My Lords, in moving Amendment 76, I will also cover the other three amendments in my name—I am afraid I dominate this group 1, which is all concerning proposals made by the report from the Joint Committee on Human Rights.
Part 2 of the Bill introduces state threats “prevention and investigation measures”. I am not sure whether we are calling them STPIMs or just PIMs. Anyway, these are a set of restrictive measures that the Secretary of State could place on individuals who they reasonably believe are involved in foreign-power threat activity. Failure to comply with the measures imposed would be a criminal offence. Of course, these measures largely mirror the legislative scheme of the TPIMs—terrorism prevention and investigation measures—that can be imposed on those suspected of involvement in terrorist-related activity. There is an awful lot of experience, particularly on the Benches opposite, on that subject.
The intention behind the measures is that they should be applied to people believed to pose a significant threat but who could not be prosecuted. In fact, according to the Explanatory Notes, PIMs would similarly represent
“a measure of last resort”
applicable to those cases that, despite the wide range of new offences introduced by the Bill,
“cannot be prosecuted or otherwise disrupted.”
Clause 37 grants the Secretary of State the power to impose PIMs, while Schedule 7 sets out a wide range of requirements and restrictions that can be included, such as
“a requirement to reside at a specified residence”,
overnight curfews, exclusion from certain places or buildings, restrictions on travel, work and study, contact with others, use of phones and computers, et cetera. There is also daily reporting to a police station and GPS monitoring. So far so familiar, really, and there is a clear parallelism with TPIMs.
Amendment 76 specifically concerns the worries about the right to liberty guaranteed by Article 5 of the European Convention on Human Rights. It is the same, familiar range of concerns regarding ECHR and HRA rights—especially Articles 5, 6 and 8. Amendment 76 focuses particularly on Article 5, where concerns arise from the imposition of curfew measures. It has been established over many years of litigation arising from TPIMs—and, before that, control orders—that requiring a person to remain in their home for more than 16 hours per day is, rather unsurprisingly, likely to amount to a deprivation of liberty under Article 5. Curfews that last 16 hours or less could still engage Article 5 when coupled with other restrictive measures, particularly those causing social isolation such as separation from family.
The ECHR memorandum accompanying the Bill recognises the potential for Article 5 to be violated by a PIM, but it states that
“there are protections in place”
to prevent this, specifically the obligation on the
“Secretary of State … to act compatibly with the Convention rights”
and the same obligation applying to the courts. It is asserted that the judicial review process built into the Bill should serve as a protection against unjustified
deprivations of liberty. Such protections, however, depend on the Human Rights Act which, under the Bill of Rights Bill as introduced, will be repealed and replaced. Many of us fear that the Bill of Rights Bill threatens to weaken the courts’ ability to hold public authorities to that Article 5 obligation.
The Joint Committee on Human Rights concluded that the simplest way of introducing
“A more effective protection against interference with Article 5 rights would be to include within the National Security Bill a strict limit on the number of hours for which a subject of Prevention and Investigation Measures could be required to remain in their residence”.
This amendment reflects the JCHR report’s suggestion of a maximum of 14 hours per day. The Government may have other ideas, which will be interesting to hear.
I will now speak to Amendment 77. The conditions in Clause 38, which focus on “foreign power threat activity” are defined broadly and include some behaviour which may not currently even justify arrest. In these circumstances, none the less, this Bill proposes the imposition of potentially long-lasting highly restrictive measures on an individual. While the measures are called “prevention and investigation measures”, the investigation element appears extremely limited. Clause 44 would require the Secretary of State to
“consult the chief officer of the appropriate police force”
regarding whether a prosecution is possible before imposing a PIM and for the police to “keep under review” the investigation of the individual’s conduct with a view to their prosecution for the duration of the PIM—which can be renewed for up to five years. But the Bill would place no obligation on the Secretary of State to take, or refrain from, any particular action after consulting with the police, so it appears to have no real consequences. It also does not specify any duty on the police to take action beyond keeping investigation under review; it does not actually require investigation.
Amendment 77 proposes that, given the intention for these measures to be used in cases that cannot be prosecuted or otherwise disrupted, it seems reasonable to put in a requirement that, having consulted with the police, the Secretary of State gets confirmation from them that prosecution is not realistic or feasible before a PIM is imposed. That appears to be consistent with the policy justification of this clause.
The conclusion is that the JCHR recommends that the Bill is amended to include such a provision. My other two amendments in this group are consequential, so I will close here. I am very interested to hear other views. I beg to move.
3.30 pm