Lords by Lord Lloyd of Berwick which seek to replace executive orders with prior judicial authorisation of the kind which both human rights law and common law constitutional tradition require.
On the issue of the standard of proof, the committee expresses its view that reasonable belief is too low a threshold for the imposition of such intrusive measures as are envisaged in the TPIMs Bill. It therefore supports the amendment to clauses 3 and 6 to be moved in committee by Lord Lloyd, to the effect that the decision of the court as to whether the individual is, or has been, involved in terrorism-related activity is to be taken on the civil standard of proof, that is, the balance of probabilities.
The report also recommends that the Bill be amended to make clear that the review to be conducted by the courts is a "merits review" (as opposed to a supervisory review) and to delete the requirement that the court must apply the principles applicable on an application for judicial review. The committee therefore supports the amendments to clause 9 to be moved by Lord Pannick in committee to that effect.
With regard to ensuring a fair hearing, the committee supports the amendments to be moved in committee by Lord Pannick which would introduce into the relevant provisions:
- an overriding requirement that rules of court must provide that individuals on whom the measures are imposed are entitled to be given sufficient information about the allegations against them to enable them at the review hearing to give effective instructions to their representatives, and information to the special advocate, in relation to those allegations
- a requirement that a direction be given at the directions hearing that the Secretary of State shall provide individuals who are the subject of the TPIMs with sufficient information about the allegations against them to enable them to give effective instructions to their legal representatives, or information to the special advocate, in relation to those allegations at the review hearing. A direction requiring that such disclosure is made even earlier in the process, at the preliminary hearing, would be even more effective, because it would ensure that individuals can give effective instructions before the review hearing.
Whilst the committee welcomes the fact that the Government has moved to amend the Bill since its first report to require renewal of this new scheme, it believes that this period of renewal – at five years – is too long and therefore supports the amendments to the Bill to be moved in committee to replace this five year period with an annual review.
Comments from the Chair
Dr Hywel Francis, Chair of the Committee, said:
"We maintain our view that the priority in the Bill should be investigation and not prevention. Prosecuting terrorism suspects for their crimes is not only the most effective way of countering the threat from terrorism, it also ensures that proper legal process is followed. We still have some significant concerns about these new measures, although they represent an improvement upon the old control order scheme.
In particular there is a concern that any individual upon whom these new measure will be imposed will not have access to information concerning the allegations they face at an early or appropriate stage in the process. The traditional right to a fair hearing must not be over-ridden even in cases such as these. The requirement for prior judicial authorisation for executive orders such as these would also be entirely congruent with both human rights law and our common law constitutional tradition."