On 31 October 2016, the House of Commons agreed, without debate, to approve the draft Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016. If agreed by the Lords, the order will continue in force the Home Secretary’s powers under the Terrorism Prevention and Investigation Measures Act 2011, namely to impose, via a ‘TPIM’, a range of duties, obligations and restrictions on suspected terrorists. That power was due to expire on 13 December 2016, five years after its enactment, because of the incorporation in the legislation of a sunset clause – a legal provision that provides for the expiry of a law or part of a law at a later date. Unless the House of Lords defies parliamentary convention and does not approve the continuation order, it is unlikely that the TPIM powers will now expire. This does not necessarily mean that the sunset clause has failed; after all, it may be that the TPIM powers are an important and useful part of the UK’s counter-terrorism regime and warrant extension. The imposition of six new TPIMs by the Home Secretary in the past three months suggests that the government believes this to be the case.
However, sunset clauses are about more than just the question of whether or not a particular law is retained or expires. They are typically introduced into legislation by parliamentarians concerned about the often exceptional nature of the anti-terrorism laws they are being asked to enact. A sunset clause provides Parliament an opportunity to debate the measures again, at a point in time when it is not being asked to legislate in the midst of a crisis, or in haste, and when it has more detailed information about how the measures operate in practice. For sunset clauses to work – that is, for Parliament to hold the government to account – Parliament must actually debate the relevant measures, something the House of Commons as a whole utterly failed to do when the continuance order was approved on 31 October this year.
Instead, responsibility for holding the government to account was entrusted to the Delegated Legislation Committee, which considered the draft Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016 on 26 October for just 32 minutes. During that time, there was confusion over the number of TPIMs in force. The government published the TPIMs statistics an hour and a half before the Delegated Legislation Committee met, but the opposition members of the Committee do not appear to have been aware of them prior to the debate. Nor was the Committee given any information about the effectiveness of TPIMs, something remarked upon by the SNP’s Richard Arkless MP, who stated: ‘I was expecting – perhaps naively, as a new Member – to be taken though how TPIMs have worked over the past five years and how effective they have been in achieving the objective of fighting terrorism. Unfortunately we have not heard that”. Not that this additional information would have been likely to change the Committee’s decision. Labour MP Dr Rupa Huq announced in the first sentence of her contribution to the Committee that the “Opposition support the draft order”, and Arkless highlighted that the SNP would not seek to divide the Committee.
The absence of a debate in the whole House on a motion to approve a continuation order is unusual, as is the dearth of information available to members of the Delegated Legislation Committee. But it is not particularly surprising in the anti-terrorism context. It is simply a very low point of an already existing downwards trend in Parliament’s post-legislative scrutiny of anti-terrorism laws. Debates on a variety of anti-terrorism measures subject to sunset clauses have typically been limited to ninety minutes in the House of Commons, and this has rarely been exceeded in the Lords. Much of the debate tends to be taken up with discussions about the lack of time available to Parliament to debate the important issues. On top of this, most debates have been poorly attended. The House of Commons debate on the first renewal of the Prevention of Terrorism Act 2005 – the legislation which granted the Secretary of State the controversial power to make control orders – attracted just thirteen MPs. In a 2003 debate in the House of Lords on whether to renew the Part 4 powers of the Anti-Terrorism, Crime and Security Act 2001 – the measures which allowed for the indefinite detention of non-national terrorist suspects and which the Law Lords subsequently found to breach the European Convention on Human Rights – just four Lords spoke. This included the Minister who had introduced the renewal order.
Despite these serious deficiencies in the quality of the renewal debates on sunset clauses, it is not all lost for parliamentary scrutiny. Renewal debates have, at times, prompted Parliament, in particular the Lords, to take extraordinary action in contravention of convention. On two occasions, the House of Lords has defied the parliamentary convention that it does vote to defeat secondary legislation. In the 2009 debate on the motion to renew the Prevention of Terrorism Act 2005, Baronnes Miller insisted on dividing the House on an amendment to disapprove the renewal order, but was defeated by 135 votes to 48. A year later, Baroness Hamwee came closer to upsetting convention, when her motion to disapprove the renewal order was defeated much more narrowly, by only 57 votes to 49.
The House of Lords does not have to vote down the Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016 in order for the five-year sunset clause to have had some effect. It simply needs to hold a debate on the merits of the legislation and make an informed decision as to whether to approve or disapprove the renewal order. Perhaps the House of Lords would like to bear in mind the following exchange, between Richard Fuller MP and James Brokenshire, the Parliamentary Under-Secretary of State for the Home Department during the 2011 debate on the Terrorism Prevention and Investigation Measures Bill. Fuller asked whether Brokenshire would give
“some guidance about whether, in his view, we should have a thorough and complete review of these measures every five years rather than sending them through on the nod for another five years, saying that they seem to be working? … it is important that we hear whether the Minister anticipates the review every five years to be more thorough than the annual on-the-nod review.”
Brokenshire replied:
“I would certainly anticipate a considered review of counter-terrorism powers when the time arrived. That would be the appropriate way to proceed and to examine the renewal.”
The Lords must now provide that considered review when it comes to debate the Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016 this afternoon.
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Dr Jessie Blackbourn is Research Fellow at the Centre for Socio-Legal Studies at the University of Oxford. She is on Twitter: @JessBlackbourn.