PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES

Public Bill Committee

TERRORISM PREVENTION AND INVESTIGATION MEASURES BILL

Fifth Sitting Tuesday 28 June 2011 (Morning)

CONTENTS Written evidence reported to the House. SCHEDULE 1 under consideration when the Committee adjourned till this day at Four o’clock.

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© Parliamentary Copyright House of Commons 2011 This publication may be reproduced under the terms of the Parliamentary Click-Use Licence, available online through The National Archives website at www.nationalarchives.gov.uk/information-management/our-services/parliamentary-licence-information.htm Enquiries to The National Archives, Kew, Richmond, Surrey TW9 4DU; e-mail: [email protected] 119 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 120 Measures Bill

The Committee consisted of the following Members:

Chairs: MARTIN CATON,†MR LEE SCOTT

† Blears, Hazel (Salford and Eccles) (Lab) † Morden, Jessica (Newport East) (Lab) †Brake,Tom(Carshalton and Wallington) (LD) † Newmark, Mr Brooks (Lord Commissioner of Her † Brokenshire, James (Parliamentary Under-Secretary Majesty’s Treasury) of State for the Home Department) † Ollerenshaw, Eric (Lancaster and Fleetwood) (Con) † Buckland, Mr Robert (South Swindon) (Con) † Phillips, Stephen (Sleaford and North Hykeham) Donaldson, Mr Jeffrey M. (Lagan Valley) (DUP) (Con) † Ellwood, Mr Tobias (Bournemouth East) (Con) † Robertson, John (Glasgow North West) (Lab) (Beckenham) † Goggins, Paul (Wythenshawe and Sale East) (Lab) † Stewart, Bob (Con) † Sutcliffe, Mr Gerry (Bradford South) (Lab) † Gummer, Ben (Ipswich) (Con) † Tami, Mark (Alyn and Deeside) (Lab) † Harris, Rebecca (Castle Point) (Con) † Huppert, Dr Julian (Cambridge) (LD) Sarah Thatcher, Committee Clerk † Mahmood, Shabana (Birmingham, Ladywood) (Lab) † attended the Committee 121 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 122 Measures Bill deal with those issues more tidily. That was not, however, Public Bill Committee the Minister’s view, and we had a useful discussion of the changes in the Bill’s proposals. Tuesday 28 June 2011 The Government contend that those changes do not pose a significant risk to the public: if there is an increased risk, it is mitigated by the resources that will (Morning) be given to the police and the security services to deal with that risk. Our concern is that we do not want a [MR LEE SCOTT in the Chair] lessening of the risk, particularly when there might be more high-profile attacks—for example, with the Olympics Terrorism Prevention and Investigation and the Paralympics—and opportunities for those who wish us harm to do us harm. We are firm in wanting to Measures Bill ensure that protections are in place. The schedule is the meat of the regime for terrorism Written evidence to be reported to the prevention and investigation measures, as it enables a House whole raft of measures to be imposed, including measures TPIM 04 Liberty on overnight residence, travel, exclusion, movement directions, financial services, property, electronic 10.30 am communications, association, work or studies, photography and monitoring measures, many of which we will discuss this morning. Schedule 1 The first group of amendments concerns curfews. I well remember the House being what I can only describe TERRORISM PREVENTION AND INVESTIGATION as full of laughter when the Home Secretary, in either a MEASURES statement on the counter-terrorism review or on Second Reading, spoke about home residence and the overnight Mr Gerry Sutcliffe (Bradford South) (Lab): I beg to requirement. As far as I am concerned, that is a curfew. move amendment 14, in schedule 1, page 16, line 8, after Whichever way the Minister dresses it up, it is a curfew. ‘a’, insert ‘curfew’. In their evidence, Mr Osborne and the Director of Public Prosecutions said that, regardless of the fact that The Chair: With this it will be convenient to discuss we all want prosecutions, which is the first port of call, the following: we need to achieve consistency and an understanding of the measures that are in place, and that the police and Amendment 3, in schedule 1, page 16, line 8, leave security services were comfortable—“comfortable” might out not be the right word, but I will use it—with the way in ‘overnight or at particular times overnight’ which control orders were adopted. and insert On the overnight residence requirement, the Government ‘at any time but not exceeding 16 hours in any 24’. are changing the language—I know that the hon. Member Amendment 15, in schedule 1, page 16, line 10, at for Cambridge will not agree with this—just to satisfy beginning insert ‘curfew’. or placate the Liberal party. Under their consensual Amendment 4, in schedule 1, page 16, line 10, leave agreement, they are changing the terminology, so that it out does not look so harsh. However, we are talking about ‘overnight or at particular times overnight’ ensuring that people who pose a threat to our society in the ways that we have all seen over the recent past are and insert restricted in their movements at home. Later, we will ‘at any time but not exceeding 16 hours in any 24’. discuss amendments relating to accommodation, and Amendment 5, in schedule 1, page 16, line 11, at end whether measures should be agreed or be introduced at insert— the Secretary of State’s direction. ‘(1A) For the purpose of sub-paragraph 1(1) the meaning of Why is there a need for the name change in having an overnight shall be from 6.00 pm to 10.00 am.’. overnight residence requirement as opposed to a curfew? Amendment 6, in schedule 1, page 16, line 11, at end Why is there no definition of the time frame of that insert— curfew in the Bill? We have tabled amendments on ‘(1A) For the purpose of sub-paragraph 1(1) the meaning of possible time frames. What is the Government’s thinking overnight shall be from 6.00 pm to 8.00 am.’. about the, in my view, lessening of the current position? Amendment 7, in schedule 1, page 16, line 11, at end insert— Stephen Phillips (Sleaford and North Hykeham) (Con): ‘(1A) For the purpose of sub-paragraph 1(1) the meaning of I do not know the previous legislation intimately, so will overnight shall be from 6.00 pm to 6.00 am.’. the hon. Gentleman help me by saying what the limitations were on a curfew under the control order regime? Mr Sutcliffe: Good morning, Mr Scott, and I wish members of the Committee good morning. Mr Sutcliffe: The curfew was an overnight requirement To recap, in Thursday’s discussions, the Opposition in which a fixed number of hours could be fitted to an view was that the early part of the Bill is the meatier one individual’s case. [Interruption.] The hon. and learned in relation to the issues that we face. Our contention is Gentleman had said that he did not know about the that the Government could introduce amendments to previous legislation; if he is now saying he does, what is the Prevention of Terrorism Act 2005, which would the point of the question? 123 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 124 Measures Bill Stephen Phillips: I asked for clarification, because it Paul Goggins (Wythenshawe and Sale East) (Lab): was my understanding that there was no limit on how My hon. Friend is not mixing up things. It is true that long a curfew could last and that, as the legislation was there have been many challenges in the courts on curfews framed, it could last for a 24-hour period. and control orders, but the courts have come to a settled view, which view is reflected in the Legal Aid, Sentencing Hazel Blears (Salford and Eccles) (Lab): It would and Punishment of Offenders Bill, to which my right have to be a derogating order. hon. Friend the Member for Salford and Eccles referred. Up to 16 hours is regarded as permissible. By introducing Mr Sutcliffe: I am sure that my right hon. Friend the the concept of “overnight”, which is a vague, nebulous Member for Salford and Eccles, who was responsible definition, the Government have confused matters. My for introducing the relevant Bill, can advise the Committee hon. Friend is right to point that out. on what the position was. I understand that one reason why control orders were a problem, and why we have Mr Sutcliffe: I am reassured by my right hon. Friend’s included an hours limit in our proposals, was that there view that I am not mixing things up and that I have a was a challenge from the courts, which deemed that the strong point that the Minister must answer. number of hours required was legally unacceptable.

Tom Brake (Carshalton and Wallington) (LD): The The Parliamentary Under-Secretary of State for the hon. Gentleman has concerns about there being no Home Department (James Brokenshire): We will have definition of “overnight.” Will he remind the Committee that debate at the right time. Will the hon. Gentleman how many times the matter of curfews and the definition confirm whether it is now Labour party policy not to of that term had to go to court under the control orders draw a distinction between a preventive civil order and regime? a civil punishment? That is what he seems to be suggesting.

Mr Sutcliffe: Again, I do not know the answer to Mr Sutcliffe: We are not saying that. I am simply that—perhaps the Minister can tell the Committee, drawing a comparison with the Legal Aid, Sentencing with support from his officials. I am trying to make the and Punishment of Offenders Bill, which receives its point that the name change is cosmetic, particularly Second Reading tomorrow, with the need to change the when the security services need consistency. We heard framework and with how a curfew might be defined. from Mr Osborne that it will take 12 months to put all On page 7 of the explanatory notes, paragraph 40 the required assets in place, such as electronic surveillance states: and the training of individuals, so we would expect consistency in the Bill. The Minister must know that the “The term ‘overnight’ is not defined in the Bill, but as a matter of public law the period would need to fall between hours which a Legal Aid, Sentencing and Punishment of Offenders reasonable person would consider ‘overnight’. This contrasts with Bill will receive its Second Reading tomorrow. It will the position under control orders, where current case law allows impose more restrictions on young offenders than this for the imposition of a curfew of up to 16 hours’ duration per Bill will impose on terrorists. day.”

Hazel Blears: That is a really important point for the Tom Brake: The hon. Gentleman seems to desire Committee and the Minister to address. Clause 60 of consistency—in other words, a fixed period of time by the Legal Aid, Sentencing and Punishment of Offenders which “overnight” would be defined. Does he not agree Bill provides for the curfew period that can be attached that it should be down to the security services and the to a community sentence or a suspended sentence to be police to define what an appropriate overnight condition increased from 12 hours to 16 hours. On the face of it, might be? By arbitrarily setting it at a particular number the Government’s position seems entirely inconsistent, of hours, that may become the default rather than because curfew provisions for anti-social behaviour are ensuring that the security services and the police select likely to be more draconian than such provisions for the overnight period that is appropriate to the individual’s terrorism. circumstances. Mr Sutcliffe: I am grateful to my right hon. Friend for pointing that out. The onus is on the Minister to Mr Sutcliffe: I am talking about managing risk and respond. the Secretary of State making it clear what is required. The explanatory notes state that there may be an occasion Dr Julian Huppert (Cambridge) (LD): I do not have when an individual is allowed to go to an event when the Legal Aid, Sentencing and Punishment of Offenders they would Bill in front of me. Will the hon. Gentleman confirm “normally be required to remain in the residence”. that the big difference is that people who get a sentence What that event might be is a matter of judgment. Can have been convicted and that terrorists who have been the Minister tell us what type of event he thinks might convicted will get a jail sentence, which is rather more be allowed? The measures seem to be lightening our permanent than any of these measures. If they have not grip on the individuals concerned. It is important properly been convicted, it is entirely different. to manage the risk, which involves extra costs and resources, but perhaps that is a step too far. I know that Mr Sutcliffe: I do not agree. The hon. Gentleman that belief is not shared by the coalition Government. I makes a point about conviction, which we have discussed want the Minister to explain what type of event would in previous debates. Our concern is to ensure consistency allow the individual to be released from curfew in their in managing risks. You may say that I am mixing things accommodation to attend it? What event could be so up, Mr Scott, but I do not think I am. serious? We will discuss accommodation later. 125 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 126 Measures Bill Dr Huppert: Given that we are talking about people of the Security Service on Second Reading saying that who have not been convicted, a family wedding might that would mitigate—not eliminate—the risk. There be a reasonable event for someone to attend on a was no comment on whether that risk would be reduced particular occasion. to the level under control orders. I applaud the Home Secretary for putting those additional resources in, but Mr Sutcliffe: It would depend what time the wedding I am sceptical as to whether they will be sufficient, given was. I have no objection to an individual going to a the loosening of the requirements in the Bill, but I will wedding. However, we need to consider the number of be looking at the measure closely. variations. The coalition Government contend that this I find it curious—this is a philosophical point and is a strong regime, yet we are talking about individuals although I am not much of a philosopher, I will stray who would do us harm. In serious cases, such individuals that way—that those who argued from a philosophical pose a great threat, but cannot be prosecuted. There point of view on civil liberties that we need to ensure should be an air of caution. It is the Government’s duty that we do not encroach too far on to civil liberties and to protect the majority and prevent the minority causing that the demands and requirements of legislation such us problems. as this should be reduced to an absolute minimum are The amendments define a curfew rather an overnight prepared to see an increase in the level of surveillance residence. “Curfew” would be consistent throughout on those individuals. The hon. Gentleman reflected that the legislation relating to measures against individuals. in his comments. The amendments also relate to the hours that could be In other words, a set of conditions that are clearly made available. I will listen with interest to what the spelled out in the control order or TPIM, which the Minister has to say about making sure that the public suspect understands and can challenge in the courts if are protected, and what his views are on the issues necessary, are being replaced with hidden and secret raised by the amendments. surveillance, which must necessarily take place if those conditions are not applied. I find it curious that those who are advocating greater civil liberties want to see a Paul Goggins: I welcome you to the Chair, Mr Scott, system where there is more, rather than less, surveillance. on our third day of deliberations. I want to concentrate my remarks on amendment 3 and amendments 4 to 7. My view is that we should either remove the requirement Several hon. Members rose— that the residence measure can apply only overnight, or, if the Committee is not minded to follow my preference, Paul Goggins: I thought that might excite hon. Members. we should at least define what we mean by “overnight”. My first point develops the observations that my hon. Friend the Member for Bradford South has already Dr Huppert: As one of the people who would like made, and they reflect the main theme that emerged more civil liberties, the point is that we want a prosecution, from our deliberations last Thursday. If the requirements if possible. That is the correct way to reduce civil set out in schedule 1 represent a loosening of the liberties as appropriate. Surveillance would be intended conditions available to the Secretary of State or the ideally to lead towards that prosecution, rather than to Department on suspects subject to TPIMs, it is undeniable what is essentially an open-ended punishment, for which that the risk increases. The risk can be mitigated, but it the right hon. Gentleman seems to be arguing. is essential to remember that mitigation is not the same as elimination, as Lord Howard reminded us when he gave evidence to the Committee. To mitigate that risk, Paul Goggins: I am sure we will have enough time for there is a requirement for additional resources, because our deliberations, but I would hate it if we ran out of there will be a requirement for more surveillance teams, time for considering all the important elements of the as Stuart Osborne told us when he gave evidence. Bill because we kept returning to whether we want prosecutions. Of course we want prosecutions. That is It is important to remember that, as we begin the next the starting point and always has been the starting phase of our deliberations—the key phase—looking at point in control order legislation. It will be the starting schedule 1, a loosening of the conditions means a point for TPIMs. It is not an issue that Opposition greater risk, which can be mitigated, not eliminated. Members contest. Can we please just put that to one That mitigation will require significant additional resources. side and stop returning to it? It is agreed territory between all parties in Committee. All I am pointing out 10.45 am is that every hour less on a curfew or an overnight Tom Brake: The right hon. Gentleman is right to residence requirement is an hour more of surveillance. state that because relocation is no longer available, the That seems to be an interesting rebalancing of civil risk is greater. However, would he agree that the liberties—replacing something that is seen, understood, Government have put in place surveillance measures known and spelled out in the law with something that is that compensate for that? Rather than just stating that not seen. the risk has increased, he should acknowledge that the additional surveillance measures that are being put in Tom Brake: Where does the right hon. Gentleman place will address that additional risk. feel the balance lies from a civil liberties perspective if we contrast house arrest, which means that someone Paul Goggins: I do not accept what the hon. Gentleman cannot go about their daily business, with additional has said. Yes, the risk will be increased. Yes, the Secretary surveillance, which at least allows someone to pursue of State has made it clear that she is committing additional matters, whether it is work, a course or appropriate resources to the measure. She quoted the director general meetings? Where does he think the balance lies? 127 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 128 Measures Bill Paul Goggins: Clearly, the balance lies in different I do not underestimate the size of the challenge that places in different cases. My concern is that what we the police and the Security Service face. They have my mean by “overnight” when we talk about an overnight absolute and unequivocal support, because they do a residence requirement is not spelled out. That could tremendous job. However, when they are faced with mean a loosening of conditions, which could constrain questions from Members of Parliament and Ministers, the Home Secretary if she seeks to impose conditions and additional resources have been put in, of course that are required in a particular case. they will say that they are able to mitigate the risk. We I will explain a little more about the case law, which is need to weigh carefully the word “mitigate”. It is not extremely important. I hope that the Minister will have “eliminate”, but in any event, one can never eliminate something specific to say about case law when he winds the risk that people pose. Frankly, we will know only in up. If he is not prepared to accept amendments, will he time the degree to which there has been mitigation. at least offer some reassurance to, not just the Committee, but the wider public, that when he says “overnight”, he Mr Sutcliffe: I am listening to my right hon. Friend’s means something substantial? argument about mitigation. He will remember what Lord Howard and Mr Osborne said about losing the Hazel Blears: Before my right hon. Friend moves on power of relocation, which will make things more difficult to a detailed exposition of the case law, which I have no for surveillance. doubt he intends to do, I want to take up the point on surveillance. Does he agree that control orders have an Paul Goggins: My hon. Friend looks ahead to what I element of disruption and are not simple surveillance, am sure will be an interesting discussion on relocation, and that simply relying on surveillance will not mitigate which, as important as conditions are, is probably the the risk? If an attack were to come to a climax, surveillance key issue with which the Committee has to grapple. itself would not be sufficient to mitigate the risk. Hopefully we will do so in an open and honest way and deal with some of the deficits that the inability to Paul Goggins: My right hon. Friend is absolutely relocate will create. right. The requirements in control orders and TPIMs I will press on with the problem with “overnight” and control the whereabouts and movements of an individual some of the difficulties that the lack of a definition will suspect. Surveillance merely follows that suspect as they cause for the police and the Security Service. I am sure go about whatever they do. An event could happen that the Minister will have plenty to say about this, but quickly and the security services might not be in a it seems clear to me that the intention behind introducing position to disrupt it. “overnight” as part of the residence requirement is to lessen the period over any 24 hours in which someone is Ben Gummer (Ipswich) (Con): It would be good if the required to be in a particular place. That will increase right hon. Gentleman did not pick and choose from the amount of time that they can be out and about and what Mr Osborne said. Mr Osborne was quite clear able to associate, albeit that provisions elsewhere in the when he said that Bill will place restrictions on association and the ability “with sufficient resources, we would be able to mitigate that to go to certain places. There will certainly be more risk.”––[Official Report, Terrorism Prevention and Investigation hours in the day when those individuals can be out in Measures Public Bill Committee, 21 June 2011; c. 14, Q43.] the community, which brings additional pressures. Paul Goggins: I acknowledge that, and I pay great I promised to say something about the case law on tribute to Mr Osborne for the work that he and his curfews and its significance. There is an interesting case, colleagues do. However, he said that he could mitigate which I am sure members of the Committee were able the risk. Jonathan Evans, in the quotation from the to look at, called Secretary of State for the Home Home Secretary, also says that he can mitigate the risk. Department v. JJ and others. The important rule is that That does not give us a defined position. People say that a curfew that lasts for 18 hours or more contravenes they can lessen the risk, but we have all acknowledged article 5 of the European convention on human rights. that the risk will increase if the requirements on the In other words, it is a deprivation of liberty and cannot individual suspect become less stringent. be allowed within the curfew requirements imposed under a control order. However, the court ruled in the same case that 16 hours are permitted. We therefore Ben Gummer: This is an important point. The right know through the challenge and the cut and thrust of hon. Member for Salford and Eccles said earlier that what has gone on in the courts that 16-hour curfews are the risk would not be mitigated by TPIMs and surveillance, permitted. The Home Office, in its own ECHR and the right hon. Gentleman just agreed with her. It is memorandum that goes with the Bill, states that important that everyone recognises what Mr Osborne said, which was that the risk would be mitigated, given “a 12 hour curfew does not constitute a deprivation of liberty.” additional resources. The Minister may be happy with 12 hours, but case law seems to provide for 16 hours. However, unless he Paul Goggins: The point that my right hon. Friend makes a firm statement in his response to the debate or the Member for Salford and Eccles was making is that returns with amendments—if he does not like the ones the conditions in a control order or a TPIM can control that I tabled—that more narrowly define what is meant the movements and whereabouts of an individual suspect— by “overnight”, we cannot be sure. that is crucial. Outside the periods when those controls are in place, the police and the Security Service can Stephen Phillips: I am listening to the right hon. operate surveillance, but that is something that follows Gentleman’s powerful remarks with great interest. The an individual rather than disrupts their behaviour. That position of the Labour party, as I understand it, is that was my right hon. Friend’s point and I agree with it. there is no difference between a curfew and an overnight 129 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 130 Measures Bill [Stephen Phillips] absolutely focused on managing risk and doing so by balancing the need for civil liberties with the need for residence requirement. He has just told the Committee— collective public security. I have said that several times correctly, I think—that as a matter of law, a curfew can on Second Reading and in Committee, but I repeat it. I last for 16 hours. How long does he think “overnight” made that remark because the balance of risk crystallises is? Does he agree that it is certainly not 16 hours? If so, around such issues, but in raising that matter I did so is it not also correct that an overnight residence requirement for all members of the Committee, not only Government is different from a curfew? Members.

Paul Goggins: My contention is that any definition of Hazel Blears: This is an important debate, on which I “overnight” that applies under the legislation should be am sure that we are all concentrating intensely. As has a reasonable person’s view of what “overnight” means. I already been said, the curfew provisions in the Bill are will come on to that in more detail in a minute. I do not reduced—they will be lesser and the risk will be greater— know any reasonable person who thinks that “overnight” and the argument is about whether we have enough lasts for 16 hours. A residence requirement will therefore resources. I do not know what my right hon. Friend inevitably be shorter than 16 hours, which means a thinks, but I am at a loss to reconcile those provisions greater risk and a greater challenge to the police and the with the Legal Aid, Sentencing and Punishment of Security Service. Offenders Bill, which will increase curfew provisions for people subject to a sentence from 12 to 16 hours, which Stephen Phillips: I am extremely grateful for that. I appears to be utterly inconsistent. People have pointed see the shadow Minister nodding, but it follows from out that there will have been convictions in such cases, that that the point he made when he opened the debate but the point is about managing risk. Why is dealing on the amendments—that there is no difference between with some of the most dangerous people in the country an overnight residency requirement and a curfew—is entirely different? wrong. The right hon. Gentleman’s argument has just undermined that point. Paul Goggins: My right hon. Friend makes the interesting point that the Government are prepared to introduce conditions for community sentences, which by definition Paul Goggins: No. The principle is the same. In other will be applied to people who are not regarded as a words, someone is required to be in a specific place for a serious threat to the community and have not committed specific period. That is a curfew, and that will apply a heinous crime, otherwise they would be sent to prison. under the overnight residence requirements. My argument, Those who are regarded as an acceptable risk to the which is crucial to the debate, is that on any interpretation community can be put on a curfew of up to 16 hours— of “overnight”, it will mean fewer hours covered, which will mean more hours for the suspect to be in the community, leading to a bigger risk and a bigger challenge Ben Gummer rose— for the Security Service and the police. Frankly, I say to the hon. and learned Gentleman and others that they Paul Goggins: Just one second, and then I will happily need to weigh very carefully the balance of that risk, give way to the hon. Gentleman—it is good to see such because if they support the ill-defined overnight residence enthusiasm developing on all fronts in Committee. requirement—if they tie the hands of the Secretary of On the other hand, however, someone whom the State and perhaps make it impossible for her to put the Home Secretary regards as so dangerous to the people hours she ideally wishes into an overnight residence of this country that she will go to the exceptional extent order—they tip the balance of risk in a way that is not of making a TPIM or a control order will have a shorter helpful to the public or to the police and security curfew. services. Ben Gummer: I am deeply troubled by how the hon. Stephen Phillips: I am extremely grateful to the right Gentleman is making his argument and by the intervention hon. Gentleman for giving way a final time. In the of the right hon. Member for Salford and Eccles. There context of this debate, I want to make the point that is a fundamental distinction between punishment, Members of all parties in Committee take very seriously sentencing and conviction, and managing risk in the their responsibility for what the Bill seeks to achieve. I circumstances of the 12 people about whom we are am sure that he did not intend to suggest otherwise. My talking, which is why we are having this discussion. The interventions seek only to show—it is obvious to everyone beginning of all totalitarian regimes is when people in Committee—that the argument deployed by Opposition start to see criminal justice in the context of managing Front Benchers that there is no difference between a risk as opposed to convicting for offences. curfew under a control order and the overnight residence requirement is incorrect, as his argument has just revealed. That was my only point; I take my responsibilities as a Paul Goggins: Perhaps we are back to philosophy, member of the Committee very seriously. and I suspect that such differences of opinion will run throughout our deliberations. This is probably not relevant, but I make the point that some people who are subject 11 am to control orders have already been convicted of very Paul Goggins: Let me clear that up straight away. I do serious offences in the past and have a track record of not question the integrity of the hon. and learned being an immense threat to the public. Why should Gentleman or that of his hon. Friends in weighing up someone on a TPIM who represents a huge risk to the issues. In fact, every member of the Committee is public safety be on a less stringent curfew than someone 131 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 132 Measures Bill who has committed a less serious offence and is not What do we mean by evening? Here we have a real regarded as a risk to the public? I know where my problem. This evening might last from 5 o’clock to constituents would land on that one. 10 o’clock, because it may still be light at 10 o’clock. That is another five-hour slot. That leaves us with 8 and Tom Brake: I am sure the right hon. Gentleman’s a half hours as the definition of “overnight,” just by constituents would also take into account the wide subtracting the other three parts of the day from it. range of additional measures that are applied to someone I have quoted my constituents before, and some of subject to a TPIM. They are not simply held under an them might have a different definition of how the day overnight condition; they are also subject to the exhaustive runs, but that would be their definition. Who am I to list that his hon. Friend the Member for Bradford South challenge whether that would be a reasonable or quoted in his opening remarks. unreasonable definition? The Minister will have his own definition of “overnight,” which might have changed Paul Goggins: No doubt adding to the complexity of somewhat in the past few weeks, as he now has new the task facing the police and the Security Service in responsibilities, which he has already demonstrated that monitoring the conditions and the behaviour of the he fulfils with great skill and dedication. That dedication suspect. I think that the hon. Member for Ipswich will mean that his “overnight” is rather shorter than it wanted to intervene, but he might have given up on me. used to be. The definition of evening is difficult, because we can Dr Huppert: I have not quite given up on the right say it ends at 10 o’clock tonight, but we would not say hon. Gentleman yet, but can he clarify his position—it that in December. In December, we might say that the may be that of the Labour party—that there is no evening began at 4 o’clock and ended at 8 o’clock. categorical difference between someone who has had a Clearly, we have difficulties when we try, in an intelligent trial, has had an opportunity to mount a defence and way, to define what the reasonable person would mean has been convicted, and someone who has not had a by “overnight.” standard trial, has not had an opportunity to mount a I return to the point that any hour that is not “overnight” full defence and has not been convicted? Can he see no is another hour in which the police and the security huge categorical difference between those two cases? services must implement surveillance to mitigate the risk that is presented by such people. That is why I have Paul Goggins: I can well understand that if someone tabled amendments 3 and 4, which suggest leaving out was the subject of an antisocial behaviour order, it “overnight” and substituting, would be wholly disproportionate to have a 16-hour “at any time but not exceeding 16 hours in any 24.” curfew. If they were running amok in their community, causing mayhem, and needed to be dealt with, I would Such a change would reduce the risk and the cost and, accept a 16-hour curfew. crucially, it would reflect the existing case law, which has been hammered out in recent years under the control orders regime. Hazel Blears: Twelve hours. It will be interesting to hear the Minister’s response Paul Goggins: Indeed. My right hon. Friend says that to the concerns about the definition—about what we 12 hours would be more appropriate. mean by “overnight.” My suggestion is intended to helpful, but if he is not minded to accept removing that On TPIMs, these are people about whom we have term and substituting for it the words in the amendment, intelligence and information, that we cannot put through it is important that we define in the Bill what we mean the court process and prosecute successfully. We have to by “overnight,” taking a reasonable view across parties. deal with that in a serious way. I have made three further suggestions in amendments 5 to 7. Amendment 5 proposes that “overnight” should Dr Huppert indicated dissent. mean from 6 pm to 10 am, which would push the definition of “overnight” to the maximum 16 hours. I Paul Goggins: The hon. Gentleman shakes his head, remind the Committee that the courts have said that a and the differences between us are evident. 16-hour period is permitted when imposing restrictions. I will move on to the issue of the definition of Amendment 7 proposes a shorter period, 6 pm to 6 am, “overnight”, and how a reasonable person might interpret which is 12 hours. The Home Office itself said that a “overnight.” By that, I mean that we will put the decision 12-hour period seemed perfectly in order when it put in the hands of the courts, because they will interpret together its document in relation to the European what a reasonable person would think that meant. convention on human rights. In amendment 6, I offer as a compromise—I am trying to be reasonable—the period The Committee should briefly reflect on what “overnight” 6 pm to 8 am, which is 14 hours, and as such is means. I was brought up to believe that there were four somewhere in the middle. times in the day: morning, afternoon, evening and night time. If I reflect on my day today—we will all have had It will be interesting to hear the Minister’s views, but I different starting times—I kicked off at 6.30 am, and suspect that “overnight” is in the Bill to emphasise a the morning will come to an end around midday, slightly concern that seems to be important to some Government before the end of our deliberations. If my maths is right, Members—that suspects should be able to remain in that is a five and a half hour period. People will have their own homes, which we shall debate later in our their own definition of afternoon. It certainly starts at proceedings. I think that “overnight” has been included 12 noon. I would argue that it goes up to 5 o’clock, so to reinforce that rather than as a result of careful that is another five-hour slot. thinking about how “overnight”would operate in practice. 133 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 134 Measures Bill [Paul Goggins] result, many recorders can get through only two or three sentences in a day, but we used to be able to get We should try to carve out common ground when we through far more. That debate is for another day, but can in this Committee. I simply make a plea to the that is another illustration of the inadequacies of the Minister to disentangle the two issues. He should strike previous Government and their considerable interference out “overnight,” but if he is not prepared to do so, he in the criminal justice system. should define it in the Bill. Such a definition would ensure that suspects, the Home Secretary and the courts Hazel Blears: I had hoped that the hon. and learned knew what “overnight” meant and it would reflect case Gentleman was going to redeem his reputation, but I law in the way that I have outlined. fear that his last comment has just cemented it.

Stephen Phillips: With my new-found reputation as a Stephen Phillips: As someone pointed out last week, bruiser, I cannot restrain myself from making a short although we are all working towards the same goals, we speech. A number of points have been made by the are all members of political parties. The right hon. Opposition in the debate on the amendments. My first Lady will forgive me if I take as many shots as I possibly point has already been made in interventions from the can, whether or not she considers them to be cheap. Government side: the distinction between the measures that the Government propose in relation to amending My second point relates to the hypocrisy—if I may curfews as part of a sentence for young offenders in the put it that way—in the argument that Opposition Members Legal Aid, Sentencing and Punishment of Offenders are developing. The length of a curfew was not defined Bill, which receives its Second Reading tomorrow; and in the control order legislation that the previous Government what is proposed in this Bill, which is lesser. introduced, in the same way as there is no definition in relation to the overnight residency requirement in this The distinction is, let us say, obvious—I will not say Bill. However, the Bill has the salutary feature of including utterly obvious, because I do not want to develop my the word “overnight”, which makes it clear that, whatever reputation any further. In one circumstance we are that requirement is, it cannot be the 16-hour period that dealing with an individual who has been convicted of a was the maximum under the JJ case to which the right crime and has been subjected to a curfew order for two hon. Member for Wythenshawe and Sale East referred. reasons: first, to protect the public, but secondly, as part of the punishment for the crime for which the conviction The Labour Government sought to impose curfews has taken place. That is fundamentally different from on controlees, at least initially, for periods of 23 or an order made on an administrative basis under the perhaps even 24 hours in any one day. That was not a jurisdiction of the civil courts, which is what the TPIM curfew, and the courts rightly said that it was not. There regime—or indeed, the control order regime—deals is no definition in the Bill, as the right hon. Gentleman with. There is no parity between the two; there is a says, of what an overnight residency requirement is—that significant difference between them. There is a substantive will be for the courts to define in due course—but the reason for the difference between what is in this Bill— Bill is clear that an overnight residency requirement is whatever the courts ultimately determine “overnight” something less than 16 hours. That is obvious. to mean—and what one sees in the context of the criminal justice system. Paul Goggins rose—

Hazel Blears: I am sorry to interrupt the hon. and Stephen Phillips: After I have allowed the right hon. learned Gentleman so early, but it is important to Gentleman to intervene, I shall come back to why that follow his points as we go along. He makes an important wholly undermines the argument put forward by the point about the curfew being a punishment following hon. Member for Bradford South. conviction rather than a requirement to control behaviour. In that case, does he agree that when a court imposes a Paul Goggins: The hon. and learned Gentleman’s community punishment with a curfew requirement, it is charge of hypocrisy is a little wide of the mark, but that important that the court specifies which element is to be is his judgment. He has just put his finger on an the punishment and whether it is actually about control? important issue: the control order regime operated with If it is about control, there is an inherent contradiction no equivalent of schedule 1. It was for the Home that there is a need to control people guilty of offences Secretary to decide on the conditions, and those conditions more than there is a need to control people about whom were then tested in the courts. The Government now we have serious information but cannot prosecute. propose to list the measures, which is very different, so it is important that the Committee is satisfied there are 11.15 am no gaps in those measures because there will be nothing Stephen Phillips: I am grateful for the right hon. that Parliament, the courts or anybody can do to fill Lady’s invitation, although I shall not respond to it. that gap if we let it go through. Does the hon. and Within the context of legislation, as the right hon. Lady learned Gentleman acknowledge that that is the difference? will know much better than me, given the previous Government’s interference with sentencing, it is for the Stephen Phillips: I acknowledge the distinction that courts to set out precisely the elements of a sentence the right hon. Gentleman draws between the mechanism and what they are being imposed for. She will be aware—I adopted under the previous legislation and that adopted certainly am—that whereas it used to take perhaps half in the Bill. I do not accept the implicit premise of his an hour to prepare a sentence, as a result of the tick-box argument that it would be in some way better for the exercise that judges and the criminal justice system have Home Secretary to be empowered by Parliament to do to carry out, it now takes considerably longer. As a whatsoever he or she wished, and then subjected only to 135 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 136 Measures Bill the restraining influence of the courts months or even of language, and it is the argument that he deployed. It years down the line in deciding whether those actions therefore follows, as night follows day—if I can be were consistent with the fundamental liberties and rights forgiven for using that expression—that the regime that that this country’s citizens are entitled to expect. the Bill will introduce is different and a fundamental Insofar as the previous legislation gave the Home change. Secretary carte blanche to do whatever he or she wished, When the hon. Member for Bradford South opened it was effectively an abdication of responsibility by the the debate, he said that the Bill would lighten the grip. previous Government and by Parliament. The system He quite rightly spoke of the need to strike a balance proposed in the Bill is much better, in that it involves a between civil liberties on the one hand, and controlling list of measures that are deemed necessary by the security the behaviour of those who are presently subject to services—as the Minister told us, they were involved in control orders on the other. Aside from stating that the drafting of the Bill—to protect the citizens of this there was no difference between an overnight residency country. requirement and a curfew, which we now see to be What the right hon. Gentleman has just said wholly entirely wrong, he seemed to be arguing that the Opposition undermines the suggestion that the Bill is exactly the are concerned that the Bill goes too far in the direction same as control orders, or that there is no significant of civil liberties, and that no measures can be put in difference between the Bill and control orders. His right place to mitigate effectively the risk associated with the hon. and hon. Friends frequently wish to say that the change from control orders to TPIMs. I am afraid to Bill is simply about control orders-lite or mini control say that he seemed be making a party political point by orders, but he has just established that the Bill takes a suggesting that Labour Members were in some way fundamentally different approach. It is therefore right more concerned with the security of this country’s that the Government have introduced the Bill and that citizens than those who sit on this side of the Committee. we are debating it in Committee. He has managed to First, that is obviously wrong, but, secondly, the logical undermine two lines of the Opposition’s argument this stopping point of that argument—if the hon. Gentleman morning, and I am grateful for both those points. truly believes it to be right—is that under the previous Government’s legislation, there was nothing to stop them from making derogating control orders that would Paul Goggins: I find neither of the hon. and learned have incarcerated those subject to control orders. If he Gentleman’s points persuasive, but I am grateful to him is arguing that the public needs the maximum protection, for giving way. I wish to set out not a point of argument, I assume that the Labour party’s position is that we but a point of agreement. If he reads the speech that I should retain the control order regime and just lock up made on Second Reading, he will see that I welcomed people who have never been convicted—[Interruption.] the fact that Ministers were putting in legislation the That is the logical— measures that should be available, on the basis that we have worked out over a number of years what the courts will accept and what does or does not work, so we The Chair: Order. Can we not argue across the room, should list those measures. I will propose later in our please? proceedings a mechanism to ensure that there are no unforeseen circumstances in which the Home Secretary Stephen Phillips: That was the logical stopping point could not implement conditions that she thought were of the argument developed by the hon. Member for necessary. I concur with the hon. and learned Gentleman Bradford South when he opened this debate, and it is that it is wholly welcome that the measures are in the most regrettable. He deployed two arguments—one has Bill, but it is job of this Committee to ensure that there been shown to be wrong and, in my judgment, the other are no holes in those measures. has been shown to be at best unwise, but quite possibly far worse. Stephen Phillips: I am grateful for that clarification, and I agree with the right hon. Gentleman that the James Brokenshire: Good morning, Mr Scott. Our function of the Committee is to ensure that there are no consideration of the Bill has continued in the robust holes in the Bill and that it is consistent with the way in which it commenced last Thursday. Anyone balancing exercise that we all know has to be undertaken. looking at our proceedings will say at least that proper scrutiny has been applied today, which is important given the nature of the issues highlighted. Paul Goggins indicated assent. I welcome the acceptance by Opposition Members of the range of measures in the schedule and of the fact Stephen Phillips: I see the right hon. Gentleman that the Bill defines the scope of the restrictions that nodding, so I think that that is common ground between can be applied. In that context, I especially welcome the us. comments of the right hon. Member for Wythenshawe I have already made my third point in an intervention, and Sale East. There has also been a recognition of the so I will keep it short. I want to underline the fact that differences between the existing control orders regime the argument deployed by the right hon. Gentleman and the new TPIMs regime under the Bill. The Opposition about the need to create a definition of “overnight” have at times tried, as a debating point, to characterise wholly undermines the argument of his Front-Bench the new regime as the same, but we have established that colleague, which was that there was no difference between it will be different, which is helpful to our consideration. a curfew and an overnight residence requirement. It is We have issues with some points made by Opposition now perfectly obvious to everyone in the Committee, as Members. They need to take care when drawing a it will be to anyone who reads Hansard, that “overnight” distinction between a civil preventive regime and a means fewer than 16 hours. That is obvious as a matter criminal regime under which someone is brought before 137 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 138 Measures Bill [James Brokenshire] Government sought to impose a curfew of 18 hours, that was challenged as a deprivation of liberty in the the courts and convicted on criminal standards. We JJ case. The right hon. Lady will be aware of the have revisited several themes that arose on Thursday, so subsequent AP case, where 16 hours was found to be I make no apology for again citing the words of the acceptable and did not deprive someone of their liberty, Leader of the Opposition: provided that the other conditions attached to it were “we must always remember that British liberties were hard fought not significantly onerous. In other words, even that and hard won over hundreds of years. We should always take the 16-hour curfew was restricted and needed to be looked greatest care in protecting them. And too often we seemed casual at in the round, with the other restrictions that might about them.” apply. I gently suggest to Opposition Members that some of their comments suggested that they might be casual Paul Goggins: I am listening to the Minister as he about fundamental distinctions between the criminal guides us through this issue and reflects on case law. He law and those protective measures that may be required referred to the case which found that a curfew of on a different basis through the civil courts and within a 16 hours was permitted under the control order regime. civil framework. His advice to the House on compliance with the ECHR An important distinction about our overarching liberties suggests that article 5 would not be engaged by a curfew has to be made—whether or not it is philosophical, I do that lasted 12 hours. We know that the Minister’s position not know—and it is one of the fundamental tenets of is on a curfew of somewhere between 12 and 16 hours, our democracy and of what we believe as a country. If but no reasonable person’s definition of “overnight” there is a suggestion that we are going to erode that would be anywhere close to that. distinction or to conflate different regimes, I will resist that as a matter of principle because of the fundamental James Brokenshire: I suppose that is how we move issues that it raises. into the meat of this debate on the difference between an overnight residence requirement and the curfew in Hazel Blears: The Minister is making an important the control order regime. At the heart of that debate—this point, because these issues have troubled all of us for a came through in the counter-terrorism review—is the long period of time, whether we are looking at antisocial fact that the Government want individuals to lead as behaviour orders, the burden of proof or other issues. I normal a life as is possible, consistent with protecting am confused as to why, if the Minister believes that an the public. In essence, we are back to our debate last overnight residence or a curfew—curfews are referred Thursday on how to strike the right balance. It should to in the Legal Aid, Sentencing and Punishment of not be right to force individuals to remain in their home Offenders Bill—is not appropriate where there has not during the day, when people might normally go out to been a criminal conviction, because it is an intrusion work or to study, but we must ensure that they are in into people’s liberties, there is an overnight residence their home overnight, as most ordinary people are, to provision in this Bill. We can argue over whether it is reduce the scope for involvement in terrorism-related 16 hours or 12 hours, but we have a curfew provision in activity. The previous Government were happy to take a this Bill. The Minister is arguing that in our legal different view on where to strike that balance. The system, it is appropriate to have curfews and other curfew could have applied at any time of the day. They restrictions where we have a criminal conviction. If that could have said 16 hours during the course of the day, is not appropriate where there has not been a criminal rather than at night. It could have been applied flexibly. conviction, why is there an overnight residence provision As we have heard, the concept was not defined in the in the Bill? 2005 Act. Some interesting arguments were deployed on the approach being taken in this Bill. 11.30 am The overnight residence requirement will be just that: James Brokenshire: The right hon. Lady will know a requirement to spend at least part or the whole of the case law and the legal basis for that better than most each night at home. We believe that that is entirely people. She will understand some of the fundamental compatible with leading as normal a life as possible. jurisprudence, which distinguishes between punishment and prevention. Her right hon. Friend the Member for Paul Goggins: I am sorry to butt in, but the Minister Wythenshawe and Sale East elucidated some of the case has just pointed out something important. He said law around the concept of the deprivation of liberty in “part or the whole of the night”. Can he elucidate in the context of a preventive measure. The case law was what circumstances a terrorist suspect so serious as to developed as a result of the distinction between a civil be subject to the TPIM not only might have most of the preventive regime, where preventive restrictions may be day free to move around the community but would be applied, provided that they do not deprive someone of free to go out during the night? their liberty and thus stray into the territory of punishment. That is fundamental to the case law that has developed James Brokenshire: I am sure that the right hon. on a range of issues extending beyond control orders. Gentleman will appreciate that the appropriate conditions I want to underline the distinction between punishment attached to any particular person subject to a TPIM and prevention. The law is clear that preventive orders will need to be determined in accordance with the can impose restrictions, provided that they do not stray procedures in the Bill. He will understand that concept into issues of deprivation of liberty and punishment, clearly, I am sure, as will his right hon. Friend the because of the case law and the underlying law. That is Member for Salford and Eccles and his hon. Friends on why the right hon. Member for Wythenshawe and Sale the Front Bench, even in the context of the control East highlighted the fact that, when the previous order regime. I do not think that even he is suggesting 139 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 140 Measures Bill that under that regime, his party would want an automatic James Brokenshire: As I said in my opening remarks 16-hour restriction on every single occasion. I know last Thursday, the duty of any Government is to protect that that is not the case. That is the crux of the matter. the public. Draconian, intensive or invasive interventions Even in relation to the arguments that the right hon. must be balanced with surveillance, police support and Gentleman has made, not all controlees were on a support from the security services. How we achieve that curfew. That is the point that I seek to make when I use is a matter of judgment. In essence, that was at the core the term “part of the night”. It might be determined in of our debate last Thursday, and of our debate this the circumstances for part of the night to be restricted. morning. It is in that context that I have framed my It might be the whole night, depending on the individual argument. and their circumstances. We seek to retain that flexibility by setting a context in defining the Bill, so we can apply Stephen Phillips: Does my hon. Friend agree that this the measures flexibly to individual circumstances according is simply a distinction without a difference? The starting to necessity. point could be: “I need to protect the public. What Ultimately, it boils down to balance and degree. I measures should I take that are consistent with the appreciate that there are differences of opinion, and liberties of everyone in this country?” Alternatively, the that Opposition Members might wish to take as expansive starting point could be: “The liberties that everyone an approach as possible. We take a balanced approach enjoys in this country are worth protecting, but I have of looking at the overarching arrangements for surveillance to protect the public. What measures do I need to take and what support the police and security services will to restrict the liberties of the citizens of this country?” have with additional funding. We want to strike an The end point will be the same whichever mechanism is appropriate balance to ensure that individuals can lead adopted, subject to whichever philosophical view is held as normal a life as possible, consistent with protecting about where the balance should be struck. This is yet the public. Members from all parties understand the another example of Opposition Members seeking to weight of our duty and responsibility to protect the make party political capital where there is none to be public, but it sounds as if there is a difference between made. us as to how we achieve that. James Brokenshire: My hon. and learned Friend makes Hazel Blears: In a way, the Minister is going over his point effectively. I appreciate that we may have the some of the ground that we covered last week. In one of same debate in the same way on multiple occasions my amendments, I attempted to set out in the Bill a during the course of our discussions. It is probably starting point for considerations of national security appropriate to move on, given that we have rehearsed, and the protection of the public. It strikes me that he is re-rehearsed and repeated some of these issues on numerous saying that his starting point in framing the legislation occasions. is allowing the individual to go about as normal a life as possible, consistent with public safety. Is it his premise Paul Goggins rose— that the legislation should be framed around the terrorist suspect’s ability to lead as normal a life as possible, and James Brokenshire: I shall give way to the right hon. then around considerations of national security? My Member for Wythenshawe and Sale East before addressing amendments, which I did not push to a vote, sought to a point that he made in his contribution. establish that the starting point should be protecting the public and drawing the balance, as far as possible, to prevent a totally intrusive regime. That may well be a Paul Goggins: I look forward to the Minister’s response difference between us. to my concerns. I shall put a practical point to him. Of course, there must be a balance between individual liberty and public safety—that point drives through this James Brokenshire: Our debate last week and the debate and the whole Bill. In schedule 1, the Minister right hon. Lady’s comments suggest that it is an either/or. produces a list of measures that will be available to the I do not accept that it is; it is about looking at the Home Secretary. matter in the round. I was struck—this may have been Let me put this scenario to him: the courts, for the unintentional and I would not wish to cast aspersions—by sake of argument, decide that “overnight” begins at comments on conflating the criminal with the civil and 9 pm. The Home Secretary has information, from the the issue that was developing. There is a balance to be Security Service and the police about a particular subject’s struck, but it is not an either/or, and I would not like to pattern of behaviour between 6 pm and 8 pm. The suggest that she thinks it is. A balance must be struck Home Secretary wants to ensure that the individual is in between collective liberty and individual liberty while their own home at that time. Does the Minister not protecting the public . agree that the provisions relating to overnight residence would not allow her to do so? Mr Sutcliffe: We must pursue the point made by my right hon. Friend the Member for Salford and Eccles—what James Brokenshire: Again, the right hon. Gentleman is the starting point? We have made it clear that the needs to understand the context in which the Bill sits. I starting point should be public protection, which was do not mean that purely in the sense of the other the basis of control orders. The measures in schedule 1, mechanisms and measures that would be available through which are lightening the grip, ease the position for surveillance and through the work of the police and controlling people who are subject to TPIMs. It is security services—there are other restrictions in the Bill important to understand the Government’s starting that limit the activities of individuals, and there are point. additional tools that may be available to the Secretary 141 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 142 Measures Bill [James Brokenshire] James Brokenshire: Ultimately, it will be for the courts to determine. As the right hon. Gentleman will know, a of State in such circumstances. It is a question of review of each measure imposed on an individual will looking at the context and the individual situations that be undertaken. Clarity will be provided in the specific arise to ensure that we protect the public. order given to the individual so that they understand what the restriction might be. We believe that by framing 11.45 am the Bill in its current form and by introducing overnight Paul Goggins: It is important that we home in on this residence requirements, we will have an important disruptive issue. The Minister is right that any time spent outside tool and ensure that we strike an appropriate balance. of the residence requirement curfew is an extra period While I live in hope that the hon. Member for Bradford of time that has to be supervised by the security services South will withdraw his amendment, we will have to and the police, but what if their advice to the Home wait to find out whether that will be the case. Secretary is that it is incredibly difficult at that time to put the necessary surveillance in place because of Mr Sutcliffe: I am grateful to the Minister for explaining circumstances, location or whatever, so they advise that the Government’s point of view, even if the definition it would be far better if the individual was in their own that he proposes alarms me. The hon. and learned home? She would not be able to impose that condition. Member for Sleaford and North Hykeham, whom I Will the Minister deal with that very practical point? If respect for his expertise as a judge and lawyer, argues the security services and police think the solution is that that I was trying to say that curfews were the same as someone should be in their own home at a particular overnight residence requirements. I accept what he says, time, that may not be an option because of the measures because when the Bill was formulated, I saw it as a the Government are introducing. political compromise in the way that Lord Carlile and Lord Howard indicated in the evidence sessions. With James Brokenshire: Again, I urge the right hon. my years of experience as a politician in the House, I Gentleman to look at the comments that we received in know how political compromises come together, so I relation to this matter. The director general of the saw the Bill as a way of trying to agree two different Security Service considers that the changes provide an positions and come forward with a political fix, although acceptable balance between the needs of security and of I respect the fact that the hon. and learned Gentleman civil liberties and that the overall package mitigates says that that is not the case. risks. We are looking at the steps that the security We are now seeing the differences between control services and police can take on surveillance. Other orders and TPIMs. One of the benefits of debating a powers could, for example, prevent someone from going Bill in Committee is that we flush out the relevant to a different area. we are seeking to balance the need to arguments and points. However, the Government will protect the public with enabling the civil liberties of the have to accept that they have clear political responsibility person subject to the intervention measure. for changing a system that, despite the fact it had faults, was accepted by the security services as a lesser evil—a Dr Huppert: I was following carefully the example compromise—to deal with terrorists who can cause a given by the right hon. Member for Wythenshawe and great deal of harm to our country if left unfettered. We Sale East. I know the right hon. Gentleman does not all agree that our civil liberties are hard fought— want to talk about prosecutions, but does the Minister unsurprisingly, I agree with our leader—and we should agree that if someone was repeatedly involved in terrorist protect them whenever we can. However, we are talking activities between, for example, 6 pm and 8 pm every about people whom we cannot convict or prosecute for day, it would be relatively easy to try to prosecute them all the reasons that we understand, but who can cause a for that? great deal of harm. The words used in the debate were James Brokenshire: We will ensure that prosecutions about as normal a life as possible and ordinary people, are brought and convictions secured, where possible. but we are talking about not ordinary people, but Given what hon. Members have said, that view is shared individuals who pose a significant threat to our society. and accepted, and that is obviously what we seek to achieve. Tom Brake: What the hon. Gentleman is saying about I want to deal with the definition of “overnight” and these individuals is true in many respects. However, he, some of the examples that the right hon. Member for like me, might have met people who have had a chaotic Wythenshawe and Sale East put forward. He might life during which they perhaps started dealing drugs disagree with these points, but an overnight delivery and ended up in prison, and then went to northern service does not commit to an item being delivered at Pakistan to be trained in terrorist activities and subsequently 4 am in the summer, and a person doing a night shift returned to the UK with a view to undertaking those does not get to work a shorter period in summer compared activities. However, as a result of achieving more stability with winter. A degree of common sense needs to be in their lives, some have abandoned that path and are applied, and that is the approach that we are taking. We now, as is the case with a person I met a couple of weeks are framing the restrictions in a way that is appropriate ago, working proactively against such activity. When and that will provide the flexibility that we believe is people get additional stability as a result of being able necessary. Opposition Members understand that a to lead a normal life, we sometimes divert them from preventative regime needs to be applied flexibly. that path. Paul Goggins: I listened carefully to the hon. Gentleman’s Mr Sutcliffe: I am all for that. Given my constituency, argument about the overnight worker, but the Committee I have met such individuals. No one was more alarmed wants to know whether that is a 14-hour, a 12-hour or a and concerned than me that the 7/7 bombers came from 10-hour shift. west Yorkshire, and we wanted to try to find out the 143 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 144 Measures Bill background to all that. I would certainly support measures Mr Sutcliffe: The hon. and learned Gentleman tempts that can get people to do different things, but such a me, but I shall not be tempted. He will be pleased to person would not be subject to a control order. know that we will return to the matter in more detail on It alarms me when I hear hon. Members, particularly Report. I beg to ask leave to withdraw the amendment. those in the Liberal party, saying that this is about the Amendment, by leave, withdrawn. rights of the individual. I understand that—I understand that a balance has to be struck—but we believe that that Hazel Blears: I beg to move amendment 24, in balance is moving towards the individual and away schedule 1, page 16, line 21, leave out ‘must’ and insert from public security. ‘may’.

Tom Brake: The hon. Gentleman might need to talk The Chair: With this it will be convenient to discuss to the right hon. Member for Wythenshawe and Sale the following: East, who was accusing us of being in favour of much more draconian measures on civil liberties with regard Amendment 16, in schedule 1, page 16, line 24, leave to additional surveillance. Which is it? Can we have out ‘or an agreed locality’. some clarity please? Amendment 8, in schedule 1, page 16, line 24, at end insert ‘or Mr Sutcliffe: My right hon. Friend the Member for (c) premises provided by or on behalf of the Secretary of Wythenshawe and Sale East made the significant point State other than those referred to in (3)(b).’. that, on surveillance, that is the case, in the sense that Amendment 25, in schedule 1, page 16, line 25, leave the individual does not know what is happening with out ‘is’ and insert ‘may be’. regard to the proposed surveillance measures. However, Amendment 26, in schedule 1, page 16, line 30, leave the issue is more fundamental than that. The Minister out from beginning to ‘any’. has been very honest in what he has said, albeit not when responding to my right hon. Friend the Member Amendment 1, in schedule 1, page 16, line 31, at end for Wythenshawe and Sale East about the starting point. insert— The coalition Government believe that the Labour ‘(d) Except that if the individual has his own residence or Government went too far on control orders, and they a connection with a particular locality but is have called them draconian and inappropriate for the considered to pose a serious threat to the public if he resides there, an appropriate locality is any locality times we live in. If that is their view, that is fine, but they that appears to the Secretary of State to be have to take political responsibility for making these appropriate.’. changes. Amendment 17, in schedule 1, page 16, line 32, leave We have had a good debate— out sub-paragraph (5). Amendment 18, in schedule 1, page 17, line 12, at end Tom Brake: Just before the hon. Gentleman finishes, insert— will he make the Opposition’s position on the proposals clear? We have heard on the one hand that TPIMs are ‘(10) The Secretary of State shall have powers to relocate individuals subject to these powers to any appropriate locality.’. mini control orders that will make no difference and, on the other hand, that they present the greatest challenge Amendment 128, in schedule 1, page 18, line 4, at end to our security that the country has ever faced. Will he insert be clear about which of those two lines of argument he ‘and such a place may include the locality in which the individual has has adopted? a residence or with which the individual has a connection.’. Amendment 2, in schedule 1, page 18, line 4, at end Mr Sutcliffe: It is not the Opposition’s job to be clear; insert ‘or that is the Government’s job. However, I have to say (c) premises that are the individual’s own residence.’. that the hon. Gentleman is teasing out of me a fear— Hazel Blears: I shall explain to the Committee the Tom Brake: I am trying to tease out an answer. purpose of this large group of amendments, some of which relate to later paragraphs of the schedule. Mr Sutcliffe: The hon. Gentleman might have longer Amendments 24, 16, 8, 25 and 26 would ensure that the to wait for that. Secretary of State may—“may” is an important word in My right hon. and hon. Friends and I fear that the the amendments—impose a requirement for an individual balance is moving in a particular direction about which to remain overnight, or at particular times overnight, at we are concerned. We have tabled amendments to try to a specified address that is not his own residence or one obtain an understanding of what is in the Government’s with which he has a connection. Importantly, they head. We are getting that, but as we do so our fear would provide flexibility and allow the Home Secretary develops. I accept that the amendments, as drafted, to act in an appropriate and proportionate way to might not do what we want with regard to the difference minimise the risk to the public. between a curfew and an overnight residence requirement, Much of our previous debate was about how the but we will have to return to that. Secretary of State can make the right balance between individual liberty and collective security. To do that, she Stephen Phillips: Does the hon. Gentleman intend to needs to be able to act appropriately in each individual move amendment 7? Perhaps calculators in Lincolnshire case. As drafted, paragraph 1(3) states that the overnight work differently from those in Bradford South, but residence requirement “must be” imposed on either 6 am to 6 pm is a 12-hour period, so the amendment “the individual’s own residence”—where he lives—or does not sit easily with amendments 14, 3, 15 and 4. “premises that are situated in an appropriate locality”. 145 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 146 Measures Bill [Hazel Blears] security, she will want to go further. We should give her the discretion to do so when that is absolutely necessary. Sub-paragraph (4)(b) defines that as “a locality in the United Kingdom with which the individual has Stephen Phillips: Or, to put it another way, the right a connection”. hon. Lady wishes to reintroduce the possibility of a 12 noon relocation requirement through her amendments. She should be straight with the Committee about that. I return to the final part of our debate with the Minister about the starting point of the legislation. The starting point of the provisions in the schedule appears Hazel Blears: I do not wish to hide my intention. My to be to allow the terrorist suspect to go about his amendments absolutely seek to reintroduce a relocation normal life and, whenever possible, to live at home provision. Amendment 128 would do the same through overnight or in a place with which his family and friends the exclusion provisions. When we return to these matters have a connection. later, we may have drafted some new clauses, but this However, I am worried that the provisions say was a convenient point for us to have our first debate that the specified residence “must be” as set out in about the importance of relocation. There was no intention sub-paragraph (3). It is totally inappropriate for the Bill of using smoke and mirrors because I am a very direct to tie the Secretary of State’s hands so that there are no individual, as I am sure the hon. and learned Gentleman circumstances in which she is able to prescribe a different will appreciate. address for the overnight residence requirement unless, as in sub-paragraph (4)(c), Tom Brake: Does the right hon. Lady agree that it is “the individual has no such residence or connection”. another difference between the coalition and her party? The only circumstances in which the Secretary of State We have come down on the side of an agreed locality, will be able to provide that such a person should live with the extra surveillance that would potentially come somewhere other than his home address, or a place with as part of that package, and she is coming down, yet which his friends and neighbours associate, is if that again—as she did when in government, so she is being person does not have a local connection. I contend that consistent—in favour of internal exile. if we are serious about getting the balance right and providing the Secretary of State with a range of options Hazel Blears: I have noticed the language that the to protect the public and the rights of the individual, hon. Gentleman and his party use when considering debarring her from providing for an overnight residence these matters. Phrases such as “house arrest”and “internal anywhere other than the suspect’s own home is the exile” and references to totalitarian Soviet-style regimes wrong premise for the Bill. have no place in our debate. I think that Members on both sides of the Committee have recognised that we Bob Stewart (Beckenham) (Con): I have looked at the are trying to achieve a balance between collective security provision carefully, too. It seems to me that there is a and individual liberty. We all recognise that we want to balance. The individual’s liberty to be in the area that have prosecutions where at all possible and that a they know is accepted, but the provisions give the control order or TPIM regime is distasteful in many Home Secretary the right to choose and enforce a ways, but that is the only solution for an irreducible position in a locality, whatever a locality is. I understand minimum number of people who pose a serious threat that it might be a borough. The Home Secretary will be to our country. For the hon. Gentleman to use language able to say, “Youhave to live there.” That might be quite such as “internal exile” and “house arrest” demeans the a good way to pin someone down to a place where it is debate. easier and more convenient for the security services to keep an eye on them. That is how I read the measure at Tom Brake: Will the right hon. Lady give way? the moment, but perhaps the right hon. Lady has a different view. Hazel Blears: No, I am not inclined to do so; I will Hazel Blears: We will hear from the Minister what he press on. The Bill has removed the power of the Home considers a locality to be. I am sure that the hon. Secretary to require an individual to be relocated from Gentleman will be aware of the case of CD, in which his or her own area, despite the fact that that requirement such issues were explored in detail. Later I will cite has been imposed in nine of the 12 control orders that some quotes by Mr Justice Simon about that case, are in existence. It has been described by Lord Howard, which involved a relocation from the whole of Greater the former Home Secretary, as the single most useful London, as it was realised that simply confining the power. During his evidence to us last week, he said: person to Greater London would not have given the “We have a coalition Government”— required degree of protection. which is a statement of the blindingly obvious, as the All that I am asking for through the amendments is a hon. and learned Member for Sleaford and North Hykeham “may” instead of a “must” so that the Home Secretary might say—and that there is no has the discretion to make such a decision, if necessary. “correct answer to where you draw the line and strike that In nine cases out of 10, it might well not be, but I would balance. If you ask me my personal view, however, I would have not like to be the author of legislation that precludes preferred the relocation provisions to have remained.” that possibility in every single case. That is badly framed During his evidence, Lord Carlile said: legislation that will expose us to unnecessary risk. The “If an empirical decision has been made that somebody should Home Secretary could decide in almost every case, be relocated and that decision has been upheld by the courts, “I really want to do this for a local connection,” but there is generally a good reason for it. The risk is increased if one there will be the odd case in which, for reasons of person has the relocation condition removed. If nine people have 147 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 148 Measures Bill relocation conditions removed and therefore are all able to move Hazel Blears: The hon. Gentleman makes his point closer either to one another, or to their contact to whom they and it worries me even more. Deputy Assistant would wish to be close, plainly you are right that there is an Commissioner Osborne said, “We are hopeful”. I would increased risk. I do not want to exaggerate that, because they do not want to be in a position of simply being “hopeful” not all come from London”— of managing this risk and if we were to give the Home we have explored those issues— Secretary the discretion to make a relocation order I “but some of them certainly do.”––[Official Report, Terrorism would be slightly more reassured, and perhaps more Prevention and Investigation Measures Public Bill Committee, than simply hopeful that we were managing the risk 21 June 2011; c. 17, Q53 and Q54.] appropriately. Lord Howard and Lord Carlile have therefore indicated We have already had a debate about the resources that the relocation provisions that were available to the that are being made available. The figures were given to Home Secretary are the single most important provision us by Lord Carlile, who said there would be a cost of in making sure that the package of measures is sufficient £11 million to £18 million per suspect who needs 24/7 to keep us safe. surveillance. The Minister has provided extra resources. Another witness who gave us evidence was Deputy We cannot go into the figures now, but I would be Assistant Commissioner Osborne, who will be charged, extremely concerned if there were a large gap between together with the security services, with dealing with the perceived requirement and the available resources. some of these difficult issues. He said: The last thing that I would do is say to the Home “The relocation issue has been very useful for us being able to Secretary, “You cannot in any circumstances ever, no monitor and enforce at the current time. Without that relocation, matter how dangerous this person is, relocate them and depending on where people choose to live, that could be away from either his own residence or a locality with significantly more difficult. Where the choice of residence will be which he has a personal connection.” I think it is and how many people are within an area will affect the complexities, but there are different environments that make policing easier or absolute folly. more difficult. People could choose to live in an area that was difficult to police in normal circumstances, and that would be Dr Huppert: It is clear that there has been some even more difficult to police in relation to monitoring control confusion among Opposition Members about the difference order subjects.” between measures for people who have been convicted DAC Osborne was remarkably frank with us about the and measures for people who have not been convicted. policing challenges that he would face. He went on to The hon. Member for Bradford South said that there say: are times when people have to be outside the legal “The new freedoms that will be given to individuals will framework, but I am sure that the right hon. Lady significantly increase the challenges that we have to face, and would not associate herself with that comment. Can she managing those challenges will increase the resources that we give us any examples in British law where there is the need. The degree to which we are successful in managing them power to relocate people forcibly, or to impose internal depends on both the extent of the Bill and the additional resources exile, or whatever she wants to call it? that we get.”––[Official Report, Terrorism Prevention and Investigation Matters Public Bill Committee, 21 June 2011; c. 5-6, Q10 and Q14.] Hazel Blears: We are dealing with terrorism and, yes, It is my contention that, if the Committee agrees to it should be within our criminal law. We all agree that, my amendment which, by saying “may”, rather than wherever possible, prosecution is our preferred route. It “must”, would allow the Home Secretary the opportunity is also the case that we are dealing with a small number to relocate people beyond their home area, the policing of people for whom prosecution is not a possibility. At challenge that DAC Osborne outlined starkly and that stage, we have to engage a range of measures, graphically would be reduced. I personally would feel recognising that these people are involved in terrorism- much more confident that we would be able to control related activity. We then give the Home Secretary the the activities of these very dangerous individuals, if the power to make proportionate and necessary decisions Home Secretary had the discretion to introduce that to control these people and their activities, to disrupt provision where she thought it appropriate to do so. them and to surveille them, and to do things that we would never do in normal circumstances where people Mr Tobias Ellwood (Bournemouth East) (Con): The have committed a criminal offence. We are therefore right hon. Lady makes her case powerfully. However, setting up a regime, because there are things that are she is being selective, as was the right hon. Member for extraordinarily dangerous to the people of this country. Wythenshawe and Sale East, with the words she has There are 12 people on control orders and only taken from Mr Osborne’s evidence. When he was asked 48 people have ever been the subject of control orders in to sum up the Bill from a threat perspective, he concluded: the past six or seven years, and they all pose a serious, “We are hopeful that we will be able to do our utmost to make sustained threat to the lives of many of our citizens. In sure that the risk does not increase under this new Bill.”––[Official those circumstances, we need a regime that gives the Report, Terrorism Prevention and Investigation Measures Public Home Secretary enough powers to reassure the public Bill Committee, 21 June 2011; c. 4, Q1.] that she is taking the right decisions to enable us to He had added the proviso that “additional resources” surveille these people to see what is going on, to control would have to be provided. The right hon. Lady has not and disrupt their activities and to do everything in our mentioned the fact that the Minister has already made power to protect the public. To say from the outset that it clear that extra resources will be provided. I think that we will constrain the power of the Home Secretary so the business case was submitted only last week. It is that there can never be any circumstances in which she disingenuous to have a debate about relocation if we do can relocate people away from the danger that they pose not consider the other side of the coin, which is the fact is therefore wrong. I will come on to the judgment of that additional resources will be provided to mitigate Mr Justice Simon, which will help to elucidate these any increased threat. matters perhaps better than I can. 149 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 150 Measures Bill Dr Huppert: The right hon. Lady talks about how I shall explain why that is important. It is absolutely dangerous these people are. What I have never understood the case that networks of terrorists plot and associate is why she and the previous Government were so relaxed together—there is very often close association. In some about those who absconded that we still do not know cases, terrorists have passed instructions, videos, and where six of them are. I know that they did not abscond recipes for bomb making and improvised devices to one very recently, but we are still told that there are six another. A number of those people have been relocated. people who we have no idea where they are. Why is she They are all from London, and there is a possibility that not really concerned about that? Why did her Government they will come back by December, before the Olympics not do a lot more about that, because it clearly shows next year, which will be the most spectacular opportunity that the system did not work if we do not even know for al-Qaeda to stage an event. It is incredible that we where those dangerous people are? are in this position. I refer to the case of CD, because it is important for Hazel Blears: Forgive me, but the hon. Gentleman is the Committee to hear an authoritative view that is not trying to muddy the waters, perhaps because the point simply my own. In that case, Mr Justice Simon explored that I am making is weighing heavily on him, as the in helpful detail the situation regarding relocation. He measure is sensible and proportionate. Yes, there were described the circumstances of someone who was to be people who absconded under the orders. As he well relocated from north London to a midlands city. He knows from our debates, the last person to abscond did referred to the test that the Home Secretary had to so in 2007. Many of the people who were originally decide on proportionality. He cited Lord Chief Justice subjects of the orders were foreign nationals, some of Phillips, who said: whom, I recall, absconded abroad. It has not been “The object of the obligations is to control the activities of the possible to trace them because they are no longer in this individual so as to reduce the risk that he will take part in any country. terrorism-related activity.” The hon. Gentleman is trying to be a bit diversionary That was a clear test for the Home Secretary to decide. in his comments; I wish he would direct his mind to the Mr Justice Simon also made an important argument matter at hand. Is he comfortable about tying the Home that several hon. Members have made, saying that the Secretary’s hands so that she can never relocate a suspect? “obligation that it is necessary to impose may depend on the If he is comfortable with that, it is a perfectly proper nature of the…activities” position for him to take, but I am uncomfortable with and that proposition. “may also depend upon the resources available to the Secretary of State.” 12.15 pm The judge made the point that he would consider the James Brokenshire: I hesitate to say this, but we are situation in the round, and that he would look at the straying into the previous debate, as the right hon. Lady measures to be imposed, as well as relocation. He would appears to suggest that there should be no or very then look at another package of measures, which might limited constraints on the Home Secretary’s power. Will include association and exclusion. He would look at the she clarify her position, because she appears to be whole package, then he would look at resources, too, suggesting that there should be almost no constraints such as surveillance. The judge’s formulation is very on that power? helpful, because we are not looking at one requirement in isolation and we are trying to get the balance right. Hazel Blears: I think that relocation is one of the Mr Justice Simon then looked at the individual case more intrusive and stringent measures that the Home of CD: Secretary can take. I have no doubt, therefore, that any “CD has dual British and Nigerian nationality. He was the Home Secretary would weigh up the balance very carefully, leading figure in a close group of Islamic extremists based in north London, which included TM and MS. There was an because relocation has an impact not only on the controlled assessment that the group was involved in planning attacks, person, but on their family, too. I am certainly not probably using firearms. CD was present at meetings and a saying that there should be carte blanche—there never training camp…including those attended by the 21/7 bombers in has been—because all the requirements are subject to May 2004 at Baysbrown Farm in Cumbria. He is assessed to have review by the court and to judicial scrutiny, which is moved to Syria in late 2005/early 2006; and to have undertaken absolutely as it should be. extremist training while he was there. He returned to the United Kingdom on 23 April 2009. The circumstances of his return to I genuinely think that the Minister is a sensible and this country, as well as the contents of the Port Stop interview on pragmatic person, so for the life of me, I cannot understand his return to this country, are assessed as indicating that he holds why he is comfortable with the prospect of denying strong Islamist extremist views and has a very high level of himself and the Home Secretary the ability to take security awareness. Since his return CD has made several attempts measures in what might be a tiny minority of cases. to procure firearms for potential attack plans, and has held covert Why is he comfortable with measures in the Bill that meetings with TM and MS in relation to the attack plans. On his provide that the Home Secretary must put someone in return to the United Kingdom and since then he has again been their own home in an agreed locality, where they will assessed as having a very high level of security awareness.” have access to friends, associates and all the people with We are therefore dealing with an individual who is whom, presumably, they associate when they are attack involved in attack planning, who is trying to procure planning? Why is he comfortable with saying that never firearms and who is meeting associates in his area. He ever shall the Home Secretary be able to relocate a appears to be a committed terrorist. person? If he is comfortable with that and he has made that provision as a principled decision, he is welcome to James Brokenshire: I accept the court judgment, but it, but I would not be comfortable with having that in a even that judgment refers to the resources and support Bill that I introduced. available to the security services and the police. There 151 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 152 Measures Bill are different ways in which risk can be mitigated and an Hazel Blears: Paragraph 52 says: individual can be managed. Although the right hon. “The fact that MS presently resides in Rochdale is of little Lady appears to rule it out completely, even the court weight. He is free to travel to London whenever he wishes.” accepted that there were measures that could be used in MS is not subject to a control order. He was convicted, I seeking to manage these issues. think, of benefit fraud and chose to live in Rochdale, away from London, presumably to get away from his Hazel Blears: The Minister makes my point for me. I benefit fraud. He is one of CD’s associates. Presumably am seeking to establish that, in this case, the High Court the Home Secretary, on advice from the security services judge looked at the circumstances in the round and still and the police, did not judge at that time that MS was concluded that relocation beyond Greater London was sufficiently dangerous to merit a control order. Clearly, necessary. He looked at resources and the package of in the case of CD, she did. Those are matters for the measures that would be there. The Minister needs to be Home Secretary. I think that MS is a bit of a red careful not simply to reduce his argument to the fact herring. I thought that the hon. and learned Gentleman that he will put enough resources into the system to had got me there, but I have escaped without any enable 24/7 surveillance of every person who would damage. Marvellous! otherwise have been subject to the current measures, In my view, it is utter folly to ban ever considering which he is removing from the legislation. That is a relocation. I ask the Minister to think again on that perilous path to tread. point. I have no doubt that we will all return to it, but if The judge continued: we are to have a regime that gives us the right balance, I “So far as relocation is concerned, the assessment is that it is cannot think why we would not want at least the ability necessary to relocate CD outside Greater London in order to to provide for relocation. prevent him from conducting covert meetings with his north London based criminal associates. It is considered that a move Paul Goggins: My right hon. Friend makes a powerful within Greater London”— argument. Her argument on CD reflects the judgment within a locality— of Mr Justice Simon. The Minister contends that with “would be insufficient; and that the distance between Greater additional resources, relocation would not be needed at London and the specified place would make it harder for CD to all. That is his assertion. I do not think that my right communicate with his extremist associates and engage in terrorism- hon. Friend is arguing—perhaps she will clarify—that related activity.” all current relocation cases under the control order The judge then looked at all the submissions that regime would have to continue. Perhaps she will reflect were made. Having looked at all the evidence and taken on the matter and let the Committee know what she into account the impact on the wife and the family, he thinks. She might accept the possibility that some of the said: nine could be placed back in their own homes, given “There is evidence which supports the conclusion that CD has additional resources. The powerful point she is making a background and training which would lead to a justifiably held is that for the Home Secretary to close off any possibility fear that he would engage in terrorist-related activity based on his of ever relocating an individual is a step too far. Is that strongly held extreme Islamist views. That by itself would not be enough to justify the relocation obligation. However, since his what she is saying? return he has endeavoured to obtain firearms on a number of occasions from a number of associates for the purposes of putting Hazel Blears: My right hon. Friend, as ever, has into effect a planned terrorist attack, has held covert meetings summed up the situation. With additional resources, with associates in relation to plans to use the firearms as part of the balance could well be struck properly, and striking this planned attack and has displayed a very high level of security the right balance is what I am concerned with. However, awareness. The latter point is relevant both to his intentions and simply saying that we will never have the power to to his ability to evade the attentions of those who have a duty to relocate is a dangerous position to be in. The Minister is prevent him putting his plans into effect in so far as they are able.” exposing himself to a risk—and not just himself, as it is That raises the matter of surveillance. CD’s high degree not a party matter. He is exposing the country to a risk of security awareness would possibly allow him to that is not necessary in order to strike the balance evade surveillance by the security services, no matter between liberty and security, because the power would how intense it might be. not be exercised in every single case. It would be a Finally, the judge says: matter of proportionality and discretion. “In the light of this material, and subject to two points”— about travel allowance— Mr Ellwood: I want to go back to what the right hon. “I have concluded that the relocation obligation is a necessary Lady said about being pleased that my hon. and learned and proportionate measure to protect the public from the risk of Friend the Member for Sleaford and North Hykeham what is an immediate and real risk of a terrorist related attack.” did not get her. His point was about the limits of I could not have read a more powerful judgment. In relocation. She mentioned the case of MS and CD. For certain circumstances, I would want to retain in legislation the sake of clarification, CD was the controlee, the one a power to relocate beyond an agreed locality, where the subject to the control order. He cannot move. MS is individual has a local connection. That would enable CD’s friend. The point that my hon. and learned Friend the Secretary of State to take that course where necessary was trying to stress is that MS is not prevented from and proportionate, and where the balance was appropriately moving, even though CD is. MS can travel to London, struck. be a conduit, move goods, communicate and so forth. That is the limit of relocation, and it is what we are Stephen Phillips: The right hon. Lady makes a powerful trying to challenge. point extremely well, if I may say so. She has read from a number of paragraphs in the judgment, but she has Hazel Blears: We had a similar discussion last week not read paragraph 52. I wonder whether she would when we said that it is a matter of prioritisation and do so. that probably about 2,000 people in this country are 153 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 154 Measures Bill [Hazel Blears] Hazel Blears: I am glad the hon. Gentleman has sufficient respect for democracy to enable this to be a involved in some kind of terrorism-related activity. The debate, as opposed to a tirade. Perhaps he will draw his pyramid goes up to the people at the very pinnacle, who attention to paragraph 6 of Mr Justice Simon’s judgment, are such a threat that it is necessary to subject them to where he refers to the relocation notice that was served either a control order or a TPIM. Clearly, MS had not on CD. That was to expire a week later, so he had the been judged by the security services, the police and the opportunity to bring the case that he did, which was to Home Secretary to be such a threat, whereas CD was. appeal against the measure provided for in the control The judge held that the provision to relocate CD outside order. We have a British legal system that enables people Greater London was entirely proportionate and necessary. to be properly represented. There has been no legislation I will draw my remarks to a close, because I am more litigious than the control order legislation. There conscious of the time. Amendment 128 seeks, again, to has probably been more barristers, special advocates introduce relocation by amending the provisions relating and people representing different parties in these cases, to exclusion. That is simply another slightly ingenious no doubt with significant legal fees—[Interruption.] way of trying to move this debate forward. On that The hon. and learned Member for Sleaford and North basis, I ask all Committee members—not just the Hykeham is no doubt welcoming such payments to the Minister—whether they are comfortable with a provision legal profession. Goodness me, the hon. Member for that bars the Home Secretary from ever, in any Carshalton and Wallington paints a picture so far removed circumstances, providing for relocation. I ask them to from reality that I fear that he is in the realms of think deeply and carefully about that. I and my hon. fantasy, and as I said, the language he has used is Friends on the Opposition side of the Committee would entirely inappropriate. not be comfortable supporting such legislation. Tom Brake: I thank the right hon. Lady for that 12.30 pm extended intervention. I was, of course, going to do her the courtesy of allowing her to intervene, although I Tom Brake: I shall speak briefly against relocation. must point out that she did not allow me to intervene on The right hon. Lady has been frank in saying that that is her earlier when I wanted to pursue the matter of what she seeks to achieve. On the Government Benches, internal exile. we have looked at the issue. We accept that, of all the measures under control orders, relocation was probably The point that the right hon. Lady makes is not one the most draconian. I do not hesitate to use the word with which I necessarily disagree. Given her experience, draconian—that is exactly what they were. We have however, I am sure that she would agree that what come down to the balance of either allowing someone actually happens in practice is that the police arrive in to stay in their residence, or, if that is not appropriate, in the middle of the night and tell the person subject to a an agreed locality in the area, but with additional control order, “You are being relocated now. You don’t surveillance measures. The right hon. Member for have the right to call a solicitor.” It might well be, as she Wythenshawe and Sale East may have described our pointed out, that those people subsequently have the proposals to ensure that people are properly monitored right to challenge that, but what happens at that point as draconian surveillance measures. That is the decision in time is exactly what I have described. If she disagrees we have taken. with me, she may want to intervene again. For some reason, the right hon. Member for Salford The coalition Government rightly identified that and Eccles objected strongly to my using the phrase relocation was one of the most unacceptable measures “internal exile”. I am sure she is familiar with what contained within control orders. We have replaced it happens with control orders. The police arrive, presumably with the option of staying either at the same residence, in the early hours of the morning—I am not sure or alternatively at an agreed locality within the area, whether they arrive with the security services. They say with the additional surveillance that comes with such a to the person whose house they have just entered, “We measure. That is the right decision, and I am pleased are now going to relocate you. You do not have the that the coalition Government are seeking to restore option of calling a solicitor. We are relocating you to some of those British liberties that were fought for hard this particular location.”They are taken there immediately. and won over hundreds of years. I am sure that the The definition of an internal exile is to be away from leader of the right hon. Lady’s party would support our one’s home while being explicitly refused permission to position. return. Internal exile is forced resettlement within a country of residence. I do not think, therefore, that the Mr Sutcliffe: I rise to support the amendments tabled right hon. Lady can object to my using the phrase, by my right hon. Friend the Member for Salford and “internal exile”. What I have just described—what happens Eccles and to speak to amendment 16, which would to individuals who are subject to relocation—is indeed delete the reference to “an agreed locality”. internal exile. Our debate has given us the opportunity to talk The right hon. Lady’s discomfort may relate to the about relocation. I understand that the hon. Member fact that her leader, on 28 September, said: for Carshalton and Wallington is against that, given “We must always remember that British liberties were hard that he says that it is the most draconian aspect of fought and hard won over hundreds of years. We should…take control orders, but we do not share his view and it is our the greatest care in protecting them. And too often we seemed right to put forward an alternative. That is why the casual about them.” Minister should look at the point made by my right She may therefore feel that her position, supporting the hon. Friend the Member for Salford and Eccles about reintroduction of internal exile, does not sit particularly inserting the word “may” with regard to the specified comfortably with what her leader has recently said. residence. 155 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 156 Measures Bill If the legislation states “must”, it will tie the hands of extremist terrorists. That group was led by CD, but MS the Secretary of State too much. I believe that the and others, including one gentleman or lady—I know reference to “an agreed locality” does the same thing, not which—who is referred to as TM, could easily go to because it shifts the balance towards the individual. We Rochdale, to where CD had been relocated. They could have said all along that under TPIMs, and with the new take messages there or even, no doubt, procure a firearm resources that go alongside them, there might be occasions in London and carry it to Rochdale. In such circumstances, when surveillance can deal with our concerns. However, the efficacy of the relocation order in the case of CD is we believe that the tight way in which the Bill has been not necessarily as great as the right hon. Lady tries to drafted could restrict the powers of the Secretary of portray. State in difficult situations. We cannot escape the fact that the people in question are dangerous. Of course we Hazel Blears: I am following the hon. and learned want to offer as much support as possible but, in my Gentleman carefully. He makes a point about associates view, this must be down to the Secretary of State. who could travel freely because they were not subject to I ask coalition Members to look at the experience of restrictions, but does he remember DAC Osborne’s Labour ex-Ministers who unfortunately had to make comments about how the policing environment could such difficult decisions and make reference to the Secretary be much more challenging if people were concentrated of State. My right hon. Friend pointed out what was in a locality such as north London? If people have been said by Lord Howard and Mr Osborne, and such people relocated to somewhere such as Rochdale, where there are, or have been, on the ground dealing with these is not such a concentration of suspected terrorists and issues. We think that relocation is an important tool. the policing environment might be more manageable, as The requirement in the Bill that the Secretary of State was DAC Osborne’s view, such relocation might be “must” do certain things will weaken her opportunity useful in disrupting the association and enabling more to protect our citizens. We think that the reference to effective surveillance. “an agreed locality” moves the balance the wrong way. A reference to an appropriate locality is fine, because that leaves room for manoeuvre, but it is a step too far if Stephen Phillips: Of course I heard the evidence of the move has to be agreed by the individual. the deputy assistant commissioner, but I am not entirely sure that I followed his argument. If he was trying to make the point that, geographically, it might be easier Stephen Phillips: I listened with great interest to speech to monitor suspects more effectively through covert made by the right hon. Member for Salford and Eccles surveillance in a community of less density, that would because I know she feels strongly about this issue. Let be one thing, but if he was suggesting that it is somehow me tell the hon. Member for Bradford South that I very more difficult for someone to carry a gun from London much respect the ministerial experience in the Labour to Rochdale than from one part of London to another, party. The right hon. Lady and her colleagues know I do not accept that for a moment. The ambiguity that I have grappled with this issue and thought about between which of those two constructs he was urging it, as I hope was evident from the questions that I asked on the Committee in his evidence is a problem. Irrespective Lord Carlile on exclusion measures last week. I have of that, however, my point is that the relocation order come to a different conclusion, however, and I will against CD was not necessarily nearly as efficacious as explain why. the right hon. Lady and her colleagues try to suggest. The case of CD is trotted out by the advocates of The third point on relocation concerns the temptation— inserting relocation provisions into the Bill as a classic even if it is not acted on—in circumstances in which a example of when relocation was necessary. However, it control order is made for the police and the security is important to read the case in context, and having read services essentially to park the problem. That involves Mr Justice Simon’s judgment in its entirety, two things saying that because the control order has effectively occurred to me, one of which I tried to draw to the right mitigated the risk, there is no real need or desire to hon. Lady’s attention during my intervention, although spend the resources necessary to bring the prosecution no doubt my hon. and gallant Friend the Member for that we all think should take place in appropriate cases. Bournemouth East did that much better than I. The relocation order in CD or any other case seems to The points about the CD case are threefold. First, it emphasise that temptation, which is why I would rather was under the existing control order regime. Mr Justice that such provision was not in place. Simon did not say that relocation provisions are a good Notwithstanding the forceful argument made by the thing—quite the contrary. It was accepted by the Secretary right hon. Member for Salford and Eccles, I have considered of State that control orders interfere with the rights and very carefully—as the hon. Member for Bradford South liberties of citizens. Mr Justice Simon did not say they urged Government Members to do—whether the Bill were a good thing, but rather that they were an acceptable requires the inclusion of a relocation measure. I have thing in the context of that case. We are now moving to come to the conclusion that it does not. Indeed, I agree a different regime, so we cannot use the judge’s conclusion with my hon. Friend the Member for Carshalton and on the old regime, and the fact that the measures taken Wallington that the relocation order is offensive. It is no in the case of CD were deemed proportionate then, to more than internal exile, the sort of measure that one say that it is essential to reintroduce relocation into the found in the former Soviet Union or that one finds in TPIM regime. China today. We can read in any number of sources Secondly, having read the case, I am afraid that I did quite how painful that can be for the individuals concerned, not come to the same conclusion as the judge. As he especially if they consider themselves not to be justifiably makes perfectly clear in paragraphs 21 and 52 of the subject to some form of internal exile. One thinks of judgment, he decided that MS was not only a known Alexander Solzhenitsyn, but we could go back and associate of CD, but part of the same group of Islamist consider the effect of sending Coriolanus into exile for 157 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 158 Measures Bill [Stephen Phillips] Home Secretary to place an individual in another locality, where they have no residence or connection, on the the citizens of Rome. That example provides good ground of national security and the public safety, would evidence that internal exile is a heavy thing for a citizen be a retrograde step. to bear, and that such a penalty holds great danger for a I repeat that every time a condition is loosened the society that considers it appropriate. risk is increased. The risk is countered or mitigated with For all those reasons, notwithstanding the powerful extra resources, but it is not possible to be sure that it speech of the right hon. Member for Salford and Eccles has been completely returned to its level under the and the support it garnered from her Front-Bench colleague control order regime. and other Opposition Members—[Interruption]—and also notwithstanding the displeasure directed at me by Mr Sutcliffe: While listening to my right hon. Friend, the Opposition Whip, I will not support the amendments. I have been reminded of something that I think he knows—that next year several prisoners convicted of 12.45 pm terrorist offences will be out on licence in London. That heightens the risk and makes the relocation power Paul Goggins: It is a pleasure to follow the hon. and perhaps even more desirable. learned Member for Sleaford and North Hykeham, who made it clear at the outset that he was thinking Paul Goggins: My hon. Friend makes an important carefully about the issues. His speech demonstrates that point, and in response I shall make some remarks rather he is doing that, and I am sure that he will continue to earlier in my speech than I intended. We do not know do so. where all the nine controlees who have been relocated It is important that the Committee should recognise have their own residence. Members of the Committee, the case that my right hon. Friend the Member for or the public, may speculate about that. Let us just Salford and Eccles was making. It was not that every assume, for the sake of argument, that most of them, if relocation condition that has been applied to every not all, would reside in the same city if they were control order in the past would be necessary in the returned to their own residence, and let us speculate future, with a TPIM regime with additional resources. I about the three individuals who are not subject to am not even sure whether she would stand or fall in relocation. What if they happened to be in the city that relation to the CD case, given the additional resources, the nine, eight or seven were going to return to? What if because the Security Service and the police might want all those individuals were going back not just to the to make a different assessment and might come to a same city, but the same part of that city? My hon. different conclusion. The point that my right hon. Friend Friend made a powerful point: what if, in that locality, was making, and the power of her argument, was that several dangerous individuals, who had been convicted to close off the possibility of ever imposing a relocation of serious terrorist offences, were released from prison condition would be to deprive the Home Secretary of and came back into that community at the same time? an important weapon, or tool—call it what we will—in My hon. Friend made the point in a very telling way. the kit bag for dealing with the threat posed by that There would be a very difficult mix, with which the small number of dangerous people. My right hon. Security Service and the police would have to deal. Friend made a strong case. I want to speak about a small number of amendments, Stephen Phillips: I want to deal with the example that starting with amendment 1, which would affect the the right hon. Gentleman has just postulated. He needs definition of “appropriate locality”. The “specified to read all of schedule 1, which contains an exclusion residence” must be in the “appropriate locality” and measure. If we are talking about the three who should paragraph 1(4) of schedule 1 states that that is a locality not associate with the other nine, or the nine who in which the suspect’s own residence is located, or, if should not associate with the other three, and they all they have no residence, where they have a connection. If reside in London, we simply exclude London. It strikes they have neither, it can be any locality that is judged a better balance and deals with the issue on which the appropriate by the Home Secretary. I want to add a right hon. Gentleman is addressing the Committee. fourth element to that, so that notwithstanding the fact that an individual might have a residence in or a connection Paul Goggins: The hon. and learned Gentleman makes with a locality, if the Home Secretary were to judge that an interesting point, but he might like to look at the there would be so severe a threat to the public if that answer that DAC Osborne gave to my question about individual stayed there that it could not be justified, she the definition of a community that could apply within would have the power to appoint another locality, where the exclusion provisions. His answer leaves me room to the individual would have to reside. question whether excluding people from a city such as I do not say that the Home Secretary should in every London would be seen as a proportionate measure case go first to that fourth condition. I think that there within the terms of the Bill. When we come on to should be a hierarchy, as it is set out in the Bill, and that discussing exclusion measures, I will be very interested that would be improved by my amendment. The Home to hear what the hon. and learned Gentleman and the Secretary should start by giving consideration to the Minister have to say. I make no bones about it—if the individual’s own residence. That should be the starting Minister is confident that the exclusion measures could point, and if the risk can be contained while the individual cover a whole city the size of London, or perhaps even a is living there, he should live there. The next consideration, wider area, that would certainly allay some of my if that is not possible, would be a locality where there concerns. However, the answer that I had from DAC was a connection, and so on, working through the Osborne—I suggest the hon. and learned Gentleman hierarchy. However, to remove the opportunity for the reads it—leaves a lot of room for doubt and concern. 159 Public Bill Committee28 JUNE 2011 Terrorism Prevention and Investigation 160 Measures Bill We have already heard about the comments made in Sleaford and North Hykeham made: exclusion conditions evidence by Lord Howard, who, as my right hon. Friend could be brought in. There could be other conditions to the Member for Salford and Eccles reminded us, said: do with association and so on, which would all help—I “I would have preferred the relocation provisions to have accept that. Overall, greater proximity to the terrorist remained.”––[Official Report, Terrorism Prevention and Investigation networks would produce a formidable challenge for the Measures Public Bill Committee, 21 June 2011; c. 17, Q53.] police and the Security Service. That is a powerful statement from a former Home I have been looking forward to making a positive Secretary, who is still an authority on such issues. I have point to the hon. Member for Cambridge on the issue probably disagreed with him on many matters over the about which he worries the most: absconding. Will years, but it was interesting to hear him say that to the someone who is in their home area, with close associates Committee so clearly. and the people with whom they are regularly in contact Lord Carlile spelled out that one of the main reasons nearby, be more or less likely to abscond from a TPIM why control orders provide “greater protection” than than someone who is relocated to some other part of TPIMs is relocation. The question and answer that was the country where they do not have those associations? most compelling in relation to relocation was the exchange My assertion is that the risk of abscondence would be between my hon. Friend the Member for Newport East increased by placing someone close to those networks and Mr Osborne. It was a short exchange. My hon. that could secret them away and give them the support Friend asked: they might need, away from the eye of the police and the Security Service. I am not postulating that as inevitable “On that point, of all the measures available to you, is it fair to in every case; there will just be a higher risk in that case. say that relocation is the most effective?″ That is another challenge that the police and the Security Stuart Osborne responded: Service will have to meet. “Overall it probably is, yes.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 21 June 2011; Dr Huppert: I am glad that the right hon. Gentleman c. 6, Q18.] shares my concern about people absconding. He made Clearly, the importance of the relocation conditions in an assertion that the balance would lie one way. I will the current control orders were very important to him. make another assertion, with as little evidence as him— They are important in the opinion of Lord Howard and neither of us knows what would actually happen. People of Lord Carlile, who has more independent experience who have been forcibly removed from the areas that of the issue than anybody else. He held a very strong they know, where their friends and family are, may have opinion, as did the police. It is of great concern indeed. a greater reason to abscond, to get back to try to see some of those people. It is not for us to speculate too precisely about the problems that the police and the Security Service may Paul Goggins: I suspected that I would not wholly face when there is no power to relocate if the individual convince the hon. Gentleman. I am not saying with any in almost all circumstances has to live in their own certainty that any of those risks would apply in any home. However, as ordinary Members of Parliament or given case. As an ordinary Member of Parliament and as ordinary members of the public, we might have one an ordinary member of the public, I think those issues or two thoughts about the kind of challenges that the have to be considered. I know that the Minister will police and Security Service may face. First, by definition have carefully considered them, and I look forward to the suspect would be on home turf. They would be in his explanation. their own environment, which they could control. That environment would include other members of the family Finally, amendment 2 is a belt and braces job—I am and people who came to visit. It would include the sure the Minister will point that out—and would expressly physical environment of that property, which is a rather forbid the suspect from entering his residence. I realise important aspect. The Minister will no doubt tell us that that could be dealt with in a different way—if that the surveillance will involve a very important balance, necessary, in an exclusion. The point of it, however, was but all those issues concern me because they again tip to emphasise to the Minister that we are concerned the balance in favour of the controlee—the suspect—and about the absence of relocation powers and the implications away from public safety.It sets the bar—the challenge—for of that for public safety. the Security Service and police that bit higher. James Brokenshire: In the two minutes available to I am also reflecting on the kind of areas and communities me, I will make a start on winding up the debate and set where personal residencies would be. It could be that the context. In the afternoon sitting, we can move on to there are several residencies within a small area. The some of the detail of the points that hon. Members of community immediately around those premises might all parties have made. not be particularly appreciative of the efforts of the At the outset, it is important to note that relocation police and the Security Service. That would add enormously raises some particularly difficult questions. The counter- to the challenges that the police and the Security Service terrorism review stated: have to face. It also would not do much for community “The review considered the issue of proportionality–including relations. the impact that control orders have had on individuals and their We have to be honest. When the Minister says that families. It found that the more restrictive obligations in particular there will be extra resources that will mitigate the risk, can have a significant impact on an individual’s health and we have to appreciate the circumstances in which the personal life and their ability to go about their normal lives. The review found that lengthy curfews and relocating an individual to police and the Security Service would have to operate. a different part of the country raised particularly difficult issues. By definition, if a suspect is not relocated, they have The review noted that these issues had to be set against the threat greater access to the terrorist networks that exist. Again, that these people posed to the lives of others in this country or I accept the point that the hon. and learned Member for overseas.” 161 Public Bill CommitteeHOUSE OF COMMONS Terrorism Prevention and Investigation 162 Measures Bill [James Brokenshire] 1pm The Chair adjourned the Committee without Question In many ways, that summary—the conclusions of the put (Standing Order No. 88). analysis that was undertaken as part of the counter- terrorism review—sums up this morning’s debate. Adjourned till this day at Four o’clock.