My Lords, I thank noble Lords who have tabled and introduced their amendments and all the noble Lords who have spoken in this debate.
Following the dreadful attacks at Fishmongers’ Hall and in Streatham, the Government reviewed the range of disruption and risk management tools at the disposal of those agencies whose job it is to keep us safe and identified areas that could be strengthened to improve public protection. We are committed to ensuring that the police and Security Service have the necessary tools to support them in their vital work.
TPIMs are an important part of those tools available to our operational partners. They were, as noble Lords have said, introduced in 2011, replacing control orders as a tool to prevent or restrict an individual’s involvement in terrorism-related activity. TPIMs are a last resort to protect the public from dangerous individuals whom it is not possible to prosecute or deport and offenders who remain a real threat after being released from prison. Clause 37 will increase the flexibility of TPIMs by amending the Terrorism Prevention and Investigation Measures Act 2011, lowering the standard of proof from “balance of probabilities” to “reasonable grounds for suspecting”.
Amendment 27 in the name of the noble Lord, Lord Anderson of Ipswich, would, as he outlined, require the Home Secretary to be satisfied, on the balance of probabilities, that an individual has been involved in terrorism-related activity when extending a TPIM notice
beyond a second year. The standard of proof for initially imposing a TPIM under his amendment would be “reasonable suspicion”, the same as proposed by the Bill. I thank the noble Lord not only for the way he introduced his amendment but for his helpful outline of the background to TPIMs, control orders and the landscape against which we must examine these questions. Like everyone in your Lordships'’ House, I have immense respect for the noble Lord, who began his time as Independent Reviewer of Terrorism Legislation before I started working as an adviser at the Home Office and was still in post long after I had left. With respect, however, we do not agree with the need for his amendment.
As the noble Lord, Lord Anderson, anticipated, I will point out that the 2011 Act requires that five conditions be met before a TPIM can be imposed. These are:
“Condition A is that the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity.”
Clause 37 amends that condition so the standard of proof will be “reasonable suspicion”. The Act continues:
“Condition B is that some or all of the relevant activity is new terrorism-related activity … 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 … 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 … Condition E is that … the court gives the Secretary of State permission under section 6”
to impose the TPIM. This happens in advance of the TPIM being imposed, or shortly after in an urgent case.
The Government are amending only one of these conditions—condition A, regarding the standard of proof. Lowering the standard of proof does not mean that the Government will be able to extend TPIMs whenever there is a suspicion of terrorism-related activity. To address the question raised by my noble friend Lady McIntosh of Pickering, this is not about the frequency of TPIMs but about their flexibility as a tool for our operational partners. All the other conditions will remain unchanged, and with robust safeguards. These require the Home Secretary to be satisfied that it is necessary and proportionate, to protect the public from a risk of terrorism, to impose a TPIM notice and the measures specified in it on an individual. The Government contend that proving past terrorism-related activity and demonstrating necessity are separate and distinct limbs of the TPIM test. It is also the Government’s contention that demonstrating necessity and proportionality is the key factor when considering whether a TPIM notice should be renewed beyond its first year, rather than the standard of proof applied to terrorism-related activity.
The Section 16 appeals process is particularly important in the context of longer TPIMs. I am certain that the court will take great care, when considering Section 16 appeals, that conditions C and D, which I outlined a moment ago, continue to be met. It may help if I offer a hypothetical case to demonstrate how an enduring TPIM might work in practice. Let us imagine a scenario
in which a charismatic radicaliser has been relocated, has had an overnight residence measure imposed, is prohibited from accessing internet-enabled devices and is banned from associating with several individuals. Over time, it would be reasonable to expect the TPIM notice to contain ever fewer measures, so that, for example, only one prohibited associate remained. In that sense the TPIM might function similarly to licence conditions.
There is clear precedent from the control order regime which operated under a previous Government and which, as the noble and learned Lord, Lord Falconer of Thoroton, will remember, allowed for control orders to be renewed without placing a limit on the number of renewals or increasing the standard of proof the longer they endured for the orders not to last indefinitely. Within the lifetime of control orders, 30 individuals were subject to an order for up to two years, eight for between two and three years, four for between three and four years, and only three for between four and five years. There were many cases in which the then Government either revoked or decided not to renew the control order on the grounds that the necessity test was no longer satisfied. A similar approach would be taken with TPIMs following the enactment of this clause. The Government have no desire to keep people on a TPIM any longer than is necessary and proportionate to protect the public. Removing the time limit is intended to address the risk of TPIM subjects riding out the current maximum of two years with no change to their mindset, and to address the risk of a cliff edge being created by forcing a TPIM to be removed when a risk to public safety remains. I am conscious that we will look at this issue in more detail in the next group, but I make those points because the noble Lord, Lord Anderson, said he would be keeping his ears open for a response.
As the noble Lord, Lord Anderson, said, the Public Bill Committee in another place, heard from Assistant Chief Constable Tim Jacques, Deputy Senior National Coordinator for Counter Terrorism, who spoke not just for the police but on behalf of the security services, and outlined some hypothetical cases where a lower standard of proof could make a substantive difference. I think it would be helpful to highlight the practical examples he gave. The first scenario is where significant concern about an individual’s behaviour or activities as a radicaliser has led to their arrest. There may be, however, insufficient material to reach the prosecution threshold and the individual would have to be released. As ACC Jacques says, the lower burden of proof may help to manage the risk posed by the individual while further investigative and risk-mitigation measures are pursued.
The second scenario ACC Jacques gave is where an individual’s risk profile accelerates rapidly in the form of their moving quickly from consuming terrorist material online to presenting a future risk of attack. We have sadly seen this in the case of many lone-actor terrorists. There will not always be sufficient evidence to prosecute in a scenario such as this, particularly where an individual does not have a long history of terrorism-related activity. While a variety of tools and controls to manage this risk will be considered by our
operational partners, and a TPIM may not be the measure that is ultimately deemed most appropriate, lowering the standard of proof will help to ensure that a TPIM can be used where it is deemed the best tool for mitigating the risk.
The third scenario that ACC Jacques gave was where an individual has been to, say, Syria to fight for a terrorist organisation, but evidence of their activities while they are overseas is hard to gather. This addresses the point raised by my noble friend Lord Faulks. There will be a range of tools which the Government and their operational partners will consider using on a case-by-case basis to prevent or to manage that individual’s return to the UK and, if they return, prosecution will remain our strong preference. However, if there are evidential difficulties, as understandably there are when we talk about activity in theatre in places such as Syria, and we cannot meet the burden of proof required by a criminal court—that is, beyond reasonable doubt—but we do have a reasonable suspicion that a person has been involved in terrorism-related activity, then the lower standard of proof will ensure that a TPIM can be considered as a risk management tool to protect the public here in the UK.
I think it was worth setting those out in detail because these are credible and not unlikely scenarios for which we must be prepared. That is why we contend that setting the standard of proof at reasonable grounds for suspecting at the extension stage is just as important as at the imposition of a TPIM to maintain a TPIM for as long as necessary.
I now turn to Amendment 28 in the name of the noble and learned Lord, Lord Falconer of Thoroton. His amendment would require the Home Secretary to believe
“on the basis of reasonable and probable grounds”
rather than have “reasonable grounds for suspecting” that an individual is, or has been, involved in terrorism-related activity before imposing a TPIM. Again, with respect to the noble and learned Lord, we do not agree with the necessity of this amendment.
The noble and learned Lord’s amendment proposes a mixture of recognised standards of proof within the TPIM regime. Specifically, it appears to blend the standards of “reasonable belief” and “balance of probabilities”. As the noble and learned Lord said, he has suggested this formulation with the intention of creating a new middle ground between those two standard—that is, a balance between the standard which applied when the 2011 Act was first introduced, and the current standard of proof following changes made by the Counter-Terrorism and Security Act 2015. Although I am not a lawyer and, mindful of the entreaties of my noble friend Lord Wolfson of Tredegar, I do not apologise for that—I speak as a non-lawyer—but I must suggest that the mixing of established standards of proof which are recognised by the courts and by decision-makers would not be helpful or appropriate. We are not aware of evidence that the recognised standards are, in and of themselves, inoperable as thresholds. Given the potential for confusion in the application of this amendment—that is, blending legal tests of belief and probability—we urge the noble and learned Lord to withdraw his amendment on this ground alone.
Additionally, the amendment would require a higher standard of proof than is proposed under the Bill. That goes against the policy intent of the Bill, which is to ensure that our operational partners can make use of TPIMs more flexibly in their efforts to protect the public. The pace at which the Security Service and the police must operate to thwart attacks and manage risk to the public is faster than ever before. The question of whether a person has carried out terrorism-related activity will often depend on an incomplete jigsaw puzzle of intelligence rather than hard evidence, as the noble Lord, Lord Anderson of Ipswich, outlined in opening this debate. In such cases, it is right that we give our operational partners the option of a TPIM as a risk management tool.
I have already referred to the evidence given by ACC Tim Jacques, which outlined the Security Service’s assessment of the benefits of lowering the standard of proof. The three scenarios he outlined—the activities of a known radicaliser, a rapidly escalating risk from someone who has consumed terrorist-related content online and a foreign fighter returning from Syria—all apply in relation to this amendment as well and form part of the Government’s justification for respectfully disagreeing with it.
7.15 pm
It is worth reiterating that the standard of proof is just one of five conditions that need to be met to impose a TPIM, and that the other four conditions remain unchanged. As the noble Lord, Lord Anderson, said, my honourable friend Chris Philp has been entirely candid in another place, on behalf of the Government, that the Security Service has not been prevented from imposing a TPIM under the current standard of proof. We are happy to be candid about that, but the fact that it has not been hitherto does not amount to an absence of evidence or justification for this change. We are equally candid that this is about future-proofing the legislation, because the TPIM cases of tomorrow may differ from the TPIM cases of today. We are happy to say that the benefits here may perhaps be marginal but in matters of counterterrorism small margins can save lives and help protect the public.
I hope that addresses the point raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, who asked about the evidence for changing the standard of proof. In any event, as my noble friend Lord Faulks pointed out straight after the noble and learned Lord had posed the question, this was the standard of proof used for control orders when they existed. Those were well tested in the courts and found to be compatible with the European Convention on Human Rights.
The noble Lord, Lord Strasburger, asked whether we are ignoring the views of the independent reviewer. We are not; we are extremely grateful to him for his work. It is natural that Governments’ operational partners and independent reviewers will not always reach the same conclusions. Indeed, as has been noted in this debate, independent reviewers do not always reach the same conclusions as each other. Another former independent reviewer, the noble Lord, Lord Carlile of Berriew, has reached a different view, for instance. The independent reviewer’s opinions are rightly made public, so that the public and Parliament—in both
your Lordships’ House and another place—can probe the Government, as we are doing today in Committee. The independent reviewer will of course continue to provide extremely valuable oversight and challenge under the Bill’s proposals.
A number of other questions were raised, particularly by the noble Lord, Lord Paddick, which I am conscious we will come to in later groups. We have many groups which we need to cover today, so I hope noble Lords will forgive me if I return to those points in later debates. The Government’s first priority is, as I say, the protection of the public. That is why we have proposed lowering the standard of proof, and why we urge the noble Lord to withdraw his amendment.