Terrorism Prevention and Investigation Measures Bill

I shall speak to amendments 1 to 4 and voice my support for Government new clauses 5 and 6. Throughout Second Reading and consideration in Committee, I have supported the principle of placing in schedule 1 a list of conditions that would be available to the Secretary of State under the TPIMs regime. Under control orders there is no such list. The Home Secretary can impose any condition, subject to accountability to the court. As my right hon. Friend the Member for Salford and Eccles (Hazel Blears) has continued to remind the House throughout the debate, there is that continued oversight over the existing regime. The problem with schedule 1 is that the list of conditions that it provides is inadequate. For example, it requires that the Home Secretary must—not may, as I hope we will discuss later—allow someone subject to a TPIM to have access to the internet and to have a mobile phone and a land line. There is no option; the Home Secretary must do that. Equally, the Home Secretary has no power to relocate an individual away from an area if she judges that to be necessary. I hope that we will soon debate that aspect as well. The nagging concern that hon. Members—on both sides of the House, I hope—have is what happens when the Home Secretary has intelligence about an individual that requires a certain measure to be put in place, and she cannot do so because it is not in schedule 1. The good news since we considered the issue in Committee is that the Home Secretary has clearly recognised that there may be circumstances where the list of measures in schedule 1 is not sufficient, and she has now published draft legislation, the enhanced TPIMs Bill, that will allow relocation and curfew and will prevent access to mobile phones and the internet where that is necessary. I support the fact that in that Bill she is giving herself the powers to introduce an enhanced TPIM if Parliament is dissolved and she judges it necessary at the time. The bad news is that the only way that the Home Secretary could exercise these enhanced powers when Parliament is sitting is via fresh primary legislation. I assume that the Home Secretary intends that there should be a rigorous process of pre-legislative scrutiny in relation to the enhanced TPIMs Bill that has been published. Presumably it will be scrutinised by a cross-party Committee and presumably the Committee will be made up of Members from both Houses. Perhaps the House will consider making the Committee Chair a well-respected Cross Bencher, such as a former Cabinet Secretary with huge experience of Government business. The Committee would be expected to take evidence from all the experts and, on the basis of that evidence, it would then be asked to come to a unanimous view on the matters before it. That is what we did just a few weeks ago in relation to the draft legislation on pre-charge detention—exactly that process. The report, which I know the Minister will have read with great care, concludes that the route of using emergency legislation in that way is unsatisfactory and unreliable. Those are not my words; those are the words of the Joint Committee, having considered the evidence very carefully, indeed. There are at least three major problems with the route that the Minister wishes to take. First, there is the wide variation in the threshold, or the trigger, that will apply to the emergency legislation, and it is not good enough for him to stand at the Dispatch Box and say that he will not second-guess the circumstances in which it may be necessary. He is the Minister who, along with the Home Secretary, will decide whether the legislation should be brought before the House. Lord Macdonald of River Glaven, in evidence to the Joint Committee, said that it would take a national catastrophe before emergency legislation could be brought forward. Other experts thought that such legislation might be necessary in one or two individual cases. In either scenario, it will be wholly unsatisfactory. My right hon. Friend the Member for Wolverhampton South East (Mr McFadden) made the point very clearly: if we have had the national catastrophe, we have missed the boat. The whole point of the enhanced TPIMs legislation is to prevent a catastrophe in the first place, so are we really meant to believe that we need the whole panoply of primary legislation going through this House and the House of Lords, with all the necessary deliberations, on the basis of one or two individual cases? I regard that almost as an abuse of the parliamentary process. Secondly, the passage of legislation would be fraught with difficulties. The individuals who are subject to control orders now and who will be subject to TPIMs in future are subject precisely because there is intelligence on them that cannot be shared in an open court and, therefore, certainly cannot be shared in an open debate in Parliament. The Home Secretary would therefore be able to tell us almost nothing about the detail of what had led her to the conclusion that emergency legislation was necessary, and anything she said say in the debate would have to be said with great care. Members from both sides of the House talk of the need always to prosecute criminal charges where possible, but in such a debate the Home Secretary might say something that prejudiced a future trial—if at a later date there were a successful attempt to bring a prosecution. So the practical passage of any Bill through Parliament would be fraught with difficulty. Parliament would also be none the wiser when it considered such legislation, because it could not be told anything about the specific circumstances that had led the Home Secretary to conclude that such measures were necessary. Thirdly, and importantly, there is the issue of practicality, on which there is considerable detail in the Joint Committee's report. I should have thought that this Home Secretary would have learned a lesson about emergency legislation from the past few months, because she had to introduce some on police bail to the House, and she got it through by the skin of her teeth—a couple of weeks before we went into recess. I asked her then what she would have done if we had been in recess and had needed emergency legislation, and the question arises again. If she concludes that an enhanced TPIM is necessary and we are in recess, will she recall Parliament so that we can have an enhanced regime for one or two individual cases? I support the new clauses that the Minister has introduced, and I welcome the fact that he has seen it necessary and important to ensure that, when Parliament has been dissolved, the Home Secretary can make an enhanced order, because Parliament cannot be recalled in those circumstances. Let me remind the Minister that in Committee on 28 June he said that such an enhanced power"““should not be introduced or passed until it is needed””––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 28 June 2011; c. 195.]" But, if that is the point at which the legislation is brought to the House, and if there is then consideration, deliberation and Royal Assent a week later, a week later may be seven days too late. The Minister should consider that point carefully. The Minister gave his view about the four amendments in my name and those of my right hon. and hon. Friends, and he is quite right that amendment 4 is superfluous, because he has accepted the arguments in relation to Dissolution, so I will not pursue it. On amendment 1, the Minister is right to say that as a result of the Bill the Home Secretary is empowered to take additional measures: she does not have to come back to Parliament; she can just take them, because the legislation gives her the power to do so. I am reflecting carefully on what right hon. and hon. Members have said about the need for parliamentary accountability and scrutiny, however, because there would not be any direct accountability to Parliament. There would be direct accountability in relation to amendment 2, because the Secretary of State would be able to introduce the additional measures only by order, meaning that she would have to come to Parliament, send the order through both Houses and gain the affirmation of both. The problem with that process is the same as the problem with primary legislation: it all means delay and time, which she may not have; she may need to put the condition into a TPIM immediately. That is a concern for me, even though I speak in favour of amendment 2. Amendment 3, however, is worthy of more consideration than the Minister's brief summary of it. It would allow the Home Secretary to introduce additional measures in an urgent or emergency situation, but crucially she would be able to do so immediately, because proposed subparagraph (2) would give her the power to do so with ““immediate effect””. In bringing it forward with immediate effect, however, she would have to submit to parliamentary scrutiny, and both Houses would at a later date have to affirm to her decision to invoke the additional measures. Indeed, if either House declined to give such affirmation, the Home Secretary's original decision would fall, so amendment 3 would give her the immediate powers that she would need to impose the conditions, but it would also provide for some degree of scrutiny by Parliament at a later date.