Terrorism Prevention and Investigation Measures Bill

Public Bill Committee, 23 June 2011.

Clause 1 - Abolition of control orders

Gerry Sutcliffe (Labour, Bradford South)

Good morning to you, Mr Scott, and to members of the Committee.

Clause 1 repeals the control order regime. It will come as no surprise to the Committee that I am very unhappy about that, and I will give my reasons as we move along. Let me say right at the outset that I was impressed by the evidence sessions on our first day, and the commitment and contributions of those involved were illuminating. I am sure that that will shape the Committee’s view on how we proceed.

The Opposition are upset about the proposals. We accept that the control order regime is not perfect, and everybody has said that prosecution is the preferred option, which they would want to see. The reality, however, is that that cannot be achieved in certain cases. We all agree that the duty of any Government is to put people’s security and safety at the highest level, and that will, on occasions, limit the rights of individuals.

That is the situation we face. The risk level is at “severe”. We face threats from a whole range of people. When I was Prisons Minister, I visited some of our prisons and I saw some of the terrorists who had been prosecuted, and they really are scary people. Next year, a large number of them will be released on licence, and they will be back in society, so the threat is always there. It is always worth putting on record our thanks to the police and security services for the work that they do in protecting us from such threats.

The control order regime is necessary. Its repeal through clause 1 is the result of the coalition Government’s position, and we heard evidence about that from Lord Carlile and Lord Howard on Tuesday. There is nothing wrong with that; if that is what the Government want to do, that is what they want to do, but as we heard from the police, the control order regime seems to be working okay, and they are at ease with what happens. The Director of Public Prosecutions also felt that the regime was working.

People thought that we needed a review, and we understand that, but they seemed confident that that the powers the control order regime gave them were useful tools to deal with the difficult individuals we are talking about. Lord Carlile, the former independent reviewer—he was in that job for 10 or 11 years—thought that the regime was appropriate and was being dealt with in the best possible way. The counter-terrorism review suggests that we will need further emergency legislation in the near future and that such legislation will require even more draconian powers.

Who is asking for the Prevention of Terrorism Act 2005 to be repealed? It is not the police, the security services or the public, but the coalition. It had to reach an arrangement, and there was a long debate before it reached an agreed position. We now have a terrorism prevention and investigation measures résumé, which makes it clear that control orders will not be as tight as they are under the existing legislation, and I fear what that will mean, because the risks will increase, which is a danger to the public. The Government, and we as politicians, should reflect on that. We are creating a greater risk than that which exists at the moment. Furthermore, if we repeal the 2005 Act, we will be bringing in a Bill that lifts a lot from the Act, so one could ask whether we need the Bill at all.

We heard from Deputy Assistant Commissioner Osborne about the Bill’s resource implications. We will lose a number of powers, particularly the relocation powers. He said that in the bid that the police submitted to the Home Office, the resources and assets required would be immense. Lord Carlile said that the resources now are about £1.8 million, which could go up to £18 million to deal with the training and development of people and assets to put the new regime in place. Losing the power of relocation, which we will come on to in later clauses, is of great concern, given that the Olympics and the Paralympics take place next year. If the power is lost, we know that a number of the controlees could be back in London.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am listening carefully to the hon. Gentleman. Would he tell the Committee whether he thinks there is a balance to be struck between liberty and public protection? The Leader of the Opposition has sought to telegraph the fact that the Opposition seek to make a change on these issues by taking a slightly different approach and a different view. Is the hon. Gentleman saying that he wants to keep everything as it is?

Gerry Sutcliffe (Labour, Bradford South)

No, I am not saying that. I am saying that it is right that there is a review and in later clauses we will discuss some of the things with which we agree.

James Brokenshire (Conservative, Old Bexley and Sidcup)

So you do want change.

Gerry Sutcliffe (Labour, Bradford South)

We do, but we want to ensure that the balance is right for protecting the public. Control orders came about as a result of the horrendous events around the world and in London, and we are in a position where difficult decisions have to be taken about the balance. I think that the new regime that the Government are introducing is a step too far, because it gives more freedoms to the controlees, which is a problem that we will discuss later in relation to the issue of agreed locality. I accept that it is a difficult balance, but for the sake of the nation’s safety and security, the Government— [ Interruption. ] It is clear, and if the coalition gets the Bill through, they must accept that they have changed their position. The balance has changed from safety to a more libertarian outlook. I think that is dangerous, and it is not only me who says so—it is the police and the security services, too. Those of us who have had to make difficult decisions in the past have had to weigh up the facts.

Hazel Blears (Labour, Salford and Eccles)

The issue of balance between security and liberty weighs heavily on all in a free democracy, and it is a very important issue at the heart of the Bill. Does my hon. Friend agree that the starting point in framing legislation has to be national security and public safety? After that, we should look at the consideration of getting the balance right, but for any Government the premise of legislation has to be the protection of the public?

Gerry Sutcliffe (Labour, Bradford South)

I certainly agree with my right hon. Friend, and she has been in the position of having to make some difficult decisions over the years in her various ministerial roles.

Julian Huppert (Liberal Democrat, Cambridge)

Further to that question, where would the hon. Gentleman place the principles of the rule of law and normal legal process by comparison?

Gerry Sutcliffe (Labour, Bradford South)

At a very high point. Prosecution and putting people in prison for terrorist activities is where we want to be, but it is accepted that there are occasions when that cannot happen as a result of the sensitivity of the information from the security and intelligence services. Unfortunately, there are times when people have to be outside the legal framework.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Did the hon. Gentleman just say that the rule of law can therefore be qualified in some sense?

Gerry Sutcliffe (Labour, Bradford South)

No, I did not say that. Part of the problem, as a non-lawyer, is dealing with the many lawyers on the Committee. I hope, Mr Scott, that you will forgive my lack of legalistic terms. I am a working-class MP.

Bob Stewart (Conservative, Beckenham)

I think I am a pretty working-class MP, like the hon. Gentleman. I am not a lawyer, and there are lawyers here, but I thought we were talking about making law. Is this not law we are making? It is not outside the rule of law. Are we not in the process of making law primarily for the safety of our country?

Gerry Sutcliffe (Labour, Bradford South)

I know that the hon. Gentleman, like me, is a working-class MP, and he is certainly right that we are making laws. [ Interruption. ]

Paul Goggins (Labour, Wythenshawe and Sale East)

As my right hon. Friend the Member for Salford and Eccles has just pointed out, there are such things as working-class lawyers.

The hon. Member for Beckenham makes an important point. We are making laws here. Does my hon. Friend the Member for Bradford South agree that it would have been a more honest and better position had the Minister amended the 2005 Act? He could have tabled all the amendments that he wanted—schedule 1, you name it—rather than introduce clause 1.

Gerry Sutcliffe (Labour, Bradford South)

I agree with my right hon. Friend. My point is that we have before us a coalition agreement on a difficult issue where the two parties had different views on what should occur. Let us not dress it up as anything different. We will still have a form of control orders—mini-control orders—and we will come on to that later. Why are we getting rid of the existing Act at a time when there is a need for transitional support, because of the time required to train officers for surveillance and the time required for the assets to be developed? There is also the cost of all of that. Can we not take that into consideration?

Tobias Ellwood (Conservative, Bournemouth East)

While the hon. Gentleman is comparing control orders with TPIMs, will he place on the record his party’s perspective on Lord Macdonald’s call to use the bail system instead of TPIMs or control orders?

Gerry Sutcliffe (Labour, Bradford South)

I have serious concerns about police bail and whether it would be appropriate. I understand that it has been considered in the past and rejected, because of that. It may be appropriate on charges under pre-detention. The evidence that we heard from Lord Carlisle, the police and, indeed, Lord Howard about issues such as relocation, which we will come on to later, suggested that the balance should stick with the security services and not letting risk increase. That is my concern.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I want to bring the hon. Gentleman back to an earlier intervention and the soundbite that we should always fall down in favour of security rather than liberty. Does he agree that that is rather glib? On security, he might argue that control orders were not tough enough and that, for security reasons, people should be detained permanently under a control order, because that would maximise security.

Gerry Sutcliffe (Labour, Bradford South)

I would not argue that. At the outset, prosecution is where we would all want to be, as that has the clearest effect. The reality, however, is that that cannot happen, because of issues around intelligence gathering and evidence that is inadmissible in court, despite security services knowing that individuals pose a threat. That is the difficulty.

The move towards TPIMs changes that balance where the risk is increased. That cannot be right in the present context of a severe threat level and with high-profile events coming up. On Tuesday, Lord Carlile said that the Bill

“arose from coalition politics—I am aware of the process that occurred—and it is a compromise. As I said in my last report, and in the note that I sent to the Committee, it is the sufficient lowest common multiple, and it will do. However, it does not provide as much public protection as control orders, and it would be foolish to ignore that fact.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 21, Q66.]

That is what we are saying. It would be foolish to get rid of the existing regime until transitional arrangements are in place and until costs and resources are considered. The Committee would be making a grave mistake if it allows clause 1 to be introduced.

Julian Huppert (Liberal Democrat, Cambridge)

The hon. Gentleman has frequently mentioned the extra cost. As I understand it, most of the money is going into greater surveillance and evidence gathering with the aim of prosecution. Surely he would welcome the idea that we will do our best to prosecute such people, if such evidence can be gained.

Gerry Sutcliffe (Labour, Bradford South)

Again, I am sure that the hon. Gentleman listened to the evidence in the same way that I did. The Director of Public Prosecutions said that once an order is in place, it is more difficult to get a prosecution, if not unlikely. It is right that the coalition Government and the members of the Committee will make the arguments to get the Bill through—I have been in the Minister’s position, ensuring that Bills go through—but this is a serious issue for national security. There are a number of reports that are critical of what the Government are doing, such as the report by the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, which was published this morning and is critical of the scheme’s workability.

Paul Goggins (Labour, Wythenshawe and Sale East)

My hon. Friend has mentioned the report that was published today. Members of the Committee may not have had a chance to read it, but I encourage them to do so. It is the considered conclusion of a Joint Committee, with members from both Houses and all parties, reflecting on one of the outcomes of the Government’s counter-terrorism review. Taking evidence in a calm way, rather than going for a political fix, has led to a different conclusion.

Gerry Sutcliffe (Labour, Bradford South)

That conclusion should be the outcome. I agree with my right hon. Friend. I said on Second Reading—other Members have mentioned this—that this should not be a political football. This should be about how we can consensually agree what is best for the security of the country, from a libertarian point of view.

Tobias Ellwood (Conservative, Bournemouth East)

The thrust of the hon. Gentleman’s argument is that Lord Howard and Lord Carlisle were not supportive of TPIMs. That is the impression I am getting. I refer to the evidence session, and question 66, which the hon. Gentleman posed, and to which Lord Howard responded:

“I am not a critic of the Bill…the Bill, with its change in the burden of proof and in the scrutiny provisions that are contained within, is an improvement over the control order system. I am by no means a die-in-the-last-ditch control order person, and in a significant number of ways, this regime is superior to the control order regime.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 21, Q66.]

Lord Carlile responded to that by saying, “I agree broadly”. As senior lawyers, they have differences of opinion on certain aspects of the Bill, but, in general, they are supportive of TPIMs.

Gerry Sutcliffe (Labour, Bradford South)

I beg to differ on Lord Carlile’s position, although I accept the hon. Gentleman’s description of Lord Howard’s position. Lord Howard said that he had concerns about the relocation issue. He also expressed concern about the time of the implementation. The police are concerned that the bid only went in last Friday. We do not yet know whether the resources will be made available, how large they are or the cost. There was not an accrual of feeling that this is a wonderful replacement to control orders. Lord Howard said that he supported TPIMs, but Lord Carlile said that he did not and that it was the lowest common denominator. [ Interruption. ]

Lee Scott (Conservative, Ilford North)

Order. If the hon. Member for Bournemouth East wants to intervene, will he do so officially?

Gerry Sutcliffe (Labour, Bradford South)

It is not unusual for Government Members to disagree on interpretations of what we heard, but I heard what I heard.

Mark Tami (Labour, Alyn and Deeside)

My hon. Friend may recall that Lord Carlile said:

“Control orders inevitably provide greater protection to the public than the suggested TPIM regime”.––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 17, Q53.]

Gerry Sutcliffe (Labour, Bradford South)

I read that as well.

Jessica Morden (Labour, Newport East)

Does my hon. Friend agree that one of the most startling pieces of evidence that we heard was from the police, who said that the relocation issue in the 2005 Act was the most effective measure that they had? Removing that power gave them serious concern.

Gerry Sutcliffe (Labour, Bradford South)

Very much so. My hon. Friend hits on a major point, about relocation being a useful tool to assist the process, to which I am sure the Committee will return.

The clause repeals the 2005 Act, which we think is a big mistake. I am interested to hear the Minister’s comments. I am sure that he will be truthful about the measure, which is not based on a request from the security services, the police or anyone else; it is a political compromise to ensure that the coalition can continue.

Ben Gummer (Conservative, Ipswich)

It is a pleasure to serve under your chairmanship, Mr Scott, for what is my first Public Bill Committee. I am concerned about some of the comments that we heard at the beginning of our debate, because it seems that people fundamentally misconceive the purpose of Parliament. We live in a state of liberty. Parliament’s role is to circumscribe that liberty, so everything that we do in the House decides how our liberty is curtailed in various ways: whether it is smoking in the car, as it we debated yesterday, having to wear a seat belt or being prosecuted for murder. Our purpose is not to decide what is in the national security interest and then allow people to live outside that bound.

I am concerned about the tenor of discussion by Opposition Members. There are many things in the Bill to be debated, and I look forward to going through it in great detail. However, the first thing we must do is make sure that all our freedoms are protected as far as possible, and strike a balance. I am worried about the arguments that arise from the principal proposition of the hon. Member for Bradford South that national security comes first, not liberty, and the idea that this is some sort of political football. There is something decent and honest about the measure came about, and the position is not as the right hon. Member for Wythenshawe and Sale East said.

The hon. Member for Bradford South said that the public have not asked for the Bill, but the Liberal Democrats achieved almost the same share of the vote as his party at the previous election on a manifesto which specifically committed them to getting rid of control orders. We have a coalition Government. There are strong views on both sides of the Government about the nature of control orders and how we circumscribe liberty. There is no objection to the Labour party; it is just that we have a difference of opinion. In coming together, we have come up with a new way of addressing the very difficult problem of just 12 people who are consuming huge amounts of parliamentary time and enormous state resources. It is great that we are here, and there is nothing dishonest about that. We are fulfilling the democratic mandate that we have together, and which the Opposition are quite rightly challenging.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am listening carefully to the hon. Gentleman’s argument, which he has also put effectively in the Chamber. He talks about the rights and freedoms of people, and we focus necessarily in such debates on the rights of individuals who might be a threat to the community. Does his consideration of rights, liberty and freedom extend to the rest of the population, who are at risk of being killed by those people?

Ben Gummer (Conservative, Ipswich)

I am not denying that point. I am not trying to turn our discussions into a metaphysical argument. I was careful not to speak about rights, because the foundation of our democracy is one of liberty, how that is curtailed, and how the state and the Crown specifically ensure that we do not do things or that we might do things. Our starting point is that we are free people and that we are doing serious things to people’s liberty. On Tuesday, there was a searing shaft of testimony by the doctor who knew some of the controlees and who had a complete understanding of what terrible acts many such people might wish to do, but the effect of being put under permanent incarceration for reasons that they do not know is profound. We must be terribly careful about the ease with which we talk about the importance of national security, when it is taking away someone’s own knowledge of their existence and why they are in that space.

Shabana Mahmood (Labour, Birmingham, Ladywood)

With the exception of relocation, will the hon. Gentleman explain why he believes TPIMs are fundamentally and practically different from control orders?

Dr Huppert rose—

Ben Gummer (Conservative, Ipswich)

Before responding to the hon. Lady, I shall give way to my hon. Friend.

Julian Huppert (Liberal Democrat, Cambridge)

I thank the hon. Gentleman for giving way twice in a sense. He is making a well-argued point, which is interesting for the Committee. Does he agree that there are several cases, even under a normal legal system, in which the courts have made mistakes and as a result of which people have been imprisoned inappropriately? It is hard to imagine that none of the people under control orders has similarly been subjected to such errors. We should also be worried about people who do not have the chance properly to demonstrate their innocence and who may, in fact, not be guilty of what has been suggested.

Ben Gummer (Conservative, Ipswich)

I completely agree with my hon. Friend. The process of the courts themselves is not perfect. After all, “innocent until proven guilty” is the key distinction between our own jurisdiction and that in France. We believe in liberty in this country, and it is the foundation of our constitution.

As for the points made by the hon. Member for Bradford South, I hope that over the next few days we will discuss in great detail the balance that we are about to strike. I would not like to start off this incredibly fruitful and interesting discussion with the idea that there is one group of Members in Committee who are keen on national security and the protection of people at the Olympics and who are turning that into some great cause célèbre, and another group of Members who are ignorant of the considerable threats that we face. Underlying everything that we do, we must remember that we are defending something very precious—our ability to go about our business without harassment.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

It is a pleasure to serve under your chairmanship, Mr Scott. As hon. Members would expect, I shall oppose the position expressed in amendment 9. Let me explain briefly why control orders should go. Principally, it is because the balance between security and liberty, to which the hon. Member for Bradford South referred, was struck incorrectly. The 2005 Act was introduced in a rush. That is not a criticism, because it was due to the circumstances at the time, but it was one of the reasons why that legislation was so flawed.

On TPIMs-plus, I welcome the fact that there will be an opportunity for pre-legislative scrutiny. The right approach is to review legislation at leisure, when possible, hopefully to ensure that there is a degree of cross-party agreement and that it is fit for purpose, if it is ever invoked. I hope that that will not be the case in this instance.

The Opposition make great play of the fact that control orders have been effective, but in Tuesday’s evidence session, Mr Osborne said that they had not been particularly effective, given that seven controlees have absconded.

Hazel Blears rose—

Paul Goggins rose—

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I have a plethora of Labour Members to choose from. The whereabouts of six controlees are unknown. I know that Mr Osborne was going to come back to us with some additional information, so perhaps the Members who are leaping up and down want to update me on that.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am baffled by the hon. Gentleman’s remarks. Let me read him one sentence from the Government’s own counter-terrorism review:

“the review recognised that the regime had had success in mitigating risk and took detailed evidence in support of that claim from the agencies.”

How can he say that control orders have been ineffective in the face of that evidence in the Government’s own report?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The right hon. Gentleman did not comment on the fact that a number of people who were subject to control orders had absconded.

Hazel Blears rose—

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The right hon. Lady has experience in this matter, so she will no doubt explain how absconding controlees adds to our security.

Hazel Blears (Labour, Salford and Eccles)

I hope that the tenor of our proceedings will be as in the contribution made by the hon. Member for Ipswich.

These are really serious matters. We have a duty to have a good discussion and to explore our differences, as well as even some of the things on which we might agree. The hon. Member for Carshalton and Wallington referred to the fact that seven people who were subject to control orders had absconded. Is he aware that it was four years ago, in 2007, when the last of those people absconded? Many of those people on control orders were foreign nationals and not British citizens? It is unfair on the Committee to keep trying to suggest that the orders are ineffective because people have absconded, because that does not represent the current situation.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The right hon. Lady is perfectly right to state that no people on control orders have absconded in the past three or four years. However, the regime still allowed a number of people to abscond, and that clearly did not add greatly to our security. To move on—

Paul Goggins (Labour, Wythenshawe and Sale East)

Before the hon. Gentleman moves on, I would be interested to hear his answer to the point that I made in my intervention.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I thought that I had given the right hon. Gentleman an answer to his question. Perhaps he would like to pose it again so that I can ensure that I deal with it sufficiently.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am happy to spell out again one of the conclusions reached in the Government’s review—it is in paragraph 16 on page 38, if the hon. Gentleman would like to look at it. The document states:

“the review recognised that the regime had had success in mitigating risk and took detailed evidence in support of that claim from the agencies.”

How can he argue that the regime was not effective when the agencies and the Government’s review say that it was?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I do not necessarily want to prolong this because, as the right hon. Member for Salford and Eccles rightly said, we need to focus on what is going to be effective. However, I should point out that the same report—this is the line above the one that the right hon. Member for Wythenshawe and Sale East cited—states:

“The review examined whether control orders are effective. It noted that the regime had clearly not been fully effective – the seven abscondees in 2006-07 demonstrate its limitations.”

We can both quote as we would like from the report, but the important thing is to ensure that whatever the Government put in place to replace control orders is effective. I believe that that will be effective, and that is why we should get rid of control orders.

Control orders contain measures that are very damaging to the families of the controlees. Some people may have no sympathy for the controlees themselves, although it is worth pointing out that they have not been found guilty, but control orders can have a very heavy impact on families, particularly due to the relocation aspect, on which I know that the Opposition will focus, as did many of our witnesses. That is why the coalition is right to ensure that additional resources are in place to ensure that there is additional surveillance. Relocation clearly has a heavy impact on families.

Controls around access to the internet also have an impact on families, and particularly on children. As anyone who has children will know, they rely very heavily on the internet to do their homework, to access school sites and so on. It is therefore right for the coalition to provide internet access in a way that is secure and that will be monitored and controlled effectively. Clearly, the controlees—or the people subject to TPIMs—will know that if they use the line they have been granted, it will be monitored at all times. That will provide the security that hon. Members on both sides of the Committee want.

Control orders include lengthy curfews that preclude controlees from taking part in a normal life. Of course, that is a double-edged sword, because if controlees are able to take part in a normal life, that might provide them with the opportunity to do things that one wants to stop them from doing. However, at the same time, if there were any prospect of some controlees being encouraged to reintegrate, preventing them from leading a normal life would stop that.

I have spent time with Michael Korzinski, from whom we heard evidence, which included spending an hour with someone who had been subject to a control order that was subsequently quashed. It was clear from talking to that person that the level of control that he was under at all times of the day and night had literally driven him mad.

Shabana Mahmood (Labour, Birmingham, Ladywood)

The hon. Gentleman talks about curfews. Will he explain how a curfew of 16 hours is practically and fundamentally different from the overnight residence measure envisaged under the TPIM regime?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The hon. Lady makes a very sensible intervention. The matter she raises is something with which the Government are familiar, and it perhaps requires more clarity. If there is no precise definition, it might be that “overnight” could be challenged in the courts in the future, but I would expect that most courts would not consider a 16-hour curfew to be an overnight curfew, as I do not think that that would be anyone’s understanding of the meaning of “overnight”. I am sure that that matter will be resolved in the courts at some point in the future.

Another point about control orders is that they are not effective in securing prosecutions. I was disappointed that at least some of the witnesses from whom we heard evidence felt that TPIMs would be no more effective at securing prosecutions than control orders. I do not think that they were right, but the Government could look further at enhancing the prospect of prosecution.

When Mr Osborne was asked about the role of the police under TPIMs, it was interesting that he said that it would be:

“exactly the same as that under control orders, in that it is for us to monitor and enforce the order”––[Official Report, Terrorism Prevention and Investigation Public Bill Committee, 21 June 2011; c. 3, Q1.]

He did not mention securing prosecutions as part of the priority or objective of a control order or a TPIM. The Government—I am sure that we would receive Opposition support for this—must ensure that there is a greater prospect of prosecution under TPIMs. We should fight hard for anything we can do to achieve that objective.

Hazel Blears (Labour, Salford and Eccles)

This takes us to an important part of the debate. Obviously we all want more prosecutions—we genuinely do—but which aspects of the TPIM regime will enable the security services, the police and the agencies to increase the number of prosecutions? All the evidence we heard on Tuesday was that if a suspect is alerted to the fact that they are under surveillance—whether under a TPIM, a control order or police bail—further evidence of sufficient robustness for a prosecution is most unlikely to result. Which measures does the hon. Gentleman feel will enable more prosecutions to happen?

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Additional surveillance clearly opens an opportunity for obtaining more information—that has to be the case—and the reporting requirement might add to that. Perhaps we ought to ensure, for instance, an independent analysis of whether there is an ongoing investigation. The Government could consider an outside reviewer looking at police activity to ensure that an ongoing and active investigation is under way. I agree with the right hon. Lady that, given the scale of things, the helpful measures might not be particularly extensive, but there are some, so I hope that our debates in Committee might identify additional ways of maximising the prospect of securing prosecution because the Government and the Opposition are in total agreement on that point. We want to ensure that as many people who are subject to control orders—soon TPIMs—as possible will be prosecuted when that is achievable.

Although the Labour party says that it does not want to make the change a political football, it has done so by suggesting that it is a political fix. It is nothing of the sort. Both coalition parties agree that control orders should be subject to review. The Liberal Democrats voted against control orders year after year, and the Conservative party certainly argued against them in successive debates on their renewal. Both coalition partners agreed that we would review control orders, and that is exactly what we have done. Accusing us of a political fix is a disparaging allegation, because the implication is that our two parties have put our political interests above the security of the country.

Mark Tami rose—

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I am sure that the hon. Gentleman is about to dispel that allegation.

Mark Tami (Labour, Alyn and Deeside)

I wondered what the hon. Gentleman thought of the view of Lord Carlile, who said that it was very much a fix. The last time I checked, Lord Carlile was a member of the Liberal Democrats.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I have great respect for Lord Carlile, but he does not necessarily speak for the Liberal Democrats, as the hon. Gentleman knows full well. Lord Carlile does not represent the mainstream view of the Liberal Democrats on the issue.

The coalition Government were right to undertake a review of control orders. We were right to call for their abolition and we are right to replace them with TPIMs. We will deal with the issue even more effectively if we can secure, as part of our debates on the Bill, an even greater prospect of prosecuting those who are subject to TPIMs. On that point, at least, hon. Members can agree.

Hazel Blears (Labour, Salford and Eccles)

In some ways I envy the hon. Gentleman. He finished his contribution by saying, “We are right to do this; we are right to do the other.” Our whole debate will actually be very nuanced and quite delicate because there no such degree of certainty or of being right about the issues. As our debates continue, we will all appreciate that.

In 2005, when the Prevention of Terrorism Bill was brought in, as the Minister responsible for counter-terrorism, I had the unenviable task of taking it through Parliament. I remember the arguments that went on long into the night. It was one of the few occasions in our Parliament when we literally sat through the night debating the Bill, and that showed how contentious and difficult it was. People had to search their consciences and beliefs to try to frame legislation that would respond to a court declaration that detention under the immigration powers was no longer tenable. We were faced with the very practical problem of having a number of people whom everyone recognised were seriously dangerous to the future of the country and of trying to craft a framework within which we could balance the essential liberties of people with considerations of national security. My first point is that while this is a balance between liberty and security, it is also a balance that involves a consideration of things in the abstract: principles and the rule of law—and I am a lawyer, of whatever class. We believe very strongly in our country, and this is the way I was brought up, that we value freedom.

What is interesting is what happens whenever anyone sees the intelligence. Lord Carlile has carried out 10 reviews. He has examined every control order in detail. He has seen the intelligence and talked to the agencies, and he has reached the view that however distasteful and unwelcome the regime is, it is the best thing that can be done to contain the threat. We can consider the legal cases. It is interesting that the High Court judges who see the intelligence and the threat that the people whom we are discussing often pose conclude—again reluctantly—that they are willing to confirm the Secretary of State’s control order. There have been some Appeal Court judgments in which judges have specifically denied themselves access to the intelligence because they want to consider the issue in principle—on the basis of legal principles. We often find that they are then less keen to impose the control order, so there is a big distinction there.

I am not saying that because people are Ministers and have access to intelligence, they are somehow cleverer and brighter and can make the right decisions. However, it does something to us, as human beings, when we see the scale and nature of the problem and how dangerous these people are. We then see how far we are prepared to move away from a pure principle of liberty so that we do our very best to protect normal, ordinary people in the country as they go about their everyday lives.

Julian Huppert (Liberal Democrat, Cambridge)

A common argument used by Labour Members is that if people just knew what they knew, they would make the same decision. I trained as a scientist. While I place great faith in evidence, it is hard always to place faith in people who tell us that they have seen the evidence. Let me give the right hon. Lady a counter-example. Lord Macdonald, who gave us such cogent evidence on Tuesday, saw the papers during his review, but that clearly did not change his opinion. He was very clearly against the control order regime. Having seen the evidence, he does not think that it is necessary.

Hazel Blears (Labour, Salford and Eccles)

Equally, Lord Carlile has seen the evidence and has reviewed every control order imposed since the regime was brought in. He has expressed the view time and time again that the control order regime, although not perfect, has been effective in helping to mitigate risk.

Gerry Sutcliffe (Labour, Bradford South)

Is it not true that the present Home Secretary has used the powers successfully and defended them in court?

Hazel Blears (Labour, Salford and Eccles)

My hon. Friend is absolutely right to say that that has happened, and in no case was it more important than in that of CD just a few months ago. We will come to that later under the relocation clause. I cannot for the life of me understand why the Home Secretary would see fit to use that power to protect the public and then defend it on appeal but then, within weeks, present legislation that will tie her hands and deny her the possibility of using relocation provisions.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The right hon. Lady makes some powerful points about difficulties in relation to the balance of the judgment that has to be reached and about the heavy burden placed on all those engaged in work that keeps our country safe. On her last point, does she accept that a context needs to be acknowledged in relation to the focus of the security services and the police, and that looking at legislation in isolation does not provide the full picture? In the same way as she says that we need to look at information, we also need to look at the overarching approach to dealing with terrorism and making sure that we are safe. Focusing on one particular case and looking at legislation in isolation does not give that full picture.

Hazel Blears (Labour, Salford and Eccles)

I am perfectly content to agree with the Minister that this is a complex jigsaw, as is collecting intelligence. On the point made by the hon. Member for Cambridge about evidence, these are matters of evidence, intelligence and judgment. That is absolutely key. It is not just about the judgment of politicians, although I have great respect for the judgment of politicians of all parties, but of people who are engaged day to day in the business of protecting our national security.

Tobias Ellwood (Conservative, Bournemouth East)

The right hon. Lady makes a powerful argument and I have a lot of respect for the experience that she brings to this Committee and the House. She mentioned the 2005 Act, but she also raises the important balance between intelligence and chargeable evidence, and the fact that, were we to see that intelligence, we would be minded to go down a particular route. I worked briefly in military intelligence, and that involves an opinion, an angle and a perspective that has to be judged. As my hon. Friend the Member for Ipswich mentioned, we are not always privy to that intelligence and it is not always correct. We have to work towards chargeable evidence—that is our base, so we have to weigh it up. If we are not privy to certain information, we have to make judgments on the chargeable evidence. Intelligence can be very wrong indeed, such as that in the lead-up to the Iraq war.

Hazel Blears (Labour, Salford and Eccles)

I take the hon. Gentleman’s point. I want to get to an irreducible minimum of people for whom we would rely on intelligence rather than evidence. We all want evidence that can be produced in court and tested through cross-examination in an adversarial system so that a judgment can be reached. Unfortunately, however, that does not apply in a small minority of cases—and it is a tiny minority. We have had only 48 control orders during the six years in which the legislation has been in existence and we now have 12. They have been subject to the most intense legal scrutiny arising from any piece of legislation, which is probably right, because they represent an intrusion into people’s liberty. There is, however, an irreducible minimum of people.

We have a choice. It is an honourable and principled position if one rejects the whole regime and believes that we should never control people unless there is evidence with which we can charge them, but the consequence of that is that we would have to be prepared—politically, morally and in every other way—to take responsibility for making that decision. There is a dividing line. If we tell people that they will come through the conventional criminal justice system and that there will be no intrusion into their liberty, we have to be prepared to take responsibility, because that will involve seven or eight people who are very dangerous to this country. It is perfectly proper to make that choice, but I wish there was some honesty in this debate. The Bill will introduce a mirror image of the control order regime. I will go through the five changes that the Government could have made to the 2005 Act, but we have to be honest and the Committee should recognise that an irreducible minimum of people have to be controlled.

Tobias Ellwood (Conservative, Bournemouth East)

My worry about this entire debate is that we are focusing on those who are involved in control orders, yet we have heard from the head of MI6 that we have concerns about at least another 1,000 individuals in the UK, if not more. Those who are under control orders are at least known. Does the right hon. Lady agree that the thrust should be that if the security services have concerns about individuals, they should be allowed to pursue them, no matter who they are, and whether they are under control orders or not, pursuant to obtaining hard evidence that can lead to a charge?

Hazel Blears (Labour, Salford and Eccles)

That is precisely what the agencies do. The whole point is that there must be prioritisation. There is probably knowledge of nearly 2,000 people in this country who are involved in various degrees of plotting, attack planning or association with terrorism-related activity. We heard yesterday about the resource implications of 24/7 surveillance on perhaps 12 people—we would be looking at between £11 million and £18 million for each one. The country’s entire budget could be spent on surveillance, but I do not want to live in such a state, thank you very much. The agencies must prioritise. Let us never forget that the intelligence is seen by not just politicians, but by High Court judges who have a complete review regime. It is for those High Court judges, with the panoply of their legal training and their emphasis on liberty, to decide whether to quash or revoke a control order, or to vary its conditions. There is a series of checks and balances within the regime.

Ben Gummer (Conservative, Ipswich)

The right hon. Lady’s argument has been utterly consistent. I remember hearing her on “Any Questions?” and “Question Time” several years ago. She has never taken a glib line and has always been consistent in her projection of these difficult balances. She rightly says that this is a moderation of existing legislation, given her experience as a Minister when the 2005 Act was drawn up, I would be interested to know the number of people whom it was anticipated might be placed under a control order—I recognise that this was only a few months after the atrocities in 2005—and what proportion would be foreign nationals. What surprises me in this debate is that we are dealing now with 12 people, of whom perhaps three or four are foreign nationals. I would be interested to know what the likely size of that population was thought to be when the Bill was conceived.

Hazel Blears (Labour, Salford and Eccles)

The hon. Gentleman is right, and the picture has been moving and developing since 9/11. Before 9/11, we dealt with Northern Ireland terrorism, but we did not have international terrorism from al-Qaeda and home-grown terrorism. The picture has developed and the legislation was an attempt, when possible, to keep up with that.

Importantly, the 2005 Act was passed before 7/7. Some people thought that the legislation was a knee-jerk reaction to something that had happened in this country, but it was not. People had previously been held in detention under the Special Immigration Appeals Commission Act 1997, and we were trying to deal with a situation in which, following a challenge in the courts, it was decided that that was discriminatory because it applied to foreigners but not British citizens. The control order regime was an attempt to introduce a non-discriminatory regime that applied to everyone, but it was passed before 7/7. That was its genesis. It was considered quickly but, importantly, it was not an emotional reaction to something that had happened in our country.

I want to put on record the fact that none of us at that time introduced the regime with relish. Some people have tried to portray us as rubbing our hands with glee at the prospect of putting people under house arrest, subjecting them to internal exile, and being an authoritarian Government disposing of the rule of law. We took that path with a heavy heart. We were confronted with an almost insoluble problem, and it was clear, following the courts’ declaration that the previous regime was unlawful, that we had to take action to protect the public.

Some of those foreign nationals could not be deported at the time because of huge concerns about whether they would be ill treated or tortured at the hands of their own regime, so we were in a Gordian knot that was impossible to resolve. They could not be prosecuted under the conventional justice system because the information about them was intelligence that could not easily, if at all, be converted to evidence. If that information had been brought forward, the lives of our own security services agents might have been at risk, our techniques would certainly have been at risk, and we could not have deported those people. In those circumstances, what does one do? It could have been decided in principle that a control order regime was a step too far and that people would be let out. That would have been fine, but if people had been let out, there would have been a political and moral responsibility to bear for that happening.

I welcomed Shami Chakrabarti’s comments in evidence on Tuesday. She acknowledged that no one had entered into legislating lightly, and that there was an incredibly difficult set of circumstances to confront. I am not saying that that was the first time I had heard Shami say that, but it was very refreshing that she acknowledged that we were not a bunch of authoritarian, illiberal people and that we had struggled with the issue in a proper manner.

I remind the Committee—we are all very conscious of this—that in the 10 years since 9/11, the security threat facing this country has not receded. Many of us would have hoped—this was why we included a sunset clause—that somehow peace would have been restored and that because we would now be living in a country where the threat had diminished, we would no longer need such a regime.

Unfortunately, the opposite is the case. The threat level remains severe. There are probably 2,000 people of interest to the police and security agencies, and there are several active plots at any time. In my view, it is only because of the dedication, commitment and ingenuity of the police and security services, who have been able to disrupt many of those plots—this is where control orders are very important, because they provide disruption rather than simply surveillance—that there has not been further mayhem and carnage on the streets of this country. I am convinced that their ability to deal with the threat has protected us from that.

Control orders are intrusive and in many ways unwelcome, but they are unfortunately necessary if we are to continue to protect the public from those who are determined to do us harm. I therefore do not understand why we are abolishing control orders and replacing them with TPIMs. We shall debate the “mini control orders” later. I refer to them as that because they are small, although they are not perfectly formed. The Government should have brought forward an honest amendment to the Prevention of Terrorism Act 2005.

I do not want any political footballs in this debate, but it is important that the public know the “genesis” of the debate on this legislation—I cite the term used by Lord Carlile in his evidence on Tuesday. I was surprised that he said:

“I have a concern about the genesis of the Bill. It arose from coalition politics—I am aware of the process that occurred—and it is a compromise…it is the sufficient lowest common multiple, and it will do. However, it does not provide as much public protection as control orders, and it would be foolish to ignore that fact.”

He added that his party

“made a serious mistake in committing itself to the abolition of control orders. It made that mistake understandably, however, because it did not have the information.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; c. 21-22, Q66 and 67.]

That is a powerful passage. Lord Carlile has been intimately involved in this area for the past decade. What he said about the genesis of the Bill is telling. This is not a party political point, but it leads me to feel great concern. One party wanted to abolish the orders completely, and I think it is still unhappy with a measure that is a mirror image of control orders, albeit weakened and watered down.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

The right hon. Lady said that her point was not party political and drew the Committee’s attention to a passage in the evidence of Lord Carlile. We all agree that it is necessary to strike a balance between safety and the need in a civilised society to protect the liberty of the individual. We may all have different views about that, but the previous legislation might, for example, have permitted those who are subject to control orders simply to be locked up. It might have derogated from the European convention of human rights. That would have provided a greater protection for the public. I am afraid that the right hon. Lady’s point is party political. She is saying, in essence, that she takes a different view from the Government and that, as a result, we are merely changing the name. In fact there are changes of substance in the Bill, so how does she deal with that issue?

Hazel Blears (Labour, Salford and Eccles)

I have great respect for the hon. and learned Gentleman, so I will make my final points, which relate absolutely to the issue he raised.

What are the real points of difference between the Prevention of Terrorism Act 2005 and the Bill? First, there is a different name. Secondly, there is the raising of the threshold from reasonable suspicion to reasonable belief, and I am absolutely content with that. Indeed, Lord Carlile said again on Tuesday that none of the control orders that have been made would have fallen below the threshold of reasonable belief, and he indicated that the High Court had made the threshold even higher.

The third change is the introduction of an absolute limit—the two-year limit on renewal without evidence of new involvement in terrorism-related activity. That is a difference. Lord Carlile said that he was still of the view that there could be exceptional circumstances, without evidence of new involvement, in which people posed such a serious threat that it would be legitimate to extend the order beyond two years, and we will debate that later.

There are some changes to the measures that can be imposed. There is no relocation. There are the measures on mobile phones and on work and study, so there are some changes to the measures. The legislation is also made permanent: there is no sunset clause and no review by Parliament.

Basically, therefore, there are five changes, and there was nothing to prevent the Government from coming forward with five amendments to the Prevention of Terrorism Act 2005. We could be having a much more honest debate, which recognised the fact that there is a small number of people we cannot prosecute or deport and for whom we must make provision. That will involve some intrusion into their liberty, and the debate is about where the balance lies. It is, however, dishonest to introduce a Bill, to rename control orders TPIMs and to have absolutely the same essence and a mirror-image regime. That is not the way we should proceed.

We will no doubt debate the five differences in the Bill, but, in essence, we have a repeat of the regime. I welcome that, because it represents a realistic acknowledgement by the Minister, who occupies the position I held for three years, that these issues are not easy to resolve and that we cannot simply make a manifesto promise to abolish a regime, because, as Ministers and Members of Parliament, we are responsible for ensuring the safety and security of the people of this nation.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is an absolute pleasure to follow my right hon. Friend the Member for Salford and Eccles, who has spoken with her customary expertise and authority, which are based on considerable experience of these issues in government and on her wider responsibilities.

In response to the hon. and learned Member for Sleaford and North Hykeham, I should say that it is inevitable that we will have our party political hats on to some degree; we cannot escape that, because we stood for election, and we are here as Labour, Conservative and Liberal Democrat MPs. However, on important issues, that should not stop us seeking consensus where we can.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I completely agree with the right hon. Gentleman, and we cannot, of course, escape the fact that we are all members of political parties. However, the Bill’s subject matter is important, and in striking the right balance, we are really concerned with the substance of the measures that should be put in place to deal appropriately with the small number of individuals who must, unfortunately, be controlled. Does the right hon. Gentleman not agree, therefore, that the amendment to remove clause 1 is simply a party political measure and that we are wasting our time debating it, when we should be concentrating on the substance of the measures, not silly party political points?

Paul Goggins (Labour, Wythenshawe and Sale East)

I will come on to that. I respect the hon. Gentleman, but there is more to it than that. We should see the whole process of grappling with this difficult issue, which the Minister has to grapple with every day, as an evolutionary process, rather than as a matter of one side having got things wrong and the other side bringing in a set of measures to put them right.

Yesterday, I took part in a sitting on a private Member’s Bill. The hon. Member for Mole Valley (Sir Paul Beresford) is assiduous in introducing private Members’ Bills to further the protection of vulnerable children. His Bill amended the Domestic Violence, Crime and Victims Act 2004, which I took through the House of Commons, and I was there to support him because he was doing something evolutionary. The time is now right to make such a change, although it was not right in 2004, and I wanted to say that to him. Where there is common ground, we should grapple with the detail and try to reach consensus—that should be our approach. I sense from the comments made by the hon. Gentleman and others that there is real potential in the Committee for us to do that.

There are really two options that we ought to consider. The Minister should either have introduced a Bill that only has clause 1 in it or he should have introduced a Bill that amends the 2005 Act. Choosing the first option—introducing a Bill with only clause 1 in it—is a perfectly respectable position to take. It is not one that I agree with, but I suspect that there are Members of this Committee who would take that position. We have heard from people in evidence who take the position that we should use other measures outwith the control orders regime. So it is a perfectly honest and honourable position to take, and it is one that I respect even if I do not agree with it.

If the Government’s own counter-terrorism review had concluded that the risk from terrorism had reduced to such an extent that these measures were not needed and that there was another way of imposing the kind of restrictions that control orders imposed, or if it had concluded that control orders were wholly disproportionate and therefore ought to be swept away, we could have had an interesting and vigorous debate about those choices. To reach either of those conclusions would have been an honest position to take, but the counter-terrorism review did not reach either of those conclusions.

My right hon. Friend the Member for Salford and Eccles has already made that clear. Point 9 on page 37 of the counter-terrorism review says:

“The review accepted that for the foreseeable future there are very likely to be a small number of people in this country who are assessed to pose an immediate and significant terrorist threat but who we can neither prosecute nor deport.”

So the Government’s own counter-terrorism review clearly came to the conclusion that the previous Government had come to, namely that there is this group of people who need to be dealt with in a different way and that doing that would pose a set of legal questions and other questions that would need to be answered. This Government did not walk away from that challenge and I pay credit to them for doing so. There are some problems with some of the measures that they are seeking to introduce, and we will debate those measures in the coming days. However, to say that that group of people needs to be dealt with is an honest position to take.

The counter-terrorism review also came to the conclusion that surveillance alone could not mitigate risk to the level of a control regime. Not only is surveillance more expensive but it is not as effective in controlling and disrupting those who seek to attack and destroy our way of life. That conclusion—that surveillance alone is not enough—is another important conclusion that the Government came to in the review.

I had an interesting exchange with the hon. Member for Carshalton and Wallington earlier. I concur with him that the control order regime was not fully effective; it was not 100% effective. I acknowledge that there were some “abscondees” in the early days, but there have not been any since 2007. Critically, the counter-terrorism review recognised that the regime had been successful in mitigating risk and detailed evidence in support of that claim was taken from the agencies involved. The agencies that deal with this issue daily made it very clear to the Government that the regime in operation had been effective and the Government seem to have accepted that, at least to some degree.

Bob Stewart (Conservative, Beckenham)

If people abscond when they are under control orders, they will abscond under TPIMs too. Unless we lock someone up, they will run if they really want to, even if they have something around their ankle. In a sense, that argument does not work either way, because quite frankly the only way to stop someone doing a runner is to put them in a jail, and of course we all want that. So the argument about TPIMs or control orders, and saying that seven people did runners a few years ago, is largely irrelevant, because some people would run under any regime unless they were locked up. Is that not the case?

Paul Goggins (Labour, Wythenshawe and Sale East)

I agree completely with the hon. Gentleman’s point. I think that it is a matter of fact that during the last four years the control order regime has been effective in ensuring that people did not run, but if they wanted to run they could find the opportunity to do so and that is at least as true of the TPIMs regime as the control order regime.

Julian Huppert (Liberal Democrat, Cambridge)

While we are talking about the Government review, does the right hon. Gentleman agree with Lord Macdonald, the independent reviewer? He stated in the report:

“The evidence obtained by the Review has plainly demonstrated that the present control order regime acts as an impediment to prosecution.”

Does he agree that that does not help if we do want to prosecute?

Paul Goggins (Labour, Wythenshawe and Sale East)

I am happy to keep repeating this for as long as the hon. Gentleman keeps raising the subject. Of course prosecution should always be a priority. No Minister from the previous Government and no Minister in this Government would disagree with that, but sometimes when faced with the high-level of threat that certain individuals pose and when it is not possible to prosecute or deport, the Government have to do something, and legislation must be in place to give them that power. The previous Government had the control orders regime, and this Government want to introduce some changes.

Julian Huppert (Liberal Democrat, Cambridge)

Perhaps I was not entirely clear. My question was not whether the hon. Gentleman shares the aim of prosecution—I am sure that he does—but about Lord Macdonald’s comment:

“the present control order regime acts as an impediment to prosecution.”

Does he agree with that statement?

Paul Goggins (Labour, Wythenshawe and Sale East)

No. The point that was made in evidence the other day was that the TPIM regime, when in place, will not assist in furthering prosecutions. That was made perfectly clear by Keir Starmer, the Director of Public Prosecutions—the man in charge of the Crown Prosecution Service. He told us that in evidence to this Committee, and it is well worth reflecting on that point.

I was making the point to the Minister that he might adopt the more helpful position of deleting clause 1. We could all then disappear out of this Committee Room and he could come back to us with a series of amendments. We could have a lively discussion about the measures that Opposition Members believe should be included in the Bill. Relocation—as mentioned by my right hon. Friend the Member for Salford and Eccles—is probably the key one, but there are others as well, including the time limit that the Minister wants to implement. There are things that we could debate, but we would at least see some continuity if he tabled amendments to the 2005 Act.

I shall give the Minister one or two examples. Section 2(1)(a) of the 2005 Act talks about “reasonable grounds for suspecting”. He would no doubt want to come back with an amendment that substituted “believing” for “suspecting”, and I would vote for such an amendment with no hesitation whatsoever. I also draw the Minister’s attention to section 1(3) of that Act:

“The obligations that may be imposed by a control order made against an individual are any obligations that the Secretary of State or (as the case may be) the court considers necessary”.

He might want to table an amendment to that provision, in the form of schedule 1, saying that we should list out the measures that should be in place rather than simply leaving that decision to the discretion of the Secretary of State and the court. Again, we would have an interesting discussion. In that way, the Minister could provide some continuity, and ensure that we were debating the issues in an evolutionary way rather than in the way proposed.

I wish to reflect on an earlier comment by the shadow Minister, my hon. Friend the Member for Bradford South. He referred to the report published this morning by the Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, which has been considering the Government’s proposals for draft emergency legislation for when, in exceptional circumstances, the pre-charge detention period might need to be extended beyond 14 days. I will be honest with the Committee: when I was in government I supported 28 days, and 42 days, but I have had cause to reflect on that and now accept that 14 days—

Julian Huppert (Liberal Democrat, Cambridge)

Ninety days.

Paul Goggins (Labour, Wythenshawe and Sale East)

I can confirm to the hon. Gentleman that we never got that far. May I draw his attention to the Joint Committee’s report? I am sure that he will enjoy reading it. Interestingly enough, at one point Lord Macdonald believed in 90 days. That was his opinion then and I never shared it, but the report is an interesting reflection of the shift in his position on some of the issues.

Julian Huppert (Liberal Democrat, Cambridge)

Leaving aside the Government’s proposal on 90 days, which I agree was stopped, as Lord Macdonald has seen more and more evidence, and as he has undertaken an independent review, he has taken a different line. He has moved away from 90-day detention and control orders towards police bail. I agree that the evidence shows that people should go that way.

Paul Goggins (Labour, Wythenshawe and Sale East)

Lord Macdonald believed in 90 days when he was the Director of Public Prosecutions with access to all the information on cases. I do not want to concentrate on Lord Macdonald, but I thought it would be interesting, as he has been brought into the debate a few times this morning by the hon. Gentleman, to alert him to one piece of evidence in the report.

The important point is that when the Government in their review had to deal with the political problem of what was in certain manifestos and how to deal with the subject, they arrived at an outcome. However, in the cross-party Committee, with Members of both Houses serving under the brilliant chairmanship of Lord Armstrong of Ilminster, a more considered approach was taken. On that Committee, we heard evidence from a wide range of people, including some who gave evidence to us earlier this week. My plea to the Minister is that it is best to proceed calmly, carefully and in a considered and evolutionary way, rather than seeking to deal with a political conundrum and not primarily dealing with public safety.

My right hon. Friend the Member for Salford and Eccles was perfectly correct in pointing out the many ways in which changes have already occurred to the control order regime, which was an evolutionary move forward from the detention of suspects in Belmarsh prison. I remember visiting the prison as Prisons Minister when suspects were held there. That was ruled unlawful, so control orders were introduced. There have been many legal challenges to control orders that have necessitated changes. Probably one of the most significant was the case of AF, as a result of which any suspect now has to be told the gist of the case against them. That was a dramatic change that has had huge implications not only in relation to control orders but in relation to many other circumstances. I am delighted that, in the forthcoming Green Paper, the Government will deal with the issues of disclosure that bedevil any regime—controls orders or TPIMs—and many other decisions. In relation to sustaining controls and making the necessary decisions, the rules on disclosure are problematic.

My plea is simply that the Minister should go away and come back with a series of amendments to the 2005 Act; we do not need clause 1. If he does so , we can have constructive discussions and, although we would no doubt lose some votes because the Minister has a majority, that would be a more honest, considered and consensual way of moving forward than proceeding with the Bill.

Shabana Mahmood (Labour, Birmingham, Ladywood)

I welcome and endorse the powerful and persuasive contributions made by my right hon. and hon. Friends. Given the detail of the arguments already made, I will keep my remarks brief, but I have two points to which I hope the Minister will respond. I shall focus on the fact that clause 1 seeks to abolish control orders and the rest of the Bill will essentially bring them back. I endorse the point made by my right hon. Friends the Members for Salford and Eccles and for Wythenshawe and Sale East that, to have an honest debate, the Government should have tabled amendments to the 2005 Act.

The overnight residence measure, which we will debate at length, highlights the fiction that the Government are getting rid of control orders and introducing something fundamentally different because, very conveniently, the overnight residence measure is not defined in the Bill. Under the control order regime at the moment, a curfew can be imposed for up to 16 hours. The hon. Member for Carshalton and Wallington believes that it will be left to judges to decide—from cases that will no doubt flow from the measure—what the overnight residence measure really means. I am sure that some Conservative Members will be astonished to discover that the Government are inviting judicial activism under the Human Rights Act 1998 and the European convention on human rights. I think that that is the wrong way to proceed.

I take on board very strongly the point made by the hon. Member for Beckenham, who said that we are making law. If the Government believe that curfews of 16 hours are wrong and they want to do something that is fundamentally different and much shorter in practice for the people who are not under curfew for 16 hours, they should spell that out. They should have the courage of their convictions and put that in the Bill. They have left it open, because the Home Secretary, since coming to power, has imposed and defended curfews and control orders of up to 16 hours.

The counter-terrorism review reported in January, and at that point, it was open to the Home Secretary to say that she would not seek to impose any measures in a control order that fell foul of the new TPIMs regime that she was going to introduce and that fall foul of the findings of the counter-terrorism review. That is obviously not the case.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Does the hon. Lady appreciate that—similar to the point I made earlier—legislation is framed in a context? Part and parcel of the context envisaged under the Bill is enhanced support for the security services and police. Her comments seem to suggest that the Home Secretary should make changes out of context. The other regime is not there, so she suggests that the Home Secretary could effectively bring in the TPIM regime by the back door, without any context.

Shabana Mahmood (Labour, Birmingham, Ladywood)

No, that is not what I am saying. The point is that the Government have committed themselves to a counter-terrorism review and its findings, so they should be consistent. It was open to the Home Secretary to say that she would not seek to impose restrictions that fell foul of the review, but that is not the case, because she has supported 16-hour curfews and relocation, and she has defended them since the review was published. I want the Minister to focus on those points when he explains to us why control orders have been abolished and not been brought back by the TPIMs regime, because in fact they have.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I do not think the hon. Lady has understood the Minister’s point; she certainly has not answered it. The previous control order regime established a framework of measures that could be imposed. The Bill would establish a different framework, in connection with which the Government have undertaken to provide additional resources to the security services and police, as they are necessary for the purposes of the legislation.

The point that the Minister was making, which the hon. Lady has not answered, is that that resource was not present in relation to control orders. For that reason, the Home Secretary had to use control orders in the way that the previous Government had established them. With the greatest respect, what the Minister was really saying to the hon. Lady was that the point is a bad point. I would add that it is also a party political point. The subject matter of the Bill is too important for her to be making such points in Committee.

Shabana Mahmood (Labour, Birmingham, Ladywood)

I entirely disagree with the hon. and learned Gentleman. The additional resources that would be needed by the police will not be online and deployable by them even when the Bill is passed. [ Interruption. ] No, that is exactly the same point. We heard from Mr Osborne that it would take up to a year, possibly more, to train the extra surveillance officers who will be needed and to make them deployable to meet the requirements of the new regime. That is not what the Bill envisages. The measure will come into force 28 days after the Bill is passed. The Minister needs to focus on resources when he responds.

This is an important and sensitive topic. We must debate it in an honest and open way so that we do not present a picture to the public that says that we have got rid of control orders and we have something fundamentally different when that is patently not the case.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I was not going to contribute this morning, but I am afraid I cannot let the remarks of the hon. Member for Birmingham, Ladywood pass without making the position clear.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

The point that I was making this morning arose from my intervention, which the hon. Member for Birmingham, Ladywood kindly took. It is right that I explain it a little further so that she and the Committee understand it, for at least two reasons. First, I am concerned about the way in which the Bill Committee is beginning its business, in that the clause 1 stand part debate appears to be taking place in a partisan atmosphere, which, given the subject matter of the Bill, should not, I venture to suggest, be happening.

Gerry Sutcliffe (Labour, Bradford South)

I agree that we should not be partisan because the Bill is about national security, but is not one of the reasons why we are perhaps being partisan that, if the Minister had introduced the legislation as an amendment to the Prevention of Terrorism Act 2005—as my right hon. Friend the Member for Salford and Eccles said this morning—that would have been much more helpful?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I will come on to that point in a moment, but the short answer is this. The right hon. Member for Salford and Eccles accepted, in the course of her remarks to the Committee, that this was new legislation. She also accepted that it made certain changes, some of which are sufficiently significant that they are evidently troubling the Opposition. Given that, the right way to introduce the Bill is the way in which it has been brought forward: as a new piece of legislation, so that we can properly debate all its provisions, including those that the Opposition suggest overlap with those that are already in place on control orders. I will deal with that point in further detail in a moment.

As I was saying, it is important for me to explain the intervention that I made on the hon. Member for Birmingham, Ladywood. The point that my hon. Friend the Minister put to her and which both he and I evidently failed to explain particularly well is very simple. She asked why the current Home Secretary has been using control orders if they are thought to be objectionable by the current Government. The point that the Minister made to her was that when the terrorism prevention and investigation measures regime comes into being—assuming that it passes through Committee and survives the subsequent stages in this House and the other place—the Government will put in place extra resources to support the security services and the police. Those resources are—

Hazel Blears (Salford and Eccles) (Lab) rose—

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I would have liked to make some progress, but I have so much respect for the right hon. Lady that I will at this stage give way.

Hazel Blears (Labour, Salford and Eccles)

I thank the hon. and learned Gentleman for giving way and I apologise for being a few seconds late in arriving—I was running up the stairs. What troubles me is that the regime is likely to come in by the end of this year, but the evidence that we heard from Deputy Assistant Commissioner Osborne was that it would take at least a year for the human resources to be recruited, trained and put in place to exercise the 24/7 surveillance that will be necessary because of the weakening of the provisions with TPIMs as opposed to control orders. Does the hon. and learned Gentleman share my concern about that gap when the resources are not in place?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I will make two points. First, in my limited experience as a new Member of this place and in my previous incarnation, it has generally been my experience that both the security services and the police will always wish to preserve, in a very conservative way, the existing regime in relation to this area or anything else, because they know how it works and they know the resources that they need to deploy to ensure that they operate it correctly. Therefore, any form of change always involves an assessment that is generally very conservative by the security services and the police about both the resources that they need to put it into place and the time that they need in which to do that.

The Minister and the Department will need to consider whether a transitional period is needed and, if so, how long it needs to be. I look forward to hearing that the question has been considered, and to hearing the Minister’s answer. He is right to raise the point at this stage. However, I shall not take any more interventions on the subject as I was going to deal with it in any event.

The Minister’s argument this morning was simple; he was answering the Opposition’s point that the Home Secretary has been using the control order regime since this Government came to office. My right hon. Friend has indicated that when the TPIM regime comes into being, additional resources will be put in place. Those resources are not in place yet, and no one has suggested that they are. The Opposition’s argument is being made in a partisan way, and for the hon. Member for Birmingham, Ladywood to say that the Secretary of State has been using control orders is bad for that very reason.

Shabana Mahmood (Labour, Birmingham, Ladywood)

rose—

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I am happy to take an intervention from the hon. Lady, so that she can accept that it is a bad point or, if not, give us an answer.

Shabana Mahmood (Labour, Birmingham, Ladywood)

I do not agree that it is a bad point. I do not accept the argument that the Home Secretary is forced to impose control order measures that would not be available to her under the TPIM regime, and which are contrary to the counter-terrorism review, because of resources. That is not entirely correct. If that were the case, the Bill would include a clause providing that it would not come into force until such time as the police had confirmed to the Home Secretary and Parliament that they had the additional resources needed to manage the increased risk created by the TPIM regime, and that the additional police officers needed to undertake surveillance were fully trained and ready to start work. There is no such clause.

The resources argument cannot be used both ways. It cannot be used to say that the Home Secretary is correct to use control order measures, as she has done over the past few months, but allow the resources point to fall away when the Bill comes into force.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

With the greatest respect, the hon. Lady does not answer the simple point that the argument that she was making this morning was a bad one. She conflates two factors in her intervention. The first is the fact that, at present, the Bill does not say when the TPIM provisions will come into being. The point that she made this morning was different; she asked why, if control orders are so bad and strike the wrong balance, the Home Secretary continued to use them. She has been given an answer to that question by the Minister and Government Members. The Home Secretary has had to continue using them because the resources are not yet in place.

It is no answer to the fallacious nature of her argument for the hon. Lady to intervene on me and say, “Oh, but there is no clause in the Bill to say when TPIMs will come into being, which needs to be after the police have confirmed that sufficient resources are in place to mitigate the risk to those who will be operating under this regime.” The hon. Lady still has not answered the question. It may be that she still does not understand why the argument—I have no doubt that it was given to her by the Labour Whips—is such a bad one. We will continue to disagree on this, but it is a matter of debate, and people can read Hansard and form their own view. I suspect that the vast majority of those who are sufficiently unfortunate to have to read Hansard will take the same view as me, which is that the hon. Lady’s argument was badly planted by the Labour Whips. That was the first point that I wished to deal with, and I did so because it was unclear whether I had missed the point this morning. The answer is obviously that I did not.

I now turn to the rather more powerful contribution made by the right hon. Member for Salford and Eccles; we share a considerable amount of common ground on this measure. Albeit that some of my hon. Friends might wish that it went further, it is unfortunately necessary given the security situation in which the country presently finds itself. The right hon. Lady saw fit to describe the Bill as dishonest legislation—I think that she used those words. This is one point where I disagree with what she said this morning. Indeed, that characterisation is somewhat regrettable.

As my hon. Friend the Member for Ipswich indicated this morning, the legislation interferes fundamentally with the liberties that we expect customarily in this country by virtue of the fact that we are a civilized democracy and have had protections for our liberties under the common law since time immemorial. It is therefore right that, if the Government want to reshape existing legislation that deals with those whose liberty is under restriction, and if they are to carry out their first duty of protecting the public, that legislation should be debated in is entirety.

I come back to a point that I made during an intervention this morning: this Committee should, on a bipartisan basis, deal with the substance of what is necessary to protect the public by restricting people’s liberties, and not whether we call them control orders, TPIMs or anything else. That is a semantic question, which I think has been made obvious to every member of the Committee by the Opposition’s description of “mini control orders” or “control orders-lite”. They are seeking to make party political capital out of that point, which is not what should be taking place in this House or this Committee. I respectfully submit that we should focus on what the Bill is about, its measures to protect the public, and whether they need to go further—as Opposition Members seem to think—or whether, as I said on Second Reading, this Bill strikes the right balance between the necessity to protect the public on one hand and interference with the liberties of the citizen on the other.

Hazel Blears (Labour, Salford and Eccles)

I think that the hon. and learned Gentleman has made my point for me. I have listened carefully to what he has said and there is a great deal of common ground between us, but I think he has made the very point that I was seeking to establish in my contribution, namely that what we call this regime is irrelevant. I was seeking to establish a degree of consensus across the Committee on the view that, if people who pose a serious threat to the national security of the country cannot be prosecuted or deported, we must have a regime that enables us to control their behaviour. The point that I was seeking to make was that we could have a much more straightforward debate if we did not pretend that the TPIM regime is a fundamental departure from the Prevention of Terrorism Act 2005. It is, in fact, a refinement. By relaxing some measures and raising the burden of proof, and by not having a sunset clause, it is a refinement of the existing regime. I think that the hon. and learned Gentleman, in his usual eloquent and erudite way, has made that point far better than I could.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I am always happy to help the right hon. Lady. I am not sure whether my argument is consistent with the entirety of what she said this morning. Both aspects of my contribution stress, in all seriousness, that the Committee must approach the issues with which this Bill grapples in an entirely bipartisan, or perhaps tripartisan, and proper way. What concerns me about this morning’s contributions from Opposition Members, and about the facile semantic debate about whether these are “control orders-lite” or “mini control orders,” is that we are not focusing, in the limited time available to the Committee, on what we should be, namely, as I have already said, the substance of the measures that are necessary to protect the public, consistent with the liberties that we hold dear in this country. If the right hon. Lady and the shadow Minister, the hon. Member for Bradford South, agree with that, they will not divide the Committee on the clause, and they will certainly not move their amendment to strike out clause 1. The only reason why that amendment was tabled was to try to make a party political point that this is nothing other than the control order regime, with limited changes. [ Interruption. ] The hon. Member for Alyn and Deeside chunters from a sedentary position. If he wants to say something, I am quite happy for him to intervene.

Mark Tami (Labour, Alyn and Deeside)

I am grateful to the hon. and learned Gentleman for letting me intervene. Surely the party political point—the fudge—is clause 1 itself, which is intended to give the Liberal Democrats the idea that control orders have somehow been abolished.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I am grateful for the hon. Gentleman’s contribution, which was much as I would have expected it to be. As I said, and it remains the case, the existing measures are a fundamental interference with the liberties the citizens of this country are entitled to expect. For that reason, it is appropriate, desirable, necessary and proper that our proposals come before the House in their entirety and not as a series of amendments to legislation that the previous Government rushed through in deliberations that went well into the night, as the right hon. Member for Salford and Eccles made clear on Second Reading and in her contributions on the Committee’s first day.

Gerry Sutcliffe (Labour, Bradford South)

Will the hon. and learned Gentleman give way?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I will give way one last time to the hon. Gentleman.

Gerry Sutcliffe (Labour, Bradford South)

I understand the hon. and learned Gentleman’s position and the strength of feeling in his argument, but the partisan politics on this issue started when the deputy Prime Minister said the Government were going to get rid of control orders. He was not going to get involved in a debate about the PTA or the issues that, I agree with the hon. Gentleman, we need to go through thoroughly. The proposals have been disguised so that they look like something different from control orders, when they clearly are not, and the hon. Member for Cambridge, on Second Reading, wanted to go even further.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

Yet again, that is the same point dressed up. The hon. Gentleman can make that point on Third Reading, outside this place or in the newspapers. The Committee needs to concentrate on the substance of the measures that need to be put in place to protect the citizens of this country in a way that is consistent with the liberties they enjoy.

Ben Gummer (Conservative, Ipswich)

I wish that Labour Members would listen to the right hon. Member for Salford and Eccles, who carefully pointed to five substantial areas in which TPIMs differ from control orders, one of which is the name, which Opposition Members have laughed at. It would be quite improper, on one of the most important subjects we could discuss in the House, to put a series of amendments to an existing piece of legislation before the House and the electorate, when we are depriving people of their liberty without a trial. It is entirely right that one of the substantial issues we are discussing is the change in name, because we are saying that the proposals are different in four substantial ways, as pointed out by the right hon. Lady. I wish we could actually move on to discuss those substantial items, rather than fiddling around with this clause.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I could not agree more with my hon. Friend; indeed, I sought to make that point earlier. The only reason I have been addressing the Committee for such a long time—I apologise for that, given that I promised to make a brief contribution—is that I genuinely hope the Opposition will not divide the Committee on stand part or amendment 9, which would leave out clause 1. The only purpose they could possibly have for doing that would be to make some party political capital, when we should be focusing on the substantive measures that need to be put in place in the Bill. That is what Government Members want to focus on, and those are the issues the Committee needs to debate. For those reasons, I urge the shadow Minister, those who assist and advise him and those who whip Opposition Members not to divide the Committee on stand part.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Good afternoon, Mr Caton. I welcome you to the Chair for the second of the Committee’s sessions of line-by-line consideration of the Bill. You will no doubt have gathered just from this afternoon’s contributions that this has been quite a passionate debate. A number of important arguments have been set out and perhaps frame very well the debate we will no doubt have on the Bill.

I should also formally welcome the Opposition Front-Bench spokespeople. It is a pleasure to welcome the hon. Member for Birmingham, Ladywood, and this is possibly the first Bill Committee in which I have had the pleasure of debating with her. I certainly welcome her to her position. I am delighted to resume debates with the hon. Member for Bradford South—he was the first Minister I had the pleasure of debating with in Committee, on the Consumer Credit Bill I think, back in 2005. We have had regular debates in Committee Rooms such as this over the years, and I welcome our continuing discussions.

Similarly, I remember some good, detailed debates with the right hon. Member for Salford and Eccles on the Police and Crime Bill, and I recognise her experience. I must also admit to a slight soft spot for the right hon. Lady—I will confess this at the start of the Committee. At the time, I was a new Member of the House, and she kindly created a constituency in my name in the first sitting of the Bill Committee, because she was unfamiliar with who I was, and I was probably unfamiliar with who she was. She kindly referred to me on a couple of occasions as the hon. Member for Brokenshire, which led to a wonderful debate about what the constituency might look like, which was helpful at the time, given that my constituency was about to be abolished. I was grateful for her kind comments.

The Committee includes a lot of experience and, despite some of the harsh words and chiding, there is common ground on a number of themes underpinning recognition of the severe terrorist threat we continue to face and the need for Government to take their responsibility extraordinarily seriously, which we do. Safeguarding our national security and safety is the first duty of the Government—a commitment of this Government and the previous one, which is shared by the public and Parliament. We will not do anything to undermine that security.

My role and responsibility is to explain to the Committee in its entirety how the various strands of the Bill fit together. We can look at the Bill—the point was made well by the right hon. Member for Wythenshawe and Sale East—but there is a broader context. We need to look at the roles of what might be described as disruption, of surveillance and intelligence, of prosecution and of deportation, and at how all those strands fit together cohesively to deliver on the safety and security of our citizens. We are debating what might be considered one of those strands, but it needs to be viewed in context. That context, given the points made by the hon. Member for Birmingham, Ladywood, and in case I was not clear enough in response to her intervention, is why I am seeking to explain that the surveillance and intelligence sitting alongside the disruption tools are key to the overarching package of protection that we can deliver. That is what I was trying to explain in response to her intervention on context.

Context is important, so I ought to talk about some of the context of the Bill, as well as the changes being examined in Committee. Opposition Members, in essence, are asking why we need to make any changes—that is a fundamental context which they are taking into account in their approach to the Committee. Paragraph 7 of the counter-terrorism review states:

“Control order powers have always been controversial because they are imposed without the person on whom they are applied being convicted for the terrorist activity in which he is judged to be engaged, because of the use of closed material and because of the very intrusive restrictions that they can involve.”

That is why the Government embarked on looking at the control order powers and other intrusive powers in their review, and why certain other changes are being brought about. There is a need to look at the context of some of the fundamental liberties that we uphold and believe to be important in our society—what defines us as a country, and what defines our values. That has been brought out quite well in some of the contributions thus far, and my hon. Friend the Member for Ipswich framed it well when he referred to how the state approaches the matter and how liberties are curtailed. That has been the starting point for looking at the balance between liberty and security, between collective liberty and that of the individual, and how to strike the appropriate balance.

The issues are those of judgment and examination of how that balance is best struck. Following the review of counter-terrorism legislation, we concluded that control orders needed a fundamental change, indeed to be scrapped and replaced with the legislation that we are debating. Some characteristics are similar in structure, and I do not deny that those structural characteristics are similar in the procedural ways in which the legislation is framed, but there are important differences. One is context, and the fact that the Bill is based on investigation and that it includes clearly expressed provisions in clause 10 that emphasise that what we are always trying to do is to bring people before the courts and to secure a criminal prosecution if that is possible.

The previous Government took the same approach, and whatever criticisms were made at the time, I did not in any way question the integrity or desire of Ministers, of whatever political colour, to seek to bring people before the courts and to secure prosecution and a conviction based on the evidence, if that is possible. However, there is recognition on both sides of the Committee that sometimes it is not possible to bring someone before the courts, either because the evidence is inadmissible—we can debate what is taking place to make more evidence admissible—or sometimes because the evidence, if it were disclosed, could have a dangerous impact on our capabilities, covert human intelligence sources, and the activities of those who seek to keep us safe. I endorse the earlier comments about recognising and thanking all those who do so much, often at great risk to themselves, in keeping us all safe, and dealing with the threat before us.

Hazel Blears (Labour, Salford and Eccles)

I am grateful for the Minister’s acknowledgement that, whatever the political context, we all want to maximise prosecution. I want to ask him the question that I asked one of his hon. Friends earlier. What measures in the TPIM regime does he believe will lead to a better chance of bringing more people to trial?

James Brokenshire (Conservative, Old Bexley and Sidcup)

It is perhaps because of the way the measure is grounded. The right hon. Lady will obviously have read the Bill carefully when preparing for the Committee. I point her to clause 10, which is the key clause that reminds everyone that we are seeking to ensure prosecutions whenever possible. This measure is largely preventive, hence the name of the Bill. It is a preventive and investigatory measure. In large part, the investigation is the support that sits around it—the covert surveillance, and the additional funding that is being provided to the police and the security services. That is why I emphasise the context, and how that investment will better assist in the overall intelligence perspective to ensure that more people are brought to justice. Yes, I certainly heard the evidence that was provided on Tuesday, and the points that the right hon. Lady sought to adduce when she asked, “Well, how does this assist us and take us forward?” However, the way in which the measure is grounded and structured, and the fact there is a statutory requirement to continue to report back to the police and all those who are working on our behalf to secure those convictions is so important. It is vital to telegraph the message from Parliament and Government that that is our primary objective.

I have already admitted to the right hon. Lady and other Committee members that that will not always be possible and that once a disruptive technique is put into place, that puts someone on notice. Evidence ultimately to gain a conviction may therefore be harder to secure, but that does not mean it is impossible. The work that sits alongside the measure is very important. The grounding of the Bill in the way that I have characterised is significant.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

Does the Minister agree that one of the answers to the right hon. Lady’s question is that changing the name of something, particularly in the context of an entirely new piece of legislation, often changes the culture of the way in which these things are approached? We heard evidence on Tuesday that in the opinion of some control orders are simply being used as a parking mechanism. As a result, there has been no investigation of those who are subject to control orders in circumstances where hon. Members from all parties would agree that the best thing is to bring these people to trial.

Merely changing the name of control orders to something that includes the word investigation gives a very clear signal to the law enforcement agencies and the security services that Parliament wants these people to be brought to trial. One has only to think of the mistake of the previous Government in creating something called a Supreme Court to realise how a change of culture can, in fact, lead to real changes on the ground.

James Brokenshire (Conservative, Old Bexley and Sidcup)

There is an issue, but I do not know if I would describe it as one of culture. The police and the Crown Prosecution Service work extraordinarily hard to bring crimes to justice. My hon. and learned Friend makes an important point. We must always underline and recognise that sometimes such matters are challenging, but that we must continue to try to ensure that all avenues are explored.

Hazel Blears rose—

James Brokenshire (Conservative, Old Bexley and Sidcup)

Having said what I said earlier, how could I possibly not give way to the right hon. Lady?

Hazel Blears (Labour, Salford and Eccles)

I am grateful for the generosity of the hon. Member for Old Bexley and Sidcup, not for Brokenshire—although lovely Thomas Hardy moments were conjured up by that. I am listening to him very carefully and like his colleague, the hon. and learned Member for Sleaford and North Hykeham, he failed to answer my very specific question. What measures in the TPIM regime are different and will lead to more people being brought to justice through the conventional criminal justice system?

I take his point about sending a message. The previous Government were often criticised by Conservative Members for sending messages, rather than legislating in a proper fashion—some people have referred to it as “aromapolitics.” If the legislation is to work and to bring more people to justice and there is a genuine justification for introducing a new Bill, I am open to hearing about it. However, I have not yet heard from any hon. Member what specific measures in the TPIMs Bill are different from control orders and will enable more people to be brought to justice. In fact, I have heard the contrary from the Director of Public Prosecutions and from DAC Osborne. The police and the security services are saying to the Minister that TPIMs are not as disruptive as control orders because they are a weakening of the measure. As I think DAC Osborne said, control orders are in the protect and prepare bit of Contest and TPIMs are under pursue. There is a difference.

If the Government really wanted to take such action, they could have put in place extra surveillance in addition to control orders. If their justification for the measure is that more associates will be found and evidence will be obtained, they could have had extra surveillance. That could have been done if the reason for the measure is to bring more people to justice. I am afraid that there are some big logical holes in the Minister’s argument.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I hear what the right hon. Lady says, but it is more fundamental than that. It is about the issues of liberty and where to strike the right balance on the quite invasive measures in the control order regime. We need to look at the changes as a package rather than in isolation. Taken together, they will ensure that the police and security services have the power that they really need, as well as the enhanced capabilities through surveillance, intelligence and the way in which the regime itself operates, to have the focus and to attain the end result.

I was quite struck by several contributions this morning on the issue of liberty and how to achieve the right balance. In one exchange it was said that we could have either security or liberty. I do not accept that. Some contributors suggested that we were being almost casual with security. We absolutely are not. We take the responsibility extraordinary seriously. However, it is fair to say that, when the Opposition were in government, they were too casual with liberty. Those are not my words, but the words of the Leader of the Opposition, who said:

“My generation recognises, too, that government can itself become a vested interest when it comes to civil liberties. I believe too in a society where individual freedom and liberty matter and should never be given away lightly”.

He went on to say:

“But we must always remember that British liberties were hard fought and hard won over hundreds of years. We should always take the greatest care in protecting them. And too often we seemed casual about them.”

That was not what I said; it was what the Leader of the Opposition said about the approach taken by the previous Government. He also said in an article in The Guardian last summer:

“I want to take my party on a journey to a different identity for the future: social democratic on economic policy, standing for redistribution and tackling inequality, liberal in our respect for individual rights.”

Well, I am not quite sure whether I heard that said in Committee this morning to describe the approach taken by the Opposition. Perhaps they have reflected on matters and reconsidered, but it is interesting that the Leader of Opposition himself believes that a different approach should be taken, and he has underlined the important aspects of how liberty fits into the issues at hand.

Bob Stewart (Conservative, Beckenham)

I have thought very hard about TPIMs in the past two days. I speak as an ex-intelligence officer who had to recruit sources in Northern Ireland, and one thing that we have not covered is how, by giving a little more liberty to people under the TPIMs regime, they would discover that perhaps we are not as bad as others. It would encourage them to cough up or, indeed, to come over and perhaps declare that they were in the wrong. That is one of the advantages of TPIMs, which is why fundamentally, if we keep those people under surveillance, do things properly and show that we care about liberty in the way in which we deal with them, we might receive a better response. It is for that reason that I support TPIMs and primarily why I shall vote in favour of them rather than the reverse. I shall be honest and, having recruited sources for the intelligence service in Northern Ireland, I know that, by treating people decently rather than harshly, we get a much better human response and that is very encouraging in those terms. I am sorry to intervene, Mr Caton.

Martin Caton (Labour, Gower)

Order. I did not ask the hon. Gentleman to stop speaking, because I have allowed others to make long interventions, but I ask members of the Committee to try to keep their interventions short.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I do not think my hon. Friend should apologise in any way, shape or form for his intervention, because he underlines a significant point about the need to focus on the issue of liberties and how there are differences in the way in which action that the Government and the state undertake can be perceived. We need to ensure that we do not undermine the very freedoms that we are trying to protect and thus fuel the problems that we are trying to tackle. That is why we need to take such great care regarding the steps that we take, why the counter-terrorism review was undertaken and why various changes have been made to ensure that the public have confidence in the way in which the Government exercise their powers.

Again, that underlines the approach that we are taking in the Bill and why the changes are necessary, as they reach the appropriate judgment. I appreciate that that judgment means that people are able to take a different, contrary view, reasonably and appropriately. Ultimately, it is about weighing up those values and issues and forming a judgment. We have formed a judgment that change is necessary, creating the Bill before us today. It strikes the appropriate balance between individual liberty and collective liberty and security.

Gerry Sutcliffe (Labour, Bradford South)

The Minister has mentioned a few times the fact that the security services would have adequate resources. Lord Carlile made a point in the evidence session about the cost of control orders versus TPIMs. He said that control orders cost £1.8 million an individual, whereas, under the TPIM regime, the cost would be anywhere between £11 million and £18 million. Was he correct?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I think that the right hon. Members for Salford and Eccles and for Wythenshawe and Sale East appreciate some of the challenges in government when responding to issues such as the one that the hon. Member for Bradford South has raised. Providing details of how much will be spent on the measure may assist those who wish to cause us harm, by giving them a sense of what our capabilities are.

The hon. Gentleman has made a fair point, but we would not proceed along this route if we were not confident of the surveillance and the ability of the security services and the police to tackle the challenges that may result from the regime. On the scale-up point, which is important, the police and security services have been aware since at least February 2011 of the funding that would be made available to them. They know that the business case may need to be put alongside this and that there should be no impediment to recruitment or preparation. We are confident that the necessary transition can take place to ensure that those capabilities are available to support the TPIMs regime.

Mr Sutcliffe rose—

Mark Tami (Labour, Alyn and Deeside)

Will the Minister give way?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I shall give way to the hon. Member for Bradford South and then to the hon. Member for Alyn and Deeside, who is probably sick of the sound of my voice, this being the third Bill Committee on which he and I have served this year.

Gerry Sutcliffe (Labour, Bradford South)

I understand the point that the Minister is making about giving the details to people who would do us harm, but the public have a right to know about the increased costs of these things. On the business case, Mr Osborne said that the police put the business case to the Home Office last week. He also said that it would take 12 months for the assets and the training requirements for individuals to come into effect. Does the Minister have any views on those issues?

James Brokenshire (Conservative, Old Bexley and Sidcup)

Again, that is a fair point, which is why I have sought to make it clear that we have had discussions with both the security services and the police since early this year as part of the counter-terrorism review. The police have been aware since at least February of the sums of money available to them, with the expectation and clear indication that preparations have been ongoing since then. We are therefore confident about the transition arrangements and the fact that recruitment and all other necessary preparations have to be ongoing, as has been clear since early this year.

Mark Tami (Labour, Alyn and Deeside)

I understand that the Minister does not want to give figures for the increased cost, but will he at least accept that there will be a considerable increase in overall cost?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I can tell the hon. Gentleman that the Government have made a commitment to provide additional resource—new money—to the police and the security services so that they can enhance their intelligence and surveillance capabilities around the TPIM regime and more generally, which underlines my point about the context in which they can deliver and provide enhanced services.

I apologise to members of the Committee for not being able to be clearer on amounts or sums, but I hope that they understand the challenges facing the Government and that people may look with malign intent at what we say publicly in Committee. I have been as forthcoming as I can be in setting out the enhanced capabilities arising from the overall package of reform, because the Bill is important and the context is significant.

I have noted the comments made in the debate on clause 1. We believe that the Bill charts a very different direction. The reforms that it makes are important, including those on issues of liberty. It forms part of the overall package of measures to deliver security, and it does so in a way which is more focused, more structured and in some ways less intrusive, which is important in how we frame the debate about an alternative approach. I therefore hope that hon. Members will agree that clause 1 should stand part of the Bill, because we must underline the fact that we are taking a different direction in seeking to prevent crimes while retaining a focus on bringing criminals to justice. Ultimately, the Bill is about protection, but it is also about ensuring that justice is done and seen to be done.

Clause 2 - Imposition of terrorism prevention and investigation measures

Julian Huppert (Liberal Democrat, Cambridge)

I beg to move amendment 118, in clause 2, page 1, line 6, leave out from ‘may’ to end of line 8 and insert

‘apply to the High Court for a terrorism prevention and investigation measures notice (a “TPIM” notice) in relation to an individual if conditions A to C in section 3 are met.

‘(1A) The High Court may grant a TPIM notice in accordance with section 6.

(1B) A TPIM notice is a notice which specifies that a particular individual may be released from police custody on bail with specified terrorism prevention and investigation measures (“TPIMs”) imposed where—

(a) the individual has been arrested for a terrorism-related offence;

(b) the relevant custody officer determines that there is insufficient evidence with which to charge the individual with the offence;

(c) there is a need for further investigation of any matter in connection with which he was detained; and

(d) it appears necessary for TPIMs to be imposed in order to prevent the individual from engaging in any of the activities listed in subsection (4).

(1C) Activities in relation to subsection (1B) are—

(a) failing to surrender to custody;

(b) committing an offence while on bail;

(c) interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person;

(d) for that person’s own protection or, if he is a child or young person, for his own welfare or in his own interests.’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss the following: amendment 66, in schedule 1, page 16, line 7, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 67, in schedule 1, page 16, line 12, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 68, in schedule 1, page 16, line 23, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 69, in schedule 1, page 16, line 31, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 70, in schedule 1, page 16, line 33, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 71, in schedule 1, page 16, line 35, leave out

‘Secretary of State, the Secretary of State’

and insert

‘chief officer of the appropriate police force, the chief officer of the appropriate police force’.

Amendment 72, in schedule 1, page 17, line 3, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 73, in schedule 1, page 17, line 5, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 74, in schedule 1, page 17, line 8, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 75, in schedule 1, page 17, line 9, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 76, in schedule 1, page 17, line 11, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 77, in schedule 1, page 17, line 14, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 78, in schedule 1, page 17, line 22, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 79, in schedule 1, page 17, line 25, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 80, in schedule 1, page 17, line 26, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 81, in schedule 1, page 17, line 29, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 82, in schedule 1, page 18, line 2, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 83, in schedule 1, page 18, line 5, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 84, in schedule 1, page 18, line 8, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 85, in schedule 1, page 18, line 10, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 86, in schedule 1, page 18, line 13, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 87, in schedule 1, page 18, line 26, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 88, in schedule 1, page 18, line 28, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 89, in schedule 1, page 18, line 31, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 90, in schedule 1, page 18, line 38, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 91, in schedule 1, page 18, line 41, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 92, in schedule 1, page 19, line 33, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 93, in schedule 1, page 19, line 38, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 94, in schedule 1, page 19, line 42, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 95, in schedule 1, page 19, line 43, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 96, in schedule 1, page 20, line 1, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 97, in schedule 1, page 20, line 15, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 98, in schedule 1, page 20, line 21, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 99, in schedule 1, page 20, line 23, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 100, in schedule 1, page 20, line 26, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 101, in schedule 1, page 21, line 16, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 102, in schedule 1, page 21, line 18, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 103, in schedule 1, page 21, line 22, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 104, in schedule 1, page 21, line 23, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 105, in schedule 1, page 21, line 34, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 106, in schedule 1, page 21, line 36, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 107, in schedule 1, page 21, line 39, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 108, in schedule 1, page 21, line 42, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 109, in schedule 1, page 22, line 5, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 110, in schedule 1, page 22, line 6, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 111, in schedule 1, page 22, line 11, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 112, in schedule 1, page 22, line 13, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 113, in schedule 1, page 22, line 15, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 114, in schedule 1, page 22, line 19, leave out ‘Secretary of State’ and insert

‘chief officer of the appropriate police force’.

Amendment 119, in clause 3, page 1, line 19, leave out subsections (2) to (6) and insert—

‘(2) Condition B is that the Secretary of State is satisfied that the individual is currently subject to criminal investigation for a terrorism-related offence.

(3) Condition C is that the Secretary of State is satisfied that if the individual is, having been arrested, released prior to charge, certain conditions would be necessary and proportionate to ensuring that the suspect in question—

(a) surrenders to custody;

(b) does not commit an offence while on bail; or

(c) does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.

(4) The Secretary of State may apply to the High Court for a TPIMs notice to be granted at any time that he or she is satisfied that Conditions A, B and C are met.

Amendment 121, in clause 5, page 2, line 43, leave out from ‘individual’ to ‘; and’ in line 44.

Amendment 122, in clause 5, page 3, line 1, leave out ‘by notice’ and insert

‘apply to the High Court to’.

Amendment 123, in clause 5, page 3, line 4, leave out from ‘if’ to ‘; and’ in line 5 and insert

‘the High Court is satisfied that conditions A, B and C are met’.

Amendment 120, in clause 5, page 3, line 4, leave out ‘C and D’ and insert ‘B and C’.

Amendment 124, in clause 5, page 3, line 7, leave out subsection (4).

Amendment 31, in clause 6, page 3, line 13, leave out from ‘court’ to end of line 14 and insert

‘to grant a TPIM notice’.

Amendment 32, in clause 6, page 3, line 19, leave out paragraph (b) and insert—

‘(b) to determine whether to grant a TPIM notice.’.

Amendment 33, in clause 6, page 3, line 35, leave out subsection (9).

Amendment 34, in clause 6, page 4, line 2, leave out paragraph (d).

Amendment 36, in clause 8, page 4, line 7, leave out paragraphs (a) and (b) and insert

‘grants the application for a TPIMs notice’.

Amendment 37, in clause 8, page 4, line 23, leave out ‘measures’ and insert ‘the TPIMs notice’.

Amendment 38, in clause 8, page 4, line 27, leave out subsection (7) and insert—

‘(7) In this section “relevant day” means the day on which the TPIM notice is served on the individual’.

Amendment 39, in clause 9, page 5, line 7, leave out paragraphs (b) and (c).

Amendment 40, in clause 9, page 5, line 13, leave out subsection (7).

Amendment 41, in clause 9, page 5, line 20, leave out paragraph (d).

Amendment 42, in clause 10, page 5, line 23, leave out subsection (1) and insert—

‘(1) The Secretary of State must consult the chief officer of the appropriate police force about the matter mentioned in subsection (2) before applying for a TPIM notice under section 2.’.

Amendment 43, in clause 10, page 5, line 38, leave out subsection (4) and insert—

‘(4) If a TPIM notice is granted by the High Court, the Secretary of State must immediately notify the chief officer of the appropriate police force that the TPIM notice has been granted.

(4A) If the individual to which the TPIM notice relates is being detained by the police following his arrest, the chief officer must, after being informed of the matters mentioned in subsection (2), notify the appropriate custody officer.

(4B) If the individual to whom the TPIM notice relates is not being detained by the police, at the time that the TPIM notice is granted, but is later arrested, the chief constable must inform the appropriate custody officer of the existence of the TPIM notice immediately following the arrest.

(4C) After being informed of the matters mentioned in subsection (4A) or subsection (4B), the appropriate custody officer must notify the individual to whom the TPIM notice relates, of the existence of the TPIM notice and the directions hearing.

(4D) The “appropriate custody officer” means the custody officer who is responsible for the detention of the individual against whom a TPIM notice has been granted.’.

Amendment 45, in clause 11, page 6, line 44, leave out ‘C and D’ and insert ‘A, B and C’.

Amendment 46, in clause 12, page 7, line 3, leave out ‘The Secretary of State’ and insert

‘A chief officer of police’.

Amendment 47, in clause 12, page 7, line 4, leave out ‘notice’ and insert ‘certificate’.

Amendment 48, in clause 12, page 7, line 7, leave out paragraph (c) and insert—

‘(c) the chief officer of police reasonably considers that the variation is necessary for the purposes set out in section 10A(3)(e).’.

Amendment 49, in clause 12, page 7, line 10, leave out ‘notice’ and insert ‘certificate’.

Amendment 50, in clause 12, page 7, line 11, leave out

‘Secretary of State for the’

and insert

‘High Court for the discharge or’.

Amendment 51, in clause 12, page 7, line 12, leave out ‘Secretary of State’ and insert ‘High Court’.

Amendment 52, in clause 12, page 7, line 17, leave out subsections (6) and (7).

Amendment 59, in clause 19, page 11, line 28, leave out subsection (a) and insert—

‘(a) to apply to the High Court for a TPIMs notice under section 2;’.

Amendment 60, in clause 19, page 11, line 30, leave out subsections (c), (d) and (e).

Amendment 61, in clause 21, page 12, line 15, leave out subsections (a) and (b) and insert—

‘(a) a TPIM notice is in force in relation to an individual;

(b) the individual has been arrested and released without charge on police bail with terrorism prevention and investigation measures attached;

(c) the individual contravenes, without reasonable excuse, measures specified in the TPIMs certificate.’.

New clause 1—Amendments to Terrorism Act 2000—

‘(1) The Terrorism Act 2000 shall be amended as follows.

(2) In section 41 of the Terrorism Act 2000, after subsection (9) insert—

“(10) Where for any reason the continued detention of a person arrested under subsection (1) is no longer authorised, a chief officer of police may release the person on police bail, but only if—

(a) he reasonably believes there is a need for further investigation of any matter in connection with which the individual was detained; and

(b) he has been notified by the Secretary of State that a TPIM notice has been granted and is in force in relation to the individual.”’.

New clause 2—Amendments to Bail Act 1976—

‘(1) The Bail Act 1976 shall be amended as follows.

(2) After section 3A of the Bail Act 1976, insert—

“3B Police bail in relation to terrorism-related offences

(1) Section 3 of this Act applies in relation to bail granted by a chief officer of police under section 41(10) of the Terrorism Act 2000 subject to the following modifications.

(2) Any reference in section 3 to ‘custody officer’ shall be substituted by ‘chief officer of police’.

(3) Subsection (6) does not authorise the imposition of a requirement to reside in a bail hostel or any requirement under paragraph (d) or (e).

(4) Subsections (6ZAA), (6ZA) and (6A) to (6F) shall be omitted.

(5) Terrorism prevention and investigation measures as contained in Schedule 1 to the Terrorism Prevention and Investigation Measures Act 2011 may be imposed by a chief officer of police as bail conditions.

(6) Where a chief officer of police grants bail to a person, no conditions shall be imposed under this Act unless it appears to the constable that it is necessary to do so—

(a) for the purpose of preventing that person from failing to surrender to custody, or

(b) for the purpose of preventing that person from committing an offence while on bail, or

(c) for the purpose of preventing that person from interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person, or

(d) for that person’s own protection or, if he is a child or young person, for his own welfare or in his own interests.

(7) For subsection 8 substitute—

(8) Where a chief officer of police has granted bail under section 41(10) of the Terrorism Act 2000 and imposed terrorism prevention and investigation measures in accordance with section 10 of the Terrorism Prevention and Investigation Act 2011, the High Court may on application by or on behalf of the person to whom bail was granted vary or discharge the conditions of bail contained in a Terrorism Prevention and Investigation Measures certificate (“TPIMs certificate”) in accordance with this subsection.

(8A) In determining whether or not to vary or discharge the conditions of bail as contained in the TPIMs certificate, the High Court must be satisfied, in relation to each measure or restriction, that it is necessary—

(a) (a) to secure that he surrenders to custody;

(b) to secure that he does not commit an offence while on bail;

(c) to secure that he does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person;

(d) to secure his own protection or, if he is a child or a young person, for his own welfare or in his own interests.”’.

Julian Huppert (Liberal Democrat, Cambridge)

It is a pleasure to speak to this large group of amendments. The proposals are intended to fix the fundamental problem that both control orders and TPIMs share, which is the constitutional objections to them both because, essentially, they sit outside the rule of law. The shadow Minister accepted the view that some people should be held outside a legal framework, which I find extremely disturbing.

No doubt, we face a genuine terrorist threat and I think that Members on both sides of the Committee would agree that control orders or TPIMs are exceptional processes. Exceptionalism, however, is simply not the way to make good law. To work out how to tackle the problem, it is important to go back to the basics.

The central problem is the gap, which has been mentioned, between people about whom we have enough evidence to prosecute, and people about whom we have genuine concerns. We face a genuine threat because of that gap, but what do we do about it? The first and most important step is to try to close down that gap. It is important to carry out further work and put further investment into ways of closing it so that we can prosecute people and go through the due legal process correctly.

We must resolve the intelligence problems that make us a bit of a laughing stock in some parts of the world, where people are much more able to use intelligence in their processes. We must put more money into investigation and have a greater focus on it. We must allow all sorts of procedures, such as post-charge questioning, to make it easier to close that evidence gap and prosecute more people. A problem with control orders and, to a slightly lesser extent, TPIMs is that they hinder closure by making it harder to hold an investigation and go to a prosecution. We need greater focus on that closure. I welcome the extra financial investments that have been announced, which will accompany the Bill. Such investments will make a huge difference, because they will make us better able to investigate and, I hope, achieve more prosecutions.

I accept, however, that for some people we will not manage to close that gap, even if we do everything that we should be doing in step 1. Therefore step 2 should be to try to use existing legal frameworks to build on. The problem is that the previous Government jumped straight to step 3, which was to come up with new rules and, as we heard from the shadow Minister, to hold people outside a legal framework. Surely that is not what we should do.

I want to go back to step 2 and emphasise the importance of the rule of law and take our lesson from what is already set out for dealing with a range of criminals, some of whom are very violent—police bail. Police bail exists; it works. It is not used perfectly in every single case, but it is well established, it is a key part of the existing legal framework, and it would not cause the constitutional problems and concerns that arise from control orders and TPIMs. It would get rid of that whole concern about exceptionalism. Importantly, however, it would maintain security. Police bail could be implemented to work in several different ways, but my group of amendments details one particular way to do so. Some others ways would change the nuance.

Amendment 118 is the key proposal. It begins with a role for the Home Secretary. Concern was expressed about whether a custody sergeant should initiate the process, but that would be inappropriate. The Home Secretary would have the initial role to say: “This is someone about whom we have concerns.” We do not, however, need to give executive control—an executive decision about the liberty of individuals—to the Home Secretary. That would, on principle, be a step away from the rule of law.

At present, there is a bar to prevent police bail in terrorism cases. The Home Secretary would initiate the process, which would remove that bar. If the bar were gone, on the application of the Home Secretary, the bail route would be available. At that point, the usual legal processes could be used—people could be arrested for their terrorism offence, because we would, presumably, have reasonable suspicion that they were involved in terrorism well before we got to any of the other processes. They can be detained without charge for 14 days now, which is down from Labour’s proposal for 90 days. Even so, we have 14 days during which it is possible to question people.

In my amendments, a chief police officer would be in charge of deciding what would happen under police bail. All the normal police bail conditions would be allowed, and the chief police officer would also be allowed to use each measure in schedule 1. In keeping with the naming, we have continued to use the terms “TPIM notice” and “TPIMs”. Police chiefs would have the power to implement each measure in the Bill. However, rather than the Executive acting outside a legal framework, it would fall to the police. There would be normal protections and a High Court appeal. In the interests of time, I will not take the Committee through every amendment that I have tabled, but I will take questions. By putting the primacy for the measures with the police and by using the terminology from the Bail Act 1976, we put a very clear focus on investigation and on the role that we should all want to see. Ultimately we all want people such as terrorists to be convicted.

There is a wealth of consequential amendments, but at the core is this: the Home Secretary does not decide to apply the measures outside the normal legal frameworks; instead, we use the tried and tested approach of bail, which has existed in this country for a very long time, to address the problem. As we heard earlier in the week, the proposals have the support of Lord Macdonald, Liberty and Justice. They provide the security that we need and the liberty that we deserve, as well as fitting within the normal legal process. Every schedule 1 power and every power under the current police bail provisions would be available, but we avoid the constitutional objections.

Gerry Sutcliffe (Labour, Bradford South)

The hon. Gentleman quoted Lord Macdonald and Liberty. What does he think about the comments of Lord Carlile when he was asked about police bail?

Julian Huppert (Liberal Democrat, Cambridge)

Lord Carlile and I do not necessarily see eye to eye on the matter, but I am sure that he will give it more consideration. I should be delighted to see him out of the House of Lords when we reform that place, which would be an excellent thing to do. I look forward to the Opposition taking a progressive stance on this, which would mean democratic legitimacy. My proposals give us liberty and security and they support investigation. I hope that the Committee will give them serious consideration.

Hazel Blears (Labour, Salford and Eccles)

I got the sense that the hon. Gentleman was drawing his remarks to a close. I would certainly benefit from a little more elucidation about the practicalities of how his proposals might work. The more he says, the more I am concerned—not necessarily always in this place—about people’s liberty. If he were to set up the type of framework that I think he is suggesting, would he ask the chief constable of a particular area, depending on where the person was picked up, to make a decision about restrictions that could be placed on the individual, which could be at least as draconian as we have heard, if not more draconian than what is available under control orders or TPIMs? The chief constable would not have seen the full intelligence picture and would not be able to assess the threat to national security. I am very concerned that the hon. Gentleman, despite his liberal credentials, may cast a much wider net for people. If we have TPIMs and police bail, we might be “locking up” people or placing them under restrictions in many more cases. It is very contradictory; I am confused.

Julian Huppert (Liberal Democrat, Cambridge)

I am glad I have a chance to explain. I obviously did not explain it carefully enough for the right hon. Lady. It is clear in the amendments, but I appreciate that she may not have gone through them in great detail. Liberty has produced a helpful briefing that was sent to all members of the Committee. I am happy to explain further.

First, police bail already exists, so I do not think that the introduction of police bail powers will lead to a massive police state or any such thing. I absolutely reject that. We have that already. The only issue is the fact that we do not currently allow terrorist suspects to be held under police bail. People suspected of any other crime are held on police bail, so I do not see how the police would suddenly experience a huge surge in power. As I said earlier, the process has to be initiated by the Home Secretary. There is a democratic check at the beginning, which is right; we do not want to give the police unfettered power either. The Home Secretary has to say that it is appropriate to have such measures for a particular person. However, it would not simply be down to the Home Secretary’s judgment, with a slight overview from the court to check that it is not obviously flawed. It would not just be up to her to judge how the measure would operate.

Hazel Blears (Labour, Salford and Eccles)

Who would determine the measures attached to bail? Would it be the chief constable or the Home Secretary?

Julian Huppert (Liberal Democrat, Cambridge)

The chief officer of police would determine those measures. That is a higher standard than is currently used for other forms of bail. There is police bail in this country. I do not recall the right hon. Lady speaking out against it as a massive infringement of people’s rights. This change would be a step forward. If there were concerns, the Home Secretary could withdraw the notice. The Home Secretary would presumably be able to talk to the chief constable if particular things needed to be brought to their attention. The provision would provide greater safeguards from a liberal perspective and in terms of liberty. There would be more opportunity for appeal to the High Court, which would have the power to vary bail conditions, as it does currently, rather than only to see whether the decision was obviously flawed.

I therefore absolutely reject the right hon. Lady’s position. I would be happy to spend further time talking her through the proposal. I suggest that she read the document that Liberty has produced, which deals with the matter in even greater detail. Not being a lawyer or police officer, I cannot give her the full details of how the police bail system operates, but I am sure that as a lawyer and former Home Office Minister herself, she knows that. This proposal would provide security, liberty and a focus on investigation. I hope that the Committee and, more particularly, the Government will consider it seriously.

Gerry Sutcliffe (Labour, Bradford South)

I shall be brief because I am not sure that the hon. Gentleman has convinced anyone on the Committee that the proposed system would work. Before moving anywhere near accepting his suggestion, I would want to know what the Association of Chief Police Officers thought about it and what the Minister thought about it following the consultation that has taken place in relation to the counter-terrorism review. It sounds a wonderful liberal solution, but we do not have the detail and the substance of how it would work in practice. I do not know whether the hon. Member for Cambridge wishes to press amendment 118 to a Division. I am prepared to go away and look at what has been said. I have seen the briefing from Liberty, and I want to examine that in greater detail. However, on the evidence that the hon. Gentleman has given us so far, I do not think that there is room for the Committee to move.

Hazel Blears (Labour, Salford and Eccles)

I do not want to delay the Committee, but this is an important debate. I am sorry that we did not have a lengthier introduction from the hon. Member for Cambridge about exactly how the proposed system would work. I, too, will read the Liberty briefing in detail. The provision was presented by Lord Macdonald on Tuesday almost as a silver bullet, slightly akin to the use of intercept as evidence—if only we could use police bail or intercept material, none of these unfortunate measures would be necessary.

I have a number of questions for the hon. Gentleman. I understand that, at the moment, police bail is given to people after they have been held for 48 hours, pre-charge. They are released on police bail and the conditions are that they are not likely to commit an offence or interfere with witnesses—those kinds of criteria. At the moment, suspected terrorists who are arrested can be held for up to 14 days pre-charge while they are questioned. What is proposed in the report is that at 14 days, either they would be released or they could be subject to a control order. So is the hon. Gentleman proposing the 48 hours that currently applies under the Bail Act, or the 14 or 28 days for pre-charge detention?

My understanding of police bail is that there must be an ongoing investigation—that is fundamental to the whole concept of police bail. Whether the matter involves serious and organised crime, international partners or whatever, there must be an ongoing investigation. If, as we have been discussing, people have an intelligence picture and at that time they know that that intelligence cannot be converted into evidence or is inadmissible in a court, how will they convince the High Court or the person who challenges the police bail that they have a sufficient legal base to enable them to argue the case for police bail, when they know that at that moment they do not have an ongoing investigation that is likely to lead to evidence that will be admissible in a criminal court?

In those circumstances, and quite properly, a judge will consider the situation and say, “What you’re creating is a sham regime to enable you to rely on police bail, but in your heart of hearts, as a prosecuting authority”—as Keir Starmer said—“you know that it will be very unlikely that you will get any new evidence or information that will enable you to bring this person to trial.” If I was making that decision as a judge—luckily, I am not—I would say, “I do not feel comfortable with giving you serially extended police bail. You come back to me every month. You say you want another month, another month and another month, yet at the heart of it, you have no basis on which you will be able to bring this back.” Dare I repeat the words said earlier? That is a dishonest approach. That is a dishonest approach to the issue, and we must be honest and grapple with the practical realities.

Julian Huppert (Liberal Democrat, Cambridge)

I shall respond to such points in detail later but, in the meantime, will the right hon. Lady look at amendment 44, which specifies that there would be a need for further investigation of any matter in connection with which the person had been detained? Incidentally, the period would be unchangeable from 14 days. We hope that there is a need for further investigation in such cases, otherwise we should not oppose such controls.

Hazel Blears (Labour, Salford and Eccles)

I put to the hon. Gentleman the situation in which it is known at the time that it would be unlikely that further information about an individual would arise in an investigation—let us say that the balance was 90:10 against. A judge who was asked to authorise the continuation of bail conditions would find it difficult to resist a challenge that that bail was granted wrongly when there was precious little likelihood of further information arising. The hon. Gentleman is using the idea of criminal investigation almost as a fig leaf for an artificial regime that makes him feel more comfortable because he had connected it, however tenuously, to the criminal justice system.

Ben Gummer (Conservative, Ipswich)

When the idea was posited yesterday by Lord Macdonald he put his argument persuasively, and the mere fact that it was posited by him gives it considerable force. I am no way criticising my hon. Friend the Member for Cambridge, whose liberal credentials are unimpeachable, but they slightly unravelled in his second explanation.

I have two principle concerns about the measure in addition to that put ably by the right hon. Member for Salford and Eccles. First, it goes down the familiar route of trying to remove democratically accountable people from important procedures. The key distinction is that police officers with delegated powers from Parliament and the Crown will always err on the side of caution, because their position is to protect the public. Therefore, they will always try to apply for police bail and not balance up necessarily the demands of liberty in the way in which the Home Secretary, answerable to Parliament at the same time as to the public safety and wider considerations of liberty, will do in all circumstances. I am worried that, in trying to produce a liberal alteration to the regime, we would end up with an unintended consequence, which is a far greater issuance of police bail on grounds that may or may not be correct, merely because there is no check. I accept that there is a place for the Home Secretary in such matters, but it is reduced considerably.

Secondly, I am worried about consistency throughout the country. I have the great privilege of having a Suffolk constituency. Suffolk has the smallest police force in the country and fantastically run it is, too. It is local, and it has marvellous chief constables, and I am sure that they would take such matters into consideration. I would not be happy about the previous Commissioner of Police of the Metropolis having control in such circumstances and the decision-making powers proposed by my hon. Friend because, frankly, we would have much of London under police bail. I am therefore worried about the unintended consequences of what my hon. Friend has suggested because so much power would be given to the police. So many people would be put before the courts under police bail, and we would be overwhelmed by the number of people just because the police wanted to protect their backs. Let us imagine what it would be like for the police officer, with an atrocity that might have happened or might not have happened, as a result of the lack of intelligence. That officer would then have to face the Home Secretary and the public and say why he did not put them under police bail when he knew just one tiny piece of information.

Julian Huppert (Liberal Democrat, Cambridge)

Will the hon. Gentleman give way?

Ben Gummer (Conservative, Ipswich)

I will finish at that point, because that is all I have to say, and I am sure my hon. Friend will address my comments when he replies.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

The right hon. Member for Salford and Eccles said that she is not a judge; I am. I am afraid that, for several reasons, I simply cannot support the amendments tabled by my hon. Friend the Member for Cambridge. One reason has already been dealt with by my hon. Friend the Member for Ipswich.

My hon. Friend the Member for Cambridge indicated to the Committee that the amendments follow closely the provisions of the Bail Act; in fact, that is not that case. In his amendment 118, proposed subsection (1C) lists the conditions that have to be fulfilled for the procedure to be brought into play. Under the Bail Act, there is a very important restriction on bail—there is no right to bail—where a person needs to be kept in custody for their own protection. I do not see such a restriction anywhere in my hon. Friend’s amendments. For example, posit the situation in which there is reasonable belief—or, under the current regime, reasonable suspicion—that someone is likely to conduct a suicide attack.

Julian Huppert (Liberal Democrat, Cambridge)

Will the hon. and learned Gentleman give way?

Stephen Phillips (Conservative, Sleaford and North Hykeham)

It seems a little early in my argument, but I suppose so.

Julian Huppert (Liberal Democrat, Cambridge)

I have no intention of inhibiting the development of the hon. and learned Gentleman’s argument, which is very interesting—it is always nice to hear from a judge—but amendment 44 specifically includes paragraph (d)(iv) of proposed section 10A about

“for that person’s own protection”.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I am grateful to my hon. Friend. I may therefore have been making a bad point, as the hon. Member for Birmingham, Ladywood did earlier. If I have not sufficiently read his amendments, I apologise and withdraw that point. However, there are other fundamental objections to his proposals, of which I will deal with only two.

The first objection has already been partly addressed by my hon. Friend the Member for Ipswich, who pointed out that nobody under the regime proposed by my hon. Friend the Member for Cambridge is answerable for it in Parliament. As my hon. Friend the Member for Ipswich said, the proposal of my hon. Friend the Member for Cambridge would essentially delegate the powers to those who will err on the side of caution and would not be answerable for significantly restricting people’s liberties. For that reason alone, given that we are also concerned about striking a proper balance, it is simply not appropriate that that should be done other than by a person who is answerable to Parliament. That is the first fundamental objection with which he has to grapple, and I have not yet heard his answer or conceived a solution to it.

The second objection is far more serious, and I have little doubt that the right hon. Member for Salford and Eccles will agree with it. It is simply that there are some people who it is reasonable to believe are engaged in activities related to terrorism, but who cannot be brought to trial. They cannot be brought to trial for the simple reason that were one to proceed as the criminal justice system currently works, evidence would have to be given that revealed either highly sensitive information or information that was damaging not to the Government but to the people of this country whose protection is the Government’s first duty. Where such people cannot be brought to trial, the amendments tabled by my hon. Friend the Member for Cambridge would result in one of two things: either they would be kept indefinitely on police bail, which we would all agree is wholly and utterly unacceptable, or their bail conditions would be lifted, in which case we would have let go of the very issue with which we are trying to grapple, because they would be free to go about their business of busily planning to blow up London buses and tube trains and goodness knows what else all over the country. Unless and until my hon. Friend can tell us the solution to that problem, the amendments are wholly misconceived, if not downright idiotic.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is good to see you in the Chair, Mr Caton. I had indicated that I intended to speak, but I am in two minds about whether to catch your eye after the contribution by the hon. and learned Member for Sleaford and North Hykeham, because it was a superb demolition job. I want, however, to give a faint echo of the arguments made by him and the hon. Member for Ipswich.

It is true that over the past 20 years in particular, the role of the Home Secretary on individual decisions has reduced. For example, it is not that long ago that the Home Secretary made individual decisions on the release of prisoners. That has now been taken out of the Home Secretary’s hands and I think we would, across the room, agree that that was a good move.

The challenge presented by this very small group of very dangerous people is such a special and significant set of circumstances that it is essential that the person who holds responsibility for the security of the nation should be personally involved in making decisions on applications for a control order or a TPIM. I absolutely agree with the comments that the hon. Member for Ipswich made on the importance of that. He also made an extremely relevant point that if it was in the hands of chief police officers, there would be at least 43 different approaches to the question. When it comes to matters of national security, we have to have national standards operated in a carefully organised and scrutinised way. That is why the Home Secretary should be involved.

I would not pretend to have the skills of a lawyer, such as those of my right hon. Friend the Member for Salford and Eccles, or the skills of a judge, such as those of the hon. and learned Member for Sleaford and North Hykeham, but it is self-evident that the 2005 Act, in section 8, requires that there is an ongoing review of the investigation. The Bill has that requirement in clause 10. There is no question but that if police bail were used there would have to be a higher test applied to that ongoing investigation. We have heard about the difficulties that there are in investigating these people and getting a successful prosecution. There are a small number for whom prosecution would simply not be possible. The hon. and learned Gentleman is right: the end result of that would be that dangerous people would walk free from the court and the people of this country would be at great risk.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We have had a powerful debate on some of the issues that surround this group of amendments. I respect my hon. Friend the Member for Cambridge for tabling them. The issue of the use of police bail was something that came up during our evidence sessions. Many people, with an honest and genuine view, who grapple with these extraordinarily difficult issues, posit the issue from time to time. I respect Liberty for how it has sought to advance the proposals. It lies behind some of my hon. Friend’s amendments that seek to deal with that challenge.

It is a difficult challenge, but for the reasons that my hon. Friends and Opposition hon. and right hon. Members have highlighted, there are flaws in the structure that is being drawn up. There are issues on the principle behind police bail, because of the difficulties that Lord Carlile highlighted during his evidence. He made the point that a control order has been issued to three people who have been acquitted. It is hard. I am not pretending that we want to be in this situation, but we are. When the risks are balanced, there is a need for a preventive measure to be able to disrupt and deal with the challenges that are at hand.

The issue of bail was considered during the course of the counter-terrorism review. The manner in which it came forward on the evidence and information that has been provided did not point towards us being able to support it or feel that it was an appropriate way forward. When I was preparing for this debate, I looked at what the previous Government thought of the issue, because it has been considered for some time. The right hon. Member for Delyn (Mr Hanson), who was the Minister with responsibility for police and security in the previous Government, gave evidence to the Joint Committee on Human Rights on 1 December 2009. He said that it is “an interesting point”, which it is. He went on:

“We have discussed this with the police, with ACPO, and with other agencies, and the advice that we have been given is that the level of offence for individuals and the type of offence that has been considered to date is not suitable for bail, and that was the advice given to us by operational police officers, and that is the advice we have accepted.”

That shows the challenge before us, and, yes, we are grappling with difficult issues.

A link to ongoing criminal investigations and the proposed use of police bail for those being investigated for terrorism offences, combined with the more limited purposes for which bail can be used, would, in our judgment, not work in the circumstances in which the risk arises. There is a particular risk where intelligence indicates a serious threat, but where exhaustive investigation has not yielded admissible evidence that is sufficient to prosecute and where further investigation is unlikely to yield such evidence. A risk may also arise where an individual has been unsuccessfully prosecuted but is still assessed as posing a risk to the public.

There is also a risk where prosecution is not possible, not because of a lack of admissible evidence, but because using the evidence would not be appropriate, because there would be a serious and unacceptable risk to a covert human intelligence source, for example. And there are risks where there are foreign nationals who we cannot prosecute but want to remove from the country, but where deportation has not proved possible because of European convention on human rights concerns about safety on return.

The main problem with the approach outlined by my hon. Friend the Member for Cambridge is that it does not address the problem. That is why, as a Government, we cannot consider it further in this context. I have, however, underlined the Government’s commitment to the priority of prosecution. I can probably say that that commitment is shared by all members of the Committee. Obviously, we have sought to emphasise that in the approach we have outlined.

The proposal outlined in these amendments raises a number of other potentially difficult issues. A key example is the level of involvement that the Home Secretary would need to have in considering matters directly related to an ongoing investigation and prosecution of an individual. That would be a highly unusual approach given the importance we rightly place on the independence from Government of the police and prosecuting authorities. That separation of powers is key, and it was the point adduced in the comments of the right hon. Member for Wythenshawe and Sale East.

Even if there was an argument for police bail to be available in terrorism cases, it is unlikely that we would consider this model because it departs significantly from the model that applies in other cases and it raises the constitutional issue of the Secretary of State having a role with an inappropriate level of involvement in operational matters.

As members of the Committee may be aware, the Government’s review of counter-terrorism and security powers considered whether suspected terrorists should be allowed bail. The police recommended against making bail available for terrorism suspects because of the potential risk to public safety. The Government agree with that assessment.

The priority for the police and the prosecutor is to either charge or release suspected terrorists as quickly as possible. Therefore, we want to retain that model. I assure the Committee that, under the current arrangement, control orders have not been used in cases in which there is an ongoing criminal investigation with a realistic and pending prospect of prosecution. Lord Carlile has given evidence on that in some of the reports to which he alluded.

It is with regret that I am unable to accept the amendments that my hon. Friend the Member for Cambridge has introduced with a genuine intent to deal with the issue. I in no way impugn the desire behind what is intended under the amendments or by those who have articulated and argued the case outside the Committee, too. It is genuinely held that that unfortunately misses an important factor, which is that sometimes a prosecution cannot be brought. Inevitably, bail is linked to prosecution and there will be hard, difficult circumstances when that is not possible. I say that with regret and reluctance, but that is the situation in which we find ourselves. Given that risk and the difficulties with his proposal, I hope that my hon. Friend will agree to withdraw the amendment.

Hazel Blears rose—

James Brokenshire (Conservative, Old Bexley and Sidcup)

The right hon. Lady seeks to intervene before I conclude my remarks. Again, how can I refuse her?

Hazel Blears (Labour, Salford and Eccles)

I am grateful to the Minister. He has again reminded me of one of the contradictions in the Bill. One of the main reasons for it was that its provisions were sufficiently different from control orders to provide a positive incentive for ongoing investigation, for more evidence to be gathered and for more people to be brought to trial. However, in all circumstances that the hon. Gentleman has described, I have not yet heard what measures will make such action more likely. In his latest contribution to the debate, he seemed to be stating even more firmly that there circumstances in which there would be—

Martin Caton (Labour, Gower)

Order. What the right hon. Lady is saying is not directly relevant to amendment 118.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Obviously, we have discussed the issue. I have sought to make it clear that terrorism prevention and investigation measures are primarily disruptive and that they are primarily preventive, but that they sit within the context of investigation. Clause 10 underlines such issues. I understand the right hon. Lady’s point, and I am sorry that I have not persuaded her of my argument. We will obviously have different views, but I note that we are probably in agreement in recognising the difficult challenges that exist in such cases. We must bring those crimes to justice, which is why preventive and disruptive measures are important in delivering the safety and security that all members of the Committee want to uphold. In that context, and on reflecting on the difficult circumstances and challenges that we face, I hope that my hon. Friend the Member for Cambridge will be minded to withdraw the amendment.

Julian Huppert (Liberal Democrat, Cambridge)

I thank all members of the Committee who contributed to the discussion. It is clear that I did not spend long enough talking through all of the 80-odd amendments. I apologise to the Committee for that. I thought that brevity would be preferable.

I want to draw attention briefly to amendment 44. To step slightly further back, to apply for a TPIM notice and to allow bail to happen, the Home Secretary would have to been involved in each case. That would deal with the objections made about thousands and thousands of such cases appearing suddenly. That would not happen unless the Home Secretary decided that it was important to apply for thousands and thousands of notices.

Amendment 44 specifies the conditions when someone could apply for police bail. I should have thought that we would have all agreed on such matters. The Minister highlighted his concern that the person would have to be arrested for a terrorism-related offence. That is clear. As for whether there was not enough evidence to charge the individual of the offence, I am sure that we would agree that, if there were, the person should be charged and there was a need for further investigation of any matter in connection with which the person was detained.

I listened carefully to the right hon. Member for Salford and Eccles about whether such action would be a sham investigation. I do not want it to be a sham investigation. We should be trying to find other investigative measures, whenever possible, so that we can prosecute such people. I want to see a real investigation. There are techniques that we could use to gain evidential material. However, the right hon. Lady is absolutely right: one of the purposes of such measures is to have more investigation and more prosecutions. If such action led to sham investigations, that is clearly not the intention.

The measures would stop people engaging in various activities and include, in particular, committing an offence while on bail under the Bail Act 1976. That would clearly cover any cases when someone would be a risk. A number of other interesting points were made. What struck me as fascinating—I had not expected this from the Committee—was the fear of the police that was evident in some comments. There seems to be an idea that we would not be able to trust chief officers to have those powers, but they use police bail in all sorts cases with a range of fairly violent people. I have been fascinated by comments that suggest we could not trust the police to implement the proposal; perhaps I have a bit more faith in police fairness.

Ben Gummer (Conservative, Ipswich)

I was not going to intervene, but I think that comment was aimed at me, and I do not want my words to be misconstrued. There is nothing about which I do not trust the police, but the proposal would give them the powers to take away—possibly for years at a time—someone’s liberty under very considerable bail conditions. If the Home Secretary were involved in every single case, I do not understand where the nexus would be between her and the chief police officer. I am confused about that matter.

Julian Huppert (Liberal Democrat, Cambridge)

It was, indeed, the hon. Gentleman’s comment about the former commissioner to which I referred. We should avoid castigating police officers in public, whatever we may think of them in practice. The Home Secretary would have the initial role.

The hon. and learned Member for Sleaford and North Hykeham made an interesting comment about our wanting to have the role for the Executive. Winston Churchill said:

“The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him judgment by his peers for an indefinite period, is in the highest degree odious, and is the foundation of all totalitarian Government.”

I agree that in this case we are not talking about jail, but the concern about Executive power has led me to propose a greater role for the police.

Hon. Members argued against having indefinite police bail; but we do not want indefinite TPIMs either, which will come to an end after two years. I am concerned, as are many others, about imposing such measures on people indefinitely without a conviction. The issue of permanence is fundamental, and it would apply equally to my proposal as to TPIMs. We would not want to run any of the measures indefinitely.

The Minister made a number of serious points and I thank him for the tone in which he did so. He reported that the police were worried about releasing people on bail for terrorist offences because we would not have enough controls for them. That is precisely why the controls in my proposal slightly strengthen police bail to cover all the measures in schedule 1 to the Bill. Exactly the same measures might be imposed on someone for exactly the same length of time, but with a greater focus on investigation, and with a different process that would be within the rule of law.

I must confess that I did not expect the Committee to agree to the amendment unanimously. The shadow Minister made it clear in this morning’s sitting that he was against police bail. Clearly, I have not persuaded hon. Members to change their minds, so I shall not be pressing the amendment to a vote. I hope, however, that we will consider the proposal, or a variation of it, on Report and at later stages. I think we can find a way to bring our system in line with the rule of law, with our standard legal processes. In doing so we would provide both security and liberty. I beg to ask leave to withdraw the amendment.

Hazel Blears (Labour, Salford and Eccles)

I rise to speak to amendment 20, in clause 2, page 1, line 6, leave out ‘notice (a “TPIM notice”)’ and insert

‘a mini control order notice (“MCON”)’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss the following:

Amendment 10, in clause 2, page 1, line 6, leave out ‘TPIM’ and insert ‘control order’.

Amendment 11, in clause 2, page 1, line 6, leave out

‘specified terrorism prevention and investigation measures’ and insert ‘a control order’.

Amendment 12, in clause 2, page 1, line 9, leave out

‘terrorism prevention and investigation measures’ and insert ‘a control order’.

Amendment 116, in clause 2, page 1, line 9, leave out

‘terrorism prevention and investigation measures’

and insert ‘mini control order’.

Amendment 13, in clause 2, page 1, line 13, leave out ‘TPIM’ and insert ‘control order’.

Amendment 22, in clause 2, page 1, line 13, leave out ‘TPIM’ and insert ‘MCON’.

Hazel Blears (Labour, Salford and Eccles)

I have been remiss, Mr Caton, in not having welcomed you to the Committee before now.

We have had good debates in our sittings so far, particularly on clause 1, in which we explored most of the issues that the amendments were designed to highlight. I am now beginning to enjoy myself enormously in Committee, so I hope that we will continue our discussions in a constructive spirit, sharing many concerns around these important issues. It serves little purpose to have another debate on the name of the legislation—we have explored that in great detail. On that basis, I shall not move the amendment.

Martin Caton (Labour, Gower)

Amendment 20 is not moved.

Gerry Sutcliffe (Labour, Bradford South)

I beg to move amendment 19, in clause 2, page 1, line 14, at end add—

‘(4) In exercising powers under this section, the Secretary of State must take into consideration—

(a) national security;

(b) the level of risk posed by the individual; and

(c) public safety.’.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss amendment 23, in clause 2, page 1, line 14, at end add—

‘(4) In imposing any terrorism prevention and investigation measures the Secretary of State must have regard to—

(a) the safeguarding of national security;

(b) the protection of the general public;

(c) the risk posed by the person subject to the TPIM notice to the general public; and

(d) the ability and the capacity of the police and the security services to protect and safeguard the general public.’.

Gerry Sutcliffe (Labour, Bradford South)

I am grateful to my right hon. Friend for deciding not to move the amendment. We had a good debate this morning on clause 1.

I hope that the Minister will respond to amendments 19 and 23 in the same spirit of consensus. The amendments aim to provide that the Secretary of State has regard to particular matters in the exceptional circumstances in which a TPIM notice is served on an individual. We think that that would give confidence to all of us who have concerns about—watering-down is too strong a word—the change in emphasis. I understand what the Minister has said about trying to change the culture and to secure prosecutions, but if those matters were added to the Bill it would give us some comfort on the issues that the Secretary of State has to take into account.

Hazel Blears (Labour, Salford and Eccles)

The amendments would be a straightforward addition to the clause. The whole regime is based on the Home Secretary’s making an order, which is subject to High Court scrutiny based on judicial review. Clearly, when the court looks at whether the Home Secretary’s decision is correct, it will decide whether she has taken into account all relevant considerations, whether she has taken into account any irrelevant conditions and whether she has reached a decision that no reasonable Home Secretary could reach, which are the basic principles of judicial review. The purpose of the amendments is to add to the Bill some of the relevant considerations that the Home Secretary should include in the process of deciding whether to make a TPIM order.

We could have a lengthy debate on what a list of such considerations should consist of and whether it is exhaustive. I entirely understand that the list in paragraphs (a) to (d) of amendment 23 perhaps errs on the side of national security. The Secretary of State would have to have regard to the following factors:

“the safeguarding of national security”—

that has to be right at the heart of her decision making—

“the protection of the general public”

and

“the risk posed by the person”

to whom the TPIM is applicable, which goes to the heart of the Bill, because it is about managing risk and ensuring that the Secretary of State has properly considered that risk. The important addition to the three paragraphs is,

“the ability and the capacity of the police and the security services to protect and safeguard the general public.”

We have already had several debates about resources, the extra money that will be available, the new electronic techniques that will be put in place and the recruitment of far more surveillance officers, and today we have heard various figures. I know that the Minister has provided extra resources, but I am still extremely worried by Lord Carlile’s evidence about the cost of 24-hour security and surveillance for each person. I am not yet convinced that the extra resources will be sufficient to meet the extra costs incurred, and we ought to pursue that very practical matter.

I understand that it is difficult for the Minister to state, in open session, the extent of the extra resources that he has given to the security services and the police. He knows the figures for the resources that he has put in place to cope with the TPIM regime. If he looks at those figures and the ones cited by Lord Carlile of a cost of anywhere between £10 million and £18 million per TPIM—if there are only 10 of those, that is £100 million—he will know the relationship between what he has provided and the likely cost. I am very concerned, and I want the Home Secretary, in deciding whether to issue a TPIM, to have to have regard to the practical implications of whether the police and the security services have the people, the techniques and the ability to carry out the surveillance.

That is fundamental, because the TPIM regime will dilute the existing controls. We can argue about whether that is right or not, but it is the case because there is no relocation clause, there will be access to mobile phones and the internet, and there are differing conditions on work and studying, all of which draw back from the current regime. We can debate the rights and wrongs of that, but if resources are not in place to fill the gap caused by that drawing-away from the current regime, we are opening ourselves up to the risk posed by the individual, to go back to paragraph (c). It is important that the Bill provides that the Secretary of State, in exercising her decision-making power, must focus on those important issues.

Paul Goggins (Labour, Wythenshawe and Sale East)

My right hon. Friend makes an important point. The Minister will no doubt argue that, by introducing fewer controls and additional resources, the overall risk is no greater than under the control order regime. We have a different opinion on that, but that would be his contention. My right hon. Friend is arguing very effectively that the Home Secretary must be satisfied on that in each individual case, rather than just the general picture.

Hazel Blears (Labour, Salford and Eccles)

I am grateful to my right hon. Friend for expressing himself so forcefully, because this is an important issue. When we come to the judicial review principles that the High Court will examine when addressing the Home Secretary’s decision, the High Court needs to be satisfied not only about the risk posed by the individual and the facts of overall national security, but that the provisions are in place.

I am sure the Minister will feel this as greatly as I do. I feel it as a personal responsibility that the orders should never be made unless the gap can be filled. The police and the security services have both said that the new resources will help mitigate the risk; they have not said that they will eliminate the risk. These things cannot be perfectly resolved, but they have said that the new resources will mitigate the risk. How far that mitigation goes, and how big the remaining gap is, goes to the heart of the judgment in such cases, which is what the Minister said.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I am trying to understand the right hon. Lady’s argument, because she seems to be on a different point. The two amendments address matters to which the Secretary of State must have regard when making the initial decision on whether a TPIM should be issued. The amendments in no way address the point she is developing on whether the resources are in place and whether the TPIM regime is more or less safe than the control order regime. Will she help me by dealing with the issue addressed by the amendments?

Hazel Blears (Labour, Salford and Eccles)

That is an appropriate intervention, and if I were to present a case in court before the hon. and learned Gentleman, no doubt he would test my arguments. I have not done that for some 20 years, so he is putting me—[ Interruption. ] Indeed, and he is rightly putting me under the spotlight.

Paragraph (d) of amendment 23 goes to the heart of my point. Paragraphs (a) to (c) highlight the issues to which the Home Secretary must have regard, and, therefore, the amendment would set out those important issues in the Bill. I thought that, not the hon. and learned Gentleman himself, but the hon. Member for Ipswich might want to intervene to say that, in addition to those factors, the Home Secretary should also have regard to liberty, freedom and other such matters, but he has not chosen to do so.

It is right to set out in the Bill the factors that the Secretary of State should have in mind when she makes a serious order that affects people’s liberty; we are all agreed on that. It would be helpful to have that spelled out, particularly for the High Court when it looks at whether the order should be made. When it does so, the High Court assesses whether the Home Secretary’s decision is flawed, which is the phrase it uses, on the basis of judicial review principles—now I am remembering my legal experience. The High Court would have to make an assessment of whether the Home Secretary had taken account of relevant considerations, whether she had taken account of irrelevant considerations and whether she reached a decision that no rational Home Secretary would reach.

Setting out in the Bill the factors that the Home Secretary needs to take into account aids the transparency of the judicial process, because it brings to the surface the reasons for making such orders and allows people to see whether the balance has been struck in a proper way. It is important to take account not only of the theoretical issues, but of the practical issues of whether there are the resources to fill the gap.

Stephen Phillips (Conservative, Sleaford and North Hykeham)

I shall be brief. I cannot support the amendments for two reasons. First, as drafted, they do not make it clear whether the views are the only factors that the Secretary of State must take into account. It is also unclear whether the list is exhaustive, or whether it is intended merely to be a list of matters that may be taken into account. The amendments are ill framed.

More seriously, I have to say to the right hon. Member for Salford and Eccles and the shadow Minister that these are exactly the sort of amendments that one expects of the Opposition, because they arise from going through the Bill line by line. When one gets to the end of clause 2, it no doubt seems sensible to table the amendments, but as soon as one gets to clause 3, one sees that they are entirely unnecessary, either because all the points contained in the amendments are duplicated in the conditions, or because it is blindingly obvious that they are matters of which the Secretary of State will take account when lawfully reaching a decision to ask the court to issue a TPIM. Frankly, we have enough law and enough statutes in this country, much of which we have to thank the right hon. Lady and the previous Government for, so I do not see why we should add unnecessarily to the burden on poor lawyers like me.

Hazel Blears (Labour, Salford and Eccles)

There are not that many poor lawyers, apart, perhaps, from poor working-class lawyers. I plead in my defence that I do not think that I have ever sat on a Bill Committee in opposition before, which is a terrible admission—[ Interruption. ] The hon. and learned Gentleman’s colleagues clearly have a great deal more experience of doing that than me.

By supporting the amendments, it was my genuine intention to have a little more transparency in the Bill and to express my concerns that these issues of national security weigh heavily with all of us. I wanted to raise the issue of resource, because I am not convinced by any stretch of the imagination that the current proposal for extra resource will fill the gap of risk. If that is the case, it will weigh heavily on the Minister when he comes to make his decisions.

I am grateful to the hon. and learned Gentleman for pointing out that clause 3 covers some of this territory. I contend that that clause is not exhaustive, however, and being able to say that something is “blindingly obvious” is not a reason not to put it in legislation, in my experience. As he will know, it is important that we construe language, look at words and look at what is in the Bill before we consider what might have been blindingly obvious. If something is not in a Bill, it is far more difficult to determine the intention of legislators and what they had in mind. I urge the hon. and learned Gentleman, despite his extensive legal experience, to be a little more understanding and a little more generous when the intention is to have a more transparent regime, which I would have thought was attractive to some coalition Members. When dealing with factors to be taken into account, we would all want judges to operate in a far more transparent legislative framework than they often do.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I am grateful to my hon. and learned Friend the Member for Sleaford and North Hykeham for his impressive demolition of the amendments—there might not be too much more for me to add. I gently say to the right hon. Member for Salford and Eccles that none of the factors outlined in the amendments are contained in the Prevention of Terrorism Act 2005, which she seeks to pray in aid. I am sure that she would not mind me suggesting that when she was deciding whether a control order should be imposed, she would have had regard to these factors, even though they are not specified in the legislation that she brought forward. If the factors were so important, she would, no doubt, have been championing them and asking her officials to ensure that they were put into the 2005 Bill. However, she did not do so. In that sense, the 2005 Act and the Bill operate in the same way.

The amendments raise an important issue. I agree that the Secretary of State should take into account the matters outlined in amendments 19 and 23 when imposing a TPIM notice. National security as it relates to terrorism, the protection of the public, the risk posed by the individual, and the capacity of the police and the security and intelligence agencies are all important factors for consideration. However, as my hon. and learned Friend the Member for Sleaford and North Hykeham rightly identified, there is no need for the amendments, because the Bill provides that the Government must take such factors into account.

The conditions that are set out in clause 3 are particularly relevant, because conditions C and D cover the factors that are outlined in both amendments. Condition C is

“that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual.”,

while condition D is

“that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual.”

The consideration of whether a TPIM notice and the specific measures imposed under it are necessary means, by definition, that the Government must consider national security as it relates to terrorism, the risk to the public, the risk posed by the individual, and the resources of the police and the security services. All those factors relate to the question of necessity.

In terms of judicial review, the court does not look only at whether the Home Secretary acts rationally and takes relevant factors into account. In the context of judicial review, in control order cases—by extension, this is likely to apply in TPIM cases—the court looks carefully at the Home Secretary’s decisions and considers how reasonable and proportionate they are. That is a general view undertaken by the court.

On resources and the support that is available, let me be clear that I believe that our police and security services are equal to this challenge. If I did not, I would not take this approach, and nor would we be bringing forward the Bill. I remind hon. Members of what I said on Second Reading: the director general of the Security Service told the Home Secretary that he is content that the changes provide an acceptable balance between the needs of national security and civil liberties, and that the overall package mitigates risk. I hope that the hon. Member for Bradford South will withdraw the amendment.

Gerry Sutcliffe (Labour, Bradford South)

I thank the Minister for dealing with the amendments in his customary way. In all the years that I have been in the House—I think this is my 17th—this is the first time that I have served on a Committee alongside a judge, which is good news for my legal advice and support to find out about many of these issues. There is an array of lawyers—working class and otherwise—on the Committee from whom we can benefit.

During his time in the House, the hon. and learned Member for Sleaford and North Hykeham will find that many amendments to Bills are not drafted in the way that he might like, but they provide an opportunity for the Opposition to nudge, cajole and push Ministers into giving us more information about their thinking. It was in that spirit that the amendments were tabled.

Hazel Blears (Labour, Salford and Eccles)

I want to place on record that the hon. and learned Member for Sleaford and North Hykeham is rapidly gaining a reputation, at least in this Committee, as being something of a bruiser with regard to his demolition jobs on amendments. I am grateful to him for being kinder to me than he was to the hon. Member for Cambridge; he accused me only of being blindingly obvious, as opposed to idiotic.

I am also grateful to the Minister for putting on record what the considerations of the Home Secretary will be, which was very helpful. On that basis, I am happy for us not to pursue the amendments. I hope that we can persuade the hon. and learned Member for Sleaford and North Hykeham that delicacy is occasionally just as appropriate as demolition.

Gerry Sutcliffe (Labour, Bradford South)

I thank my right hon. Friend. We will not press the amendments further, and I am grateful to the Minister for his explanation. I beg to ask leave to withdraw the amendment.