Terrorism Prevention and Investigation Measures Bill

Public Bill Committee, 21 June 2011.

Lee Scott (Conservative, Ilford North)

I have a few preliminary announcements. Members who wish to remove their jackets during the Committee sitting may do so. Will all Members ensure that their mobile phones and pagers are turned off, or switched to silent mode? I particularly ask that no Member tweets during the sitting whatsoever.

As a general rule, I and my fellow Chair do not intend to call starred amendments that have not been tabled with adequate notice. The required notice period for Public Bill Committees is three working days. Therefore, amendments should be tabled by the rise of the House on Monday for consideration on Thursday, and by Thursday for consideration on the following Tuesday.

For those Members less familiar with the process of taking oral evidence in Public Bill Committees, it may help if I briefly explain how we will proceed. The Committee will first be asked to consider the programme motion, the debate on which is limited to half an hour. We will then proceed to take a motion to report written evidence and a motion to permit the Committee to deliberate in private in advance of hearing oral evidence, which I hope we can take formally. Assuming that the second of those motions is agreed to, the Committee will then move into private session. Once the Committee has deliberated, the witnesses and members of the public will be invited back into the room and our oral evidence session will begin. If the Committee agrees to the programme motion, we will hear oral evidence this morning.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I beg to move,

That—

(1) the Committee shall (in addition to its first meeting at 10.30 am on Tuesday 21 June) meet—

(a) at 4.00 pm on Tuesday 21 June;

(b) at 9.00 am and 1.00 pm on Thursday 23 June;

(c) at 10.30 am and 4.00 pm on Tuesday 28 June;

(d) at 9.00 am and 1.00 pm on Thursday 30 June;

(e) at 10.30 am and 4.00 pm on Tuesday 5 July;

(2) the Committee shall hear oral evidence in accordance with the following Table:

TABLE

Gerry Sutcliffe (Labour, Bradford South)

We do not intend to divide the Committee on the programme motion.

I welcome you to the Chair, Mr Scott, as well as Mr Caton, who will join us for subsequent sittings. I also welcome the Minister and Committee members. As the Minister said, the Committee is made up of Members with a wide range of experience on these matters, so I am sure that we will benefit from their expertise and knowledge.

Lee Scott (Conservative, Ilford North)

Copies of memorandums that the Committee receives will be made available in the Committee Room.

Examination of Witnesses

Lee Scott (Conservative, Ilford North)

Before I call the first Member to ask a question, I would like to ask everyone to introduce themselves formally, with their position, for the record.

Lee Scott (Conservative, Ilford North)

Welcome, and thank you for coming this morning.

I would like to remind all Members that questions should be limited to the matters within the scope of the Bill. We must work strictly to the timings in the programme order that the Committee has agreed. I hope that I do not have to interrupt any Members—or, indeed, witnesses—mid-sentence, but if we are running out of time, I will not hesitate to do so. I start by calling Gerry Sutcliffe.

Gerry Sutcliffe (Labour, Bradford South)

Thank you, Mr Scott, and good morning to the witnesses.

The first question to you, deputy assistant commissioner, is on the new role that the police will have in relation to the Bill. I am concerned that more resources will be required and that the police will have to face more issues. Do you think that that is practicable? What are the issues related to manpower and resources, and do you foresee any problems?

Gerry Sutcliffe (Labour, Bradford South)

Have you had any indication yet about what the outcome of that application for resources will be?

Gerry Sutcliffe (Labour, Bradford South)

You say that the duties will be similar to or the same as those under the present legislation. Are there any issues related to that? For instance, a number of convicted terrorists will be back in society next year because they will have been released on licence. Do you have any worries about the associations that might occur, given the opportunities that the Bill provides for individuals to associate with different types of people?

Gerry Sutcliffe (Labour, Bradford South)

Following on from that, there is the ability for relocation to be called into question under the new Bill. Does such people being in London for next year’s Olympics cause any concerns?

Shabana Mahmood (Labour, Birmingham, Ladywood)

I welcome all the witnesses.

Mr Osborne, I want to ask a quick follow-up question about your earlier point about the business case that you submitted last Friday. Can you tell us the time scale for its consideration? When might you expect to hear?

Hazel Blears (Labour, Salford and Eccles)

Good morning to all the witnesses.

Mr Osborne, how many of the existing control orders have relocation as one of their conditions?

Hazel Blears (Labour, Salford and Eccles)

So the majority of control orders include relocation as a condition.

Hazel Blears (Labour, Salford and Eccles)

If relocation was not available, what would be the extra cost of monitoring each existing control order to the police service? I know that it will be difficult to give a precise figure, but I am thinking about how many officers you would need, and what the resources and techniques would be.

Hazel Blears (Labour, Salford and Eccles)

How much is that?

Hazel Blears (Labour, Salford and Eccles)

How important do you think that the relocation provision is in making the control order or TPIM regime effective, and in giving you sufficient reassurance that you are able, as you said, to manage the risk to the public?

Hazel Blears (Labour, Salford and Eccles)

If the majority of people currently on control orders did not have relocation conditions, would they be likely to come back to London?

Hazel Blears (Labour, Salford and Eccles)

Is it likely that that would take place before the Olympics?

Hazel Blears (Labour, Salford and Eccles)

It is possibly December—the end of this year.

Hazel Blears (Labour, Salford and Eccles)

Do you feel that the TPIM regime will be as effective in managing the risk? You say that you will “hopefully” be able to protect the public—we all hope that that will be the case—but do you feel that the regime will be as effective as the current regime in protecting the public?

Hazel Blears (Labour, Salford and Eccles)

I have a final question about the case of CD, who was subject to a control order and relocated just months ago. That condition was appealed and upheld by the court. The possibility is that somebody like CD, who presented a significant challenge—the prospect of a Mumbai-style plot—and was actively seeking to gather firearms, would not be subject to a relocation condition in future. Does that cause you concern?

Hazel Blears (Labour, Salford and Eccles)

Would that worry you?

Hazel Blears (Labour, Salford and Eccles)

Would it worry you?

Jessica Morden (Labour, Newport East)

On that point, of all the measures available to you, is it fair to say that relocation is the most effective?

Julian Huppert (Liberal Democrat, Cambridge)

Just before I ask what I was going to ask, can you remind the Committee how many people on control orders have escaped or absconded from them?

Julian Huppert (Liberal Democrat, Cambridge)

So, under the current system, we do not know where seven of the most dangerous people in the country are?

Julian Huppert (Liberal Democrat, Cambridge)

Moving on to look at what the Bill says about TPIM notices and the role that the police will have, there is supposed to be a new duty—you said that it was not changed much—for the Secretary of State to consult the chief officer of police about prosecution. What criteria would you use to try to prosecute those who are accused of terrorist activities?

Julian Huppert (Liberal Democrat, Cambridge)

This is perhaps a question partly for Mr Starmer. What would the bar be for prosecuting somebody for terrorist offences? The Government’s drive is to prosecute wherever possible. Would you use the threshold test? Would you use the CPS full test? How would you try to guide a chief officer?

Julian Huppert (Liberal Democrat, Cambridge)

Your predecessor has said in his report that he thinks there could be much more admissibility of some of that evidence—intercept and so forth. What is your position? What could be done to close the evidence gap between the evidence that the security services apparently have and the evidence that could be used in a normal judicial process?

Julian Huppert (Liberal Democrat, Cambridge)

I am very interested in your comments about post-acquittal cases, where people have specifically been acquitted by a jury. May I ask one more question? There is an argument about whether the measures listed in, for example, schedule 1 could make it harder for the police to gather evidence. Part of the idea of relaxing the rules on electronic communications is to make this easier. What is your view on the balance of that? Does a TPIM, or a control order, actually make it harder to prosecute?

Lee Scott (Conservative, Ilford North)

Just before we continue, we have a lot of Members wishing to ask questions. I would ask that both questions and answers be as short as possible.

Eric Ollerenshaw (Conservative, Lancaster and Fleetwood)

Following on from Hazel Blears’s question on relocation, did you say that if you get the additional resources you can deal with the relocation issue?

Eric Ollerenshaw (Conservative, Lancaster and Fleetwood)

I am assuming you put in for additional resources to manage that risk?

Shabana Mahmood (Labour, Birmingham, Ladywood)

Mr Osborne, you said earlier in response to a question from Hazel Blears that you are very comfortable with the current regime because it has bedded in and everybody knows what they are doing. With the Olympics next year, how long will it take for the new regime to bed in—what time scales are you working to at the moment?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

May I also follow up on the relocation aspects which Ms Blears raised with you? From recollection, the Government said that they had consulted the security services before drafting and publishing this Bill. Are you saying that there will not be any greater danger as a result of TPIMs coming into force, as opposed to control orders, providing you are sufficiently resourced?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

May I then ask Mr Starmer whether he thinks the Bill strikes a better balance between civil liberties on the one hand and the need to protect the public on the other?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

If one looks at the previous legislation, it essentially enabled the Government to implement measures until such time as they were struck down by a court. This Bill contains a series of measures which are enumerated within it. What are the advantages and disadvantages of that from your perspective?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

One final question for Mr Osborne. You said it would take a year for you to be able to bed in under this new regime once it becomes law. Why is that?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

What are the differences between TPIMs and the existing control orders which require you to train new assets to deal with these measures?

Tobias Ellwood (Conservative, Bournemouth East)

The threat to the Olympics has been mentioned a number of times. People might be misled in reading the transcript into thinking that the major threat to the Olympics from a terrorism perspective comes from those who are on control orders. Will you place in perspective and a slightly wider context your concerns about a terrorist threat against the Olympics, comparing those on control orders with those who you do not know anything about at all?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Mr Osborne, would you comment on the role that ACPO has played in the development of the TPIM regime? Has ACPO been involved and engaged in the counter-terrorism review?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Would you comment on the provisions in the Bill relating to specified residence? Schedule 1 includes a provision which may require someone to reside within a specified residence in the locality where they live. Is that helpful and how might it assist with some of the challenges that you have identified this morning?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Is the ability to put someone in a specified residence within a locality—I am sure the Committee will examine these provisions further—of assistance in seeking to manage surveillance and the other mechanisms that you wish to adopt?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Picking up a couple of points regarding prosecution, some people outside this room may think that prosecution is not pursued to the fullest extent or that in some way TPIMs or control orders may be seen as an easier thing to get and therefore prosecution is not pursued. Would you comment on the work the police undertake with the CPS to advance prosecution wherever possible, and is that the preferred option?

Lee Scott (Conservative, Ilford North)

I remind Members and witnesses that we have just over 10 minutes, so can we keep all questions and answers very short?

Gerry Sutcliffe (Labour, Bradford South)

I want to pick up what the Minister said about ACPO’s involvement in the development of the Bill. We would all prefer prosecutions to be the first route, and in the deliberations there is a view that access to technology may assist in getting a prosecution. What discussions have the police had with the authors of the Bill on developing technology and on individual access to technology by people on control orders?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Mr Starmer, may I bring you back to an earlier exchange with Dr Huppert? Is there anything in TPIMs that you think will allow more suspects to be brought to trial? If there is not, are there any other suggestions—apart from intercept, to which you have already referred—that you think the Government should take up?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Is there anything missing?

Paul Goggins (Labour, Wythenshawe and Sale East)

Mr Osborne, you mentioned the exclusion measure. I wondered, from your experience, how wide an area might need to be covered for that measure to be effective. It might clearly be an individual building, but how wide might it go?

Paul Goggins (Labour, Wythenshawe and Sale East)

Would you see it going as wide as a whole borough or whole city?

Ben Gummer (Conservative, Ipswich)

May I return to the Olympics, which have been raised by several Members? Mr Osborne, you said repeatedly that, given sufficient resources, you will be able to meet the risks posed by specified individuals. Specifically on the Olympics, given sufficient resources, as you have said you would require, would you be able to meet the risks posed by those individuals under TPIMs?

Ben Gummer (Conservative, Ipswich)

I am not asking that, as you are aware. You said that the risks would increase, but that you would be able to meet them, given sufficient resources.

John Robertson (Labour, Glasgow North West)

After the terrorist attack at Glasgow airport, we became aware in Scotland that we were part of the terrorist area. We have talked about dealings with the Crown Prosecution Service. Do you have dealings with the devolved Parliaments, with Scottish law being different from English law? When you put out control orders—and when you are going to use TPIMs—does that happen under English law that may operate in Scotland, or is there some kind of cross-border relationship? That would, of course, also apply to Northern Ireland.

John Robertson (Labour, Glasgow North West)

Let me clarify that. If there were control orders in Scotland, would they be issued by police in Scotland or by police south of the border?

John Robertson (Labour, Glasgow North West)

So the jurisdiction and control for anything to do with that is in the Home Secretary’s office, and they are in charge of it, no matter what devolved Parliament area it is in.

Hazel Blears (Labour, Salford and Eccles)

I wanted to ask Mr Starmer and Mr Osborne whether the idea of maximising prosecution and wanting to bring people to trial whenever possible is a new issue. Under previous legislation, it was always the case that when there was sufficient evidence, a criminal prosecution would be brought. I would welcome your confirmation of that.

Lee Scott (Conservative, Ilford North)

May we have a one-minute question and a one-minute answer?

Julian Huppert (Liberal Democrat, Cambridge)

Do you think that the mandatory High Court review of all TPIM notices will be advantageous for human rights and civil liberties? Do you think that the continued use of closed hearings and special advocates will continue to be against the interests of human rights and civil liberties?

Lee Scott (Conservative, Ilford North)

We still have a minute for another question.

Eric Ollerenshaw (Conservative, Lancaster and Fleetwood)

The Bill says:

“For the purposes of this Act, involvement in terrorism-related activity”

relates to four definitions, one of which is “commission, preparation or instigation”. In your experience, are people put on control orders for a mixture of those four criteria?

Eric Ollerenshaw (Conservative, Lancaster and Fleetwood)

One of the criteria is

“conduct which gives encouragement to the commission, preparation or instigation of such acts”.

Can you give an example of what that encouragement might be? Would you know of anybody who has been put under a control order just because they met that condition of encouraging a terrorist act?

Eric Ollerenshaw (Conservative, Lancaster and Fleetwood)

How will you define such encouragement?

Lee Scott (Conservative, Ilford North)

That brings us to the end of the time allotted to question our witnesses, whom I thank on behalf of the Committee.

Lee Scott (Conservative, Ilford North)

May I welcome you to the meeting and ask you to introduce yourselves for the record?

Hazel Blears (Labour, Salford and Eccles)

Welcome to both of you.

You will have heard the evidence given by the previous witnesses. I want to pursue the conditions that can be put on a TPIM notice, particularly with regard to relocation conditions. Given Mr Osborne’s evidence, that appeared to be giving him some cause for concern, both because of the resources that he will need and because of his ability to manage the risk to the public if the ability to use relocation is denied. You will have heard that nine of the 12 current orders contain a relocation clause. From the evidence I have heard, those clauses have been fundamental to the difficult process of managing risk. I would like the view from your different perspectives on managing that risk and whether this is a matter, as I increasingly see it, of grave concern.

Hazel Blears (Labour, Salford and Eccles)

Is the time scale for the loss of the relocation provisions also a matter of concern? We heard from our previous witnesses that if those nine orders are to be renewed, they might well not contain relocation provisions. The nine people might come back to live in London in December just before the Olympics, which would be a huge challenge for not only the police, but the security services. I would welcome your view of the toxic combination of an increased threat at a time when the eyes of the world are upon us and when al-Qaeda, in particular, would want to see a spectacular assault. The coming together of those factors raises the risk.

Hazel Blears (Labour, Salford and Eccles)

Lord Howard, you said that there is a coalition and that there have been negotiations—

Hazel Blears (Labour, Salford and Eccles)

Me neither. I have no idea what has gone on.

These are very difficult decisions for whichever politician makes them. However, do you think it is right that when the Secretary of State is deciding whether to make an order, the starting point should be the protection of the public, the fundamental importance of national security and the practical measures to mitigate that risk, rather than any political negotiation?

Shabana Mahmood (Labour, Birmingham, Ladywood)

Lord Carlile, in your role as the reviewer, you were privy to information that is not available to all of us. Given your detailed knowledge of the cases that give rise to control orders, how would you rate the importance of the relocation condition compared with the other conditions that might have been imposed? What prominence would you give to relocation?

Julian Huppert (Liberal Democrat, Cambridge)

We have heard that about 15% of those who have been given control orders escaped from them, and we still do not know where many of them are. Would you agree that that suggests that the whole system has a fundamental problem, and that it would be better to know where someone is, even if that place is London, than to lose track of them completely?

Julian Huppert (Liberal Democrat, Cambridge)

We would all agree that it would be better to have these people convicted and locked up, which brings me to the other issue that I asked about earlier: the evidence—

Julian Huppert (Liberal Democrat, Cambridge)

We may disagree on that.

To continue the half sentence that I had got through, there is an evidence gap between what is known and what can be used to prosecute, so do either of you have suggestions about how we can close that evidence gap? Lord Howard, you are working on using intercept evidence, so are there any other suggestions that could help us to move towards prosecutions?

Julian Huppert (Liberal Democrat, Cambridge)

You will know that the former DPP, Lord Macdonald, takes a rather different view. What are your thoughts on his perspective on intercepts?

Tobias Ellwood (Conservative, Bournemouth East)

On intercept evidence, can you tell us when your committee is likely to provide its recommendations?

Tobias Ellwood (Conservative, Bournemouth East)

If it goes the way that I am suggesting—I do not want to put words into your mouth—and you would like the Committee to go with its recommendations, how would that affect the use of TPIMs?

Tobias Ellwood (Conservative, Bournemouth East)

Very quickly—you have talked about the relocation issues, and both of you spoke very strongly about the difference between control orders and TPIMS. Are we really able to say of anyone currently under a control order that, with the relocation aspect that can be used by the courts in certain cases, we can be aware of all their movements, and we can more or less guarantee that they cannot participate in a preparation for a terrorist attack? I do not believe that that is true. Even if we move them into a location where we can better keep an eye on them, which is the thrust of this idea, I do not believe that we can say, “Yes, we can keep track of them,” to the point where we are satisfied that they will not participate in such activity. With today’s technology and communications, can we really guarantee that?

Ben Gummer (Conservative, Ipswich)

Lord Howard, you neatly elided civil liberties and the Human Rights Act in your answer. Civil liberties are granted by the Crown in Parliament; the Human Rights Act is interpreted by judges. You spoke about the effect of the Human Rights Act when it was introduced on situations such as this. Can I ask both of you whether you think that any provision within TPIMs will require derogation from the Human Rights Act, or whether it is liable to successful challenge?

Ben Gummer (Conservative, Ipswich)

Thank you.

Gerry Sutcliffe (Labour, Bradford South)

The TPIM regime has been called “mini-control orders”. What are the essential elements of the control orders that need to be retained in this new system?

Gerry Sutcliffe (Labour, Bradford South)

To move on, do you think that there are weaknesses in the new Bill in relation to parliamentary scrutiny? Lord Carlile, as independent reviewer, you had access to information that is not available to the Committee for security reasons. In our deliberations, do you think that it would be helpful for Opposition politicians to be briefed to the level of Ministers in relation to having information that would help us to do the job properly?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Lord Carlile, I think that you would accept that the Bill’s measures are part of a broader context, given the information that we have heard from the police this morning on the additional funds that would be available and on the use of surveillance techniques. I think that you said that the Bill should be seen as adopting a new approach to public protection, and you have talked about an acceptable balance of risk against other considerations. Do you want to expand on what you meant by those comments at that time?

James Brokenshire (Conservative, Old Bexley and Sidcup)

It would be helpful for the Committee if you commented—and Lord Howard may also wish to comment—on suggestions that there is no need for TPIMs and that we can do things in other ways. The two of you have looked at these issues very carefully in your respective ways over the years. You might perhaps comment on those alternatives. You talked about intercept as evidence, we have deportation with assurances, and there are other investigatory processes that might bring things to a prosecution, such as police bail. What are your thoughts on those alternatives, and what has led you to the view that some sort of preventive, protective measure is still required?

Shabana Mahmood (Labour, Birmingham, Ladywood)

If I could take you both back to the issue of parliamentary scrutiny. The control orders regime was up for renewal in Parliament on an annual basis. The current regime in the Bill, once passed, is permanent. Do you think that annual review by Parliament is important, and would you have retained it in this Bill?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I repeat the question I asked Keir Starmer earlier. Do you think that there is anything in the Bill that will allow more suspects to be brought to trial? If there is not, can you think of any measures that have not already been debated, such as intercept, that could be brought into play?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Can you tell us anything more about the technical activities to which you are referring?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

For instance, could technical developments such as the use of GPS tagging devices, play an important role?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Lord Howard, you said earlier that you felt TPIMs were superior to the control order regime. Could you set out in what respect that is the case?

Robert Buckland (Conservative, South Swindon)

We have already referred to it in passing, but it is clear that the existing control order regime has been the subject of quite significant judicial interpretation. Do you think the way in which provisions in the new Bill are drafted will—I dare not say remove—reduce any potential for future judicial interpretation? Is this a clearer exposition of a regime than the previous control order regime?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

Both of you mentioned the alterations in the burden of proof. One of you is a practising lawyer and one is a very distinguished lawyer and QC. What is the difference between reasonable suspicion and reasonable belief, both in practical terms and in terms of legal analysis?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

In practical terms, do you think the alteration will make any difference, given the cases that you have previously looked at?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

But both of you described this as a step change that, in your view, is an advantage in this Bill over the existing regime.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

If I can move on to a related topic, the Government’s position is that there is nothing in the Bill that requires derogation from the European convention. Do you both agree?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

Does that mean you also both see it as an advantage in the Bill that there is no provision for a TPIM which derogates from the ECHR to be imposed?

Ben Gummer (Conservative, Ipswich)

Lord Carlile, may I return to a comment you made earlier about compromise, which I think is interesting? You have eminently surveyed the various compromises made by the previous Government, first with the judiciary and also with their own Back Benches. How is this compromise any different from those?

Lee Scott (Conservative, Ilford North)

There are two speakers left who wish to speak—the shadow Minister and the Minister—and we have six minutes, so please divide your time.

Gerry Sutcliffe (Labour, Bradford South)

Thank you, Mr Scott, and thank you to our two witnesses. I want to return the costs. Lord Carlile, you talked about the costs in relation to surveillance, and I copied the figures: £1.8 million per person on control orders and £18 million—

Gerry Sutcliffe (Labour, Bradford South)

What is the basis of that analysis?

Gerry Sutcliffe (Labour, Bradford South)

When Mr Osborne talked about the bid that the police put in for the costs, he said that it would take up to 12 months to train the extra surveillance and other assets that would be required. The likelihood of the Bill being in place by the end of the year concerns many members of the Committee. Do you think there is room for the Government to look at a transitional arrangement for when the power comes into place, because it will take so much time to deal with the assets and the development and training that might take place?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Lord Carlile, you will be aware that the Bill sets out a two-year time period for the operation of TPIMs, unless there is new evidence of terrorist-related activity that satisfies the tests set out in the Bill. I believe you think that strikes the right balance, but will you tell the Committee your thoughts on the two-year time limit?

James Brokenshire (Conservative, Old Bexley and Sidcup)

In light of the surveillance issues you have looked at and the comments that you heard earlier—I think you said in your earlier commentary that there is a balance to be struck between the controls and surveillance and other measures that may be adopted by the police to counterbalance and mitigate risk—could you comment further on that and on the points that you have raised about the ability to balance risk?

Paul Goggins (Labour, Wythenshawe and Sale East)

On the final page of the Government’s counter-terrorism review there is an acknowledgement that there may be exceptional circumstances in which the measures in the Bill would not be sufficient. The Government talk about draft legislation which, presumably, would be similar to the draft legislation to extend pre-charge detention beyond 14 days. I would be interested to hear brief comments from each of you on the difficulties of such legislation. Should it not be in the Bill as an additional power, perhaps to a higher threshold?

Lee Scott (Conservative, Ilford North)

I apologise for intervening, but that brings our session to the end of the allotted time. I thank the witnesses on behalf of the Committee.

Martin Caton (Labour, Gower)

Welcome to our sitting. Please will you introduce yourselves to the Committee?

Martin Caton (Labour, Gower)

Lovely brief introductions. Thank you very much.

Julian Huppert (Liberal Democrat, Cambridge)

It is a pleasure to serve under your chairmanship, Mr Caton.

I shall start with a general question to all three of you. What are your comments on the legislation and how it compares with what you would like?

Julian Huppert (Liberal Democrat, Cambridge)

The proposed legislation we are looking at.

Julian Huppert (Liberal Democrat, Cambridge)

Lord Macdonald, I have tabled amendments that look towards police bail, but I will not ask you about them because you might not have looked at them.

On a broader question to all three of you, the Government argue that there is no provision within the terrorism protection and investigation measure regime that requires derogation from the European convention on human rights, and that the whole Bill would be not only Human Rights Act-compatible, but significantly more so than the control order regime. Do you agree with that and are there any areas in which you have particular reservations, such as article 6?

Bob Stewart (Conservative, Beckenham)

Special advocates: there is not a big difference, as I understand it, in the way you have to operate. What is your considered opinion with regard to whether the public would be safer under a control order regime or under a TPIM regime?

Bob Stewart (Conservative, Beckenham)

I understand that.

Bob Stewart (Conservative, Beckenham)

I will rest my case.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

The Bill proposes that TPIM notices will be subject to High Court review in all cases. I would like to ask you two questions in that context, going back to some evidence you gave a moment ago. First, will that reduce the amount of litigation that goes to the courts after, presumably, the High Court has approved the TPIM notices? Secondly, with the High Court review of TPIM notices, is the Bill more compatible with the civil and human rights that one expects, consistent with the criminal justice system?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

As a result of the detailed provision for High Court review, is this proposal, rather than the control order system, more consistent with what we have come to expect for civil liberties and human rights?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

Lord Macdonald, would you like to add anything?

Gerry Sutcliffe (Labour, Bradford South)

It is a great pleasure to serve under your chairmanship, Mr Caton. Good afternoon to the witnesses. As Lord Macdonald has said, all members of the Committee want to see prosecutions as a starting point, but there are occasions when that is not possible. The TPIM Bill has been described as “mini control orders”—[Hon. Members: “By you!”]. By me, I know, and by critics of the Bill and the proposals.

The Government’s own counter-terrorism review concluded that there may be exceptional circumstances when it might be necessary for the Government to seek parliamentary approval for additional restrictive measures, such as curfews, further restrictions on communications, associations and movement. Do you see circumstances where the Government might have to do that?

Gerry Sutcliffe (Labour, Bradford South)

Are you concerned about the fact that these are serious individuals, who are very dangerous, in that we are at a severe risk threat level at the moment, and we have high-profile events coming up—the Olympics and Paralympics—and some of the people who are subject to control orders at the moment, with relocation, could be back in London?

Paul Goggins (Labour, Wythenshawe and Sale East)

Perhaps I might have a little more on the question that Gerry asked, because that is really based on the final page of the review of counter-terrorism that the Government conducted, which acknowledges that the measures in this Bill, in exceptional circumstances, may not be sufficient to control the risk which an individual poses. It points to some future emergency legislation. I know your view, in relation to extension beyond 14 days pre-charge detention, was, very strongly, that it should be emergency legislation. Do you hold that view in relation to this, or do you think it would be possible to have a power within this Bill that would allow the Secretary of State to impose other conditions—perhaps with a higher threshold test of the balance of probabilities—knowing that, immediately, the court has oversight and could strike out those conditions, if it did not think that they were proportionate?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Lord Macdonald, you will no doubt be aware of the comments of Lord Carlile. I think that he said in one of his reports that the Crown Prosecution Service is assiduous in pursuing prosecutions, where there is sufficient admissible evidence. Is there anything that stops the DPP, in your words, actually carrying on with the investigations or examining the prosecution possibilities? Because certainly the evidence we have been given thus far is that that is pursued.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I suppose it is a question of whether certain issues arise. I think that the key comment is admissibility of evidence. You know the challenges when a case is brought forward where there is information and intelligence that may not be admissible but that is highly persuasive and points to particular courses of action. In such circumstances, where it may be determined that a prosecution cannot be brought, are you saying that Government should not do anything and that there is nothing they can do, because bail does not seem to apply because there cannot be an ongoing investigation and you have reached the determination that, based on the evidence, you cannot bring a prosecution? Surely that is the crux of the argument that we are getting at.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Far from it.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We certainly respect—

Martin Caton (Labour, Gower)

This is your last question, Minister. Other people want to come in.

James Brokenshire (Conservative, Old Bexley and Sidcup)

This is my last question, I promise. We clearly respect the fact that everybody is trying hard to bring prosecutions in the first place. I would be interested to hear your thoughts about the case that was brought this morning where Lord Carlile referred to post-acquittal control orders being put in place. What would be your view in those circumstances?

Hazel Blears (Labour, Salford and Eccles)

I welcome you and the witnesses to the Committee, Mr Caton. I have a few questions for you to explore, particularly around relocation and curfews, but first I want to follow the Minister’s point that you appear to be saying that police bail is a preferable system to administrative restrictions, whether they be control orders or TPIMs. Can you honestly say that you could put somebody on two years’ police bail knowing that you cannot use the intelligence that you have to bring that person into the criminal justice system? Would that not be something of a sham whereby even though you know you cannot use the intelligence that you have, you adopt one set of procedures because they are connected to the criminal justice system and have someone on police bail for two years?

Hazel Blears (Labour, Salford and Eccles)

You have made a great play, Lord Macdonald, of the fact that you want a system that encourages ongoing investigation and that galvanises the agencies to keep digging and getting more information. In fact, the evidence that we received this morning from the Director of Pubic Prosecutions said that he did not think there was a great chance of getting evidence after you had made an order or, indeed, after you had put somebody on police bail, because they are then aware of surveillance. I think Deputy Assistant Commissioner Osborne said that he thought it very unlikely that you would be able to gather further evidence in those circumstances. Why would police bail somehow be less of a problem and put the suspect on less notice than either a control order or a TPIM? It seems that you are reaching for this easy answer of police bail, as if it solves all the problems, when we are dealing with things that are not easy to resolve.

Hazel Blears (Labour, Salford and Eccles)

We will agree to differ there. In terms of relocation, your views are very clear—you have opposed relocation. We have heard evidence this morning from the DPP, from Lord Carlile and from Deputy Assistant Commissioner Osborne that shows that they regard relocation as probably the single most useful restriction that can be imposed. Of the 12 existing control orders, nine of them have a relocation provision. Of those 12 orders, half a dozen of the people concerned reside in London and are likely to come back to London once those restrictions are removed. They are likely to come back to London by December this year, before the Olympics next year, which is a huge security challenge for the whole country. Why are you so opposed to the issue of relocation, which appears to be an extremely useful tool in terms of surveillance?

Hazel Blears (Labour, Salford and Eccles)

May I ask one supplementary question? If these issues were part of bail conditions and the situation was that the only intelligence you had was inadmissible in court, do you think that those bail conditions would hold or would they be struck down by the courts as a sham?

Tobias Ellwood (Conservative, Bournemouth East)

I do not want to put words into your mouth, but it seems that you are suggesting that using bail conditions could replace control orders, or indeed TPIMs. Is that the thrust of what you are saying?

Tobias Ellwood (Conservative, Bournemouth East)

With that in mind, do you believe that the current conditions that can be imposed under bail circumstances are as powerful as those for control orders, or indeed TPIMs? Relocation has been mentioned, but do you feel that bail conditions are powerful and stern enough to be able to keep track of these individuals?

Tobias Ellwood (Conservative, Bournemouth East)

So you think that the current conditions that can be applied to bail do not need to be enhanced whatsoever to meet the concerns—

Tobias Ellwood (Conservative, Bournemouth East)

Does that form part of the theme of the review that you have done for the Home Secretary?

Tobias Ellwood (Conservative, Bournemouth East)

Forgive me, but where is that review now?

Tobias Ellwood (Conservative, Bournemouth East)

I—

Martin Caton (Labour, Gower)

I call Stephen Phillips. I think that you have had enough, Mr Ellwood. There are several more questions to get through.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I just wanted to follow up briefly on the suggestion that this could all be dealt with through the bail mechanism, and police bail in particular. The measures associated with either TPIMs or control orders are pretty draconian. Is it not better to have them based on the reasonable belief of the Secretary of State and reviewed by the High Court, rather than simply decided by a custody sergeant in a police station?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

On another topic related to some of your earlier evidence about relocation, the Bill has within it, as you will have seen, an exclusion measure in schedule 1, which empowers the Secretary of State to restrict individuals from entering specified areas or places. What is to stop the Secretary of State from imposing a restriction that someone subject to a TPIM cannot enter any part of the United Kingdom, save for a particular place?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

It is in schedule 1 on page 18 of the Bill, if you have the official copy.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

It is paragraph 3 of schedule 1.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I have it as “Exclusion measure”. The Secretary of State could impose a restriction on an individual entering any part of the United Kingdom save for, let us say, a particular town. Would that not be precisely the same as a relocation measure?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

Correct.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

No, but what if the restriction that the Secretary of State imposed was that you may not enter any part of the United Kingdom except for Salford or Eccles?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

It would involve litigation. But at least on the face of schedule 1, there is something that might—by the back door as it were—reintroduce the relocation.

Rebecca Harris (Conservative, Castle Point)

You said that you welcomed the fact that TPIMs appear to allow for more continuing investigation than under the previous regime.

Rebecca Harris (Conservative, Castle Point)

I just wanted to find out whether you have evidence of the grounds for believing that the security services genuinely warehouse people whom they could otherwise prosecute, or is this more the theoretical position that you think it should be within the legal system?

Rebecca Harris (Conservative, Castle Point)

Might not that also tell you that they were on control orders for the reason that they were a risk that needed managing, but could not be brought to prosecution?

Rebecca Harris (Conservative, Castle Point)

May I—

Martin Caton (Labour, Gower)

I am sorry but I am going to move on. We have time for only one more question, really.

Robert Buckland (Conservative, South Swindon)

Lord Macdonald, I was very interested by what you said about the DPP having a role in the process before the imposition of a control order or TPIM. I think you said that, in your view, the DPP should issue a certificate prior to the imposition of any alternative measures such as a TPIM or control order. Would that be a certificate of insufficiency of evidence, either under the full code test or the threshold test?

Robert Buckland (Conservative, South Swindon)

I misunderstood. If it was the other way round, the danger would be that having a certificate of insufficiency of evidence would achieve the sort of mischief that you are worried about: control orders or TPIMs, in effect, resulting in the shutting down of the criminal investigation.

Robert Buckland (Conservative, South Swindon)

Would you agree that an element of flexibility in the system is desirable—in other words, an encouragement of the fact that TPIMs should not be the end of the line for prosecution?

Martin Caton (Labour, Gower)

I am afraid that that brings us to the end of the time allotted to the Committee to ask questions of these witnesses—my apologies to you, Mr McCullough. On behalf of the Committee, thank you all very much for the evidence you have given us.

Martin Caton (Labour, Gower)

Welcome to our sitting. Please will each of you introduce yourselves to the Committee?

Martin Caton (Labour, Gower)

These introductions are wonderful.

Julian Huppert (Liberal Democrat, Cambridge)

I believe that you were all here for the previous session, so you will have heard a lot of discussion about the idea of moving from a TPIM-control order system to a police bail-type system. I do not know if you have had a chance to look at the amendments that I have tabled, which seem to fit quite well with what Lord Macdonald was saying. I wish that I had spoken to him recently about it. Do you have any response to that idea or those particular amendments?

Julian Huppert (Liberal Democrat, Cambridge)

Thank you all for your answers.

I want to come back to the issue of police bail. Would you be comfortable with the idea that one could run a system of police bail that provided at least as good security for the public, as well as at least as good a chance of prosecution, as a TPIM or a control order?

Hazel Blears (Labour, Salford and Eccles)

I want to follow up the idea that police bail is somehow the answer to all our philosophical difficulties and practical problems, because I genuinely do not feel that it is. I would welcome your view on that, and I am grateful for your acknowledgement that nobody really wants to be in this territory, but what else can we do?

I do not understand why you say that it is more likely that evidence will be gained to sustain a prosecution when somebody is on police bail, rather than on a control order or a TPIM. The evidence that we heard this morning from the Director of Public Prosecutions and Deputy Assistant Commissioner Osborne was that it is most unlikely that, once somebody is tipped off that they are under surveillance, they will engage in activities that will give you evidence. I do not understand the difference, that because you are on police bail you are somehow more likely to be careless about how you use your computer, whom you contact and associate with than you would be if you were on a TPIM. Why do you think that is the case?

Hazel Blears (Labour, Salford and Eccles)

With the greatest respect, I do not think you have answered my question. Why does making it police bail make it more likely that people will make mistakes and give us evidence?

Hazel Blears (Labour, Salford and Eccles)

I do not think they are excluded. The current legislation provides for them to be consulted.

Hazel Blears (Labour, Salford and Eccles)

But the legislation provides that everybody seeks prosecution where possible. That ties in all the agencies.

Hazel Blears (Labour, Salford and Eccles)

If you were to have police bail for a period of up to two years, based on intelligence that is not admissible as evidence, do you not feel that there would be a similar level of judicial activism in striking down the conditions of police bail, and perhaps rightly so, as there would be for striking down the provisions of control orders or TPIMs?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

Forgive me, I am genuinely having trouble understanding Liberty’s argument. You are suggesting that the sort of restrictive measures in control orders or the Bill should be something on which a custody sergeant decides, as opposed to what is proposed in the Bill, which is that the Secretary of State must have a reasonable belief that an individual is involved in terrorism, which is then subject to extensive review by the High Court. Is that not much more satisfactory than having it decided by a custody sergeant in a police station anywhere in the country?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

But all those people, as I am sure you would agree, Dr Metcalfe, are below the level of the Secretary of State, and the subsequent judicial oversight directed to their decisions is below that of the High Court.

Tobias Ellwood (Conservative, Bournemouth East)

May I turn to the human rights and civil liberties issues in comparing TPIMs with control orders? The proposal is that there will be a mandatory High Court review of TPIM notices. Is that sufficient to guarantee that the new regime will be more compatible with human rights and civil liberties than the old control orders?

Martin Caton (Labour, Gower)

I am sorry to cut across you, Dr Korzinski, but we have limited time.

Shabana Mahmood (Labour, Birmingham, Ladywood)

Control orders were subject to annual renewal by Parliament, and TPIMs, if the Bill is passed, would become a permanent feature of the legislative landscape. Do you think that annual review and renewal by Parliament should have been retained in the Bill?

Eric Ollerenshaw (Conservative, Lancaster and Fleetwood)

I want to check up on something that Dr Metcalfe referred to, which is the slightly more prominent role for the police under TPIMs. You dismissed that.

Eric Ollerenshaw (Conservative, Lancaster and Fleetwood)

Do you think that it is slightly better or worse than the old system, or is it irrelevant?

Eric Ollerenshaw (Conservative, Lancaster and Fleetwood)

Therefore, do you think that there is a greater chance under this system, rather than control orders, to get people to trial eventually and get some investigation?

Eric Ollerenshaw (Conservative, Lancaster and Fleetwood)

Marginally better than control orders.

Rebecca Harris (Conservative, Castle Point)

Under condition A—the first condition for imposing a TPIMs order for the Home Secretary—we have moved from reasonable suspicion required under control orders to asking the Home Secretary to have a reasonable belief. We were told earlier this morning that that was a considerable improvement. What is the panel’s view?

Rebecca Harris (Conservative, Castle Point)

Is it the case that reasonable belief is actually a higher standard of proof than would be required under the Bail Act 1976?

Martin Caton (Labour, Gower)

I am afraid that the Division bell is ringing, and has brought the evidence session to an end—I apologise to our witnesses. Thank you for the evidence you have given. I call on the Government Whip to move the motion to adjourn.