Consideration of Lords amendments
Terrorism sentence with fixed licence period: Scotland
I beg to move, That this House agrees with Lords amendment 1.
We had a very constructive debate on the Bill when it passed through the House last year, and I am delighted to speak to it again this evening.
Lords amendment 18, in the name of Lord Anderson of Ipswich, proposes a new upper time limit of four years for the duration of a terrorism prevention and investigation measure. The Bill as originally drafted sought to remove the current two-year limit and instead enable a TPIM to be renewed annually for as long as necessary. Having carefully considered the amendment tabled by Lord Anderson and consulted with him, the Government, in disagreeing with the amendment, have tabled amendments (a) to (e) in lieu, which set a five-year limit instead of a four-year limit.
I am given to understand that the noble Lord Anderson is content with that, and we believe that it represents a reasonable compromise between a desire to set a reasonable limit on the maximum duration of TPIMs and protecting our fellow citizens. We heard evidence from Assistant Chief Constable Tim Jacques during the passage of the Bill that occasions have arisen when there has been a cliff edge and people have posed a risk to the public after the expiry of a TPIM. The Government believe that a five-year hard time limit is, ultimately, a reasonable compromise.
Of course, TPIMs are reviewable on an ongoing basis. They are reviewed and renewed, and if somebody ceases to be a threat, the TPIM will be discontinued. Under the Terrorism Prevention and Investigation Measures Act 2011, there is not only an ability to have regular review hearings under section 9 but a right to appeal to the courts under section 16 for people wishing to challenge a decision for their TPIM notice to be extended. Given Lord Anderson’s agreement that five years rather than four is reasonable, I hope that the House will consent to our proposed amendments (a) to (e) in lieu.
Lords amendment 17 was a concession made in the Lords, and the Government will therefore support it. It elevates the burden of proof required before imposing a TPIM from reasonable suspicion, as originally proposed in the Bill, up to reasonable belief, which is a slightly higher standard of proof. Again, I hope the House will agree that this represents a reasonable compromise between this House and the upper House. The Government believe that with that slightly higher standard of proof, we can still keep our fellow citizens safe, and we feel that Lords amendment 17 strikes the right balance. We will therefore be supporting it, and it is backed up by Lords amendment 19, which creates an ongoing annual review by the independent reviewer of terrorism legislation of the use of TPIMs, commencing for the first time next year.
I do not want to detain the House long with the other amendments, because there are a total of 77 and I do not wish to go through all of them one by one. [Hon. Members: “Go on!”] I can hear that there is enthusiasm for that, but I am going to disappoint the audience by not going through each one individually. I will just say that a number of them relate to the devolved Administrations. In particular, we have removed the polygraph clauses from Scotland and Northern Ireland, because the legislative power already exists there, should those Administrations wish to use it. We have also made some technical changes concerned with single terming in Scottish law, and some technical amendments that are consequent on the passage of the Police, Crime, Sentencing and Courts Bill.
In summary and conclusion—always a popular phrase—I think we have now arrived at a good set of measures, which will protect the public while also respecting and protecting fundamental rights. I therefore commend these amendments to the House.
It is a pleasure to follow the Minister, and I will not detain the House long or speak to each of the 77 amendments. However, there are some issues that I want to raise. I will start by thanking the Minister; I know we had a robust exchange today across the Dispatch Box, and I am sure we will have many more, but his conduct in speaking to and informing me over the course of not just this weekend, but the passage of the Bill, has been exemplary. I want to acknowledge that.
Clearly, we also want to thank those across counter-terrorism, policing and the security services and all their partners who selflessly put themselves in harm’s way to advance the effort to keep people safe. Following the horrific events of Fishmongers’ Hall, Streatham, Reading, and the Manchester Arena attack and others like it, I think that everyone across this Chamber acknowledged that there was a clear need for a change, both in legislation and approach. These Lords amendments, and particularly those that the Government have accepted, speak to the heart of that, and it is why we welcomed and supported this Bill in principle all along. It has returned to us from the other place in better shape, and I am pleased to see that some of the proposals that we made in Committee have influenced it.
However, even as amended, it is arguable whether any of what the Government have brought forward in the Bill would have had a significant role in preventing any of those attacks. I do not think there are many new tools here, if any, that the Government did not already have at their disposal. Since the passage of the Bill began, we learned that the perpetrator of the Fishmongers’ Hall attack was deemed a high-risk, category A prisoner before his release, and that there was intelligence suggesting he might be planning an attack. We know that the perpetrator of the Reading attack had been released from prison only two weeks previously, following a 17-month sentence for affray and assault, raising concerns about the influence and consequences of radicalisation in prisons, and that the ongoing inquiry into the Manchester Arena attack has already identified some serious questions about how terrorist suspects are monitored, as well as aspects of security around major events. We know that the number of offenders on licence for terrorism-related convictions recalled to prisons is steadily rising for 2020; up to just June of that year, it had doubled from what it was a decade before. That is why it was surprising for me to find out that the Government do not have any idea how many terrorist suspects are rearrested following their release after previously being arrested or charged.
On the specifics of the amendments, particularly Lords amendment 17, Lords amendment 18 and amendments (a) to (e) in lieu, the Government initially rejected our call for a review of so-called lone wolf terrorists last summer. We have since learned that they have, in fact, conducted one, but they are not willing to share the results or make clear the impact or actions that have come out of it. I have asked for a briefing on it and have not heard back. I do not think that is in keeping with my experience of my relationship with the Minister and his colleagues, and I hope that we can find a way to resolve that. [Interruption.] The Minister says from a sedentary position that it is a different Minister. He is right, but it is the same Department, and I trust that now and again they cross each other’s paths and liaise on matters relating to the Home Department.
We note the announcement in last week’s integrated review that the Government intend to set up a new counter-terrorism operations centre, but there is nothing in this Bill about that, and we have little detail about how it fits into current structures, where it will be based, who it will be accountable to and what it will do. Of course we then have the ongoing review of Prevent. Things move quickly in the sphere of counter-terrorism, and it is important that the police, the security services, their operational colleagues, this House and, above all, the British public have confidence that the Government are adapting to emerging threats and, indeed, pre-empting them. Tough talk is fine, but we need to see it matched with tough action.
In Committee, we tabled amendments that would, for example, have led to additional judicial oversight and an even higher burden of proof, and compelled the publication of an exit strategy for TPIMs. I think I argued rightly that it is not in the interests of anyone to allow individuals to remain on TPIMs indefinitely, not least in terms of bringing them to justice.
On the issue of the burden of proof, we want TPIMs to be robust but flexible. That is why we struggle to see the logic in lowering the standard of proof, whether from a procedural, administrative or operational perspective, because no prior TPIM request had been rejected at that threshold, proving that it was no impediment. That is why we tabled an amendment that would have raised the standard of proof, like the Government are proposing now some nine months later, to try to find a middle way on “reasonable and probable grounds”. The provisions before us now effectively retain that higher standard, and of course we welcome that.
We acknowledge the work of colleagues in the other place on Lords amendment 18 and the amendments in lieu in the Minister’s name. We welcome the fact that the Government have responded to our concerns and those raised by hon. Members across this House and, indeed, those in the other place, accepting the general principle of Lord Anderson’s amendment but making the limit of a TPIM notice five years rather than four. We accept that; it is a good concession. As I said before, however, we will endeavour to monitor its workings and impact as we move forward.
Again, we acknowledge the Government’s response to issues raised about the use of the polygraph. That is welcome too, and I appreciate the Minister’s engagement on that with the official Opposition and colleagues from other parts of the UK.
Finally, we welcome Lords amendment 19. We believe that the framework around TPIMs will undoubtedly be improved and enhanced by the input of the independent reviewer of terrorism legislation.
We will always be uncompromising in tackling terrorism and, in that spirit, willing to compromise and work constructively with the Government. That has been our approach throughout the Bill’s passage, and it is good to see that, in large part, the Government have listened to our concerns. However, I raise those questions, particularly because, as the Minister will be aware, this is a fast-changing environment and we need to be responsive. Getting that right is of the gravest importance for us all. Alongside scrutinising and, as appropriate and without apology, criticising the Government, I will always commit to working together where we can in this endeavour.
I have been encouraged by those here physically who tell me that they will make short contributions to try to do this without imposing a time limit. May I encourage those participating remotely, if they have prepared short speeches, to stick with the speeches they have prepared?
I shall be as short as comes naturally to me, Mr Deputy Speaker.
This is a very important Bill, because the topics are of profound significance to every citizen of this country. It is a difficult and sometimes very fine balance that has to be achieved between the key obligation of any Government to protect the citizen, and our commitment to the rule of law, due process and sensible and rational sentencing in dealing with people who are suspected of being, or have been, involved in the gravest of offences. The endeavour to get it right was very important. I think the Bill has been improved by the scrutiny. I, too, thank the Minister for his approach—it is a pleasure to follow him and the hon. Member for St Helens North (Conor McGinn) —and I think that we have got to a sensible place. I was grateful for the Minister’s briefing to me about the Government’s thinking on the Bill. As he knows, I have raised the two issues that we are discussing tonight on earlier occasions. I am grateful to the Government for listening and for the tribute to the noble Lord Anderson of Ipswich, who has vast experience in this field. I am pleased that the Government have taken on board the genuinely felt views and experience of many practitioners in the field, and I think that we have ended up in a sensible place of compromise.
The position on burden of proof is recognisable and entirely coherent, and I hope that it can now be sensibly interpreted by the relevant authorities and courts whenever necessary. It still provides a significant hold, as the Minister said, in a number of other ways to deal with the matter. The five years also seems to be a sensible compromise.
I hope that we can now send the Bill forward for Royal Assent, get it on to the statute book and make sure, above all, that we thank those in the security services and the legal system who deal, day to day, with grave and pressing matters on our behalf, sometimes in ways that cannot be seen and are not always recognised, and we make sure, where due process has to happen and we have to take exceptional measures, which are not within the norm of the way that we would deal with these things—as TPIMs are not—that we get the balance right. Efforts have been made on both sides to do that, and the Bill is therefore welcome for the way in which it provides for a balanced, constructive way forward.
I want to make just three short points, including on the standard of proof required for TPIMs and on the number of extensions that can be granted. First, however, it would be appropriate for me to start by acknowledging that many of the Lords amendments that we are considering tonight, though perhaps not speaking about, respond to concerns about how the Bill would apply to Scotland. That includes, as the Minister said, concerns about polygraph testing and the calculation of release dates. These concerns were raised previously by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), my hon. Friend the Member for East Lothian (Kenny MacAskill) and by the Scottish Government through our Justice Secretary, Humza Yousaf. I welcome the fact that UK Ministers and officials have engaged with those concerns and that a set of amendments has been agreed during the House of Lords proceedings that is acceptable to both Governments. I thank everyone involved for their work on that. That meant, of course, that legislative consent was granted by the Scottish Parliament.
Secondly, turning to TPIMs and the number of times that they can be extended, both Lords amendment 18 and the amendment in lieu are clearly better than the Government’s original position of having no effective upper limit on extensions. However, it is still worth taking a step back and reflecting on the fact that, either way, we will now be doubling, or more than doubling, the length of time that a person can be made to live under really serious TPIM restrictions, while at the same time lowering the standard of proof for imposing them. That still is concerning.
As Lord Anderson said in the House of Lords, there is a danger of TPIMs becoming a more attractive option to the authorities in prosecution. Meanwhile, the warehousing of TPIMs subjects risks becoming the norm in place of genuine attempts to develop and implement exit strategies. To my mind, the four years provided for in the Lords amendment is way more than a sufficient concession to the Government already. For the Government to push for still longer shows a bit of a tin ear to the real and genuine concerns about the nature of these orders. However, with the Opposition having decided to compromise and with Lord Anderson reportedly content, there is no need to divide the House.
Finally, and similarly, the Government and the official Opposition have also previously agreed amendment 17, setting the standard of proof for a TPIM measure as reasonable belief. Again, as we have heard, that is another compromise. It is not as low as reasonable suspicion but not as robust as the balance of probabilities. I believe that the very real concerns about the appropriateness of these standards of proof, raised previously by the Scottish National party, have still not been properly addressed. Those accepting the compromise amendments in the Lords suggested that the difference between reasonable belief and balance of probabilities would be a fine one. I acknowledge that there are very significant legal minds who are content with that compromise, yet, as the Government’s explanatory notes make clear, and as the Minister made clear in his speech, reasonable belief is clearly a lower standard.
As my hon. and learned Friend the Member for Edinburgh South West said at an earlier stage of the Bill, the case for lowering the standard of proof required
“has not been made out”.—[Official Report, 21 July 2020; Vol. 678, c. 2085.]
Indeed, Jonathan Hall, QC, the independent reviewer, remarked in his evidence to the Public Bill Committee:
“If it is right that the current standard of proof is usable and fair, and I think it is…if it ain’t broke, why fix it?”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 7, Q6.]
My colleagues and I agree with the independent reviewer and regret that the Government and the official Opposition do not at this stage. Instead of dividing the House, we will have to monitor the use of TPIMs ever more closely than before.
I, too, will speak briefly about TPIMs and the five-year limit. I listened very carefully to the Minister’s speech and the one thing that he did not offer in respect of the extension from four years to five was any actual evidence or justification. It says a lot about the way the Government do business that they seek always to expand the scope of any provision just because they can, rather than because they have any good reason for it.
My noble Friends in the House of Lords tabled an amendment for a two-year limitation on TPIMs, so the move to four years was already a significant compromise. The Minister has not brought forward any reason or evidence to justify the extension to five years, other than the fact that they can.
Like the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) has just said, however, it is not my intention to divide the House this evening, but it is worth putting down a marker. I do not think the Minister was in the House when the issue of control orders was in play, which led eventually, after some judicial intervention, to the creation of TPIMs. It seems to me that by constantly wishing to extend the boundaries of TPIMs, to lower the standard of proof and to extend the period for which they can be introduced, the Government run the very real risk of returning to the courts at some stage. We will eventually be forced back here again because the Government have insisted on acting without proper evidence or justification.
That said, the Government will clearly proceed as they choose tonight, but I fear that this is not the last we will hear on the subject.
Thank you, Mr Deputy Speaker. Can you hear me okay? [Laughter.]
This is a genuinely important Bill, because those who commit serious acts of terror must be met with the full weight of the justice system. Those who take lives in callous attacks on our streets should face sentences that match the severity of the crimes they commit.
I am pleased to say, as a member of the Bill Committee, that the Bill ensures that where offenders do not receive a life sentence, they will spend a minimum of 14 years behind bars. More importantly, it recognises that dangerous offenders who commit the most serious offences should not have the prospect of early release.
I am pleased that we have found a compromise on TPIMs, because the new measures in the Bill on TPIMs notices are a tool of last resort, but they will ensure that the safety of the public is paramount.
Terrorism is a malign force that is ever changing and ever harder to fight with the tools of the past. This legislation will strengthen our hand against new threats, with stronger sentencing, improved monitoring and more agile tools. I imagine we all wish that the Bill were not necessary, but as long as these threats exist, we need the wherewithal to tackle them and this Bill provides it.
I think I can say with some confidence that we will hear from the hon. Member for Strangford (Jim Shannon) on another occasion, which I look forward to very much.
May I take this opportunity to put on record my thanks, and I think the thanks of the whole House, to the security services and the police, who do so much to keep us safe in what are often very difficult and dangerous circumstances? I also thank the shadow Minister, the Front Bench spokesmen for the Scottish National party and the other parties, and the Chair of the Justice Committee for the very constructive way in which they have engaged in the passage of the Bill. I will respond briefly to one or two points that were raised.
The shadow Minister was looking for briefing on, I think, lone actors. The Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire) would be the Minister to give that briefing. Obviously, he has had some health problems recently, but I hope that, through his private office, we can get that arranged as soon as he is back to his regular duties.
One or two questions were asked by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) about the five-year time period. I would emphasise that there are very few TPIMs in use. At the time we took evidence last year there were only six in use. Moreover, the subject has a right of appeal, as I said, under section 16 of the TPIM Act, so there are protections in place.
The hon. Gentleman also posed a question about evidence on the need for five years, rather than four years. As the shadow Minister will recall, we took evidence from assistant Chief Constable Tim Jacques, who said that there is a risk if the TPIM is terminated too early and somebody slips out. It takes time then to re-gather evidence to reimpose a new TPIM. He mentioned two examples: one where it took 12 months and another where it took 16 months. We are very keen to avoid that sort of situation, so I think there is good evidence.
Let me conclude by saying that the Bill is a very important measure. It constitutes decisive action to keep our fellow citizens safe from the scourge of terrorism. We saw in Streatham, at Fishmongers’ Hall and elsewhere how much of a threat former terrorist prisoners can pose on release. The Bill is designed to protect the public from those risks. I commend it to the House.
Lords amendment 1 agreed to.
Lords amendments 2 to 17 agreed to.
Lords amendment 18 disagreed to.
Government amendments (a) to (e) made in lieu of Lords amendment 18.
Lords amendments 19 to 77 agreed to.
AIR TRAFFIC MANAGEMENT AND UNMANNED AIRCRAFT BILL [LORDS] (Programme) (No. 2)
That the Order of 2 February 2021 (Air Traffic Management and Unmanned Aircraft Bill [Lords] (Programme)), be varied as follows:
(1) Paragraphs (4) and (5) of the Order shall be omitted.
(2) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion two hours after the commencement of proceedings on the Motion for this Order.
(3) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion three hours after the commencement of proceedings on the Motion for this Order.—(James Morris.)
Clause 1: Offences aggravated by terrorist connection
1: Clause 1, page 1, line 8, at end insert—
“(aa) after subsection (1) insert—“(1A) The court may not assume that an offence has a terrorist connection for the purpose of this section unless—(a) the defendant has admitted in person and in open court that the offence has such a terrorist connection, or(b) where the defendant does not make such an admission, the court is satisfied beyond reasonable doubt upon a trial of the issue that the offence has a terrorist connection.(1B) A trial held pursuant to subsection (1A)(b) above must be determined by a jury unless the court determines that the interests of justice would be better served by a trial by a judge alone upon evidence admissible in a criminal court.””Member’s explanatory statement
This amendment would require a trial of the issue as to whether or not there is a terrorist connection in relation to an aggravated offence.
My Lords, I argued in Committee that Clause 1 should not stand part of the Bill because it would create a whole raft of new aggravated offences, for which offenders would be sentenced on the basis that the offences had a terrorist connection without the question of whether they had such a connection ever having been tried by a jury or a judge or even tried on the basis of admissible evidence.
For the purpose of Section 69 of the Sentencing Act, which is to be amended by this clause, an offence has a terrorist connection if it is, or takes place in the course of, an act of terrorism or is committed for the purposes of terrorism. The principal point I made in Committee was that the decision that the offence had a terrorist connection was not made by the jury before the offender was convicted but was reserved to the judge at the sentencing stage. A defendant might be convicted by a jury of the basic offence, for which the appropriate penalty might be a short term of imprisonment, but sentenced on the basis of a decision taken by a judge alone, without hearing any evidence, that the offence had a terrorist connection and merited a sentence of a long term of imprisonment. I said then and repeat now that that feature would cut across the principle of our criminal law that no one should be convicted of an offence except upon admissible evidence, open to challenge in a trial and, if in the Crown Court, heard by a jury.
Prior to this Bill, offences with a terrorist connection that would act as an aggravating factor in sentencing comprised a relatively limited range of very serious offences which might often be expected to have a terrorist connection, such as murder, a number of explosives offences, hijacking, hostage-taking and serious aviation offences. They were listed in Schedule 2 to the Counter-Terrorism Act 2008 and would all normally merit long terms of imprisonment.
For that reason, the effect of aggravating the sentence was less objectionable than it is to be as a result of Clause 1 of this Bill. That is because this Bill broadens the range of offences that may be treated as aggravated by a terrorist connection to include any offence that carries a sentence of imprisonment of more than two years. An offence of assault occasioning actual bodily harm, for example, carries a maximum sentence of seven years’ imprisonment, even though the violence involved can be relatively minor and the harm caused can be restricted to bruising or pulled muscles. The basic offence might merit a fine or a short term of imprisonment, but the offence committed with a terrorist connection might attract the maximum sentence. While the offender’s guilt of the basic offence would be determined by a jury, the terrorist connection would be a matter for the judge alone at the sentencing stage.
The finding that an offence has a terrorist connection does not simply increase the likely sentence; it also has the effect of activating the notification requirements for terrorist offences, thus classing the offender as a terrorist, with lifelong consequences, and the further effect of activating a number of forfeiture provisions. In addition, the increased sentence is subject to the restriction on early release under the so-called TORA Act, the Terrorist Offenders (Restriction of Early Release) Act 2020 that we passed as emergency legislation last year. Not only would the sentence be longer, but the proportion served in custody would be greater. In short, the consequences of a finding of a terrorist connection are devastating for the offender.
It was the fact that those consequences could be imposed without a trial of the fact of the terrorist connection that led us in Committee to oppose Clause 1 standing part of the Bill, despite our complete acceptance of the central proposition of this Bill that terrorist offences call to be treated with the greatest severity, for the protection of the public as well as the punishment of the offenders.
Amendment 1 is far more targeted than the opposition to the clause standing part. I am extremely grateful to the noble Lord, Lord Wolfson, and the noble and learned Lord the Advocate-General for discussing this amendment with me at a meeting yesterday. Importantly, the noble and learned Lord, Lord Stewart, reminded us that in Scotland the different charging arrangements and arrangements for jury verdicts would enable verdicts to be given making it clear whether a terrorist connection was proved or not.
Not being a Scottish or Northern Irish lawyer, I had not attempted to formulate amendments that would apply in Scotland and Northern Ireland. At the suggestion of the Public Bill Office, I have confined my amendment to England and Wales in the hope that, if it is agreed, the Government will draft and bring back suitable amendments for Scotland and Northern Ireland. However, it is to be noted that Section 31 of the Counter-Terrorism Act 2008, which applies to Scotland and is also to be amended by this Bill—although not materially for this purpose—requires that, before an offender in Scotland can be sentenced for the aggravated offence,
“(a) it is libelled in an indictment, and
Only then does the court take into account the aggravation of the offence. This was, no doubt, what the noble and learned Lord had in mind, proving once again to this Englishman how often Scotland is more enlightened than England and Wales on justice issues.
In the short debate in Committee on 26 January, my noble friend Lord Thomas of Gresford raised the possibility of a Newton hearing—a hearing to determine a question of fact relevant to sentence—as a way of determining whether an offence had the necessary terrorist connection to justify treating it as aggravated. That point was also hinted at by the noble and learned Lord, Lord Falconer of Thoroton.
The applicable legislation does not provide for such a hearing. Section 30 of the Counter-Terrorism Act 2008 provides only that the court must determine whether the offence has or may have a terrorist connection. Under subsection (3):
“For that purpose the court may hear evidence, and must take account of any representations made by the prosecution and the defence, as in the case of any other matter relevant for the purposes of sentence.”
That provision is entirely unsatisfactory for the wide range of aggravated offences now proposed, many of them not of the greatest seriousness in the absence of the aggravating factor.
Our amendment would require that before an offence is taken to have a terrorist connection, either the defendant must admit
“in person and in open court that the offence has such a … connection”
—in much the same way as a plea of guilty would entitle the court to pass sentence—or there must be a trial of the issue. That trial would be by a jury
“unless the court determines that the interests of justice would be better served by a trial by a judge alone”.
At the trial of the issue, evidence admissible in a criminal court would be adduced and the court could proceed on the basis that the offence had a terrorist connection only if satisfied of that fact beyond reasonable doubt.
I suggest that this amendment strikes a proper and important balance between the public interest in securing severe punishment for offences with a proved terrorist connection and the public interest—also of great significance—in ensuring that sentences are imposed for offences that are properly proved before the court upon admissible evidence. That is the way our criminal law has generally proceeded, and that is the way it should proceed. I will wish to test the opinion of the House if the Government do not accept the amendment. I also wish to record the fact that I would like my voice to be heard when the voices are counted. I beg to move.
My Lords, I strongly support the Bill, and welcome its extension to Northern Ireland. It is absolutely right that we have a unified approach to the sentencing and release of offenders across our United Kingdom. Although I share the desire expressed by the noble Lord, Lord Marks, to uphold the principles of our criminal justice system and defend everyone’s right to a fair trial, I believe that the concerns underlying Amendment 1 have been overstated.
At present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing, for a defined list of non-terrorism offences. Clause 1 would extend that requirement to all non-terrorism offences with a maximum penalty of more than two years. Importantly, for the aggravating factor to be applied, the offence would have to be committed in the course of an act of terrorism or for the purposes of terrorism. I see no compelling argument that consideration of those issues at the point of sentencing represents a disproportionate burden on a defendant or restricts their rights. Judges already have discretion in many cases, including for the offence of murder, to increase or reduce a sentence in accordance with their view of the evidence.
The key factor in this case, therefore, is the need for effective guidance relating to the threshold for an aggravated offence, and its fair application. Only if there is enough evidence to satisfy the criminal standard of proof that there is a terrorism connection should the judge apply an aggravation. We have to remember, especially in an ever more digital and connected world, that terrorist offending can take many forms, so it is appropriate that the range of routine offences that can come under the scope of counterterrorism legislation is being extended. Ultimately, this process will help identify offenders who might otherwise have fallen through the cracks, and will ensure that they are registered, monitored and subject to notification requirements.
I make these points not because I am not committed to due process, or to respecting the fundamental rights of defendants, but because I believe that we must take a strong but balanced approach to enhanced sentencing and release provisions in such hearings.
My Lords, the noble Lord, Lord Marks, set out his amendments clearly, and concentrated on the fact that the decision about a terrorist connection is made by a judge at the sentencing stage, not by the jury when they are assessing guilt or otherwise.
The noble Lord said that prior to the Bill, a limited number of offences were included. Those were serious offences, so his argument was that it did not make that much difference if there was a terrorist connection. He gave the example of ABH, for which the maximum sentence is seven years’ custody, although the penalty for low-level ABH may be some type of community order. His argument was that putting a terrorist connection on a wider range of lower-level offences would have a much larger effect on the likely sentence.
The noble Lord also spoke about activating notification requirements, and early release provisions. He prayed in aid the noble Lord, Lord Thomas of Gresford, who previously raised the possibility of Newton hearings. I am much more sympathetic to that possibility than that laid out in the amendments tabled by the noble Lord, Lord Marks, which would mean that either somebody admitted in open court that there was a terrorist connection or there would be a trial of the issue.
Surely that determination should be made by the judge. A judge could make a determination that a Newton hearing was the right way forward. Perhaps the Bill should be amended to enable the judge to make a determination for a Newton hearing, or to take it on himself or herself to make a determination of whether there is a terrorist connection. For that reason, we will abstain on these amendments—but if, at a later stage, amendments along the line that I have just suggested, giving the judge discretion to order a Newton hearing, are tabled, we may well be in favour of those.
My Lords, I am grateful to all noble Lords who spoke in this short debate. The amendment would require a trial of the issue as to whether there is a terrorist connection to an aggravated offence. I am grateful to the noble Lord, Lord Marks, for the way in which he set out his amendment, but I am afraid we feel that it would represent a fundamental departure from existing processes—a significant divergence from practice within the wider criminal justice system—and it is therefore not an amendment that the Government consider necessary or appropriate.
It may be helpful if I first briefly recapitulate why the Government are making the changes that we propose in the Bill. The noble Lord, Lord McCrea, gave a good summary. Clause 1 will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism, or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. At present only specified offences can be so considered. Closing this loophole will make for more effective and flexible legislation, reflecting the fact that terrorist offending takes a wide variety of forms.
The noble Lord, Lord Marks, gave some examples of offences that are and are not covered. It might be helpful to include further examples. Various offences under the Firearms Act 1968 are not currently covered, including possessing a firearm with an intent to endanger life; as are offences under the Criminal Damage Act 1971, including destroying or damaging property with an intent to endanger life, and arson. There are many more, but I hope that provides an illustration of some of the offences that we think ought to be considered, if needed.
These changes will also ensure that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact, as the noble Lord noted. It must be treated as an aggravating factor when sentencing, helping to ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk that they pose to public safety. It will also result in offenders being subject to the registered terrorist offender notification requirements following their release from prison, which supports the police to manage their risk more effectively.
Finally, under the Bill, these offenders will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk. I emphasise that both the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and the Crown Prosecution Service expressed their strong support for this change. In fact, Mr Hall stated in his oral evidence to the Public Bill Committee in another place that this change, out of all the measures in the Bill, would make the most substantial difference to public safety.
Having set out the background, I will address the substance of the noble Lord’s amendment, which proposes a significant change to the process by which the courts in England and Wales, and in Northern Ireland, determine a terrorist connection at the point of sentencing. This process is well-established, having been in successful operation for more than a decade since the provisions of the Criminal Damage Act 1971 came into force. It is also consistent with the wider criminal justice system.
Under the existing process, courts are required to apply the criminal standard of proof—beyond reasonable doubt—when determining whether an offence has a terrorist connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing—that is, the trial evidence or evidence heard at a Newton hearing, if necessary, following a guilty plea—and take into account any representations by the prosecution or defence, as well as any evidence heard.
Furthermore, in England and Wales, and in Northern Ireland, it is the standard approach for the judge, rather than the jury, to determine the presence of aggravating factors as part of the sentencing function. To provide one example, Section 66 of the Sentencing Act 2020 requires the court to aggravate a sentence for an offence if it was motivated by hostility based on certain protected characteristics, such as race or sexual orientation. The judge will determine such a finding as part of the sentencing. The terrorist connection provision works in exactly the same way. This very issue was debated by your Lordships’ House in 2008, when the terrorist connection provisions were first enacted. It was concluded then that the existing process is appropriate and the reasons that I will now outline still stand.
During the passage of the Counter-Terrorism Act 2008, the then Government set out that, as part of their consultation on that Bill, they considered whether the determination of a terrorist connection should be made by the jury, rather than the judge at sentencing. That included discussing the option with experienced prosecutors in this area. It was concluded, however, that there were significant practical issues in taking that approach. For example, having to prove the terrorist connection as part of the trial would lead to lengthy diversions, were the defence to argue that the action of the suspect did not fall within the definition of terrorism. Such an approach would divert the prosecution from its primary aim to secure swift justice for the substantive offence—that is to say, securing a conviction or freeing the individual on trial—and would unnecessarily create significantly longer terrorism trials.
Alternatively, if the jury were to be responsible for determining whether there was a terrorist connection as part of a sentencing exercise after the trial, it would have to be summoned to make such a determination following a guilty plea. This would be entirely novel and run counter to well-established sentencing procedure. We therefore strongly believe that it would not be right to put it in the Bill. It was concluded then, as we maintain now, that sentencing is properly a function for the judge.
That is why the Government cannot accept the amendment of the noble Lord, Lord Marks: it would impose unusual requirements on the finding of a terrorist connection, deviate significantly from well-established practice and, in doing so, put that process out of kilter with the courts’ considerations of other similar aggravating factors. The current system provides adequate safeguards against the erroneous finding of a terrorist connection. A judge who has determined that the offence was committed with a terrorist connection is required to state in open court that that is the case. That determination is capable of being appealed to the Court of Appeal. For the reasons outlined, despite the noble Lord being minded to do otherwise, I hope that he will see fit to withdraw his amendment.
My Lords, I heard what the noble Lord, Lord McCrea, said, and he seemed to accept that the aggravating factor should be proved to a court, on admissible evidence, to the criminal standard of proof. He did not answer the point that there ought to be a trial of the issue.
The noble Lord, Lord Ponsonby, had sympathy for the principles behind our amendment. He preferred the idea of a Newton hearing before a judge to the possibility of jury trial to determine a terrorist connection. That is a compromise position that is allowed for in my amendment, where the interests of justice require that there should not be a jury trial. The important thing is that this issue should be tried on evidence, not simply permission for there to be evidence, if the judge deciding the issue decides to have evidence; or, otherwise, that the court must listen to representations—that is submissions, which are necessarily partial.
The reason our amendment is framed in the way it is is that we believe in trial by jury. Since the aggravation of having a terrorist connection changes the whole nature of the offence, to have that issue tried by jury is, we say, consonant with our way of doing criminal justice and consonant with the way we have always conducted criminal trials.
The Minister suggested that this amendment represented a significant divergence from the criminal justice system. Most of his speech was, with respect, devoted to establishing that point. However, the Bill and much of the counterterrorist legislation of the last few years have involved such divergence. What is unique about the Bill is that the aggravating factor can raise a pretty commonplace offence into an offence of terrorism, with very severe consequences. I have heard nothing to answer the point that establishing that terrorist connection in a trial, on admissible evidence, before a jury or, in suitable cases, a judge, should be the way to proceed.
Nothing that I have heard from the Minister or the noble Lord, Lord McCrea, allowed for the possibility that an offender guilty of only the basic offence, but not guilty of committing an offence with a terrorist connection, would nevertheless be sentenced following a judge who heard only representations on the basis of the aggravated offence, with all the consequences that that would have. That is what runs counter to our criminal justice system.
Our point is limited and principled. The Government have made no concession to our principle at all. We say that there has to be a trial of the issue, not at the same time as the trial of the basic offence, but afterwards. To establish that principle, I wish to test the opinion of the House and have my voice heard when the voices are counted.
We now come to the group consisting of Amendment 2. Anyone wishing to press this amendment to a Division must make this clear in the debate.
Clause 27: Removal of early release for dangerous terrorist prisoners: England and Wales
2: Clause 27, leave out Clause 27 and insert the following new Clause—
“Continued imprisonment of terrorist prisoners during the extension period of an extended sentence of imprisonment
(1) The Criminal Justice Act 2003 is amended as follows.(2) In section 247A(7) (restricted eligibility for release on licence of terrorist prisoners), at the beginning insert “Subject to section 247B,”.(3) After section 247A insert—247B Continued imprisonment of terrorist prisoners during extension period of an extended sentence of imprisonment(1) This section applies to a terrorist prisoner within the meaning of section 247A, where— (a) an extended sentence of imprisonment was imposed on the prisoner under section 226A or 226B, or under section 254, 266, 268A, 279 or 282A of the Sentencing Code, and(b) the prisoner is in custody, in accordance with section 247A, immediately before the expiry of the appropriate custodial term.(2) The prisoner must only be released under section 247A(7) in accordance with the provisions of this section.(3) It is the duty of the Secretary of State to refer the case of the prisoner to the Board—(a) as soon as the prisoner has served the appropriate custodial term, and(b) if the prisoner is still in custody, every year, before the anniversary of the conclusion of the appropriate custodial term.(4) It is the duty of the Secretary of State to release the prisoner on licence as soon as the Board has directed the release of the prisoner under this section.(5) The Board must not give a direction under subsection (4) unless—(a) the Secretary of State has referred the prisoner’s case to the Board, and(b) the Board is satisfied that—(i) the prisoner does not represent a grave risk to the public, and(ii) it is no longer necessary for the protection of the public that the prisoner should be confined.(6) Where the Secretary of State has not released the prisoner in accordance with subsection (4) by the conclusion of the extension period, it is the duty of the Secretary of State to release the prisoner immediately upon the conclusion of the extension period.(7) For the purposes of this section—“appropriate custodial term” has the same meaning as in section 247A,“extension period”, in relation to a sentence imposed under section 226A or 226B, or under section 254, 266, 268A, 279 or 282A of the Sentencing Code, means the period determined as such by the court under that provision.(8) Nothing in this section affects the duty of the Secretary of State to release a person whose release has been directed by the Board before this section comes into force.””
My Lords, I should like at the outset to acknowledge the assistance that I have received from the Bingham Centre in preparing the amendment and the courtesy of Ministers in this House and their staff in discussing it. I will briefly give my reasons for the amendment.
First, I am clear in my belief, which is shared by many others, that some men and women imprisoned for terrorist offences—I repeat, some—represent a threat to public safety and national security beyond the length of their sentences, and that the consequences of that risk may be the death of innocent citizens. Some examples of such people can easily be identified and are well known, but it is clear that others who present such a risk are much more difficult to identify.
It is to be noted that the recidivism rate for terrorist offences is extremely low compared with that for most other offences—under 3%, on the most recent figure that I have seen—and that a fraction of the recidivism rate therefore applies to terrorist offences. Their recidivism rate is a fraction of that for other offences, including serious offences such as armed robbery. So far, at least, projects in prisons to achieve deradicalisation or even recognition of the wrongness of the acts taken as radicals have been difficult to assess. It is extremely difficult to know whether prisoners are deradicalised and such efforts to assess prisoners have suffered significant failures. The room for erroneous judgments is high. I shall give only one of several examples, that of Usman Khan, the Fishmongers’ Hall terrorist.
As part of the effort to identify whether prisoners remain a serious risk to the public, I support the use of polygraphs but only as one instrument of assessment—one component only in such determinations. It has been proved in other areas—for example, in relation to sexual offences and in the context of some immigration matters—that polygraphs can provide useful corroboration, though one should be careful not to use them as primary evidence.
A great deal of work has been done to enable terrorist prisoners to be assessed because it is known that, to date, the evidential analysis of such prisoners has proved fragile. It has been extremely difficult to assess the threat that they may present on release. Where has most of the work been done in relation to making judgments about such prisoners? I emphasise that we are talking about judgments. It has been done by the Parole Board and it is about its potential role that I am mainly speaking.
The Parole Board in its ordinary duties deals at present with people who have been sentenced for terrorist offences and, indeed, with prisoners who have become radicalised in prison, though not sentenced for terrorist offences. To deal with that, the Parole Board embarked on an extensive and detailed training programme so that its members—chairs and lay members—could fulfil empirically their existing role with that cohort of prisoners. The board is recognised as offering a fair procedure that is legal and justiciable in a way that is familiar to prisoners and their legal advisers, and is understandable to commentators and us parliamentarians.
I have met the argument that it would be a mistake to extend the role of the Parole Board beyond its present functions. However, given what I have said about the training that it has given to its members in relation to terrorism offences, and looking at what the board does in a more rounded way, I suggest that it is entirely fitted to have its range of responsibilities broadened to deal with wider issues. They could properly include a possible extension of sentences within appropriate statutory limits. Those decisions may not be made by the Parole Board if the Government or others do not find that acceptable, although, in my view, the board is well suited to making such decisions about the possible extension of sentences. For example, it could refer certain cases to the Court of Appeal Criminal Division or the Senior Presiding Judge for England and Wales, so that if a sentence was to be extended beyond its temporal determination, that could be done by a senior judge or judges.
Given the very serious risk posed by a small percentage of terrorist prisoners, there is a danger that the majority who have been reformed may become the victims of the 3% or so who are unreformed. That should be avoided if at all possible, for I am sure that we would agree that what may seem like a failure to recognise that a prisoner truly is reformed and remorseful may create the very opposite effect and leave them to become reradicalised.
The aim of my amendment is to attempt to persuade Her Majesty’s Government to change the architecture of the process of extended sentences in relation to terrorism offences. I accept that the amendment does not complete the task, which is why I will not press it to a Division. However, I hope that it will be possible to discuss this matter further with Ministers before we reach the end of the procedures of the Bill.
I suggest that the changed architecture, as I have called it, should allow, first, the sentencing judge to inform and warn a defendant at the time of sentence—no ifs, no buts—that at the time when otherwise they may or should be released, they will be subject to assessment by the Parole Board and that that assessment will be based on whether they represent a serious and continuing risk to the public. It should be clearly said by the judge at the time of sentencing in accordance with the discretion of judges, who as has been said earlier, not least by the noble Lord, Lord Parkinson of Whitley Bay, are used to dealing with sentencing scenarios.
Further, I suggest that the changed architecture should allow the following: if a prisoner presents a serious and continuing risk to the public, the ensuing procedure, founded on comprehensive evidence from both sides, as happens at Parole Board hearings, could result in the sentence being extended further, and possibly on more than one occasion. In my view, such an architecture would provide for a fair process that is clearly understood by a prisoner at the time he or she is sentenced. I suggest, therefore, that such a procedure would be fairer and certainly more capable of review before the courts, and safer for the small cohort of very dangerous prisoners envisaged by this Bill.
I also invite the Minister to confirm in his reply that the Parole Board has been consulted about any additional roles it might take, either along the lines that I have described or in the general context of this Bill. I would, as I have said, welcome further discussions with Ministers.
My Lords, it is a great privilege to follow the noble Lord, Lord Carlile of Berriew, particularly given his deep and long experience in counterterrorism and the legislation in this area, along with his wide experience of the workings of the Parole Board.
Clause 27 was the subject of considerable controversy in Committee because as it stands, it would remove the role of the Parole Board from the determination of whether, and at what stage, a terrorist offender should be released from custody. Without wishing to repeat the arguments that were canvassed in the debate on the clause at that stage, many of us felt then and continue to feel strongly that the Parole Board has had, and should continue to have, an important part to play in determining whether and at what stage even dangerous terrorist offenders should be released on licence.
The amendment of the noble Lord, Lord Carlile, refers to prisoners who are serving extended sentences and applies after they have completed their custodial term, thus changing the architecture of extended sentences, as he has put it. Such prisoners’ release would be contemplated only after the custodial term, at which stage their cases would be referred to the Parole Board for consideration, as they then would on every further anniversary of the completion of that custodial term.
As the noble Lord, Lord Carlile, has explained, before the board could direct release, it would have to be satisfied that two important conditions had been met: first, the prisoner did not represent a grave risk to the public, and secondly, it was no longer necessary for the protection of the public that the prisoner should be confined. We would have preferred that the amendment went further and applied more widely for the reasons that we expressed in Committee, but we regard the work of the Parole Board, whose members are specialists in the field, as extremely valuable. We are firmly of the view that a full hearing before the Parole Board is the best way to determine whether a prisoner should be released after a suitable minimum custodial term, having regard to the elimination of the threat that the prisoner posed to public safety and to such progress as might have been made in the prisoner’s deradicalisation, rehabilitation and reform.
I should emphasise that throughout our approach to this Bill, we have maintained the position that hope of rehabilitation should always be part of the process of punishment, even in severe terrorist cases, and that sentences which offer no hope are counterproductive. We recognise that all prisoners are likely to be released one day and that rehabilitation is more achievable in the context of a release on licence than it is in the context of continued incarceration. That is a position that was rightly taken and recognised by the experts who briefed a number of Peers at the Joint Extremism Unit drop-in session that was arranged for us by the Ministry of Justice. Those who attended found it to be interesting and informative, and we are all very grateful. For my part, however, I confess to remaining perplexed that the Government have decided to cut the role of the Parole Board in the way set out in Clause 27. This amendment would reduce the impact of that particular cutting axe, and I therefore support it.
My Lords, Amendment 2 in the name of the noble Lord, Lord Carlile, sets out an alternative possible architecture for assessing terrorists and the possibility of extending sentences. In speaking to the amendment, the noble Lord and the noble Lord, Lord Marks, expressed their faith in the Parole Board and the view that it should play a much fuller role in assessing terrorist prisoners who are coming towards the end of their sentences. I too joined in the very useful expert panel held last week with presentations from Home Office experts as well as senior psychologists who have an overview of this work.
The probation service itself employs around 350 psychologists, some of whom are specialists in this work. The message I got from that meeting last week is that it is very complicated work and there is no guarantee of success. However, that does not mean that there should not be efforts—indeed, very strenuous efforts—made to try to rehabilitate these offenders.
The point I made in Committee was from the briefing I received from the National Association of Probation Officers and the Prison Officers’ Association. Both made the same point: it is much easier to manage a prison, and much safer for their members, if there is hope for the prisoners themselves. They are a better group to manage—if I may phrase it like that. Those two trade unions are of course concerned about the well-being of their members and, as we all know, there has been a huge increase in attacks on prison officers in recent years.
I am therefore sympathetic to this amendment, though I heard the noble Lord, Lord Carlile, say that he would not press it to a vote. However, the part of the argument that I have not heard from the Minister is why the alternative provisions would do a better job than the Parole Board, which is well understood by the wider judicial community as well as prisoners themselves. The outcomes of those existing processes would be justiciable and perceived as fairer, but I will listen with interest to what the Minister has to say.
My Lords, I understand that the intent of this amendment, tabled by the noble Lord, Lord Carlile of Berriew, is to do two things: first, to introduce a role for the Parole Board where, otherwise, the changes in the Bill would make its role superfluous; and, secondly and at the same time, not to reintroduce eligibility for early discretionary release for this cohort.
I will begin by outlining briefly the effect of the amendment in a little more detail. It would replace Clause 27, which restricts early release for offenders convicted of a serious terrorism offence—that is, those listed in Schedule 2 to the Bill—who receive an extended determinate sentence, or EDS, or a new serious terrorism sentence so that they instead serve the full custodial term of their sentence. In its place, the amendment would insert a provision that would change the release provision for all terrorist offenders sentenced to an EDS. Further, and while I understand that this may not be the noble Lord’s intent, this amendment would also apply to those currently serving an EDS for a terrorist offence.
The replacement release provision in the noble Lord’s amendment would continue to restrict early release, but there is an important difference. At the end of the custodial term, the scheme set out in the amendment would instead refer the offender to the Parole Board. The Parole Board would then determine whether the offender represents a grave risk to the public and whether it is necessary for the protection of the public that the offender continues to be imprisoned. Under the scheme in the amendment, this consideration would continue annually until release was granted, or to the end of the extended licence period, when the offender would then be released, unconditionally, into the community. The effect would therefore be that, if release were not granted until the end of the extended licence period, there would be a cliff edge and the offender would at that point be released unconditionally into the community. There would be no period of supervision and reintegration. For the reasons set out by the noble Lord, Lord Marks of Henley-on-Thames, that is a matter of concern.
I have carefully considered the proposed changes, especially as they arise from an amendment from the noble Lord, Lord Carlile. I hope I may be permitted to say that contributions from him on this subject always merit the most careful consideration, and I can assure both him and the House that I have done so in this case. None the less, having undertaken that careful consideration, I must set out the Government’s view that the changes to the release provisions for the EDS, as set out in the amendment, would be contrary to safeguards set out in the European Convention on Human Rights and its case law governing sentencing and release. That case law is usefully summarised in a recent decision of the Supreme Court of this country in Brown v Parole Board for Scotland—we seem to be referring to Scottish cases everywhere today. It is reported at  UKSC 69, in particular the discussions between paragraphs 49 and 55. While every decision of the Supreme Court is obviously a decision of a strong court, that court, for which the noble and learned Lord, Lord Reed, spoke, contained three former and current Presidents of the Supreme Court.
The reason the proposal would be contrary to the case law is that the EDS comprises two distinct parts. The first is a punitive component—namely, the custodial term—imposed for the length a judge considers commensurate with the seriousness of the offending. The second is a separate preventive element—namely, the extended licence—imposed to protect the public from the danger posed by other, future, yet to be determined serious offending. To that extent, we agree with the noble Lord, Lord Carlile, who was right to draw attention to the question of serious risk to the public. That is what the second part of the EDS does.
If the Government were to detain EDS prisoners into their extended licence period for reasons related to their initial offending, that detention would be contrary to the nature and intended purpose of the community supervision component of the sentence, and contrary to the court’s order imposing the EDS. As the noble and learned Lord, Lord Reed, for the Supreme Court, put it in the Brown case,
“the purpose of detention during the extension period is materially different from that of a determinate sentence.”
The noble Lord, Lord Carlile, acknowledged that this amendment would require further development, either in the form of a new sentence or by further alteration to the existing EDS regime. I am grateful for that acceptance. However, I must state that the Government would not support such a proposal, because there is no need for such a new sentence. The EDS and the new serious terrorism sentence are deliberately structured to do two things: to provide punishment and, separately, to aid public protection and reintegration through the licence period. We have no desire to change this overall approach or, to use the metaphor of the noble Lord, Lord Carlile, to change the architecture.
For those who are not dangerous, the sentence for offenders of particular concern sufficiently caters for release with a role for the Parole Board and yet without the risk of an unsupervised cliff edge, which the amendment would introduce. I understand, as the noble Lord, Lord Carlile, noted, that the amendment is born of a desire to introduce a role for the Parole Board. But there is no role for the Parole Board here because it is not necessary. There is no early release and no parole so, accordingly, there is no role for the Parole Board. That is, therefore, my answer to the question put to me by the noble Lord, Lord Marks, who asked why there is no role for the Parole Board. It is for the reasons I have just given. While I suspect that my answer may not leave him persuaded, I hope it means that he is no longer perplexed.
The noble Lord, Lord Ponsonby, asked me whether we are saying that the alternative can do a better job than the Parole Board. I accept that, as the premise behind that question would admit, some Peers consider the Parole Board the only qualified body to deal with the specialised nature of setting licence conditions for terrorist offenders. But in answer to the noble Lord, Lord Ponsonby, I must respectfully reject that approach. The reason the Parole Board is responsible for setting licence conditions when it directs the prisoner’s release is that that is part and parcel of the Parole Board’s decision that the offender can be safely released and managed in the community. The Parole Board decides that the offender can be released and, as part of that, decides the licence conditions that will govern such release.
However, with an EDS for a serious terrorism offence and the serious terrorism sentence, there is no provision for early release before the end of the custodial period. The corollary of that proposition is that release at the end of the custodial period is automatic. Where release is automatic, there is no reason why the Parole Board specifically should consider licence conditions.
Furthermore, offenders will be subject to management under MAPPA—Multi Agency Public Protection Arrangements—through which the police and the probation and prison services work with other agencies to manage the risks posed by offenders living in the community in order to protect the public. In cases under the Terrorism Act 2000—TACT—and TACT-connected cases, that involves the probation service, the releasing prison, counterterrorism police, security services, the Joint Extremism Unit of HMPPS, and social services.
With the creation of the national security division of the National Probation Service, we will see even greater specialism in making such recommendations. That ensures that professionals with a detailed knowledge of the offender are involved in identifying the licence conditions which are necessary and appropriate. The key point is that that happens regardless of whether the final decision-maker on setting the licence is the Parole Board or HMPPS—the governor. While ultimately the board or the governor makes the decision, that decision is always directly informed by those with intelligence of and expertise in managing the offender. I therefore assure the noble Lord, Lord Carlile, that the process is no less rigorous and the outcomes are no different.
The noble Lord, Lord Carlile, asked a specific question about our discussions with the Parole Board. We have shared the Bill with the Parole Board and discussed its implications with it, but there has not been a formal consultation, if that is what the noble Lord was driving at in his question.
For those reasons, which I hope I have explained clearly and fairly, I remain of the view that there is no role for the Parole Board where there is no consideration of early release. That point, combined with the issues I have explained around the legality of this amendment from an ECHR standpoint, leads me to consider this amendment unnecessary. I therefore respectfully urge the noble Lord, Lord Carlile, to withdraw it. Of course, I am happy to continue our conversations with him about this matter, as I am sure we will continue to benefit from an exchange of views about other matters in the Bill also.
My Lords, I am grateful to all who have spoken in this debate, to the noble Lords, Lord Marks and Lord Ponsonby, for their broad support for what I have suggested, and to the noble Lord, Lord Wolfson of Tredegar, for his detailed response.
When I was at school, I had a teacher who taught us about different forms of argument, one of which is entitled “argumentum ad maiorem”—argument using a greater authority. In those days, I suppose it was something like “Because Sir Winston Churchill said something, it must be right.” The Minister’s argumentum ad maiorem was about the case of Brown v the Parole Board for Scotland, which, it will not surprise your Lordships to know, I have read.
I do not propose to embark on and bore your Lordships with a legal moot about that case. I say simply that I respectfully do not agree with the noble Lord, Lord Wolfson, despite his eminence as a lawyer, about the effect of that case on my proposal. I believe that my proposal, because of the change of the architecture that I suggested, including the fact that the sentencing judge would clearly refer to the potential extension provisions at the time of sentence, would come within the judgment of Brown v the Parole Board for Scotland.
I listened to the reassurance that the Minister sought to give us about the processes in place. The noble Lords, Lord Marks and Lord Ponsonby, referred to the opportunity that we were generously given to participate in an expert panel in a meeting a few days ago. I was present at that meeting. I may be in a minority, but I emerged from that meeting feeling deeply unreassured about the processes that were being used by those who described them to us. It seemed to me that what is required with prisoners who have served sentences for such serious offences and who may present a grave danger to the public is an evidence-based, preferably adversarial, justiciable, appealable procedure, and the place for that procedure, plainly, is the Parole Board.
I do not accept the argument that a cliff-edge would be created either. Maybe it would if my amendment, the imperfections of which I have admitted, were amended a little further. I believe that licence conditions could be applied in a similar way to those applied at present at the end of a sentence after the procedure that I have suggested.
Finally, I am disappointed that there has been no formal consultation with the Parole Board, particularly with the chair and deputy chair. If there was such formal consultation, I have a shrewd suspicion that they would have something very constructive to say. I respectfully suggest to the Minister that a consultation of a formal kind with the Parole Board’s senior officers is necessary as well as desirable to see what they feel they could do to improve this situation. With those remarks, I do not propose to test the opinion of the House on my amendment, but I hope that we can continue to discuss it to improve the provisions in the Bill.
Amendment 2 withdrawn.
We now come to the group beginning with Amendment 3. Anyone wishing to press this or any other amendment in this group to a Division must make that clear in the debate.
Clause 29: Further provision about release of terrorist prisoners: Scotland
3: Clause 29, page 25, line 6, leave out from “is” to end of line 9 and insert—
“(a) a sentence of imprisonment imposed under section 205ZA of the 1995 Act (serious terrorism sentence),(b) a sentence of imprisonment imposed under section 205ZC of that Act (terrorism sentence with fixed licence period), or(c) an extended sentence imposed under section 210A of that Act in respect of a terrorism offence.”Member’s explanatory statement
This amendment expands the scope of new section 26ZA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 by making it applicable also in relation to a person who is serving an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 in respect of a terrorism offence.
My Lords, in order to ensure that terrorist offenders in Scotland serve the appropriate custodial period of sentences for terrorism offences when they are imposed consecutively to other sentences, we introduced several amendments in Committee. Following these changes, we are now making a series of minor, technical amendments to provide further clarification and to ensure that the legislation will operate as intended.
The amendments have a variety of complementary effects but, taken together, they ensure that new Section 1B, which was introduced in Committee, operates effectively within the Scottish jurisdiction. Given the complexity of the amendments, we have continued to consider their effect with the Scottish Government, resulting in these final amendments, which have been agreed by all parties.
Many of the amendments simply insert the relevant terminology into the new clauses and deliver consequential changes to ensure the smooth operation of Section 1B. The overall effect is to ensure that terrorist offenders in Scotland serve the appropriate custodial period when they are serving multiple sentences, including for non-terrorism offences, and that offenders who receive multiple sentences for terrorist offences—and therefore multiple licences—will serve only one, aggregated licence period.
I draw your Lordships’ attention specifically to Amendment 31, which ensures that the sentence calculation provided for in Section 1B will apply retrospectively. This will provide clarity in calculating release dates where sentences for both terrorism and non-terrorism offences are imposed, ensuring the effective application of the Terrorist Offenders (Restriction of Early Release) Act 2020 in all cases.
Should noble Lords wish to see an individual breakdown of these amendments and their effect, I would be happy to place in the Library a letter in terms similar to the one I issued following Committee to explain the purpose of each one. I beg to move.
My Lords, as the noble and learned Lord has explained, most of these amendments are technical in nature. The first group relates to a person who is serving an extended sentence in respect of a terrorist offence.
Amendments 27 to the end of the group amend Schedule 13. As the noble and learned Lord has explained, in Scotland—unlike in the rest of the UK—multiple sentences being served concurrently or consecutively are amalgamated into one sentence with one release date. This is known as “single terming”. Part 7 of Schedule 13 disapplies single terming for individuals where one of the offences is a terrorism offence, to ensure that the provisions of the Bill apply correctly. The noble and learned Lord did not exactly say that, but that is what he meant.
I had two questions for the Minister. The noble and learned Lord has already answered the first—on Amendment 31. The second is about Amendment 43, which makes changes to Section 24 of the International Criminal Court (Scotland Act) 2001. Can the noble and learned Lord give the House some idea of the extent of this change? How many prisoners serving sentences in Scotland have been sentenced by the international court, and what is the effect of these changes on them?
I gratefully acknowledge the support of the noble Lord, Lord Thomas of Gresford, in advising me on these matters.
My Lords, I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for explaining these measures. It would probably be helpful for a similar letter to that provided in Committee to be placed in the Library of the House so that we can have a clear view about it.
We do not object to any of these amendments. They have a quite significant effect on a very small number of cases, because the consequence for people convicted of a serious offence and a serious terrorist offence is that they may stay in prison for years longer. But that is the policy decision and the consequence of the Bill, and I accept that.
I am slightly anxious that this has happened so late in the process and that what the Bill contains depends on when the music stops. The Bill was introduced in the Commons in May 2020. Ten months have gone by. There has been this quite massive change of effect on a few cases. Can the noble and learned Lord explain how that has happened? I was struck by the noble Lord, Lord Wolfson, saying to the noble Lord, Lord Carlile, that he was happy to continue discussions on the issues. This is good and nice, but the Bill has a cliff edge. I worry that it is very late in the day to make these sorts of changes but, as I said, we do not object to them.
My Lords, I am grateful to both noble Lords for their contributions to this very short debate. The noble Lord, Lord Paddick, asked about the number of prisoners affected by this in relation to the International Criminal Court. I do not have that information to hand, but I undertake to supply it to the noble Lord.
The noble and learned Lord, Lord Falconer of Thoroton, raised the lateness in the stage of proceedings at which this amendment has been tabled. I acknowledge the complexity of the statutes involved and the alertness of those in my office, the Advocate General’s office, and in the Scottish Government who are monitoring the position. There has been useful and effective collaboration between them. I will look into the matter raised by the noble and learned Lord and see whether I can provide any further detail as to why these points were identified only at this stage. If I can identify anything specific, beyond my general answer relating to the complexity of the relevant provisions, I will provide it to the noble and learned Lord in writing.
Amendment 3 agreed.
Amendments 4 to 11
4: Clause 29, page 25, line 10, after “Part” insert “, except sections 1AB, 1A and 1B,”
Member’s explanatory statement
This amendment excludes sections 1AB, 1A and 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 from the scope of new section 26ZA(3) of that Act.
5: Clause 29, page 25, line 35, leave out “section 1A(1)(c)” and insert “sections 1A(1)(c) and 1B(11)”
Member’s explanatory statement
This amendment makes new section 26ZA(7) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 subject to section 1B(11) of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
6: Clause 29, page 26, line 8, leave out “means”
Member’s explanatory statement
This amendment is consequential on the amendment at page 26, line 11.
7: Clause 29, page 26, line 9, after “prisoner,” insert “means—
(a) ”Member’s explanatory statement
This amendment is consequential on the amendment at page 26, line 11.
8: Clause 29, page 26, line 11, leave out “205ZC” and insert “section 205ZC of the 1995 Act, or
(b) the term determined as the custodial term by the court that imposes the extended sentence on the prisoner under section 210A of that Act;”Member’s explanatory statement
This amendment provides for the purposes of new section 26ZA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 a definition of “appropriate custodial term” in relation to an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 imposed in respect of a terrorism offence.
9: Clause 29, page 26, line 14, after “205ZA” insert “of the 1995 Act”
Member’s explanatory statement
This amendment clarifies that the reference to section 205ZA is a reference to section 205ZA of the Criminal Procedure (Scotland) Act 1995 (defined as “the 1995 Act” for the purposes of Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993).
10: Clause 29, page 26, line 18, after “205ZC” insert “of that Act”
Member’s explanatory statement
This amendment clarifies that the reference to section 205ZC is a reference to section 205ZC of the Criminal Procedure (Scotland) Act 1995 (defined as “the 1995 Act” for the purposes of Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993).
11: Clause 29, page 26, line 20, at end insert—
“(c) in relation to an extended sentence imposed on a terrorist prisoner under section 210A of that Act in respect of a terrorism offence, the period specified as such under that section by the court that imposes the sentence on the prisoner.”Member’s explanatory statement
This amendment provides for the purposes of new section 26ZA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 a definition of “extension period” in relation to an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 imposed in respect of a terrorism offence.
Amendments 4 to 11 agreed.
We now come to the group beginning with Amendment 12. Anyone wishing to press this amendment to a Division must make that clear in the debate.
12: After Clause 31, insert the following new Clause—
“Review of sections 1 to 31
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 31 of this Act to be carried out in relation to the initial one-year period.(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to imprisonment for offences of terrorism to conduct the review.(3) The review under subsection (1) must consider but is not limited to considering any evidence as to any effects of this Act—(a) by the imposition of longer prison sentences upon the reform or rehabilitation of those offenders on whom they are imposed;(b) upon the reform or rehabilitation of those offenders required to serve a greater proportion of their sentences in prison and a correspondingly smaller proportion on licence; (c) upon the radicalisation of prisoners other than those upon whom longer prison sentences are imposed or who are required to serve a greater proportion of their sentences in prison;(d) on the degree to which those prisoners upon whom a serious terrorist sentence is imposed are segregated from other prisoners.(4) The review must be completed as soon as practicable after the end of the initial one-year period.(5) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(6) The Secretary of State must lay before each House of Parliament a copy of the report under subsection (5)(b) within one month of receiving the report.(7) In this section, “initial one-year period” means the period of one year beginning with the day on which this Act is passed.”Member’s explanatory statement
This Clause would require an independent review of the impact of sections 1 to 31 of the Act after one year, with particular attention to radicalisation in prisons and the effects of longer periods of imprisonment on reform and rehabilitation and radicalisation in prisons and of segregating serious terrorist offenders.
My Lords, Amendment 12 echoes the amendment calling for a review which we proposed in Committee. The purpose of the amendment is to enable the noble and learned Lord—or another Minister—to update the House on the Government’s proposals for reviewing the impact of the first 31 sections of this Act, as it will then be. During my speech in Committee, I spent some time setting out in detail why we contend that the review called for by our amendment is necessary. I will not trespass for long on the House’s time this afternoon.
My noble friend Lady Hamwee will speak to Amendment 13, in the name of my noble friend Lord Paddick, about polygraphs. We broadly support Amendment 24 in the name of the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Jones of Moulsecoomb and Amendment 25 in the name of the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Jones of Moulsecoomb.
We are concerned, first, to ensure that the Government keep under review and report on the impact on prisoners of longer terms of imprisonment and consequently proportionately shorter periods on licence. To answer a point made in Committee on behalf of the Government, in our view it is not premature to ask for such a review at an early stage. It is not necessary to await the release of such prisoners in many years to come before reviewing the working of this part of the Bill. The impact of very long sentences on, for example, prisoners’ behaviour in prison—a point raised by the noble Lord, Lord Ponsonby of Shulbrede—their prospects of rehabilitation and their continued contact with their families and friends outside prison can be assessed from an early stage.
We are also concerned to consider the effect on other prisoners of having serious terrorist offenders in their midst. It is of great importance to avoid the risk that the most serious offenders are seen as some kind of kingpins within prisons to be looked up to and emulated. If our prisons become terrorist training grounds, the effect of long sentences will have been utterly counterproductive.
We considered with members of the Joint Extremism Unit, at the drop-in session that I mentioned a little earlier, a number of issues concerning the development and use of separation units for terrorist offenders within prisons. These were recommended by the Acheson review in 2016—a recommendation which was accepted by the Government but which as yet has not been by any means fully implemented. Such units have the clear advantage of keeping serious terrorist offenders separate from other prisoners. However, they also have a number of disadvantages that we need to consider and learn to cope with, such as the difficulty of organising and maintaining sufficient association for these prisoners to enable them to live something like normal in-prison social lives. Another disadvantage is often substantial geographical separation from prisoners’ homes and families, which increases the risk that they become socially isolated to the extent that they are at greater risk of reoffending. Then, of course, the intense use of resources in running such facilities must be considered. Nevertheless, it seemed to those running these separation units that they were obviously worthwhile, and we broadly agree. However, it is important to keep their use and success under review and to take all steps possible to avoid the radicalisation of non-terrorist criminals, which remains a dangerous risk within the prison estate. It is important and helpful that the independent reviewer, Jonathan Hall, is to include this topic in his annual review.
These and other issues raised in this group and more widely fully warrant a programme of review. We are firm advocates of a system that involves the Government in a commitment to report to Parliament within a defined timescale on the results of all such reviews as its undertaking.
The Bill has given many the impression that the Government have made a decision to deal with serious terrorism by resorting simply to even tougher sentencing, but with too little consideration given to some of the more unpalatable consequences of that approach. I and my colleagues on our Benches do not believe that that impression gives the whole picture. From discussions we have had with Ministers and officials, it is quite clear that they are all determined to do the best they can to cope with an increasing number of convicted terrorists in our prisons—a number that will increase even further as the result of the Bill. However, that process can be greatly assisted by a transparent process of reviewing both the successes and the failures that follow changes of the importance of those included in the Bill. I beg to move.
My Lords, I will speak to the whole group but I have co-signed Amendments 24 and 25 in the names of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Ponsonby, respectively. I signed those agreements because they seemed so sensible. It is all very well making up rules and imposing limitations on people’s liberty but, if you do not have the facts and you do not actually know what the statistics are, it all seems a bit academic. Post-legislative scrutiny is incredibly important, especially for Bills such as this which implement contentious and possibly damaging and complex arrangements. They can either work very well or be disastrous.
The Government are taking a very worrying approach to counterterrorism with this sort of “tough on crime” mentality where we just lock people up and throw away the key. We need an evidence-based, multidisciplinary approach to deradicalisation. We need to rescue people from these deeply destructive ideologies, recognising that they are pretty much groomed and brainwashed until their thinking becomes so warped that violence seems like a legitimate tool.
I agreed with every word that the noble Lord, Lord Marks, said earlier about prisons. I have visited prisons and have spoken to a lot of people who have been in them and, quite honestly, there is a huge risk that issues and behaviours like this can spread in prison and in fact the prisons become a recruiting ground. That is pretty much how ISIS started, in the prison camps in Iraq, so we have a precedent for some quite damaging events coming out of locking people up. We have to be very careful that the Government’s attempts to imprison people indefinitely do not just make the problem much worse. Could we please have independent reviews and get the evidence base, and compare the Government’s approach with the other options, which could be much better?
My Lords, Amendments 24 and 25 struck me as setting out a number of concerns that we would like to have seen in the Bill now. I agree very much with what the noble Baroness, Lady Jones, had to say, except that I do not think that they amount to post-legislative scrutiny. Both highlight concerns that we expressed at an earlier stage, although not all those concerns. My noble friend’s Amendment 12 is rather different in that after a year’s experience of the Bill—an Act, as it will then have been—it would assess its impact. Like him, I have had a similar impression: a kind of inconsistency between the words that we see on paper in the Bill—the impression that is given about responding with even tougher sentences, which is supported by some of the debate that we have had—while privately we have had much more nuanced conversations which have encouraged me, even though I am somewhat depressed by this legislation.
I want to say a word—well, several words—about Amendment 13, which would provide for a review of the use of polygraphs. The amendment came out of amendments in Committee, not our own but those proposed by the noble and learned Lord, Lord Falconer, when he called for a pilot and a report to Parliament, including on specified matters. I understand that, with a relatively small number of terrorist offenders to whom the polygraph condition will apply, it is quite hard to undertake a useful pilot, but that does not negate the importance of an assessment of the polygraph condition which is published in the public domain.
Crucially, the review that we propose in Amendment 13 would be an independent review. Its report would include data, as set out in the amendment’s subsection (3), on the number of terrorist offenders subject to the polygraph condition and on the number of terrorist offenders recalled to custody following a test. I should mark those sentences as copyright of the noble and learned Lord, Lord Falconer—I think I lifted them wholesale. It would also cover regulations, rules and codes of practice, and make recommendations regarding those, and the report would be made to Parliament. We have included the caveat that any material that the Secretary of State considered might prejudice public safety should be omitted.
The review would be within three years of the Section 32 polygraph condition coming into force. I understand, though I could not quite pin it down, that the Government are intending a review after a couple of years, which would essentially be the same; after two years is more or less the same as within three years.
I take this opportunity not only to argue for a review but to ask the Minister to confirm what is planned by the Government. not only as to the timing but as to the four elements that I have listed.
My Lords, I have one amendment in this group, Amendment 25, and my noble and learned friend Lord Falconer of Thoroton put his name to Amendment 24. I was very pleased that the noble Baroness, Lady Jones of Moulsecoomb, said that she had read our amendments and that they seemed sensible; I think that is a good start. The general point made on this whole group is that there is an appetite for reviewing different aspects of this legislation, and the amendments referred to go into particular aspects of that.
I want to make a slightly more general point. It is important that the general case for this sort of legislation is made regularly. I have had the opportunity in recent days of talking to young people who are becoming more politically active and engaged. They are very interested in terrorism legislation as a whole, particularly in how Parliament seeks to review it, change it and make it more effective. Particularly in our House, we have a duty to make sure that those arguments are remade and heard by the general public.
The specific amendment that I have put my name to concerns looking at particular impacts on prison capacity, the National Probation Service and offenders convicted of terrorist offences, as well as levels of bad behaviour in prisons—a point that I made on an earlier group. Also within my amendment are financial matters, because there is a very significant financial impact of the review of extended sentences and licence periods.
My final point relates to polygraph testing. I take the point the Government make that there is a very small cohort of terrorist offenders on which to base a statistical approach to the effectiveness of polygraph testing. I accept the point that they made in their recent letter that the comparison with the Domestic Abuse Bill is not appropriate because there are of course so many more domestic abuse offenders. Nevertheless, having said that, and having accepted the Government’s point, it may well be that polygraph testing can be calibrated and used and can have an impact on the way in which these types of offenders are treated. I would be interested to hear from the Minister about the way that the Government see polygraph testing being introduced to part of the process of reviewing this group of offenders. I will not be pressing my amendment to a vote.
My Lords, the amendments in this group would all require the Secretary of State to commission independent reviews into various aspects of the operation of the Bill and to lay the resulting reports before both Houses of Parliament. I welcome the considerable appetite for scrutiny of these measures and for the accumulation of data—the facts and statistics that the noble Baroness, Lady Jones of Moulsecoomb, sought. I acknowledge the appetite for review, to which the noble Lord, Lord Ponsonby of Shulbrede, referred. However, while I welcome these things, I must respectfully disagree that the amendments are necessary.
First, as acknowledged within the amendment of the noble Lord, Lord Marks of Henley-on-Thames, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whose remit covers this Bill. Indeed, he has announced his intention to conduct a review of matters within prisons, which we welcome. The benefit of an independent reviewer is that he will not be constrained by the specifications of government and can decide what is most appropriate for his consideration. We have every confidence that he will continue to provide valuable and independent scrutiny following the Bill’s enactment and through the prisons review that he will be undertaking. I remain of the view that there is no need to appoint another reviewer to focus on just some of the provisions of the Bill.
The amendments indicate some areas of particular concern, which I shall seek to address with greater specification. On Amendment 12, the noble Lord, Lord Marks of Henley-on-Thames, has noted a particular interest in the rehabilitation of terrorist offenders while in custody. As he told your Lordships’ House in relation to an earlier group of amendments, he and others, including the noble Lords, Lord Ponsonby of Shulbrede and Lord Carlile, attended the briefing held by officials in the Joint Extremism Unit. I have heard that at least some noble Lords found that a helpful exercise, and I hope others did as well. I understand from engagement, and from the contributions made from the Floor today, albeit electronically, that there was a healthy discussion and a recognition that there is no simple cure or metric for this matter; indeed, that was acknowledged in a contribution by the noble Lord, Lord Carlile of Berriew, on an earlier group of amendments.
It is very difficult to measure the effectiveness of intervention programmes in changing behaviour for any offenders but especially within such a small cohort. Efforts in our prison system to deradicalise and rehabilitate offenders in custody are ongoing, and techniques are developing constantly. However, while rehabilitation will remain central to the work undertaken with terrorist offenders in custody, that goes hand in hand with risk management.
The noble Lord, Lord Marks of Henley-on-Thames, has again raised the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate, and the use of separation centres to this end. The risk was identified that such persons might otherwise become kingpins, looked up to by other persons in the prison estate. We have a set of specialist operational controls for managing counterterrorism risk in custody, as well as a number of population-management controls available for use across the entire prison estate.
I assure the noble Lord and the House that most extremist prisoners can, and should, be managed in the mainstream prison population with appropriate conditions and controls. That having been said, we take the risk of radicalisation within the prison estate seriously and, where deemed necessary, we have used, and will use, the separation centres available to us to prevent persons spreading malicious ideology to other prisoners.
In bringing to a close my submissions on this amendment, I acknowledge on behalf of the Government the anxious and thoughtful concern expressed by the noble Lord and others, following a very constructive series of engagements.
Amendment 13 would require the Government to commission an independent review and publish a report into the use and operation of polygraph testing in the licence conditions of terrorist offenders. Today and, more importantly, in Committee, we discussed in some detail the matter of polygraph testing. As I am sure noble Lords now understand, it is not intended to be used as a stand-alone measure but as part of a package to provide a further source of information to test offenders’ compliance with their conditions of licence. It is not to be used as something to catch an offender out in breach.
That said, I recognise that the use of polygraph testing as a licence condition is a novel matter for the House, which is why the Government have committed to conducting and publishing a review of polygraph testing on terrorist offenders after a two-year period, which will provide more meaningful results and report on most of the criteria outlined by the terms of the amendment. I hope that that will satisfy the noble Baroness, Lady Hamwee, who dwelt specifically on this material in the course of her submission.
I will make one further point on this amendment. The terms have specified that the review may make recommendations on
“regulations, rules and codes of practice”.
Clear rules governing the use of polygraph examinations in a licence condition will be laid by statutory instrument. We currently anticipate that these will be those already in place for the use of polygraph testing in licence conditions for sex offenders, as set out in the Polygraph Rules 2009, which specify the qualifications expected for polygraph examiners, how a polygraph examination should be recorded and how those examinations will be reviewed.
Our review will of course inform whether these require amendment or tailoring in light of factors presented by the specific cohort, so I assure the noble Lord, Lord Paddick, who moved the amendment, and those noble Lords who spoke on it that our plans for the introduction of polygraph testing already account for this concern.
Amendment 24, in the name of the noble and learned Lord, Lord Falconer of Thoroton, would introduce a new clause requiring the Secretary of State to
“commission a review and publish a report”
into a number of measures, most of which are not directly addressed by provisions in the Bill, in the first year of it coming into force. While I recognise the desire to test for unintended consequences of the Bill, I politely disagree that a review on these terms and within this timeframe would be either necessary or add to what is already under way.
I want to set out briefly why, taking each part in turn. Proposed subsection (1)(a) would require a review into
“the effectiveness of current strategies to deal with lone terrorists”.
There is a great deal of work under way to target the terrorist threat, including that of lone terrorists. I point the noble and learned Lord to the Security Minister’s speech at the Royal United Services Institute in November 2020.
The Government’s response to the recent terrorist attacks has been comprehensive and informed by the Independent Reviewer of Terrorism Legislation’s analysis. The Government will shortly bring forward policing and crime legislation to implement a number of recommendations from Jonathan Hall QC’s independent review of the effectiveness of the Multi Agency Public Protection Arrangements—MAPPA—when it comes to the management of terrorism, matters connected with terrorism and offenders of terrorism concern within the community.
The Government recognise that independent analysis can be useful in terms of challenging existing practices and processes. That is why the noble Lord, Lord Anderson, QC, was asked to oversee the operational improvement reviews following the attacks in 2017. I submit that now is not the time for another review.
As part of the constant, ongoing review and improvement of our counterterrorism systems and processes, the CONTEST unit, based in the Home Office, undertook an internal review of lone-actor terrorism last summer, working with operational partners and departments from across government. The review’s findings are sensitive and will not be published, but they have been shared with Parliament’s Intelligence and Security Committee.
Proposed subsection (1)(b) refers to
“the effectiveness and availability of deradicalisation programmes in prisons”.
As I have said, it is difficult to measure their effectiveness, but the primary intervention, the Healthy Identity Intervention—HII—has been accredited by a panel of experts and is informed by the best available evidence. We have also conducted an evaluation of the HII pilot study to assess implementation and delivery. This is publicly available on GOV.UK, and a short-term outcome evaluation of the HII is under way. Although this has been delayed due to the impact of Covid-19, we are committed to publishing it once it has concluded.
We remain committed to keeping our interventions under review and developing the evidence base, which is what so many of your Lordships who have spoken on this matter have sought. As I have said, we will establish a new counterterrorism assessment and rehabilitation centre, which will not only help us to develop knowledge and evidence but will bolster our capacity to deliver interventions by recruiting more specialist psychologists and trained chaplains.
The Government plan to make an oral Statement that will explain more fully the important work to rehabilitate terrorist offenders in prison, including an overview of the new centre’s strategy and programme of work. I hope that noble Lords will agree that these demonstrate this Government’s commitment to transparency and sharing as much as we can.
On proposed new subsection (1)(c) in the amendment, in relation to the polygraph, as I mentioned earlier in this group, we will be conducting an evaluation of its use after two years. This will add to our evidence of its effectiveness and value, which has already been established through independent evaluation, and I submit that a further review is not needed.
On the impact of the removal of early release for dangerous terrorist prisoners, as I have previously made clear, the primary aim of this measure is to incapacitate such offenders for longer to protect the public and demonstrate the seriousness with which this Government treat such offending. The Independent Reviewer of Terrorism Legislation will be able to review such matters should he wish to do so, and a separate review, particularly after as little as 12 months, would be unnecessary.
Finally, on the role of pre-sentence reports in serious terrorism offences, I assure noble Lords that the Bill will make no change to the way pre-sentence reports are done. If the court is considering an extended sentence or a serious terrorism sentence, the court will be required to consider a pre-sentence report which, as now, will include an assessment of dangerousness and take into account the individual circumstances of the offender.
Like the previous amendment, Amendment 25, in the name of the noble Lord, Lord Ponsonby of Shulbrede, requires the Secretary of State to commission a review and publish a report on the impact of this Bill on a number of specific areas, in the first year of its gaining Royal Assent. Proposed new paragraphs (1)(a), (b), and (d) deal with financial impacts and the impact on prison capacity and on the National Probation Service. I assure noble Lords that this Government take seriously the role that the prison and probation services play and the need to ensure that they are supported in our efforts to combat terrorism. We are confident that the changes set out in the Bill will not generate either significant prison population demands or significant resource impacts for the NPS, as set out in the impact assessment published alongside this Bill.
As I have previously made clear, the relative rarity of terrorist offending means that the impacts are likely to be small, and will take time to manifest themselves. With the combined forecast for the number of offenders affected by the provisions of the Bill estimated at fewer than 50 at any one time, these changes will not have a substantial financial impact on Her Majesty’s Prison and Probation Service. I have previously detailed to this House the levels of funding provided to support these legislative changes. That said, should noble Lords wish to understand the prison population or probation impacts once these measures have been implemented, they will be able to scrutinise offender management statistics, including probation caseload and prison population statistics, published by the Government on a quarterly basis. I therefore do not believe that a legislative commitment will provide any greater opportunity for scrutiny in this respect.
By way of further reassurance, we have made a major investment in the National Probation Service to establish a national security division, the body referred to earlier this afternoon by my noble friend Lord Wolfson of Tredegar, which will see a doubling of counterterrorism specialist staff. We will shortly have sufficient specialist capacity and capability to bring the management of all terrorist offenders in the community under the responsibility of the National Security Division, which will be able to deliver enhanced levels of supervision for the high-risk and complex cases of terrorist offenders, and will receive enhanced training.
Finally, proposed new subsection (1)(c) in Amendment 25 concerns the impact of this Bill on
“levels of bad behaviour in prisons”.
To carry out a review that establishes a causal link between the measures in the Bill and behaviour in prisons would be unfeasible and impracticable. The remit of the Independent Reviewer of Terrorism Legislation, who has recently announced that he will review terrorism in the prison estate, and of Her Majesty’s Chief Inspector of Prisons, already provides sufficient scope to investigate prisoner behaviour independently of government. Having said that, we are never complacent about the important that role prison staff play, which is why prison governors and front-line staff are being given the training, skills, and authority needed to challenge inappropriate views and take action against them. Around 30,000 prison staff have been trained so far and more training is planned.
I finally note that Amendments 12, 24 and 25 call for the reviews to be conducted within one year of the Bill receiving Royal Assent. Given that the Bill deals with sentences that could carry long custodial periods, I respectfully point out that it would be difficult to establish any impact after so short a period. The Bill will be subject to the usual practice of post-legislative scrutiny three years after it receives Royal Assent, which has greater potential to identify any possible effects. In light of this, and the existing position of the Independent Reviewer of Terrorism Legislation, who already has authority to review this legislation, I do not believe these amendments to be necessary, and I urge the noble Lord to withdraw his.
I have received a request from the noble Baroness, Lady Hamwee, to ask a short question of the Minister.
My Lords, on that last point, I take it that the post-legislative scrutiny referred to is separate from the review of polygraph testing after three years, to which the Minister referred. On that, while I take his point about parliamentary scrutiny of regulations, codes of practice may not be statutory and therefore not subject to that sort of scrutiny. Might the Minister take back the suggestion that, following the very helpful sessions that the MoJ arranged during the course of the Bill on a number of matters, for which we were very grateful, Ministers might consider communicating with—and possibly even consulting—noble Lords in framing the review in three or so years’ time? I do not expect him to make a commitment now, but I would like to put that idea in his and his colleagues’ heads.
My Lords, I assure the noble Baroness that that suggestion has lodged in my skull and will have been noted by others, and we will come back to it in due course. On her specific question on whether the post-legislative scrutiny of the Bill is distinct from the review of polygraph testing, I am happy to confirm that that is the case.
My Lords, this has been a helpful debate as it has moved forward the process of keeping these new provisions under parliamentary scrutiny. I am very grateful, as I expect all noble Lords are, to the noble and learned Lord, Lord Stewart, for the comprehensive and careful way in which he set out the work of evaluation and research into the evidence concerning the treatment and punishment of terrorist offenders, and the arrangements for them within the prison estate.
The noble Baroness, Lady Jones of Moulsecoomb, expressed the need for constant review. She warned us of the possible dangers of long-term imprisonment and the risk of radicalisation. As well as making a number of points and raising questions about polygraphs, my noble friend Lady Hamwee stressed the distinction between the “talk tough” language of the Government and the more considered, balanced and careful language of officials and Ministers that we hear in private. My noble friend called it “nuanced”. I add that the careful and cautious language she spoke of is also the language of nearly all the professionals in the system to whom we speak, be they in the Prison Service, probation service, inspectorates or elsewhere.
The important point is that longer sentences, while they may be necessary, are neither the only answer nor a complete answer. The “talk tougher” approach, leapt upon with enthusiasm by the press, has struck many of us as having had too little consideration. In his response, the Minister demonstrated that he certainly is determined to take an evidence-based and cautious approach to the issues raised by the Bill, including polygraph testing.
I accept the Minister’s point that the inclusion of these amendments in the Bill is not essential to provide that the work, which he described to us in some detail, is consistently explained to parliamentarians in both Houses. The important point about reviews, which I invite him and others to bear in mind—though not to lodge in their skulls—is that reviews which report to Parliament enable noble Lords here and MPs in the other place to consider and weigh up the evidence as it becomes available.
The Minister was completely right that there is no simple cure, but it is an important part of the role of Parliament to consider the evidence as it develops. The Bill puts before us a set of new and radical measures of particular severity. They need to be kept under constant attention. On the basis that they will get that attention because of work done by the Government and promulgated to Parliament, I beg leave to withdraw my amendment.
Amendment 12 withdrawn.
Amendment 13 not moved.
My Lords, we now come to the group beginning with Amendment 14. Anyone wishing to press this or any other amendment in the group to a Division should make that clear in debate.
Clause 34: TPIMs: condition as to involvement in terrorism-related activity
14: Clause 34, page 29, line 21, leave out “has reasonable grounds for suspecting” and insert “reasonably believes”
Member’s explanatory statement
This amendment would change the proposed new test for the imposition of a terrorism prevention and investigation measure from one of reasonable suspicion of involvement in terrorism-related activity to one of reasonable belief of such involvement.
My Lords, in moving Amendment 14, I will speak also to Amendment 22; both stand in the name of my noble friend Lord Wolfson of Tredegar. I will respond to the other amendments in this group at the end if the noble Lords in whose names they stand speak to them.
The Government have listened to the mood of your Lordships’ House as expressed in Committee, specifically the concerns of a number of noble Lords about lowering the standard of proof for imposing a TPIM to “reasonable grounds for suspecting” involvement in terrorism-related activity. The Government have reflected on those concerns and tabled these amendments. On behalf of my noble friends and myself, I thank all noble Lords who engaged with us since Committee as we did so.
Amendment 14 will lower the existing standard of proof for imposing a TPIM of “balance of probabilities” to “reasonable belief”. However, this is a higher standard of proof than originally proposed by the Bill, and a higher standard than was applied under the previous control order regime.
As a result of this amendment, the Home Secretary will need to “reasonably believe”, rather than hold “reasonable grounds for suspecting”, that an individual is, or has been, involved in terrorism-related activity before she can impose a TPIM. In practice, and as noted by the noble Lord, Lord Anderson of Ipswich, in Committee, “reasonable belief” is closer to the current “balance of probabilities” standard than it is to “reasonable suspicion”. It is the standard that applied when TPIMs were first introduced in 2011 and the standard that is in place for other key tools used to counter terrorism, including proscription and asset-freezing orders.
During our debates on the Bill, the Government and our operational partners have outlined several scenarios where a lower standard of proof could make a substantive difference to TPIMs as a risk management tool. While I will not repeat those, I stress that the scenarios put before Parliament are not unlikely but represent the shape of the modern terrorist threat. It is in light of such threats that the Government want to future-proof this valuable risk management tool so that our operational partners, who work so hard to keep the public safe, are able to use them as they need to.
The Government are confident that this amendment represents a sensible compromise and trust that it addresses the concerns raised about the previously proposed standard of proof and the cumulative effect of the wider package of TPIM changes proposed in the Bill. We are particularly glad that the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Thomas of Cwmgiedd, have put their names to this amendment. Both raised concerns in Committee, drawing on their considerable expertise in this area. I hope it will be welcomed by others across your Lordships’ House.
Amendment 22 introduces a statutory requirement for the Independent Reviewer of Terrorism Legislation to review the operation of the TPIM Act 2011 on an annual basis for the five years following Royal Assent. Commencing with a review of the operation of the TPIM regime in 2022, the independent reviewer will prepare an annual report which the Home Secretary will lay before Parliament.
In earlier stages, a number of noble Lords spoke about the importance of independent oversight of the TPIM regime. This amendment will guarantee that, alongside the judicial oversight built into TPIMs, which the House has heard about, the independent reviewer will provide independent, rigorous and transparent scrutiny to the operation of TPIMs for the next five years. He will have full access to the relevant sensitive information and personnel and will routinely attend Home Office and Security Service chaired meetings concerning the imposition of a TPIM notice and the management of TPIM subjects.
We are pleased that the current independent reviewer, Jonathan Hall QC, has confirmed his support for this change and for government Amendment 14 on the standard of proof, and that the noble Lord, Lord Anderson of Ipswich, has put his name to the amendment, as well the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Jones of Moulsecoomb. I hope that both amendments will be welcomed. I beg to move.
My Lords, Part 3 of the Bill raises for these Benches some considerable points of principle regarding terrorism prevention and investigation measures. I know some noble Lords may hear that as not appreciating threats posed by some and the devastation caused by actions that are more than threats. They may hear that we do not appreciate what is achieved by the agencies protecting us from harm—harm that we, the public, did not even understand we were in the way of.
None of that should be read into what we say on these amendments. What should be understood is our concern for principles regarding detention without trial and the presumption of innocence. These are principles of which our country is proud. There are principles and interests to be balanced here.
We asked to group together all the amendments regarding TPIMs, other than those regarding polygraphs, because we thought that that would be more convenient for the House and because Part 3 appears to be a package. The noble Lord, Lord Parkinson, has spoken to government Amendments 14 and 22. I will start with Amendment 22, which proposes an additional clause. We are certainly not opposing it. I wanted to understand what this proposed new clause will provide for that cannot be done now by the Independent Reviewer of Terrorism Legislation. On the last group the noble and learned Lord, Lord Stewart, stressed the importance of the independent reviewer being able to set priorities, so imposing the obligation on him is interesting. Yesterday I had the opportunity, for which I thank him, to ask the noble Lord, Lord Wolfson, about this. He confirmed that the reviewer can carry out an annual review and that this addition is due to the Government wanting to be certain about how all this is going; I hope I have that right. I welcome that the Government want to be clear, but I would not have thought that they needed the amendment.
We have had a series of energetic, diligent and what in current jargon is often called “curious” reviewers, all of whom have juggled the work of the reviewer with other professional commitments. Their time, resources and capacity are necessarily limited, so we do not regard this government amendment as some sort of concession. I should express the concern that this specific, quite narrow, statutory commitment could well limit the ability of the independent reviewer to undertake work on the very many other aspects of terrorism legislation.
As regards government Amendment 14 and our amendments to leave out certain clauses, our starting point is that there is no need to extend TPIMs, such that, taken together as they are intended to be, they amount to the possibility of house arrest for individuals who have not been found guilty of anything. The House heard in Committee, as did the House of Commons, that neither the current independent reviewer nor the police see the need for this change. No one could argue that the measures currently permitted—those imposed on individuals—are not stringent, and no one should argue that the measures should be more stringent so that they are more of a sanction or punishment, because investigation and prevention measures are not intended to be punishment. They were introduced as temporary measures. This is not a tool in the toolbox for which we see a justification for extending.
Amendment 14 changes suspicion to belief—a judgment which still must be made by the Secretary of State. Belief is a higher threshold than suspicion, and to that extent it is welcome. But it is not as high as satisfaction on the balance of probabilities that an individual is, or has been, involved in terrorism-related activity. I appreciate that there are other safeguards but, as the noble Lord, Lord Anderson, put it at the last stage, it would be a brave court that would second-guess evaluation by an elected Minister who has full access to intelligence.
The noble Lord, Lord Parkinson, may say, as he said in Committee, that the Government are given flexibility by this reduction in the threshold. I think that saying flexibility is a soft way of saying wider powers. That is why we are registering our opposition to the change in the requirement under Section 3 of the 2011 Act by our amendment to leave it out.
I cannot detach Clause 34 from Clause 35, which would effectively make a TPIM and its various measures, including “residence”—or detention—indefinite. The point was made pithily by the noble and learned Lord, Lord Thomas of Cwmgiedd, in Committee. My noble friend Lord Strasburger talked about the double whammy, reminding us of the extension of the requirement as to where an individual is to live. In Committee, the noble Lord, Lord Parkinson, referred to “an enduring TPIM.” Enduring? Indefinite? That is what Clause 35 would allow. Having no hope is a terrible thing. My noble friend Lord Marks referred to “no-hope sentences” in the context of explaining to your Lordships' House the panel’s views on rehabilitation that we had heard. No hope can have an outcome completely opposite to what is intended. It can lead to an attitude of “What have I got to lose?” It could lead to not having anything to lose and managing to get involved in terrorism, with catastrophic effect.
The noble Lord, Lord Parkinson, said yesterday, in a discussion, that the current limit gives the subject an endpoint at which he can aim, so he can spend his experience of the measures planning what to do when he is released from them. We are not persuaded by that view.
If the noble Lord, Lord Anderson, presses the amendment of up to three extensions—six years, that is—we will support it, as that is clearly an improvement on indefinite detention. If the House agrees it, we will recognise that that is what the House wishes and not divide to leave out the clause. But if it is not agreed nor put to a Division, we will seek the opinion of the House on the clause, and this is my giving notice of that.
Clause 37, on the residence measure, changes Schedule 1 to the Act to allow for the imposition of a requirement to remain at a specified residence, which is
“applicable overnight between such hours as are specified.”
Taking away the word “overnight,” as is proposed, will mean that the requirement will be “applicable … between such hours” with no specified limit. In Committee, we heard two examples of what the Government want to address with this. The first is that if a subject is thought to be a radicalising threat to children, he should be confined during hours at which young people arrive at and leave school. Frankly, I would have thought that an individual with that in mind would be rather more subtle, but that is not the point. The second example is that if an individual is a suspected attack planner, he should be curfewed for weekends during local football games—as well as, presumably, any other big local gatherings, but football games were the example. Again, in parenthesis, given that very few major matches seem to still kick off at 3 pm on a Saturday, I wonder about this. But I acknowledge that the Minister referred to the weekend, and anyway, again, that is not really the point.
We are told that all this is subject to overriding restrictions on the length of curfews established by case law, which is 16 hours at the very maximum at present. However, the Government have chosen not to put a limit into the Bill, so unless and until challenged before a court, and that is not a quick or easy process, it pretty much means house arrest. I wonder whether the police might be met—although I rather doubt it— with a subject saying one evening, “Well you kept me in all weekend, now I am off down the pub.”
The noble Lord, Lord Parkinson, said that in practice, the residence measure would likely—I stress likely—not exceed 16 hours a day without constituting an unlawful deprivation of liberty. We do not find “not likely” a reassurance, so this is also a part of the package on which we intend to divide the House.
My Lords, nostalgia is the theme of the Government’s amendments in this group, because each of them takes us back to the wording of the original TPIM Act 2011. I am nostalgic enough for those days to have put my name to both amendments.
Amendment 14 on the standard of proof, in the name of the Minister, is a tribute to those noble Lords from all parts of the House who spoke so compellingly to the similar amendment that I had the privilege of moving in Committee. They include the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer, each of whom advised—rightly as it turned out—that my amendment did more than was necessary to accommodate the Government’s legitimate concerns. Gift horses should not be looked in the mouth, still less kicked in the teeth. Ministers have listened and have acted decisively. I thank them for that and welcome the retention of a standard of proof, whether expressed as reasonable belief or as balance of probabilities—between which I see no real distinction in practice—that has by the Government’s own account caused no unnecessary difficulties and exposed us to no avoidable danger over the past 10 years.
With a little more hesitation, I put my name also to the Government’s Amendment 22. This reinstates the original requirement in Section 20 of the TPIM Act 2011 for an annual review of the operation of the Act by the independent reviewer, which in turn succeeded a similar requirement in relation to control orders. Section 20 was amended in 2015 to allow the independent reviewer an increased degree of discretion as to the timing of those reviews. That was not unwelcome to the independent reviewer at the time—I declare an interest—who had, as I recall, been given a number of commissions additional to his normal annual duties. However, I understand that the current independent reviewer is content, and on that basis I support Amendment 22 on two conditions. The first is that the independent reviewer should have the necessary resources to perform his various important tasks with the frequency that will now be required and with the promptness that is so desirable. The second condition is an acceptance that, useful as these reports are to those of us concerned with policy in this area, they can be no possible substitute for the scrutiny of individual cases on the evidence that is properly the function of the TPIM review group, to which the Minister alluded, and of the courts.
However, this group is concerned with more than nostalgia. TPIMs have moved on since 2011. These notably harsh measures are harsher than they were then and will soon become harsher still. The toughest measure of all, relocation, with or without one’s family, to a distant town or city—colourfully described by Liberty as “internal exile” and removed by the 2011 Act —was restored on my recommendation in 2015. A range of other new obligations has been added to the list of available measures. Assuming that Clause 37 goes through, notwithstanding Amendment 18, TPIM subjects will for the first time be able to be confined to their houses for substantial parts of the day, while no doubt being tagged, limited in their social contacts and obliged to report to the police station during the periods that they are allowed out. That is rather a different proposition from observing a night-time curfew only in one’s home borough, which is how things were in 2011.
The cumulative effect of numerous measures under a TPIM, even under the existing law, was explained in this way by LF—a TPIM subject, anonymised like the others into a pair of initials—in recent evidence to the High Court. That evidence was summarised by Mrs Justice Farbey in the judgment handed down on 10 February this year:
“He says that he felt as if he was being asked to do something which is not humanly possible: to fulfil multiple and often changing obligations over possibly a two-year period without making one single mistake. He felt as if he was in a trap: if he were to breach any of the TPIM, he would be convicted and imprisoned. The TPIM would then be re-imposed, perhaps with even more requirements, and he would once again be at risk of breaching them.”
For, of course, while the basis for a TPIM can include conduct falling short of the criminal threshold—support, assistance and encouragement more broadly understood than in the criminal law—even the most trivial breach of a curfew or reporting requirement is a criminal offence for which the maximum penalty is five years in prison.
That is the context in which we have to consider the remaining amendments, Amendments 16 and 17. Your Lordships have three options, and I emphasise that none of them is a liberalising option. The Liberal Democrats, with their Amendment 17, offer a continuation of the status quo: a two-year maximum limit in the absence of new intelligence—as initially proposed by my predecessor, the noble Lord, Lord Carlile—save in exceptional cases, and as supported by the current independent reviewer.
The Government, with Clause 35, offer an unlimited extension, which would allow radicalisers in particular—whom the Government told the independent reviewer are
“the likely targets of enduring TPIMs”—
quite simply to endure forever, even if the intensive monitoring of the subject turns up not a single scrap of evidence or intelligence suggestive of re-engagement.
My Amendment 16 takes the middle path. It recognises that, as I reported in 2013, it is tempting to wish for longer than two years in the most serious cases. However, it recognises also that TPIMs must not be allowed to become a more attractive option than prosecution, that the authorities must be incentivised to work on an exit strategy—and not simply to warehouse TPIM subjects—and that in a free country, our fellow citizens, however odious we might consider them, cannot be indefinitely confined by the state in the absence of any attempt to put them on trial.
It is said that TPIMs of indefinite duration will in reality be no such thing because Ministers will volunteer their discontinuance and because the courts can be counted on to intervene if they do not. Yet, with respect, the evidence casts doubt on both propositions. I understand from the independent reviewer, who on his own initiative asked officials about this, that every TPIM imposed since 2015, unless revoked for extraneous reasons, such as imprisonment or a court order, has been extended by the Secretary of State on the one and only occasion that this is normally permitted under the existing law. That is hardly surprising. If a released TPIM subject were subsequently to reoffend, who in active politics would want to be the Home Secretary who had chosen voluntarily to release him from constraint?
As to court proceedings, it is not just that closed material proceedings make them slow and cumbersome, that they do not allow the subject to instruct his special advocate or to call evidence on the full national security case against him, or that the Home Secretary asks for and is generally accorded—as she was by the Supreme Court last week in the Shamima Begum case—a high degree of judicial deference for her decisions relating to national security. There is also, most regrettably, a funding and hence an access to justice issue. I am again grateful to the independent reviewer for the information that of the handful of current TPIM subjects, no fewer than three—JD, HB and HC—sought funding from the Legal Aid Agency to enable them to be represented in review hearings but were turned down, after which they requested the court to discontinue those review hearings.
It is said that indefinite TPIMs will keep us safer. On that, I first invite noble Lords to reflect on the severity of my own amendment. It would mean that the Secretary of State’s initial belief that a subject has probably been involved in terrorism is enough to justify four years on a TPIM, with every move tagged and every conversation potentially monitored. If further intelligence emerges of involvement in terrorism, at any stage during those four years, under my amendment a fresh TPIM could still be imposed, again extendable up to a further four-year limit—and so on, ad infinitum. That, surely, is draconian enough.
Would we be kept safer by the indefinite warehousing of TPIM subjects beyond the four-year mark, without the need for intelligence derived from what is, after all, not just a terrorism prevention measure but a terrorism investigation measure? Such people could readily become martyrs to a certain audience as, in a small way, one or two control order subjects did. As my noble and learned friend Lord Thomas of Cwmgiedd said in Committee, by reference to the IPP regime, of which he has great experience,
“indefinite detention often makes someone more dangerous because you take away hope.”—[Official Report, 9/2/21; col. 273.]
This country has a long tradition of combining high levels of national security with a vigorous defence of individual liberty. We never imposed indefinite house arrest, relocation and other similar restrictions on those who preached communist revolution, and we have never imposed TPIMs, although we have the power to do it, on radicalisers of the extreme right wing or the Irish republican persuasion. Nor are we where we were in 2005, when it was widely feared that al-Qaeda-directed plots would take tens of thousands of innocent British lives. Existing measures have helped ensure that the total death toll from terrorism this century, in Great Britain, stands at less than 100. To introduce indefinite executive detention in response to this miserable bunch of ideologues would, I suggest, be a signal not of strength but of what the terrorists most want to see from us: fear and overreaction.
National security law must be more than a series of proportionality assessments performed by the Executive and observed by respectful courts. Something more is needed—checks and not just balances—or how else can Parliament offer guidance on where the limits should be? Your Lordships’ House has already this year greatly improved the Covert Human Intelligence Sources (Criminal Conduct) Bill, whose original version suggested that this important truth may have been forgotten. This Bill, on a similar theme, was described by the independent reviewer as
“conspicuous for its lack of safeguards.”
Amendment 16 extends the reach of these always controversial TPIM measures, but it at least retains a tangible check on the executive power to constrain—a power of which the TPIM is the strongest example known to our law. I hope that the good sense of this amendment will commend it to your Lordships. With that in mind, my intention is to test the opinion of the House.
My Lords, I feel much more educated than I did half an hour ago. Today, I found myself not only supporting but signing a government amendment, which is a first for me—what a pleasure. I was in the prestigious company of two QCs and a privy counsellor. I will support any and all amendments that are moved. I find the four-year limit a little tougher to accept than that of two years, but anything that is not indefinite is an improvement.
In normal times, this issue would get much more coverage, but Brexit, Covid and everything else are taking the public’s attention away from these issues. Anything that would implement unending government surveillance and intrusion on someone’s life is, frankly, terrifying.
The amendments of the noble Lord, Lord Paddick, to remove various clauses, and those of the noble Lord, Lord Anderson, would significantly improve this Bill. I hope that noble Lords who have been involved in this Bill will continue to work with us. They have shown that they are prepared to improve the Bill and I think that further improvements are possible. I hope that they are listening and will accept these amendments.
I speak in support of Amendments 15, 17 and 18, which would remove Clauses 34, 35 and 37 from the Bill. Each of those clauses would, if retained, significantly increase the severity of the TPIM regime or reduce the safeguards against the misuse of TPIMs and miscarriages of justice. Their combined effect would result in a dramatic increase in the powers of the Secretary of State, all to the detriment of fairness, justice and the freedom of those subjected to TPIMs.
The existing TPIM regime gives the Home Secretary the power to confine an individual to a property, perhaps located a long distance from their home, with a plethora of restrictions on how they live their lives and communicate. These clauses would give the Secretary of State new powers to impose a total 24/7 curfew, which is effectively house arrest, and to make this non-stop detention unending, permanent or until the person dies.
The subjects of TPIMs, who may never have been convicted of anything, could be condemned to a far longer period of incarceration than violent criminals and terrorists who have been convicted and sentenced by a court. That could happen without them knowing the allegations against them and without them having had any chance to see the evidence on which those assertions are based, let alone to challenge and refute them. Clause 34, even after being amended by the Government, makes it even easier for the Secretary of State to decide, at the stroke of a pen, to put an individual under this tough house arrest regime.
As the law now stands, she needs to believe, on the balance of probabilities, that the person is or has been involved in terrorism. I am no lawyer, but I can still do arithmetic and I take “on the balance of probabilities” to mean that there is a greater than 50% chance that she is right and the person is a terrorist. The clause changes the threshold from “on the balance of probabilities” to “reasonable belief”. Since the Government accept that this change lowers the burden of proof, I calculate that that means that the probability of them being a terrorist could be less than 50%, but they could still be locked away indefinitely. That means that the probability of them not being a terrorist threat could be greater than the probability that they are.
How could that come about? It could just be an honest mistake, based on flimsy evidence. We had a very strong hint that this does happen, when the current Independent Reviewer of Terrorism Legislation, who has access to classified material, gave evidence to the Public Bill Committee. He said:
“There is a risk that mistakes can be made about assessing intelligence. I have reason to believe that. My concern is that you are opening up a greater margin of error if the standard of proof is lowered. It is a fairness issue based on the authorities having all the cards.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 6.]
Answering another question, he said that he knew of instances where the intelligence had been misunderstood. There you have it: a highly reputable and well-informed person is warning us that innocent people are being punished under the current standard of proof, let alone the lower standard to which the Government would have us agree, under Clause 34, as amended.
What sort of country are we becoming if we are prepared to lock somebody away, all day and all night, indefinitely, even if the chance of them not being a threat is greater than the chance that they are, and having given them no chance to defend themselves? Why, you might ask, are the Government seeking to tilt the scales, not once but three times, towards even more draconian powers, with less justice and fewer safeguards against mistakes or abuse? You would think that there must be strong and compelling reasons for this triple assault on the fairness of our justice system, but the sad truth is that the explanations that have been offered during the passage of the Bill are utterly threadbare and unconvincing. They have the appearance of having been retrofitted, long after these clauses were added to the Bill, in a forlorn attempt to justify the unjustifiable.
The Independent Reviewer of Terrorism Legislation, with all his inside knowledge, searched for a good reason to lower the burden of proof and failed to find one. He said that
“it is not clear why there is any need to change the law in the manner proposed …where harsher measures are to be imposed, safeguards should be encouraged, not jettisoned.”
He also said that
“there is reason to doubt whether there exists an operational case for changing the TPIM regime at this … time.”
That is as forthright a condemnation of these three clauses as we are ever likely to hear from someone in his position.
What reasons have the Government come up with to justify lowering the burden of proof and therefore diminishing the safeguards against mistakes and misuse? We have been told that it will be easier to impose a TPIM, which frankly is a transparently circular argument. We have been told how hard it is to gather evidence to satisfy the current burden of proof. We have been told about pro-ISIS fighters returning from Syria being difficult to investigate. We have been told that it would simplify administration, although that is hardly a good reason for increasing the probability that innocent people are incarcerated by mistake.
All of these supposed justifications and all the others that have turned up and disappeared along the way were comprehensively holed below the water line by the Government’s star witness giving evidence to the Bill Committee. Assistant Chief Constable Tim Jacques gave evidence of behalf of the police and the intelligence services on 25 June last year. In answer to a question from Joanna Cherry MP, he made it clear that the current standard of proof is not an impediment to authorities getting a TPIM when they want it. His exact words were:
“MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.”
We have been told by the police and the agencies that there is currently no problem to be solved. The Government’s last resort in devising an excuse for these clauses is to tell us that we do not know what problems are coming down the track, and that it would be nice to have another tool in the toolbox. Well, on that basis we can justify just about anything—we could use the prospect of impending but unknown doom to excuse all manner of assaults on our liberty and our lives. This “just in case” style of legislation is fraught with dangers. Powers that we were told would never be used can quickly become heavily used and set the new standard. We cannot, in all conscience, allow the Government to get away with such slapdash explanations for making their powers even more draconian while reducing the safeguards against injustice.
Clauses 34, 35 and 37 are not needed. The Government have not come close to finding a cogent and convincing justification for them. They have no place in the Bill and must go. As Jonathan Hall QC, the independent reviewer put it so eloquently in his evidence to the Bill Committee:
“If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 7.]
I invite noble Lords to support Amendments 15, 17 and 18 should the House divide on them.
My Lords, I thank the Minister for the time he has given to speak about this Bill and for government amendment 14 on the burden of proof. I welcome the change of heart in that respect.
As to the other area on the potential length of TPIMs, I very much hope that the Minister will accept what is essentially the compromise in Amendment 16 between indefinite periods for TPIMs and the current period. It seems to me that the gap that divides us is not that great. TPIMs can be imposed not merely because criminal conduct is suspected, but also because of activities that may not be criminal. It is imposed by the Executive. Although, of course, there is a right of review to the court, a right of review is very different from the decision of a court or independent tribunal in deciding whether the grounds exist.
It is therefore important to appreciate that the very significant restrictions on liberty are imposed by the Executive, something generally alien to our tradition. It would be even more alien to our tradition to go to the extent of enabling the Executive to impose such a restriction for an indefinite period of time. Such restrictions should only be available on people’s liberty where people are convicted of serious criminal offences. Quite apart from the humanitarian and liberty and traditional aspects of that argument, there is the further argument which I raised, and will not repeat, on Second Reading: namely, indefinite orders can, as experience has shown, give people a loss of hope, and in effect make them more dangerous and less susceptible to being reformed.
The compromise that we have put forward in this amendment is further emphasised by the fact that of course if there is new evidence of activity during the period, the four years is not an absolute cut off.
Finally, there is a great deal of sense in having a cut-off period. It is very easy for any decision-maker, particularly one who is worried about the consequences of not extending the TPIM, to go on extending and extending it. It is very wasteful of resources, because enforcing a TPIM is very expensive. It is also fundamentally unfair that someone should be subject to a decision that can go on being rolled over indefinitely rather than someone—to put it in the vernacular—having to put up and charge with an offence or to shut up.
I very much hope that the Minister will think again about the compromise offered in this amendment and accept it.
My Lords, this group deals with changes to TPIMs. The current Independent Reviewer of Terrorism Legislation, someone who has unique access to secret intelligence, operational partners and government officials, has previously stated that the changes proposed in the Bill to the TPIM regime were not necessary. We agree, as my noble friend Lord Strasburger so powerfully set out in his speech.
In relation to Clause 34, the current independent reviewer says that he is not aware of any case where operational partners had wanted to impose a TPIM but were unable to do so because the burden of proof was too high, as confirmed by the representative of operational partners in the Bill Committee in the other place.
In 2006, a former Labour Government claimed that detention of a terrorist suspect without charge for up to 90 days was necessary, on the basis that, although existing limits had not been a problem up to that point, it might be necessary in future. Parliament rightly rejected the Government’s proposals and, 15 years later, such a lengthy period of detention without charge so that evidence can be gathered sufficient to charge has not proved necessary. This Government are adopting exactly the same argument here: it has never been a problem in the past, but might be in future.
However, the Government have rowed back from their position in Committee. As my noble friend Lady Hamwee said, we do not want to test the patience of the House in light of the Government’s concession, so we will not oppose Amendment 14, despite there being no evidence that this change is necessary.
On Clause 35, the fundamental principle is that TPIMs should be only a temporary measure, to protect the public from a perceived threat while evidence is gathered to charge the suspect with a substantive offence. The government argument appears to be that the suspect could be very careful not to incriminate himself if he knows there is a time limit to the restrictions placed on him. No matter how long the TPIM is in force, the argument that, if your every move is limited—who you can associate with, where you can go, what you can look at on the internet, who you can call on the telephone—the chances are that you will allow your mask to slip, just given enough time, is unconvincing. This should be about looking for existing evidence or alternative sources of evidence that can be admitted in court, rather than hoping that the suspect might incriminate himself if only we give him long enough.
Should suspicion persist despite there being insufficient evidence to put before a court, surveillance of the suspect following the lifting of the TPIM is far more likely to provide self-incriminatory evidence—rather than the Government’s argument that such evidence is likely to be forthcoming if only the TPIM were indefinite. If, as the Government seek, TPIMs can be extended indefinitely and there is suspicion—even inadmissible intelligence—of terrorist activity, but not enough evidence to prosecute, it would be a very brave Home Secretary who released such a suspect from a TPIM when she had the power to extend it indefinitely, as the noble and learned Lord, Lord Thomas of Cwmgiedd, just said.
As my noble friend Lady Hamwee said, if the noble Lord, Lord Anderson of Ipswich, whose arguments were comprehensive and compelling, divides the House on his extension of the TPIM limit to four years, we will support him, as it at least preserves the principle that TPIMs must be temporary. If he does not carry the House, we will vote on principle against TPIMs potentially becoming a means of permanently depriving an individual of his basic human rights without charge or trial.
On Clause 37, current legislation allows an overnight curfew, or remaining at a specified residence, and the courts have held that an overnight curfew may be up to 16 hours out of 24. The Government claim that “overnight” is not flexible enough and that, for example, operational partners might want to stop the suspect radicalising schoolchildren, as my noble friend Lady Hamwee said, and want to keep him at home during the day rather than at night. In that case, why is there no limit in the Bill, such as the one courts have placed on overnight curfews, to the number of hours such a curfew can be imposed?
Whatever the Government say might happen and whatever operational partners say they want the change for, the changes proposed by the Government in Clause 37 would allow a curfew of 24 hours out of 24—effectively house arrest. Were the conditions that can already be imposed by a TPIM not enough, Clause 37, with the changes the Government propose in Clause 35, could result in indefinite detention without charge or trial. The powers contained in these clauses could amount to the return of internment, albeit in someone’s own home. On this fundamental principle, we intend to seek the opinion of the House.
Government Amendment 22 to reinstate the requirement for an annual review of TPIMs is welcome—although, as my noble friend Lady Hamwee said, we are concerned about potential unintended consequences and, as the noble Lord, Lord Anderson of Ipswich, said, it must be provided the Independent Reviewer of Terrorism Legislation is given the necessary resources to conduct these reviews—but not sufficient for us not to oppose the changes to TPIMs that these clauses propose. Please add my voice and those of my noble friends in favour of any Divisions that might be called in this group.
This is an incredibly important debate, because it goes very much to the heart of the views we take on what the Executive can do. It is anathema to our system that the Executive can impose restrictions on individual citizens on the basis of either the balance of probabilities or, worse, reasonable suspicion. Any restrictions placed must be justified, normally in a criminal court or, in the context of the current pandemic, by an exceptional event such as the pandemic.
All those who have engaged in this debate have accepted the need for some form of TPIM. On behalf of my party, I accept that too, but all our instincts should say that it should be on the most limited ground necessary at any point. I strongly opposed, as my party did, the idea that one can impose a TPIM on the grounds of suspicion alone and welcome Amendment 14, in which the Government reject that approach and go for a situation where the Minister “reasonably believes” that the person has been engaged in terrorist activity. The difference between “reasonably believes” and “balance of probabilities” seems in practice quite difficult to define; the Minister has to believe that the person has been engaged in terrorist activity and he or she must have reasonable grounds for believing so. What is the difference between having reasonable grounds on one hand and believing it on the balance of probabilities on the other, when the person who will test that is the courts? I think it is quite fine, but we will support government Amendment 14. I am grateful that they have listened; it is a very significant shift. The difference between honestly and reasonably believing something and suspicion is significant.
I am very disappointed that the Government persist in the idea that, once you have the basis for a TPIM, you can roll it over indefinitely. As various noble Lords have pointed out, the inclination of the Executive will be to roll these things over without further evidence. Therefore, we on this side of the House will also support Amendment 16.
Four years is a long time, longer than allowed at present and, what is more, the four years can be extended if new evidence emerges during that four-year period. We think there should be a limit on when a TPIM can be granted, where there is evidence for it. We would need new evidence to extend it beyond the four years. We think that four years is a long time, but we recognise that if the House backs this four years, that is the basis for a compromise we very much hope the Government will accept.
Amendment 22 would compel the Independent Reviewer of Terrorism Legislation to conduct an annual review in relation to TPIMs. I think that is right. I agree with everybody who has said that the independent reviewer has to be properly resourced to do it. This is such an exceptional power that I think it is right that the independent reviewer should look at it every year.
On the proposition that there needs to be a limit on the period of restriction that is required in a particular home, because the power is going to be amended to remove the reference to “overnight”, the Government have given assurances that there will be such a limit, because of the courts’ imposition of limits to ensure that nobody is imprisoned in their house for 24 hours a day, which is what the noble Lord, Lord Strasburger, said the consequences of the section would be. That is not my understanding, legally, of the consequence of the removal of “overnight”, but I would like the Minister to repeat that assurance and also to say that if the court protection went, the Government would come back to ensure that it could not involve 24-hour imprisonment, in effect, in a particular house.
These are exceptional powers. Our role in this House is to ensure that they are subject to specific limits. I think the combination of government Amendment 14, Amendment 16, in the name of the noble Lord, Lord Anderson, and government Amendment 22, which would compel an annual review, is a workable compromise. I am very disappointed that the Government are not accepting it at the moment.
My Lords, before I turn to the amendments to which I have not yet spoken, I will address a question from the noble Baroness, Lady Hamwee, on government Amendment 22, about the requirement for the independent reviewer to produce an annual report every year for the next five years. She is right to say that the independence of the independent reviewer means that he could, if he so wished, provide such a review, but we want to ensure that he does so, because of the changes that are being made by the Bill. We, like a number of noble Lords who cited his work and that of his predecessors, find them useful and would find it useful to receive them over the next five years. We do not think that is unduly burdensome, as the noble Baroness suggested it might be. Indeed, that is evidenced by the support of the current independent reviewer, Jonathan Hall, for the amendment. I hope that that reassures her on that point.
I turn to the amendments. Amendment 15, in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would remove Clause 34 in its entirety, and in doing so prevent the Government lowering the standard of proof for imposing a TPIM to “reasonable belief” of involvement in terrorism-related activity. As I set out earlier, the Government have listened to the concerns raised in Committee and brought forward a compromise, by lowering the standard of proof to a lesser extent than originally envisaged; namely, “reasonable belief” instead of “reasonable grounds for suspecting”. We are confident that this approach represents an appropriate middle ground, one that ensures we are taking action to protect the public from an evolving and more diverse terrorist threat, while addressing the concerns that were expressed in Committee. Of course, “reasonable belief” is a standard which has been used in the past, having first been introduced in 2011 by the coalition Government, which included the Liberal Democrats as well as my own party.
The Government are committed to ensuring that our operational partners have the necessary tools at their disposal to support them in their crucial work. As I explained in Committee, the operational pace for these partners is faster now than ever before. Demonstrating that a person has carried out terrorism-related activity will frequently depend on incomplete intelligence rather than hard evidence. The Public Bill Committee in another place heard from Assistant Chief Constable Tim Jacques the Security Service’s assessment of the benefits of lowering the standard of proof. I will not repeat at length the three scenarios he outlined where a lower standard of proof could make a tangible difference—the Syria returnee, a known radicaliser, or a rapidly escalating risk linked to an individual consuming online content—but I emphasise again that these are credible scenarios which our operational partners will often encounter.
That the Security Service has not so far been prevented from imposing a TPIM under the current standard of proof does not mean, as the noble Lord, Lord Strasburger, suggested, that there is no justification for the change the Government are making. It is entirely right that the Government should seek to future-proof the TPIM regime to ensure that our operational partners can continue to be able to protect the public. As I said in our earlier debates, when it comes to countering terrorism, even marginal benefits can help save lives.
As I set out in Committee, the standard of proof is just one of five conditions that need to be met in order to impose a TPIM. The other four conditions will remain unchanged, with strict conditions around the measures that can be imposed and robust safeguards for the civil liberties of the subject. That includes the courts continuing to consider, at a permission hearing, whether the Home Secretary’s initial decision to impose a TPIM notice was “obviously flawed” and preventing her imposing the notice where that is the case. Following the changes made by this Bill, TPIMs will remain a sparingly used but highly valuable tool for protecting the public from the risk posed by a small number of dangerous people. I therefore urge the noble Lord to not move that amendment.
Amendment 16, in the name of the noble Lord, Lord Anderson of Ipswich, would, as he explained, prevent a TPIM notice being renewed for as long as it is necessary for the purposes of public protection by setting a new upper limit of four years. While the Government respectfully disagree with the amendment, we support its principle in so far as it recognises that the current two-year limit is too short. In Committee, I set out the policy and operational justifications for Clause 35 and I shall summarise them again very briefly now.
First, experience has shown that there are TPIM subjects who pose an enduring risk beyond the current two-year limit. This has meant that a new TPIM has had to be imposed after reaching the current limit and, as a consequence, a dangerous cliff edge has been created, while the individual is at large in the community without the appropriate risk management tools in place before a new TPIM can be imposed. ACC Jacques spoke of this risk, and the challenges it creates, during the Public Bill Committee in another place.
Secondly, extending the maximum duration of a TPIM beyond two years will provide more time and incentive for the TPIM subject to engage in rehabilitative programmes, adopt a different lifestyle, break away from their previous extremist contacts and demonstrate that the TPIM notice is no longer necessary.
Thirdly, removing the time limit will multiply the benefits of the TPIM by restricting the subject’s involvement in terrorism-related activity, supporting efforts to degrade their wider network, should they belong to one, and reducing the wider long-term threat from others who might have been influenced by them were it not for the TPIM in the case of known charismatic radicalisers. I acknowledge that the noble Lord’s amendment would provide for some of these benefits, but not all and only to a more limited extent. By imposing a maximum length—which would, of course, be known by the subject—there would still be a potential cliff edge at the end of the TPIM, rather than it being a tool that can be renewed for as long as it is needed.
During the operation of control orders, which could, of course, be rolled over indefinitely, there were three exceptionally dangerous individuals who were subject to an order for between four and five years. The Government have been pressed on numerous occasions during scrutiny of the Bill to refer to concrete examples from the past: I hope this experience underscores why the Government cannot accept a four-year limit. The Government believe that a TPIM imposed for the purposes of public protection should be removed only when the risk to the public has been managed.
Clause 35 will not alter condition C of the TPIM Act, which requires that the Home Secretary reasonably considers that it is necessary for the purposes of protecting the public from a risk of terrorism to impose a TPIM. If necessity can no longer be demonstrated, then the TPIM must be removed, regardless of the fact that there is no time limit. The Government have no desire to keep individuals on TPIMs any longer than is necessary and proportionate for the purposes of protecting the public from a risk of terrorism; nor do our operational partners. TPIMs are resource-intensive tools and the Security Service and counterterrorism policing possess huge expertise in focusing resources on the highest risks. When a subject no longer poses a significant risk to public safety, operational partners will be the first to seek removal of the TPIM. The Home Secretary rightly places great confidence in the expertise of the Security Service and counterterrorism policing. We should trust their judgment as to whether a TPIM remains necessary or not.
TPIMs are, of course, subject to regular scrutiny, including through quarterly and annual review meetings, which the Independent Reviewer of Terrorism Legislation is invited to attend. Through these regular meetings, key considerations such as the case for the individual’s prosecution—always our first preference—and their TPIM exit strategy are kept under careful review. Removing the time limit will not change this. I remind the noble Lord, Lord Strasburger, in particular that under Section 9 of the TPIM Act 2011 all TPIM subjects are granted an automatic review on the imposition of their TPIM notice, while Section 16 provides an avenue of appeal for subjects who wish to challenge the decision to extend their TPIM notice for a further year. Moreover, as I outlined earlier in relation to Amendment 22, to strengthen independent oversight further the Government tabled that amendment, requiring the independent reviewer to produce annual reports for the next five years. I hope that for those reasons the noble Lord, Lord Anderson of Ipswich, might even at this late stage be willing not to move his amendment.
Amendment 17 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would remove Clause 35 from the Bill entirely, and the Government must therefore reject it in the strongest terms for all the reasons that I have just set out. I hope that they will not press that amendment, as they indicated that they might.
Lastly, I turn to Amendment 18, also in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. It relates to Clause 37, which amends the existing overnight residence measure in Schedule 1 to the TPIM Act 2011 to enhance the ability of the Home Secretary to specify certain hours when a TPIM subject must remain at a specified residence. The amendment would remove the clause from the Bill entirely and prevent the operational benefits from being realised. That is why the Government cannot accept it. Operational partners have in the past confirmed that, with respect to some specific TPIM cases, greater flexibility than is currently provided for by the existing overnight residence measure would have been desirable. Again, we heard from the noble Baroness, Lady Hamwee, some of the examples given.
In the case of attack planners, there may be circumstances in which it is necessary to control their whereabouts during the day to prevent that attack from being carried out. In the case of charismatic radicalisers, it may be necessary to limit their contact with other people such as schoolchildren on their way to and from school. That is the issue that we are addressing by introducing the ability to impose a requirement for a TPIM subject to remain within his or her residence at specific times during the day, as well as overnight, when this is assessed as necessary and proportionate for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. As with all measures, its applicability will be carefully considered on a case-by-case basis in the context of each individual TPIM subject. It will not be part of a blanket approach.
There has been understandable interest in how that amended residence measure will operate in practice. I can provide reassurance in response to the question raised by the noble and learned Lord, Lord Falconer of Thoroton, that in the context of TPIMs there is no exception to Article 5 of the ECHR, the right to liberty. Instead there is an established body of case law that guides that, in practice, the residence measure placed on a TPIM subject could not ordinarily exceed 16 hours a day without breaching an individual’s right to liberty. We are clear that this measure should not and will not amount to an unlawful deprivation of the individual’s liberty. I therefore urge noble Lords also not to move this amendment.
I have received a request from the noble Baroness, Lady Hamwee, to ask a short question.
The Minister just referred to the number of hours in the day for which the restriction may apply. Why have the Government decided, assuming that the decision is positive, not to include in the Bill a total limit per day? He referred to Article 5 but would it have been more convenient for the Government, let alone TPIM subjects—the noble Lord, Lord Anderson, had a good deal to say about the problems of pursuing applications to the court—not to allow the prospect of getting caught up in proceedings challenging the total number of hours?
My Lords, the simple answer for not including that in the Bill is that we do not think that it is necessary to do so. The case law exists and has established that in practice the residence measure placed on a TPIM subject could not likely exceed 16 hours a day without constituting an unlawful deprivation of their liberty. However, measures are imposed and tested in the courts on a case-by-case basis, and that is the appropriate way to proceed.
Amendment 14 agreed.
Amendment 15 not moved.
Clause 35: TPIMs: extension of time limit
16: Clause 35, page 29, line 28, leave out “one or more” and insert “up to three”
Member’s explanatory statement
This amendment would impose a four-year limit for TPIM notices.
Amendment 17 not moved.
Clause 37: TPIMs: extension of residence measure
18: Clause 37, leave out Clause 37
Member’s explanatory statement
This would remove Clause 37 (TPIMs: extension of residence measure) from the bill.
My Lords, we come now to the group beginning with Amendment 19. Anyone wishing to press this or any other amendment in this group to a Division should make that clear in debate.
Clause 38: TPIMs: polygraph measure
19: Clause 38, page 32, line 15, at end insert—
“(2A) The Secretary of State must publish a code of practice relating to—(a) the conduct of, and(b) the use of reports on the results of,polygraph sessions.(2B) Before publication of the code of practice under section (2A), the Secretary of State must consult appropriate persons.”Member’s explanatory statement
This amendment would require the Secretary of State to publish a code of practice relating to the conduct and use of polygraph sessions.
My Lords, in moving Amendment 19, I will speak also to Amendments 20 and 21. Clause 38 raises a rather different issue from the other clauses in Part 3, which deals with TPIMs. The clause introduces the use of polygraphs—so we are not affected here by nostalgia for 2011.
Amendment 19 requires the Secretary of State, after consultation, to publish a code of practice about polygraph sessions, both how they are conducted and how reports on them are used. New Section 10ZA, introduced by Clause 38, provides for regulations on limited matters, as set out in that clause. The requirement imposed is
“to participate … with a view to … monitoring … compliance with other … measures”
“assessing whether any variation of … measures is necessary”.
TPIM subjects are a different cohort from terrorism offenders, not having been convicted. Not everything, I would think, can be a direct read-across from the processes applied to terrorism offenders. In the case of an offender on licence, the tests are to assess compliance; in the event of a breach, the offender can be returned to custody. For a TPIM subject—of course there is no Parole Board here—it is not just about monitoring compliance but assessing necessity. This is a much less tight objective; in fact, if one were to use “objective” as an adjective, I am not sure that it would really meet that test. What if the subject’s reaction is ambiguous?
From the helpful briefings that we have had, as polygraph sessions are used currently and will be used in the case of terrorist offenders, the questions that are asked are closed questions: “Did you do such-and-such?”, or “Have you contacted so-and-so?” I had some difficulty thinking of the questions that might be asked, because so much of potential interest is likely to have been prohibited. I suppose that if there is a measure saying that a person will not visit whatever the nearest urban centre is, that is capable of a yes or no answer.
I wondered whether it is thought that polygraphs are an alternative to electronic monitoring, or a supplement. If there are to be polygraphs applied to TPIM subjects, it seems necessary that there should be a relevant code of practice—tailor-made, if you like—including a reminder that the subject is not an offender.
Amendment 20 specifically addresses the extension of the term of the TPIM. The new section in the Bill contains a prohibition on using a statement made, or a reaction exhibited, during a session in evidence in proceedings for an offence. But what about activity that is not an offence? It should equally be the case that statements and reactions should not be the basis for an extension of a TPIM. I hope that the Minister can confirm that there is no intention to use polygraph sessions for such a purpose, and that he can confirm how the results and report of the session may be used; in other words, what might be the outcome?
We tabled these two amendments in order for the House to hear from the Minister some more of what the Government have in mind. I do not intend to put them to the House, unless of course the Minister says that he will accept them and asks us to do so. However, even were they to be accepted, Clause 38 is not a provision that we can accept. I come back to the basic point: TPIM subjects are not convicted offenders. The clause requires them to participate in sessions and comply with the operator’s instructions if they seek to maintain that most basic of positions, the right to silence. The subject lays themselves open to the variation of the measures—in other words, further restrictions. I know that my noble friend Lord Paddick will say more about this, but we will test the opinion of the House on Clause 38. I hope this can be taken as my voice in that respect.
I anticipate withdrawing Amendment 19 at the end of the debate; I will not move Amendment 20, but we will move Amendment 21 when that point in the proceedings is reached. Let us see what the Government have to say.
My Lords, the noble Baroness, Lady Hamwee, appears to be right that the legislation in its current form does not place express limits on the use of information obtained from a polygraph for the purpose of extending a TPIM, yet my enthusiasm for Amendment 20 is limited. The reality is that TPIMs can be made and extended on the basis of a wide range of intelligence fragments, some of which may be little more than straws in the wind. It may none the less be important to take such matters into account. I think back to the Manchester Arena bomb and the ambiguous and potentially unreliable intelligence that, as I reported at the time, might, if it had been interpreted in a different way, have resulted in some sort of pre-emptive action.
An intelligence picture is typically a complex mosaic of multiple indications and assessments, of which polygraph material, depending on the circumstances, will not necessarily be the least reliable component. While it seems to me both unlikely and undesirable that a TPIM would ever be extended predominantly on the basis of polygraph material, I am wary of Parliament seeking to dictate the relative weight that is to be given to different sources of intelligence. The Executive and the courts are the bodies with expertise in this area, and I suspect that we should leave it to them.
I look forward to hearing what the Minister has to say about Amendment 19, which seems not without merit.
My Lords, my noble friend Lady Hamwee has explained Amendments 19 and 20 to the House, and it would serve little purpose to repeat that as we will not be dividing the House on them.
As my noble friend has said, compulsory polygraph tests for those convicted on licence from prison are one thing, but such tests for those not convicted of any offence, who have a right to silence when being questioned, is quite another. It is a long-established principle that a suspect in criminal proceedings should be protected from any adverse consequences of remaining silent. Clause 38 allows the Secretary of State to impose a requirement for an individual subject to a TPIM to participate in polygraph sessions and to comply with instructions given to the individual by the polygraph operator. Although any statement made by the individual while participating in the polygraph session cannot be used against them in any proceedings for an offence, a failure to answer questions could be taken as contravening a measure specified in a TPIM notice—that is, to comply with the instructions of the polygraph operator, so, in this case, the instruction to answer questions. Remaining silent during a polygraph session could therefore be an offence under Section 23 of the Terrorism Prevention and Investigation Measures Act 2011, for which the individual is liable on conviction to imprisonment for a term not exceeding five years.
If the person is convicted of a terrorism offence and is on licence and subject to a TPIM—unlikely but possible—it would be possible for them to be subjected to polygraph tests under Clause 32 of this Bill, and a failure to answer questions in those circumstances would be a breach of the licence. While we have reservations about that, we do not object to it being part of the Bill. However, if the person is not convicted and is subject to a TPIM, they have the right to silence and to be protected from any adverse consequences of remaining silent. Potentially being imprisoned for five years for failing to answer questions during a polygraph session is an adverse consequence, and we therefore intend to test the opinion of the House on whether Clause 38 should be part of the Bill.
My Lords, the effect of the Bill at the moment is that a condition of a TPIM can be that the subject takes a polygraph test, and that a failure to do that could be a breach of the TPIM’s provisions. Amendment 21 raises the question of whether that should be part of a potential TPIM. In answering that question, it is important to try to find out what the Government have in mind regarding the use of that provision. First, to what extent do they regard polygraph answers as reliable? There is a general view that they cannot be taken on their own. What is the Government’s view on that?
Secondly, will the Government introduce a code of practice, as envisaged by Amendment 19? If so, could they give some indication of what that would contain? In particular, would it be based on the American Polygraph Association’s code of practice?
Thirdly, in December 2020 Her Majesty’s Prison and Probation Service announced that it would be seeking a long-term commercial partner to deliver polygraph equipment, training and support services for the sum of £2 million. When this was announced by the Government, it was noted that any partners must provide training to the standard approved by the American Polygraph Association, which is a trade body. Can the Minister give an indication of how that is going?
Will the Minister confirm that the Government will not act solely on the basis of any physiological reaction of the individual while being questioned in the course of a polygraph examination, and that the effect of a “significant reaction” in a polygraph examination will simply lead to further inquiries being made?
There has been, over quite a long time, a legitimate—in the sense of authorised by legislation—use by the Home Office of polygraph tests in relation to sexual offenders. According to Home Office figures, over the last five years 5,228 mandatory polygraph examinations have been carried out on 2,249 sexual offenders. Will the Minister describe to the House what benefit has been obtained from this and the basis of any assertions of that benefit?
My Lords, the three amendments in this group stand in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. Amendment 19 would oblige the Secretary of State to publish a code of practice on the conduct of, and use of results from, polygraph examinations, with a requirement to consult appropriate parties on the code before its publication.
We think that such an amendment is not necessary, since equivalent provision is already made by new paragraph 10ZA, which Clause 38 of the Bill will insert into Schedule 1 of the TPIM Act 2011. As the noble Baroness, Lady Hamwee, noted, Clause 38 includes a regulation-making provision for the conduct of TPIM polygraph examinations. The new polygraph measure will not be used within the TPIM regime unless and until such regulations have been made.
These regulations are expected to include detail on, for example, the qualifications and experience needed by polygraph operators; how records of the polygraph examinations should be kept; and how reports on the results of the examinations should be prepared. This will ensure transparency in how the polygraph measure in the TPIM regime will be applied in practice.
This approach follows the practice already established by the Ministry of Justice, which has set out its use of the polygraph in licence conditions of sex offenders in the Polygraph Rules 2009. Parliament will have the opportunity to scrutinise these future regulations and they will, of course, be subject to annulment by your Lordships’ House or the other place. As such, we believe that Amendment 19 is unnecessary, and I urge the noble Baroness to withdraw it, as she indicated she might.
Amendment 20 seeks to prohibit the extension of a TPIM notice on the basis of information derived from a polygraph test. Again, we do not think this is necessary. Clause 38 specifies the purposes for which the Home Secretary may impose a requirement on an individual subject to a TPIM notice to participate in polygraph examinations. These are, first,
“monitoring the individual’s compliance with other specified measures”
“assessing whether any variation of the specified measures is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity”.
The reference in new heading (ii) to
“variation of the specified measures”
means variation of the measures set out in Schedule 1 to the TPIM Act 2011, and the duration of the TPIM is not one of those measures. Extension of the TPIM for a further year can be done only by relying on the power in Section 5 of that Act, not by way of varying measures. Therefore, any attempt to use information derived from a polygraph examination to extend the duration of a TPIM notice would be unlawful. I hope that provides some assurance to the noble Lords and that they will therefore be willing not to press Amendment 20.
Finally, Amendment 21 would remove the addition of a polygraph measure to Schedule 1 to the TPIM Act 2011 entirely. The Government cannot accept that. Adding a polygraph measure to Schedule 1, where the measure is assessed to be necessary and proportionate, will help our operational partners to assess an individual’s compliance with his or her TPIM notice. This might include being asked whether engagement with rehabilitation programmes is genuine or whether someone is, for instance, meeting prohibited associates. The insights gained from a polygraph examination will support decision-making on whether the TPIM notice should be varied, including the relaxation of measures or further restrictions.
The polygraph measure will not be mandatory for all TPIM subjects. It will be used sparingly and only where necessary and proportionate to restrict a subject’s involvement in terrorism-related activity. Whether it is judged necessary will be determined by the Security Service on a case-by-case basis and a recommendation will be made to the Home Secretary.
With a complex and evolving terrorism threat, the Government are clear that where we can benefit from technological advancements to inform our management of TPIM subjects, we must seek to do so. The noble Baroness, Lady Hamwee, asked whether this was a supplement to, rather than a replacement for, existing monitoring. It certainly is supplementary and for use on a case-by-case basis. The information derived from a polygraph examination cannot be used to extend a TPIM notice or in criminal proceedings against the individual. Clause 38 is clear on this.
Clause 38 also provides for a regulation-making power, as I set out earlier. These will include detail, for example, on the qualifications and experience required of polygraph operators and on how records of the polygraph sessions should be kept. The polygraph measure will not be used before these regulations have been considered and enacted by Parliament.
Some of the questions asked by the noble and learned Lord, Lord Falconer of Thoroton, may be better answered when those regulations are made and scrutinised. I will certainly consult the Official Report and make sure that his questions receive a response. On the basis of all that, I hope noble Lords will be willing to withdraw or not move all three amendments.
My Lords, the noble Lord, Lord Paddick, is not available, so I call the noble Baroness, Lady Hamwee.
Our views are very close, but we have not actually changed personalities yet. The noble and learned Lord, Lord Falconer, asked some extremely pertinent questions as the basis for an assessment of whether it was appropriate for the clause to remain in the Bill. It is a great shame that we have not had the answers to that list of questions; I do not think any could have come as a surprise.
May I pursue one point? Because there is a regulation-making power in new paragraph 10ZA, it is not necessary to have a reference to a code of practice. I have sat through many debates when we have been told that codes of practice are so useful because they are flexible; they can be tweaked without having to go through the legislative process. I have to say that I am quite surprised by that answer. I do not know whether we are being told that the rules that apply under the Offender Management Act in other situations when polygraph sessions are used are the rules that will apply. It is my fault; I got slightly lost during that part of the debate. It may be my perception only but, as I heard the answers, there seemed to be a lot of repetition of what is in the Bill, not answers to concerns which underlie the amendments.
When we get to it, depending on who the broadcasters go to, one of us will move Amendment 21. For now, I beg leave to withdraw Amendment 19.
Amendment 19 withdrawn.
Amendment 20 not moved.
21: Clause 38, leave out Clause 38
Member’s explanatory statement
This would remove Clause 38 (TPIMs: polygraph measure) from the bill.
22: After Clause 40, insert the following new Clause—
“TPIMs: annual review
(1) In section 20 of the Terrorism Prevention and Investigation Measures Act 2011 (reviews of the operation of that Act)—(a) after subsection (1) insert—“(1A) The independent reviewer must carry out a review under this section in respect of each calendar year starting with 2022 and ending with 2026.Each review must be completed as soon as reasonably practicable after the year to which it relates.”;(b) in subsection (2), after “calendar year” insert “after 2026”;(c) in subsection (4), for “subsection (2)” substitute “this section”;(d) after subsection (6) insert—“(7) Subsection (1A) does not require a review to be carried out in respect of any calendar year during the whole of which the Secretary of State’s TPIM powers (within the meaning given by section 21(8)) do not exist because of their expiry or repeal under section 21.”(2) Subsection (1) does not affect any duty to carry out a review further to a notification given under section 20(2) of the Terrorism Prevention and Investigation Measures Act 2011 before the coming into force of this section.”Member’s explanatory statement
This amendment would reinstate the requirement for an annual review of the Terrorism Prevention and Investigation Measures Act 2011 by an independent reviewer for a period of five years beginning with 2022 (with reviews at the discretion of the reviewer after that period).
Amendment 22 agreed.
We come to the group consisting of Amendment 23. Anyone wishing to press this amendment to a Division should make that clear in the debate.
Clause 44: Persons vulnerable to being drawn into terrorism: timing of independent review
23: Clause 44, page 35, line 26, leave out subsection (1) and insert—
“(1) In section 20(9) of the Counter-Terrorism and Border Security Act 2019 (persons vulnerable to being drawn into terrorism) omit the words from “within the period” to the end and substitute “by 31 December 2021”.”Member’s explanatory statement
This amendment would reinstate the deadline for the independent review of the Prevent strategy.
My Lords, I move Amendment 23 in my name and that of my noble friend Lady Hamwee. This House voted for there to be a deadline for the publication of an independent review of the Government’s Prevent strategy in what became Section 20 of the Counter-Terrorism and Border Security Act 2019. In this Bill, the Government seek to remove any deadline for the publication of this review. In Committee, the Minister said that the Government hoped that the report would be published in the autumn of this year and that he hoped to get confirmation of this from the newly appointed independent reviewer of Prevent. On the basis of the estimate given by the Government in Committee, our Amendment 23 seeks to reinstate the deadline but with a generous margin of publication by the end of the calendar year. I beg to move.
My Lords, there seems to be a recurring issue with the timeliness of independent reviews in the field of national security. The chief problem as I observe it relates not to the speed with which independent reviewers do their job but to the speed with which those reviews are commissioned on the one hand, and the speed with which reports are published and laid before Parliament on the other.
As to delays in commissioning, in addition to the remarkably long time that it has taken to replace my noble friend Lord Carlile as the independent reviewer of Prevent, I note that it was only on 25 February this year that the long-awaited review was announced of closed material procedures under the Justice and Security Act 2013. That review was required by Section 13 of that Act to be completed as soon as reasonably practicable after June 2018. Yet, despite regular inquiries by the indefatigable Angus McCullough QC and others, and at least one Written Question in my own name, it was commissioned only two and a half years after that point. That seems simply unacceptable.
On the second of those points, there is the pre-election saga of the Russia report of the Intelligence and Security Committee, on which I made my views clear at the time, and an occasionally elastic interpretation of the Secretary of State’s statutory duty to lay reports of the Independent Reviewer of Terrorism Legislation before Parliament “on receiving a report”.
In the Public Bill Committee on the original TPIM Bill in 2011, James Brokenshire, during his first stint as Security Minister, said on this subject:
“There is no desire to sit on reports. It would be foolish and inappropriate for Government to do so, particularly with a report from an independent reviewer … It is not our intention to sit on reports; that is not the practice. If it gives comfort to the Committee and to the public, reports received from the independent reviewer will be published on receipt or promptly—whatever the appropriate phrase is. That is what I expect to happen, and I would expect any successor of mine to take the same approach.”—[Official Report, Commons Terrorism Prevention and Investigation Measures Bill Committee, 30/6/11; col. 253.]
Will the Minister take this opportunity to endorse the principled approach set out by James Brokenshire almost 10 years ago and apply it not only to reports of the Independent Reviewer of Terrorism Legislation but to the report of the independent reviewer of Prevent? If he can, he will go some way to setting my mind at rest not only on the subject matter of this amendment but more generally.
My Lords, this has been an extremely brief debate and quite a blunt one. The noble Lord, Lord Paddick, was very clear: during the passage of a previous Counter-Terrorism Act this House voted for a deadline and this current legislation is seeking to remove it. The Government commissioned an independent review back in January 2019, which has been repeatedly delayed and postponed, and the initial statutory deadline of 12 August 2020 will now be missed. The Government have said that they intend to have a report ready by summer 2021. Indeed, as the noble Lord, Lord Paddick, said, he has been very generous by putting in his amendments a deadline of the end of this current calendar year.
In the contribution of the noble Lord, Lord Anderson, to this short debate I noted a tone of exasperation, and I do not blame him or the noble Lord, Lord Paddick, for using such a tone. I really do not see why the Government cannot reaffirm their commitment to a deadline and I will be very interested to hear the Minister’s response to both noble Lords.
My Lords, this amendment, in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would add a new statutory deadline of 31 December this year for the completion of the independent review of Prevent. I am happy to say once again that we share the noble Lord’s and noble Baroness’s commitment to a successful independent review and the opportunity that it provides to learn lessons from what is and is not working—as well as to listen to a wide range of voices about how best to safeguard those who may be vulnerable to being drawn into terrorism.
The review restarted on 26 January, with the appointment of William Shawcross as the new independent reviewer. As I undertook to do in Committee, I am pleased to say that my noble friend Lady Williams of Trafford has had a conversation with Mr Shawcross about the timescale for his review. He certainly agrees with the need to complete it as swiftly as possible, while affording it the consideration that it requires. He hopes to complete his work well before the end of 2021, and of course there will then need to be time for a government response to be prepared and laid before Parliament. However, it is out intention to set out the date of his report and, indeed, the Government’s response in the revised terms of reference, when they are published shortly.
The noble Lord, Lord Anderson of Ipswich, referred to the remarks of my right honourable friend James Brokenshire, made in his first stint as Security Minister, about government responses being swift and timely. I hope the greatest reassurance to the noble Lord is the fact that my right honourable friend is back in that important post, albeit currently recuperating from his operation, from which we all wish him a speedy recovery. I am sure his remarks then stand now, as they do for my noble friend Lady Williams of Trafford, who is covering while he recuperates.
We all agree that it is necessary to have a thorough, evidence-based review that engages communities and sees Prevent delivery in action and that has practical recommendations for improvement at the end of it. We fear that, at a time when fleetness of foot is vital, a statutory deadline could limit this. We referred in Committee to the ongoing pandemic; alas, it continues now we are on Report, and I hope noble Lords will all be mindful of the need for flexibility in light of it.
Mr Shawcross is keen to proceed at pace, as I say, but reintroducing a statutory deadline for the completion of his independent review would mean that, if he encountered a challenge to his timeline because of the pandemic, we would have to revisit the legislation or he might be forced to compromise in how he meets his objectives. Of course, we hope that there will not be any difficulties, but there remains a risk of further or ongoing restrictions, with all the unpredictabilities of the pandemic and the implications that that could have for Mr Shawcross, his team and those who wish to provide their input into the review. As such, we think that that remains sensible.
We believe that it is achievable for Mr Shawcross to complete his work quickly, while undertaking a thorough and robust piece of work—but it is important for the legislation to retain the flexibility for the reviewer, should he need it, to ensure that the valuable work of his review is not undermined. I hope that the noble Lord, Lord Paddick, will agree and, therefore, withdraw his amendment.
My Lords, I thank the noble Lords, Lord Anderson of Ipswich and Lord Ponsonby of Shulbrede, for their support for this amendment. The frustration that I and the noble Lord, Lord Anderson, expressed about the Government’s tardiness in reporting to Parliament on these issues has been reinforced by what the Minister has just said.
Not only has the Minister now turned away from what he said in Committee—that the Government anticipated that the report would be complete by the autumn—but he is now saying, “Of course, but then the Government will need time to respond to it.” This is absolutely the reason why we wanted this amendment in the Bill, and the Minister is showing complete contempt for what the noble Lords, Lord Anderson and Lord Ponsonby, and I have been saying.
I am sorely tempted to divide the House on this, simply to make the point. However, bearing in mind the time, I will reluctantly beg leave to withdraw the amendment.
Amendment 23 withdrawn.
Amendments 24 and 25 not moved.
We now come to Amendment 26. Anyone wishing to press this amendment to a Division must make that clear in debate.
Clause 48: Extent
26: Clause 48, page 37, line 13, at end insert—
“(4A) Nothing in subsections (1) to (4) limits the extent within the United Kingdom of any provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006. (4B) Subsections (1) and (2) of section 384 of the Armed Forces Act 2006 (extent outside the United Kingdom) apply to the armed forces provisions as those subsections apply to the provisions of that Act.(4C) The following are “armed forces provisions”—(a) a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006;(b) an amendment, modification or repeal made by or under this Act of—(i) a provision of or made under the Armed Forces Act 2006,(ii) a provision that amends, modifies or repeals a provision of, or made under, that Act, or(iii) any other provision, so far as the provision is applied (by whatever words) by or under that Act.”Member’s explanatory statement
This amendment clarifies that provisions of the Bill which have a limited extent within the United Kingdom (such as amendments of the Sentencing Code) have UK-wide extent so far as they are applied by the Armed Forces Act 2006. It also provides for the provisions of the Bill that relate to the armed forces to extend, or be extended, outside the United Kingdom in the same way as the Armed Forces Act 2006.
My Lords, I apologise for the short break in proceedings while I came back to my place. I am afraid that the convention of not moving while the Chair is standing, and social distancing, do not go too well together.
This rather technical amendment to Clause 48 clarifies that the provisions of the Bill have UK-wide extent in so far as they are applied by the Armed Forces Act 2006. That is the burden of proposed new subsection (4A). The amendment also rectifies an oversight in the original drafting of the Bill, to make Section 384 of the Armed Forces Act 2006 apply to provisions in the Bill if they amend or modify the Act, and when they are applied by that Act. This means that they will extend to the Isle of Man and the British Overseas Territories, except Gibraltar, and can be extended to the Crown dependencies. That is the burden of proposed new subsection (4B). That ensures that the same version of the Armed Forces Act 2006 will be in force in all the jurisdictions to which that Act extends.
I apologise for the fact that this amendment has not been brought forward until now. That was an oversight, but I hope that noble Lords will accept that it was an understandable one, given the number of issues that the Bill deals with, and their frequent complexity. The interrelationship between sentencing provisions and armed services issues adds a further element of complexity. The amendment itself, as I have said, does those two things, in proposed new subsections (4A) and (4B). I beg to move.
My Lords, Clause 48 deals with the extent of the Bill. It provides that
“A provision of this Act which amends, repeals or revokes an enactment has the same extent within the United Kingdom as the enactment amended, repealed or revoked.”
Under subsection (2), provisions that do not amend, repeal or revoke an existing enactment extend to all four nations—England, Wales, Scotland and Northern Ireland—save for two limited exceptions, in that Clauses 21(2) and 44(2) are of a limited nature, referring to retrospectivity.
It is not easy to extract the purpose of Amendment 26. Someone in the Ministry of Justice has concluded that there are problems under the Armed Forces Act 2006. Proposed new subsection (4A) suggests that, in the context of jurisdiction under the Armed Forces Act 2006, all the provisions of the Bill extend to all four countries. This is so even if an amendment repeals or revokes a provision of an existing Act that does not have that extent.
Under proposed new subsection (4B), the provisions of the Act extend outside the United Kingdom to the extent set out in Section 384(1) and (2) of the Armed Forces Act. That section applies to the Channel Islands, the Isle of Man and overseas territories excluding Gibraltar. British Overseas Territories do not include Cyprus, Belize or Gibraltar itself, which is specifically excluded. Those are all venues where I, as chairman of the Association of Military Court Advocates, know that courts martial take place.
Those are three places, and I am sure there are more, where courts martial take place—not to mention Germany, where the facilities have ceased. Courts martial can, of course, take place anywhere in the world, if properly constituted, and if charges for service offences are brought against anyone who is subject to the Armed Forces Act.
Terrorism exists outside the overseas territories. I would very much welcome clarification as to what happens if a court martial is held outside the United Kingdom, but not within those overseas territories to which the Armed Forces Act applies. I cannot help feeling that I am missing something, but the statement attached to the amendment is not at all clear—even though it states that the purpose of the amendment is to clarify the position. I look forward to the Minister doing so.
I endorse the question so clearly put by the noble Lord, Lord Thomas of Gresford. Despite the clear explanation given by the noble Lord, Lord Wolfson of Tredegar, I am still struggling with this amendment. Can he tell us the sort of problem that proposed new subsection (4A), which Amendment 26 seeks to insert into the Bill, tries to deal with? What is the lack of clarity with which he was concerned? Can he also indicate whether there are any implied provisions put into the Armed Forces Act by this Bill?
Proposed new subsection (4C)(a) specifies:
“a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006”.
Can he indicate what sort of provision that is aimed at? I would find it really helpful, in relation to proposed new subsections (4A) and (4B), to have an example of a problem that these two provisions would solve.
I am grateful to the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Falconer of Thoroton, for their contributions and questions. The position, so far as I can assist the House now, is that the amendment ensures that the provisions of the Bill which amend, modify or are applied by the Armed Forces Act 2006 have the same extent as that Act. That Act extends to the UK, Isle of Man, and British Overseas Territories, excluding Gibraltar, and can be extended to the Crown dependencies.
The Armed Forces Act 2006 is the main piece of primary legislation that establishes a service justice system. It uses a modified form of sentencing law of England and Wales for sentences imposed by the court martial, as the noble Lord, Lord Thomas, stated. The burden of the amendment is to ensure that the Armed Forces provisions in the Bill have the same extent as the Armed Forces Act 2006. This would ensure, therefore, that there is a correlation of the area over which the provisions apply.
On the specific question from the noble Lord, Lord Thomas, on what would happen outside the territories covered by the Armed Forces Act, I am conscious that I would probably be straying into MoD territory rather than MoJ territory. I hope that the noble Lord, Lord Thomas, will allow me to write to him on that so he gets an accurate and complete answer.
As to the point raised by the noble and learned Lord, Lord Falconer of Thoroton, on whether there is an implication in the Bill that is caught by proposed new subsection (4C), perhaps I can send him a letter on that, rather than risk getting the answer wrong, I am tempted to say that these are standard words used in Acts of Parliament about what is implied, but I understand the burden of his question and, if he will permit me, will send him a written response. I hope that I have responded to the points put to me and I commend this amendment to the House.
Amendment 26 agreed.
Schedule 13: Consequential and related amendments
Amendments 27 to 43
27: Schedule 13, page 121, line 4, leave out from “section” to “for” in line 5 and insert “1 (release of short-term, long-term and life prisoners)—
(a) in subsection (3A),”Member’s explanatory statement
This is consequential on the amendment at page 121, line 5.
28: Schedule 13, page 121, line 5, at end insert—
“(b) in subsection (9), after “applies” insert “to the extent that the person is serving a sentence of imprisonment imposed in respect of an offence within section 1AB(2)”.”Member’s explanatory statement
This amendment amends section 1(9) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in light of new section 1B of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
29: Schedule 13, page 121, line 5, at end insert—
“(2A) In section 1AA (release of certain sexual offenders), for subsection (9) substitute—“(9) This section is subject to section 1B.””Member’s explanatory statement
This amendment amends section 1AA(9) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in light of new section 1B of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
30: Schedule 13, page 121, line 30, at end insert—
“(5B) Subsection (4) is subject to sections 1A and 1B.”Member’s explanatory statement
This amendment amends section 1AB of the Prisoners and Criminal Proceedings (Scotland) Act 1993 so as to make subsection (4) of that section subject to sections 1A and 1B of that Act (section 1B being inserted by paragraph 52(4) of Schedule 13 to the Bill).
31: Schedule 13, page 123, line 37, at end insert—
“(14) This section applies to a prisoner on whom sentence was imposed before the day on which paragraph 52(4) of Schedule 13 to the Counter-Terrorism and Sentencing Act 2021 came into force as it applies to a prisoner on whom sentence was imposed on or after that day.”Member’s explanatory statement
This amendment amends section 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 so that it will apply in relation to sentences imposed before the date on which the provision of the Bill inserting section 1B into that Act comes into force.
32: Schedule 13, page 124, line 1, at end insert—
“(a) in the case of a prisoner to whom section 1AB(3) applies,”Member’s explanatory statement
This amendment is consequential on the amendment at page 124, line 4.
33: Schedule 13, page 124, line 4, at end insert “or,
(b) in the case of a prisoner to whom section 1AB(3) does not apply by virtue of section 1AB(2A), before the day on which the Scottish Ministers are required to release the prisoner under section 26ZA(5).”Member’s explanatory statement
This amendment prevents a life prisoner who is also serving a terrorism sentence to which section 1AB(2A) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 applies from making a requirement under section 2(6) of that Act before the day on which the prisoner would otherwise be eligible for release on licence under section 26ZA(5) of that Act.
34: Schedule 13, page 125, line 12, leave out “omit the words “Subject to subsection (2A),”” and insert “for “subsection (2A)” substitute “section 1B””
Member’s explanatory statement
This amendment amends section 5 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in light of new section 1B of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
35: Schedule 13, page 125, line 13, at end insert—
“(c) in subsection (4), after “1A” insert “, 1B”.”Member’s explanatory statement
This amendment amends section 5 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in light of new section 1B of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
36: Schedule 13, page 125, line 29, at end insert—
“(za) in subsection (3)—(i) after “(2) above” insert “or, as the case may be, section 1AB(4) or 26ZA(5)(a)”;(ii) after “sentence)” insert “or, as the case may be, before the date on which the sentence under section 205ZC(5) as originally imposed by the court expires”;(iii) after “so elapses” insert “or, as the case may be, the sentence under section 205ZC(5) expires;””Member’s explanatory statement
This amendment makes consequential amendments of section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.
37: Schedule 13, page 125, line 42, at end insert—
“(ba) in subsection (5)(b), after “(1A)” insert “, 1B”;” Member’s explanatory statement
This amendment amends section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in light of new section 1B of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
38: Schedule 13, page 125, line 48, leave out “(3) to (5) and” and insert “(2) and (3) to”
Member’s explanatory statement
This amendment makes consequential amendments of section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.
39: Schedule 13, page 126, line 1, leave out from “insert” to end of line 14 and insert ““to the extent that detention is imposed on the person under section 205ZC(5) of the 1995 Act.”;
(e) after subsection (8) insert—“(9) This section is subject to section 1B.””Member’s explanatory statement
This amendment makes consequential amendments of section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.
40: Schedule 13, page 126, line 16, at end insert—
“(12A) In section 26A (extended sentences: application of section)—(a) in subsection (1), after “sentences)” insert “other than an extended sentence imposed in respect of a terrorism offence.”;(b) in subsection (2), for “section 1A” substitute “sections 1A and 1B”;(c) in subsection (6), for “section 1A(c)” substitute “sections 1A(1)(c) and 1B(11)”.”Member’s explanatory statement
This amendment excludes a prisoner subject to an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 in respect of a terrorism offence from the scope of section 26A of the Prisoners and Criminal Proceedings (Scotland) Act 1993. It also amends that section 26A in consequence of new section 1B of that Act.
41: Schedule 13, page 126, line 25, at end insert—
“(5B) In determining, for the purposes of subsection (5), whether a sentence passed on a person in respect of an offence (other than an offence within section 1AB(2)) is to be treated as part of a single term, any sentence passed on the person in respect of an offence within section 1AB(2) is to be ignored.”Member’s explanatory statement
This amendment inserts new subsection (5B) into section 27 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 clarifying that, in determining whether non-terrorism sentences are to be treated as a single term, sentences imposed in respect of terrorism offences within section 1AB of that Act are to be ignored.
42: Schedule 13, page 126, line 44, at end insert—
“(b) in each of paragraphs 10(2)(a) and (5)(a) and 11(2)(a) and (4)(a)—(i) after “1A,” insert “1B,”;(ii) after “21,” insert “26ZA,”.”Member’s explanatory statement
This amendment makes minor amendments of paragraphs 10 and 11 of Schedule 1 to the Crime (Sentences) Act 1997 in consequence of the insertion of sections 1B and 26ZA into the Prisoners and Criminal Proceedings (Scotland) Act 1993.
43: Schedule 13, page 127, line 5, at end insert—
“(b) after “1A,” insert “1B,”;(c) after “10” insert “, 26ZA”.”Member’s explanatory statement
This amendment makes minor amendments of section 24(c) of the International Criminal Court (Scotland) Act 2001 in consequence of the insertion of sections 1B and 26ZA into the Prisoners and Criminal Proceedings (Scotland) Act 1993.
Amendments 27 to 43 agreed.
House adjourned at 6.26 pm.
Committee (2nd Day)
16: After Clause 31, insert the following new Clause—
“Review of sections 1 to 31
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 31 of this Act to be carried out in relation to the initial one-year period.(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to imprisonment for offences of terrorism to conduct the review. (3) The review under subsection (1) must consider but is not limited to considering any evidence as to any effects of this Act—(a) by the imposition of longer prison sentences upon the reform or rehabilitation of those offenders on whom they are imposed;(b) upon the reform or rehabilitation of those offenders required to serve a greater proportion of their sentences in prison and a correspondingly smaller proportion on licence;(c) upon the radicalisation of prisoners other than those upon whom longer prison sentences are imposed or who are required to serve a greater proportion of their sentences in prison;(d) on the degree to which those prisoners upon whom a serious terrorist sentence is imposed are segregated from other prisoners.(4) The review must be completed as soon as practicable after the end of the initial one-year period.(5) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(6) The Secretary of State must lay before each House of Parliament a copy of the report under subsection (5)(b) within one month of receiving the report.(7) In this section, “initial one-year period” means the period of one year beginning with the day on which this Act is passed.”Member’s explanatory statement
This Clause would require an independent review of the impact of sections 1 to 31 of the Act after one year, with particular attention to radicalisation in prisons and the effects of longer periods of imprisonment on reform and rehabilitation and radicalisation in prisons and of segregating serious terrorist offenders.
My Lords, by the amendments in this group noble Lords from around the House seek reviews of the impact of this legislation on the operation of our criminal justice system. Such reviews would consider: how we are dealing with terrorist offences, including the effects on the Prison and Probation Service and, in particular, the effects on prison capacity; the financial impact of the legislation; and the effect of the legislation on Northern Ireland.
The very fact that so many noble Lords seek such reviews, each with different emphases, demonstrates that however much the Bill’s provisions may chime with the prevailing public mood, for many of us they nevertheless cause uncertainty and misgivings. While we all recognise that terrorism must be dealt with extremely severely, on any view the Bill provides for radically harsher sentencing than we have had before. I suspect that the Minister and the Government recognise that this approach is not risk-free.
I shall concentrate on the review called for in the amendment in my name and the names of my noble friends Lady Hamwee and Lord Paddick. Our amendment is concerned with Part 1 of the Bill. To remind ourselves briefly of the ground we covered on day one in Committee, Part 1 deals first with sentences for what I might call ordinary criminal offences, punishable by two or more years’ imprisonment but aggravated by a terrorist connection; then, with serious terrorism offences and minimum custodial terms for offenders; with increased extended sentences for specified violent offences; and with other special custodial sentences for offenders of particular concern. The common threads running through all these provisions are, first, that judges’ discretion to impose more lenient sentences than prescribed in the legislation is considerably limited and, secondly, that terrorist offenders will generally spend much longer in prison than has been the case to date.
The review called for by our amendment is to be concerned, first, with the effect of the imposition of longer prison sentences on the reform and rehabilitation of those who serve them; secondly, with the likely outcome that longer sentences will mean offenders spending a greater proportion of them in custody and a lower proportion on licence; thirdly, with the radicalisation of other prisoners by those who will now spend far longer in custody and may have the dangerous potential to radicalise others who come into contact with them while in prison; and finally, on the segregation of serious terrorist prisoners serving these very long sentences. I make no apology for the fact that Liberal Democrats start from the position that while punishment plays an extremely important part in sentencing and that the more serious the offence the greater the punishment element in any sentence, nevertheless reform and rehabilitation, even in very long sentences, is a central purpose of sentencing.
Hope of reform and rehabilitation should motivate all who work within the system, as well as society at large. That belief is in our DNA. We do not believe that we should give up on serious offenders, even terrorist offenders. Nor do we accept that the lives of at least some among those whom we punish cannot ultimately be turned around.
Importantly, the review we seek calls for a person with professional experience of imprisonment for terrorist offences to be appointed by the Secretary of State, in consultation with the Independent Reviewer of Terrorism Legislation. It was therefore heartening to note that on 25 January Jonathan Hall QC, the independent reviewer, issued a statement saying that he had decided to review the subject of terrorism in the prison estate in England and Wales as part of his annual review of the terrorism Acts. His statement said that he was particularly interested in criminal behaviour which effectively encourages terrorism within prisons, in the status and influence of terrorist prisoners within them, in any connection to prison gangs, and in how to secure evidence of terrorist offences or terrorism-related activity in prisons. He is clear that his focus will be on terrorism because there is, he says, considerable literature already on radicalisation and extremism in prisons. Nevertheless, I would be surprised if he did not feel driven to consider, as part and parcel of considering terrorist activity within prisons, the question of radicalisation and extremism, and its effect on the prison population as a whole. Inevitably, he will also consider how to achieve reform and rehabilitation for as many terrorist offenders as possible.
One of any reviewer’s main starting points will be the work and findings of the 2016 Acheson review of Islamist extremism in prisons, probation and youth justice, the recommendations of which many noble Lords mentioned earlier in the passage of the Bill. In setting out the context of his review, Ian Acheson wrote:
“Islamist ideology can present itself in prisons as a struggle for power and dominance in which perceived weaknesses are exploited by a gang culture which threatens or undermines legitimate authority and security”
and that Islamic extremism
“should therefore be a greater and more visible priority for NOMS, led by people with the time and resource to act swiftly and with authority.”
I make no apology for concentrating on Islamic extremism in the context of the type of terrorism that this country, and many others, have faced in recent years.
Perhaps the most significant of that report’s recommendations was that those few extremists who presented what Acheson called
“a particular and enduring risk to national security through subversive behaviour, beliefs and activities”
should be segregated in specialist units, where they would be given “effective deradicalization” programmes. It has been very disappointing that although the Government accepted this recommendation, as they did nearly all the Acheson recommendations, there has been so little action. When I have asked Ministers about this failure of promised implementation, I am afraid that the responses have been defensive or, worse, complacent.
In the wake of the London Bridge attack by Usman Khan on 1 December 2019, Professor Acheson wrote in the Times:
“I have evidence that the separation centres that I recommended be established to incapacitate those posing most risk are not filling up because of institutional timidity to deal with a terrorist threat that is more acute than senior officials want to admit.”
He then said that
“I remain deeply unconvinced that this service has the corporate leadership, competence or will to deal with terrorist offenders. I’m not sure any tangible progress has been made since my review concluded three years ago.”
My concern is that since the disastrous attacks in 2019, the Government have been so focused on tougher sentencing that other aims, just as important or even more so, have been sidelined.
We should not forget four further recommendations of the Acheson review:
“systematic recording of the promotion of extremist beliefs and threats of violence to staff, with tougher sanctions … suitable training provided for staff … tackling the availability and source of extremist literature … improved capacity for responding swiftly to serious violent incidents, with … improved coordination with the police”.
For all that this report was hard-headed—unsurprising from a former prison governor and expert in counterterrorism—it was still focused on deradicalisation, reform and rehabilitation. It still attributed great importance to the involvement of the probation service.
The significance of this approach is quite simply this: in the light of appalling attacks, the public and this Government demand tougher sentences for terrorists. They may be justified, but the importance of reviewing the impact of Part 1 of this legislation in just over a year’s time is to highlight the continuing need to deal better with extremism and terrorist offenders, both within prisons and on licence. But tougher sentencing alone can never provide a complete answer or anything like it. Our approach must be subtler, more principled, better organised and a great deal more sophisticated.
My Lords, I make a short intervention to support the amendment so ably moved by the noble Lord, Lord Marks; it is carefully put and more than adequate. I support it because it is important that a close look is had into the workings of these important sections. One year should be sufficient, with the emphasis on consultation, which is vital to get an independent reviewer to take the temperature of how the Act is working.
In my many visits to prisons in my professional career, I was deeply aware of how prisoners live cheek by jowl. Particularly in the absence of other subjects of conversation, I would have thought, as a lay man, that prisons were fertile ground for radicalisation. It goes without saying that expert advice is needed. We are considering longer sentences, reform and rehabilitation, radicalisation and segregation—all vital subjects—and we should look at how the Act is working. With those few words, it is a pleasure to commend the amendment.
My Lords, as my noble friend Lord Marks of Henley-on-Thames has outlined, our Amendment 16 in this group calls for a review of the impacts of Part 1of the Bill. Why is such a review needed? The Explanatory Notes to the Bill describe its purpose as being to better protect the public from terrorism, effectively by two main means: ensuring that serious and dangerous terrorist offenders spend longer in custody, and supporting their disengagement from extremism and their rehabilitation.
I am pleased to note there is no longer any pretence that longer sentences act as a deterrent to terrorist offenders. There was no such claim from the noble Lord, Lord Parkinson of Whitley Bay, either, when he introduced the Bill to this House on Second Reading. That will save some time.
The two premises on which the Bill is based appear to be these: that the public are better protected from terrorists if terrorist offenders are in prison longer; and that a range of tailored interventions while they are in prison will lead to their disengagement from extremism and their rehabilitation. In short, the longer they are in prison, the less likely they are to pose a threat to the public and the more time is available to deradicalise and rehabilitate them.
The first and most obvious problem with the first premise is that you cannot detain every suspected terrorist for the rest of their lives, despite the Government’s attempts in this Bill to achieve exactly that for some terrorist offenders. With an increasing number of exceptions were this Bill to be passed unamended, you cannot normally lock up suspected terrorists indefinitely or so curtail their freedoms as to effectively deprive them of their liberty indefinitely. We will come to the indefinite deprivation of liberty without charge or trial when we come to the changes to the terrorism prevention and investigation measures.
The Government’s current Prevent strategy, at paragraph 3.5, says that
“radicalisation is driven by an ideology which sanctions the use of violence; by propagandists for that ideology here and overseas; and by personal vulnerabilities and specific local factors which, for a range of reasons, make that ideology seem both attractive and compelling.”
Such propagandists exist in our prisons. The Government’s argument that the longer someone is in prison, the more time there is to support their disengagement and rehabilitation can also work against their deradicalisation and rehabilitation.
First, it provides more time for them to be radicalised, or further radicalised, by propagandists in prison. There is clear evidence that this is happening. On 25 January, the Times reports the current Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, as saying that there was an increasing “drumbeat” of links between prison and terror attacks, with offenders not being properly punished for owning radical material, preaching extremism and inciting violence. The Times notes that the man given a whole life sentence last month for murdering three men in a park in Reading in a terror attack last year was befriended by a radical preacher while serving an earlier prison sentence. Secondly, if these vulnerable people believe that the sanctions imposed on them are disproportionate, or that the system that led to their imprisonment was unfair, the ideology promulgated by these propagandists is made to appear even more attractive and compelling.
No one would argue against a proportionate sentence of imprisonment for someone convicted in a court of law of a terrorist offence, as my noble friend Lord Marks has just said, or that, for a limited time, a suspected terrorist who is believed to present a real and immediate threat should not have their liberty to carry out a terrorist attack prevented while evidence is gathered upon which to base a trial in a court of law. However, paragraph 3.6 of the same Prevent strategy says:
“There is evidence to indicate that support for terrorism is associated with rejection of a cohesive, integrated, multi-faith society and of parliamentary democracy. Work to deal with radicalisation will depend on developing a sense of belonging to this country and support for our core values.”
Disproportionately long sentences of imprisonment and indefinite deprivation of liberty without charge or trial would reinforce this rejection of our cohesive, integrated, multifaith society and parliamentary democracy. They would undermine any sense of belonging to this country and any support for our core values. Indeed, they begin to call into question some of our core values.
What evidence is there that it is easier to develop a sense of belonging to this country and support for our core values while someone is in prison, compared with when they are on licence in the community? The Times article I quoted previously reports the Independent Reviewer of Terrorism Legislation as saying that encouraging and inciting terrorism were being
“successfully combated in the community”,
unlike the failure to address these issues in prison. Although he is to conduct a review of what is happening in prisons, it appears to be limited to examining how terrorism is detected, disrupted and prosecuted behind bars and whether improvements can be made, rather than the comprehensive review called for in our amendment.
For all these reasons, there is serious doubt whether Part 1 of the Bill will achieve what the Government intend by it; therefore, our Amendment 16 is necessary. Other amendments in this group call for a review of the financial impact of the Bill and the impact on the prison population, both of which could hamper the effectiveness of any deradicalisation or rehabilitation strategy and any attempt to prevent radicalisation or further radicalisation in prison. Reviews are called for on the specific impact of the Bill in Northern Ireland and on the National Probation Service, and we support these amendments as well.
My Lords, we have had a wide-ranging introduction to this group from both the noble Lords, Lord Marks and Lord Paddick. As the noble Lord, Lord Marks, said in his introduction, the amendments in this group call for a series of reviews of different aspects of the system. He expressed his misgivings and uncertainty that the system as it currently operates is succeeding and concluded his remarks by saying that a more sophisticated approach is needed.
Amendment 16 is the first amendment regarding the independent review of provisions, to which the noble Lord, Lord Marks, has spoken. The second in the group, Amendment 34 in the name of my noble and learned friend Lord Falconer, is concerned with the financial impact of the changes. The amendment would require the Secretary of State to publish a financial impact assessment of the Act within three years of it coming into force, and this would include the financial impact of extended sentences, extended licence periods, and any additional staffing resources needed as a result of the Act.
Amendment 36 in my name calls for a capacity impact assessment. This amendment would require the Secretary of State to publish an assessment of the capacity of the system as a whole. In their 2016 White Paper, Prison Safety and Reform, the then Government committed to £1.3 billion to create 10,000 new prison places by 2020 and to renovate the existing estate. The 2020 target was later changed to 2022; so far, only 206 new prison places have been built, with 3,360 under construction. The main reasons for those failures and delays were the delays in agreeing and receiving funding to build new prisons. This meant that the construction work began later than planned. In addition, HMPPS was not able to close all prisons and replace them with new ones, due to high demand, which meant it received less money from the sales of old prisons.
Amendment 38, also in my name, proposes a review of the legislation as it affects Northern Ireland. All measures in the Bill as they pertain to Northern Ireland would be reviewed annually with the Northern Ireland Minister for Justice and the Northern Ireland Executive; a report would also have to be published and laid before both Houses of Parliament. This would ensure that the Government worked constructively with the Ministry of Justice and Northern Ireland Executive, and that all the Bill’s implications were subject to regular review through the prism of Northern Ireland.
Amendment 39 proposes a review of the National Probation Service. This would require the Government to commission and publish a review of the impact of the Bill on the National Probation Service within 18 months of it coming into force. The review would have to consider, among other things, the level of probation support offered to offenders, as well as the number of specialist staff employed by the National Probation Service, and their skills.
I have received some briefing material from Napo—formerly the National Association of Probation Officers —which makes the point that the probation service is in crisis and that many of the offender management teams are struggling to maintain a balance between experienced staff and newly qualified staff. It is not uncommon to find teams in the community where the most experienced officer has only two to three years of post-qualification experience. As recruitment increases, as it is projected to increase, the pressure on the frontline staff will grow, with more probation officers being moved into management and training roles to support the trainees. The point made by Napo is that a properly remunerated and supported expansion of the probation service is needed to face the challenges ahead.
I have spoken to my amendments in detail but the scene-setting—if I may put it like that—by the noble Lord, Lord Marks, is most appropriate. We are having some very radical reviews, including Jonathan Hall’s review of terrorism and its effect on other prisoners in the prison system and, as he put it in a quote that I picked up as well, the “drumbeat of links” between terrorism and the prison service. I hope that the Government will look favourably on those individual aspects, which need review.
My Lords, Amendment 16 would introduce a new clause requiring the Secretary of State to arrange for an independent review of the impact of Clauses 1 to 31 in the first year of the Act coming into force. I must respectfully disagree that this amendment is necessary. As the House has heard in Committee, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and his remit covers the Bill. Indeed, as the noble Lord, Lord Marks, referred to, he has announced his intention to conduct a review in prisons, which we welcome. He has already shown his expertise and engagement with the Bill in its entirety by providing detailed comments on its provisions—contributions that I know this House and those in the other place valued highly. We have every confidence that he will continue to provide valuable and important scrutiny following its enactment and through the prisons review which he will be undertaking. I therefore disagree that there is any need to appoint another reviewer to focus on just some of the Bill’s provisions.
That said, I recognise that the noble Lord, Lord Marks, and others indicated particular concerns by specifying the areas which such a review ought to consider. I shall take these points in turn, which I hope will assuage noble Lords’ concerns. First, there is the question of the impact of longer sentences—or a longer proportion of the sentence spent in custody—on prisoners’ rehabilitation as a result of the Bill. I start by reflecting that within a year of the Bill’s commencement, the impact of longer sentences will not yet be available for us to analyse. Importantly, however, the rationale behind longer custodial sentences for the most serious and dangerous terrorist offenders is one of public protection, which is this Government’s primary concern. Ensuring that these offenders are incapacitated for longer meets this ambition. The noble Lord, Lord Marks, spoke of the crucial importance of the hope of reform and rehabilitation, and we on this side share that hope. It is not that we consider that rehabilitation is unimportant; it will remain central to the work that is undertaken with terrorist offenders in custody.
Second is the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate and the use of separation centres to this end. These issues are raised in reference to the Acheson review recommendations. I assure the noble Lord that most extremist prisoners are and should be managed in the mainstream prison population, with appropriate conditions and controls.
Across the entire prison estate, we have, and seek to maintain, robust case-management processes to manage the risks posed by extremists and to prevent them radicalising others, including co-located offenders. The Government, however, have designed separation centres to hold the most subversive extremist prisoners, preventing them spreading their malicious ideology to other prisoners. These centres were never intended for use with significant numbers of terrorist offenders, as this would undermine their main purpose: to separate the most dangerous from those most vulnerable to radicalisation. The Government use these centres only when it is necessary and, for reasons of national security, the Government do not confirm the numbers of prisoners in individual separation centres.
Finally, I note that the Bill will be subject to the usual practice of post-legislative scrutiny three years after the Bill receives Royal Assent, as is the case for all legislation. In light of this, and the existing position of the Independent Reviewer of Terrorism Legislation, who already has authority to review this legislation, I do not believe this amendment to be necessary.
Amendment 34, spoken to by the noble Lord, Lord Ponsonby of Shulbrede, and in the name of the noble and learned Lord, Lord Falconer of Thoroton, would insert a new clause requiring the Secretary of State to lay a report within three years on the financial impact of the provisions of the Bill, specifically detailing the effects of extended sentences and extended licence periods; the expansion of the sentence for offenders of particular concern regime; the use of polygraph testing as a licence condition; and, as a result of these measures, any increased staffing resources required in Her Majesty’s Prison and Probation Service. I appreciate from the terms of the amendment that there is a concern to examine the cost of these measures when set against the impact assessment already published by the Government.
I make the point that numbers of terrorism offences are so low, comparatively speaking, that the impact of the measures the Bill puts in place is minimal. The impact of licence periods will depend on judicial discretion in setting them and, if the impact assessment carried out and published by the Government was inaccurate, that would be shown up by the process of post-legislative scrutiny. I cite to the Committee a number of figures to inform what I have just said. On 31 December 2020, there were 78,180 in the prison population. The impact assessment estimates the impact of the measures will be around 50 additional cases at any one time. On 30 September 2020, there were 222,657 cases on the probation caseload. The Bill’s impact assessment estimates that the impact of the measures will be around 50 additional case at any one time. The additional polygraph testing as a licence condition is estimated to affect fewer than 150 offenders at any one time, at a cost of about £400,000 annually in steady state.
Therefore, our impact assessment and the figures that support it estimate that the measures in the Bill will have a minimal impact on the prison population and the probation caseload of fewer than 50 additional cases at any one time. This impact, though small, will build up gradually over time and so will not be felt immediately. We are therefore confident that these changes will not have a substantial financial impact on Her Majesty’s Prison and Probation Service. I assure the noble Lord, Lord Ponsonby of Shulbrede, that the Government are already providing funding to support our legislative changes: an increase of £90 million in funding for counterterrorism policing this year; an increase in the resources dedicated to training front-line prison and probation staff through the counterterrorism step-up programme; and an immediate £500,000 package for the Victims of Terrorism Unit. The Government will continue to publish data on prison population and probation caseloads, and we will carry out an internal review on polygraph testing. I do not believe that a legislative commitment is required or necessary to review the financial impact of these measures.
The noble Lord, Lord Ponsonby of Shulbrede, spoke also to Amendment 36, which would insert a new clause requiring the Secretary of State to lay a report on the potential impact of the Bill’s provisions on prison capacity. Again, I respectfully draw his attention to the impact assessment the Government published alongside the Bill, which has already made that assessment. The estimates I have already spoken of are based on recent trends in overall numbers of terrorist offenders being convicted. As the cohort of offenders affected by the Bill is small, these changes will have only a minor impact on prison capacity. We will always provide places, of course, for those sentenced to custody.
In addition to the impact assessment, as I have said, the Government routinely publish data on prison population statistics. I do not believe that a legislative commitment will provide any greater opportunity for scrutiny in this respect. It is worth underlining that the Government’s ambitious programme of improvement in this area—the counterterrorism step-up programme—will put more specialist staff in prisons, working directly with prisoners on rehabilitation, as well as providing intelligence and monitoring of such prisoners. This will make our prisons, and ultimately our streets, safer, an ambition that I am sure noble Lords will support. I know that that is a matter of agreement across the Committee. This programme will be important to ensure that prisons can manage any increased demand from terrorists serving longer in prisons in the near future. Therefore, it is not necessary for us to legislate for a further assessment of the potential impact of these measures.
The noble Lord spoke also to Amendment 38, which would insert a new clause placing a statutory requirement on the Government to review all measures in the Bill that relate to Northern Ireland, in consultation with the Northern Ireland Minister for Justice and the Northern Ireland Executive. This review would be required annually and to be published as a report and laid before Parliament. First, I assure him that in developing the Bill, despite the fact that terrorism is a reserved matter, we have carefully considered Northern Ireland’s unique history with terrorism and taken great care not to tamper with provisions enshrined in the Belfast agreement and, particularly, the Northern Ireland (Sentences) Act 1998. Furthermore, when we have found concessions viable, we have made them, as we demonstrated through our removal of clauses providing for polygraph testing in licensed conditions, following assurances from the Northern Ireland Executive that they are satisfied that the legislative power to use such measures exists already. That said, I remain of the view that we need to take a robust approach to terrorist offending wherever it occurs in the United Kingdom and whatever ideology it aligns itself to. We must avoid a two-tier approach to the sentencing and release of terrorists across the United Kingdom.
The most recent data shows that in 2019-20, there were just 14 convictions for terrorism-related offending in Northern Ireland, and just six in the previous year. With numbers at that level, I submit that there will be too little information on which to base an annual review. The same amendment was raised in the other place, and I respectfully remind the noble Lord that the opportunity already exists for the House to review the Bill’s impact in the relevant committee three years after it receives Royal Assent, through the post-legislative scrutiny process. A review clause of this nature is therefore not required. Reviewing the impact of a Bill after three years will provide a more meaningful opportunity for review. For these reasons, I am not persuaded of the benefit of an annual review of the Bill’s measures in Northern Ireland.
Amendment 39 would insert a new clause placing a statutory requirement on the Government to report on the impact of the provisions in the Act on the National Probation Service 18 months after its enactment. I assure the noble Lord, Lord Ponsonby of Shulbrede, that we have considered fully the impact on the National Probation Service of the measures in this Bill, which we consider to be low. We set out the impact in full in the published impact assessment.
I acknowledge the critical role that the National Probation Service plays in managing terrorist offenders. Last year, we tightened measures for terrorist offenders on licence to ensure that there is robust risk management from all relevant agencies. This will be strengthened further by the actions that the NPS and other agencies are taking in response to the MAPPA review recommendations from Jonathan Hall QC. We have also strengthened supervision arrangements, ensuring that all terrorist offenders report to their probation officer at least once a week, introducing increased restrictions on travel and extending GPS tagging.
However, we know that we must ensure that our probation services have the capacity and capability to manage such cases. That is why we have made a major investment in the NPS to establish a national security division, which will see a doubling of counterterrorism specialist staff. This will mean that, by March 2021, we will have sufficient specialist capacity and capability to bring the management of all terrorist offenders in the community under the national security division rather than their being managed by local probation areas.
Investing in NSD will mean not only that expertise is pooled and brought under one division but that we can dedicate resources to providing enhanced training to identify and challenge extremist behaviour. Recruits to NSD will receive both initial induction training and opportunities for continuous professional development over and above what the National Probation Service already offers. Crucially, this investment means that those specialist, trained probation officers will be able to deliver enhanced levels of supervision for these high-risk, complex cases. The department will, of course, review the progress made and impact of this Bill after three years, and we will keep resourcing for the National Probation Service under review. It will take time for these measures to be implemented fully. I submit that a report after only 18 months would not provide an accurate reflection.
In the light of these remarks, I ask the noble Lord, Lord Marks, to withdraw his amendment and hope that the noble and learned Lord, Lord Falconer of Thoroton, and the noble Lord, Lord Ponsonby—who spoke to the noble and learned Lord’s amendment as well as to his own—will not move theirs when they are called.
My Lords, I am grateful to all noble Lords who have spoken and to the Minister for his detailed reply.
The noble and learned Lord, Lord Morris of Aberavon, with all his experience, had no difficulty in recognising the need for the review for which we have called, and clearly set out why a review after a year was appropriate. My noble friend Lord Paddick emphasised the need for deradicalisation and made the point, which ought to be obvious but was not addressed by the Minister, that everyone will be released at some stage so working to help them to be safe on release is therefore crucial. He also highlighted the clear danger that keeping offenders in prison for disproportionately long sentences may make them more likely to offend rather than less by further radicalising them, depriving them of hope and undermining their prospects of reform.
The noble Lord, Lord Ponsonby, in speaking to the amendments in his name and that of the noble and learned Lord, Lord Falconer, pointed out the risk of implementing increased sentences without a clear approach to making safe, new prison places available and to ensuring that the special implications for Northern Ireland are properly considered. Particularly important from my perspective, he stressed the role of the probation service.
In response, the Minister urged the Committee to accept that the Independent Reviewer of Terrorism Legislation is the appropriate reviewer of this legislation. I do not accept that. While his role is of course extremely important, it is not the same as someone tasked with a full review directed at the whole, overall impact of this legislation and focused on it. There is a well-established place for formal review after legislation is passed. Nor do I accept that it is necessary for reviewing the impact of this Bill that we should see, as the Minister appeared to suggest at one stage, what has happened on release at the end of offenders’ periods in custody or even after three years. What is necessary is to see, and see reasonably quickly, how these sentences are working and how they are affecting prisons and the prison population—including in particular how the presence of more, very long-term terrorists affects those already in prisons. We need to assess the financial and other impacts at an early stage and see how far the system is changed by the new long sentences.
The Minister questioned the impact of those long sentences because the number of prisoners is low—indeed, he went so far as to describe it as “minimal”—but that leaves out of account the impact of the number of prisoner years to be served by those on very long sentences and the importance of those prisoners within the system, including the danger of their glorification by other prisoners with an inclination towards terrorism.
For all the Minister asserting that enough review work and impact assessments have been done already, so that the reviews we seek are unnecessary, I disagree. However, in the hope that we will be able to discuss a programme for future review with the Government, I beg leave to withdraw my amendment at this stage.
Amendment 16 withdrawn.
Clause 32: Polygraph licence conditions for terrorist offenders: England and Wales
Amendments 17 and 18
17: Clause 32, page 28, line 30, leave out paragraph (a)
Member’s explanatory statement
This amendment and the amendment at page 29, line 14 are consequential on the removal of Clause 35.
18: Clause 32, page 29, line 14, leave out paragraph (b)
Member’s explanatory statement
See the explanatory statement to the amendment at page 28, line 30.
Amendments 17 and 18 agreed.
We now come to the group beginning with Amendment 19. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in debate.
19: Clause 32, page 29, line 18, at end insert—
“(4) In section 30 (use in criminal proceedings of evidence from polygraph sessions), in subsection (1), leave out “a released” and insert “any”.”Member’s explanatory statement
This amendment probes the use of information obtained through polygraphs against third persons.
My Lords, I appreciate that the Committee dealt with some clauses regarding polygraphs on the previous day in Committee, to the extent of filleting the Bill so that certain provisions do not extend beyond England and Wales. I apologise to the Committee that I did not retrieve Amendments 19A and 19B, which were tabled at that time. I shall save my more general remarks about polygraphs for the next grouping, as this is a narrow point.
Section 30 of the Offender Management Act excludes the use of two matters as evidence in any proceedings against a released person. Those matters are physiological reactions and a statement made during participation in a polygraph session. The amendment would make it clear that those matters could not be used as evidence in proceedings against a third party, its purpose being to ask whether that is now the case. When dealing with terrorism offences, there must be a lot of interest in the contacts of individuals—and, perhaps, a lot of interest in finding evidence that can be used against those other people.
I was very grateful for the teach-in arranged by the MoJ on how these sessions are currently run for sex offenders. During that briefing, it was explained to us that the sessions are not fishing or trawling for information; they are not wide-ranging discussions to see what an offender might let slip. They use closed questions, to which the answer will primarily be yes or no. It seems to me that some questions can lend themselves to inquiries about situations which may be relevant to other persons: for instance, “Since our last session, have you had any contact with, direct or indirect, or any news of X?” or “Has your wife had any news of X’s family?” My amendment is to probe whether the answers can be used in evidence against X. I beg to move.
My Lords, I regard this group and the next as essentially probing the Government on the use of polygraphs in relation to those convicted of serious terrorism offences. Like the noble Baroness, Lady Hamwee, I attended the briefing last week, during which the potential use of polygraphs was explained; I also found it useful. As I understand it, polygraphs will be a tool—not instead of anything else—to assist in monitoring by the National Probation Service of offenders who have been convicted of serious terrorist offences and are considered at high risk of causing further serious harm.
I need a little convincing that their use in monitoring sexual offenders is really a terribly useful precedent for the challenge presented by serious terrorist offenders, who often have particular ideological convictions which may make detecting lies or inconsistences rather a different challenge from serious sexual offenders, although I understand that polygraphs have been used by the National Probation Service since about 2013.
I suspect piloting may not be particularly easy, given the numbers involved. We all know from the terrible events following, for example, what happened at Fishmongers’ Hall how challenging it is to assess whether someone has been successfully rehabilitated or not. During the last group, the noble Lord, Lord Marks, stressed how important it was for there to be “effective deradicalisation”. I am sure all noble Lords agree that is a desirable aim, but it is something of a holy grail. As we discussed in Committee last week, effective deradicalisation has been a significant challenge for those responsible for managing offenders, not just in this country but in many others where Islamic terrorists and other extremists have presented problems.
I understand the primary purpose of this Bill to be protecting the public from the very serious consequences of offences committed by these offenders. That does not preclude the possibility of rehabilitation, but I think the balance in the public’s view is very much in favour of protecting them.
I understand that there will be an internal review of this polygraph testing—the noble and learned Lord, Lord Stewart, said so in response to a previous group—and that it is considered that it may involve something like 150 offenders, a relatively small cohort. He also said the responsibility for these offenders might, as I understand it, eventually be transferred to a specialist branch of the National Probation Service—the NSD. Experience of handling terrorist offenders in particular would certainly be desirable.
Although I look forward to the Minister’s response, this process of assessing how best to assist in monitoring serious offenders seems very challenging. Those with that responsibility need all the help they can get, given the difficulties they will encounter. At the moment, I see considerable advantage in using these polygraphs.
My Lords, may I say how much I agree with the noble Lord, Lord Faulks, in his warning against equating too closely the use of polygraphs in monitoring sexual offenders with their use on terrorist offenders, who obviously pose a very different problem? The Minister should consider that.
Sixty years ago, in 1961, I was proudly driving my red and black little Austin A40—new car, brand new wife—along the twisting road from Mold to Denbigh in north Wales. It was a snowy day, just like today—that is what reminded me of the incident. We were not in a hurry. I approached a bend well on my own side of the road at a reasonable speed. There was a car parked on the bend; a large lorry coming from the opposite direction at speed saw it late, swerved out to overtake it on my side of the road and, as he pulled back, his rear end hit my car.
I gave evidence in the Denbigh Magistrates’ Court and found it very stressful. A police sketch of the accident was produced which purported to show where my car had ended up, with a 30-foot, perfectly straight skid mark. I told the chairman of the Bench I thought my car had finished some 20 yards short of where it was shown on the plan. He said, “Don’t you appreciate this is a carefully prepared police plan of your accident?” I said, “Well, it is entitled ‘rough sketch plan’.” Everybody laughed—except the chairman. The defendant was acquitted of careless driving, with the chairman commenting that the wrong person had been prosecuted —it should have been me. However, the lorry driver’s insurers paid me and my wife damages for personal injury without any questions.
The point of this lengthy reminiscence is that witnesses are giving evidence up and down the country in Crown Courts and magistrates’ courts every day, but nobody has ever thought to put a polygraph test on them as they are questioned. Your pulse may be racing, your blood pressure through the roof; you may be sweating, wishing you were anywhere other than perched in a witness box above the well of the court with myriad sceptical eyes looking you up and down—not because you are lying, but you may be afraid that someone, like the chairman of the Denbigh Bench, may not believe you. There are also those pesky lawyers paid to make you out to be a liar with their ridiculous version of the event. That is why the present Domestic Abuse Bill calls for special measures for victims and their witnesses and the present overseas operations Bill has a presumption against prosecution altogether, to save old soldiers the stress of recalling bad times.
The purpose of polygraph testing, as I said at our last meeting on 26 January, is to measure the physiological response of a person to questioning. It depends on the proposition that a person who lies will demonstrate it by changes in his blood pressure, perspiration, heartbeat and so on. I pointed out last time that these conditions are explicable by the stress of being questioned, by being thought to be lying, even by the state of your stomach-turning digestion, or by fear.
Because these physiological changes do not demonstrate that a person is lying, at least to the degree of certainty required for a conviction, evidence of the result of a polygraph test is excluded in court. It is therefore very good policy that, so far, the courts of this country have refused to accept polygraph results as admissible evidence.
We have already discussed whether such evidence should be used where terrorists are released from prison to monitor their continuing behaviour in the community. The purpose of this amendment is to probe whether the Government harbour any desire to go any further: whether this restraint will be maintained if the results of such a test appear to be relevant to a future terrorist trial in a court. That is when principle is put to the test—when there appears to be an indiscriminate danger to the public.
I support this amendment and I look forward to hearing the Minister’s comments on the proposal.
My Lords, as my noble friend Lady Hamwee and others have explained, Clause 32 puts the imposition of polygraph conditions on serious terrorist offenders released on licence on the same footing as applies in the case of serious sexual offences. I say at the outset that I agree with the noble Lord, Lord Faulks, and my noble friend Lord Thomas that different considerations apply with terrorist offenders and sexual offenders.
Yesterday, in Committee on the Domestic Abuse Bill, we discussed the use of polygraph testing for domestic abuse offenders released on licence—and again, different considerations apply. Nevertheless, I said then that my outright opposition to the use of polygraph testing anywhere in our criminal justice system had become more nuanced when the proposed use was for the limited purpose of monitoring compliance with licence conditions on release from custody. My outright opposition hitherto stemmed from the lack of proven reliability of polygraph testing and from the perception at least that it is directed to providing binary answers, true or false, to complex evidential questions—hence the use of statements such as “He failed a polygraph test”. Lawyers naturally prefer a system which depends on the careful and balanced evaluation of evidence, often conflicting or inconsistent, rather than certainty.
In part, as I said yesterday, I have become more sympathetic to the use of polygraph testing with the help of the comprehensive and very helpful learning session organised by the MoJ last Thursday, which was attended by a number of Peers, including the noble Lord, Lord Faulks, and my noble friend Lady Hamwee, as they have said. In addition, I accept that there are legitimate reasons for the use of polygraph testing to provide information to the police and others investigating serious offences and, in the case of terrorism, often potential offences that threaten multiple lives. However, accepting polygraph testing for those limited purposes does not mean that we can accept polygraph testing in criminal cases, and that will remain our position unless and until the reliability of polygraph testing is far more conclusively established than it is now. I agreed completely with the observations of my noble friend Lord Thomas of Gresford on how stress can affect evidence given in a court and on how falsely polygraph testing may skew such evidence.
Our Amendment 19 would amend Section 30 of the Offender Management Act to ensure that evidence of any statement made by a released defender in a polygraph session, and any of his physiological reactions while being so examined, could not be used in a criminal prosecution of any person, not just the released offender. It is right that this amendment is billed as a probing amendment, but that is plainly right. However, at the moment, Section 30 does not say that. As the noble and learned Lord, Lord Wolfson, said yesterday in answer to me on the domestic abuse provisions:
“Section 30 of that Act provides unequivocally that any statement or any physiological reaction made by an offender during the polygraph session may not be used in criminal proceedings in which that person is a defendant.”—[Official Report, 8/2/21; col. 41.]
Therefore, the Government accept the principle that evidence obtained as a result of polygraph testing, or flowing from physiological reactions under such testing, cannot be used as evidence in a prosecution brought against the person being tested. It must be right that it should not be possible to use such evidence in the prosecution of anybody else, and the reasons mentioned by my noble friend Lord Thomas apply equally to that situation.
It therefore seems that, while this is a probing amendment, it is an amendment that the Government can and should plainly accept without compromising their position or anything that the Bill is trying to achieve, and that it is simply consistent with the position taken by the Government that polygraph-testing evidence cannot be used to secure a criminal conviction.
I stress, in the context of the danger posed by terrorism, that I take the point made by the noble Lord, Lord Faulks, that deradicalisation is difficult to achieve. He described it as a holy grail. I emphasise that nothing we say would prevent those administering polygraph testing to released offenders from passing on to the police for the purpose of preventing terrorism information revealed to them. Nor should the police be inhibited from using such information passed on to them in investigating and avoiding terrorist offences.
Amendments 19A and 19B would have the effect of insisting on the affirmative resolution procedure for regulations making provision relating to the conduct of polygraph sessions further to a terrorism-related offence. I suggest that the need for the affirmative resolution procedure is obvious. I would be grateful, however, if the Minister could confirm a number of other points about the regulations proposed, not just for the conduct of polygraph sessions but for using information obtained in the course of such sessions in relation to recall from licence.
My understanding is that, as with sexual offences, and as we were assured yesterday with domestic abuse offences, no decisions on recall from licence can be taken as a result of a test indicating deception. If the result of a test implies that an offender is lying about breach of a licence condition or about further offences, for example, I understand that investigators may ask the police to investigate further before taking any positive action. There is therefore to be no recall on the basis of a failed test, which will lead to recall only if the police find other evidence establishing that a breach has occurred. I hope that will be confirmed in a terrorist context as well.
I also have some concerns about cases where an offender makes a disclosure in a polygraph test, confessing to behaviour that is a breach, and who might therefore be recalled. I asked yesterday about this and was told by the noble and learned Lord, Lord Wolfson, that recall in domestic abuse cases may follow if
“disclosures made voluntarily by the offender during the polygraph examination … reveal that they can no longer be safely managed in the community. Those circumstances would also lead to a return to custody. The important point to bear in mind in that regard is that that is no different from a situation in which an offender makes such disclosures without the polygraph licence condition.”—[Official Report, 8/2/21; col. 41.]
I take that point, but I regard it as important that, before a disclosure in a polygraph test can lead to recall, there should be a hearing where the disclosure is either admitted by the offender to be true or can be tested so as to ensure that it is voluntary, genuine and true before a recall based on it is affected.
Yesterday I posed a number of questions to the Minister in relation to domestic abuse polygraph conditions. They are reported in Hansard, but the same questions are pertinent today in connection with this Bill. They concerned in particular: first, a guarantee that the results of polygraph testing carried out under the clause could not be used to secure convictions of a criminal offence; secondly, that recall from licence on the basis of a disclosure in a polygraph test of a breach of a licence condition will not be possible without a further hearing—the point I just mentioned; and, finally, whether evidence of a breach of a polygraph licensing condition could ever be itself based on evidence from a failed polygraph test. It would be helpful to have those answers in the context of this Bill relating to terrorist offences as well.
It is a pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames. He has covered much of the area with which I am concerned in these sensible probing amendments. The next amendment, Amendment 20, which talks about piloting polygraph tests in this area, deals in effect with the same concerns.
My understanding of the position that the Government are advancing is that we are now concerned only with England and Wales because they deleted the Scotland and Northern Ireland provision that was there before. In effect, they are applying the principles in the Offender Management Act 2007 on polygraph tests. Therefore, the first question is: should one put a polygraph condition into the licence conditions of a terrorist offender? As I understand it, a polygraph condition is that the offender has to agree, if asked, to a polygraph. Will it be automatic that such a condition will be imposed for terrorist offenders? What will be the basis on which such conditions will be imposed?
We on this side are very keen that the authorities should have every reasonable tool that they can to try to prevent terrorist offenders, including those who are released on licence. I am keen to probe whether this particular provision contributes to that. As I understand it from the Government’s proposal, the purpose of the polygraph sessions that will be included in the licence condition will be only to monitor the offender’s compliance with the other conditions of his licence or improve the way in which he is managed during his release on licence.
In relation to the first of those two—monitoring compliance with the other conditions of his licence—does that mean that it will be used to see whether he is in fact complying? If he fails a polygraph test, could that be a basis for recalling him to prison on the basis that he has failed to comply with the other conditions of his licence? If it is the Government’s intention not just to rely on the failure of a polygraph test before recalling an offender to prison, where is that reflected in the statute or in the Bill?
In addition to those questions, to what extent is the Minister worried that, if somebody passed a polygraph test, it would lead the authorities not to make further investigations about an offender’s possible breaches of compliance of the conditions of his licence? Additionally, in relation to the second purpose of polygraph testing—namely, to improve the way in which he is managed during his release on licence—can the Minister give us some examples of what that would mean in practice?
Can I deal with the legal use of the answers to polygraph tests? Section 30 of the Offender Management Act 2007—this has already been referred to by the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee—says that evidence of
“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”
cannot be used against that released person for any offence. In answer to my question, that of the noble Baroness, Lady Hamwee, and that of the noble Lord, Lord Marks of Henley-on-Thames, can the Minister confirm whether that means that those two things can be used in relation to proceedings against somebody else? It would appear from Section 30 of the Offender Management Act 2007 that they could be. Can they be used on their own for recall proceedings, or are recall proceedings simply an administrative act—in which case, the question of whether they can be relied on alone to justify a recall arises?
My Lords, in responding to the amendment and the various points put to me, I will bear in mind and seek to avoid falling into the trap of being one of those “pesky lawyers” that, as the noble Lord, Lord Thomas of Gresford, reminded us, still exist.
In that regard, let me turn to the substance of the amendments, particularly Amendment 19 put down by the noble Baroness, Lady Hamwee. This amendment seeks to amend Section 30 of the Offender Management Act, which relates to the use of polygraph evidence in criminal proceedings. I understand that the noble Baroness and others may have concerns that evidence gathered from the conduct of polygraph examinations could be used against a third party in a criminal trial. I know that we covered this yesterday in the Domestic Abuse Bill, but I want to take a moment to record my thanks to those in my department who arranged the learning session for a number of noble Lords, including the noble Lords, Lord Marks and Lord Faulks, and the noble Baroness, Lady Hamwee. I understand that they found it helpful and informative, which perhaps indicates that those sessions could be used more often. I assure the noble Baroness, Lady Hamwee, and the Committee that it is neither the intention nor the effect of the polygraph testing provisions of the Bill that they will be used in criminal proceedings against third parties.
In response to the specific point put to me by the noble Lord, Lord Thomas of Gresford, we do not harbour any desire to go further than the provisions in the Bill.
Polygraph examinations are now well established as a risk management tool in England and Wales. They have been used successfully, as the Committee has heard, with sex offenders since 2013. In the context of terrorist offenders, which I acknowledge represents a different cohort, they are—if I can put it this way—an additional tool in the toolbox. They will be used, to respond to the point made by the noble and learned Lord, Lord Falconer of Thoroton, where it is necessary and proportionate to do so as part of the assessment of the risk offenders pose in the community while on licence and how that risk can best be managed.
As I made clear to the noble Lord, Lord Marks, yesterday in the Committee sitting on the Domestic Abuse Bill, Section 30 of the Offender Management Act makes clear that
“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”
may not be used in criminal proceedings in which that person is a defendant. While that section does not expressly provide for such information to be precluded from use against others in criminal proceedings, which is what this amendment seeks to achieve, I do not believe the amendment to be necessary.
This is because, although there may be circumstances where information obtained through the polygraph test relating to a third party can be passed from probation to the police to make further investigations, the polygraph material would not be suitable for use as evidence in its own right against a third party. Any allegation against a third party would ultimately need to be tested in court. The court would have to consider, among other things, whether the polygraph evidence was admissible in such other criminal proceedings and the effect of the hearsay rule. While that would ultimately be a matter for the judge in the particular case, noble Lords will appreciate the great difficulties that would be presented by the hearsay rule.
The noble Lord, Lord Faulks, said that sex cases are different from terrorism cases. He is of course right, but he was also right to say that what is presented by terrorism cases is a difficult and challenging task. That is why, to use my earlier metaphor, this is another tool in the toolbox which we would like the services to have available to them. In that regard, I can assure Members of the Committee that polygraph testing will not replace any other risk assessment tools or measures, it is an additional source of information that would otherwise not be available. On that basis, I would invite the noble Baroness, Lady Hamwee, to withdraw the amendment as it is unnecessary.
I turn now to Amendments 19A and 19B, which are tabled in the name of the noble Lord, Lord Paddick. The amendment to Clause 35 would require regulations relating to the conduct of polygraph examinations to be subject to the affirmative procedure. Perhaps I may remind the Committee that we have already tabled our intention to remove Clause 35 from the Bill, alongside Clauses 33 and 34 dealing with the introduction of polygraph testing as a licence condition in Scotland and Northern Ireland, as part of our efforts to secure legislative consent from each Administration. We covered this in the first sitting of the Committee. It does not reflect a change in policy for England and Wales. As I have said, we firmly believe that polygraph testing is an additional and useful tool.
In that regard, polygraph examinations will be used to monitor compliance with licence conditions based on what has happened and will not ask about future behaviour. I think it was the noble Baroness, Lady Hamwee, who put to the Committee an example of the type of questions that might be asked. She was right to frame those questions in the past tense. A polygraph examiner might ask, for example, “Did you enter those premises?”, if that was something which had been prohibited by the licence conditions. The question would not be, “Are you going to enter the premises next week?” The questions look at what has happened and past behaviour rather than future intent. They are not used as a way of trying to catch offenders out, but as a measure to identify the extent to which the person on licence is complying with the conditions of the licence.
Although I accept, as the noble Lord, Lord Thomas of Gresford, reminded the Committee, that giving evidence in court can be a stressful experience, it was interesting to note that he pointed out that we have provided special measures for vulnerable witnesses in the Domestic Abuse Bill. As I understood it, he used that as an example of a case where we recognise that giving evidence can be stressful. Of course, we have also provided for the polygraph examination of the perpetrators of domestic abuse in that Bill. Just as it is in the Domestic Abuse Bill, it is also here; it is an additional tool in our toolbox.
I come to a question put to me by the noble Lord, Lord Marks, which I think was repeated by the noble and learned Lord, Lord Falconer of Thoroton: if a person who is subject to a polygraph examination “fails” a question, can they be recalled immediately? There are two parts to the answer and let me give both. First, what do we mean by “failing”? We use the term as a form of shorthand, and the Government factsheets use it because they are written in what we hope is plain English so that members of the public can understand them, but it is not the correct professional term. The correct terminology that is used by examiners in reports is whether there is a significant response or no significant response. That more nuanced term makes it clear that we are not dealing with a question of passing or failing here; rather it is about whether the examination results indicate that the response has been truthful or not.
That is why, coming to the second part of the question, we do not recall offenders to custody on a significant response in itself. In answer to the question put to me by the noble and learned Lord, Lord Falconer of Thoroton, that is not in the Bill, but it is firm policy. Therefore, “failure”, a term that the Committee will now appreciate is a form of shorthand, does not by itself or by default trigger a recall. Where it is safe to do so—for example, with the addition of new licence conditions—the offender can continue to be managed in the community. However, if a disclosure is made which indicates that the risk has escalated beyond the point where the offender can be managed safely in the community, they can be recalled to custody.
In this context—I reiterate the point that I made yesterday in the domestic abuse context—that is the same whether the disclosure was made during the course of a polygraph examination or in a meeting with a probation officer. The polygraph condition, therefore, provides another way in which to examine the manner in which the offender has behaved and is a further source of information on which to base risk-management decisions.
By the use of the negative instrument, Parliament is given the opportunity thoroughly to scrutinise the use of polygraph testing under licence, through debates such as this and those that would occur in the future. The negative resolution approach is appropriate because the conduct of polygraph examination sessions is an administrative matter. Therefore, should a minor adjustment to those procedural rules be needed, we consider that it should not be necessary for that to be subject to an affirmative resolution.
It may be the case, because risk management is a dynamic process, that once the provisions are in force new risks emerge that are particular to the management of terrorist offenders, which the Committed has noted is necessarily different to the management of sex offenders, and the Government would need to be able to respond quickly to that change by making adjustment to regulations. That would be a further reason to use the negative procedure, because it is more flexible. Other than that, polygraph testing for terrorist offenders on licence will be subject to the same standards, degree of rigour and oversight as it is for use with sex offenders.
I hope that I have responded to the first point put to me by the noble Lord, Lord Marks of Henley-on-Thames, as regards recall. Yesterday, he asked—I was going to say a barrage—a list of questions about polygraphs in the domestic abuse context, and I understand that he has repeated them, mutatis mutandis, in this context. I have responded to a number of the questions that I was unable to respond to yesterday in the domestic abuse context, given the time, because I anticipated that he might repeat them. I will go through the Official Report. If there are any questions that he put yesterday that I have not responded to today, I will write to him because he will be getting a letter from me in any event, as I promised yesterday.
Specific questions were put to me by the noble and learned Lord, Lord Falconer of Thoroton. Perhaps I can respond to his point about the pilot in the next group, which relates to his amendment that specifically focuses on that issue. Otherwise, I think that I have responded to his questions but, again, if a review of the Official Report indicates that I have missed one, I hope that he will permit me to write to him.
For those reasons, I invite noble Lords to withdraw or not move their amendments.
My Lords, I have received a request from the noble Lord, Lord Robathan, to speak after the Minister.
My Lords, I apologise for not adding my name, which I put down to speak but not on a particular group. Yet again, I find myself as the only person taking part in the debate who is not a lawyer. I shall come back to that later.
In layman’s terms, I joined the Zoom call on polygraph testing last week, to which other noble Lords referred, and it was extremely useful. I thank Heather Sutton from the probation service, Professor Don Grubin and others for laying it on because it explained to me what polygraph testing is. They explained straightaway that a polygraph is not a lie detector but an additional tool to enhance the safe and effective risk management of offenders and could not be used as evidence.
I did, in fact, ask why sex offending was used as the only precedent for using polygraphs on terrorists. I think that I sort of understood the response, which was that it was a question of denial. That is what they sought to find out. It was a very useful teach-in session.
That is why I am slightly puzzled that we are discussing these amendments. As I said, I am not a lawyer. The noble and learned Lord, Lord Falconer, reminded us that law can be a gift that keeps on giving. We were reminded of that only at the weekend. We heard from three Liberal Democrats. I think they all said—the noble Lord, Lord Thomas of Gresford, certainly did—that you cannot use a polygraph test as evidence. If you cannot use it as evidence against the specific person against whom you have done the test, surely by implication it cannot be used as evidence against somebody else. My noble friend the Minister specifically pointed to hearsay. It seems that we are slightly arguing about angels on the head of a needle: it will not be used, so why on earth are we arguing about it? This was presented as a probing amendment, but it seems to be probing something that we do not really need to probe
The point of polygraph testing is that, as an additional tool, we would get away from the case of Usman Khan at Fishmongers’ Hall, who had convinced his mentor, Jack Merritt, that he was de-radicalised. Jack Merritt believed in him and his redemption, and Usman Khan killed him. Surely we should use these additional tools if they have any substance or credibility. From what we heard in the teach-in last week, polygraph testing has some credibility.
Let us please back the use of an additional tool until proved otherwise, because frankly we are dealing with something that I guess probably none of us in this Chamber or on this call understand. We do not understand why somebody would get into an aeroplane, train for months in the United States and then fly that aeroplane into the twin towers. We do not understand suicide bombers. We do not understand the radicalisation that takes place in these people, so surely we should give the Government every tool they can possibly have. I certainly back them on this.
My Lords, I am grateful for the question put to me by my noble friend. As I said, that is precisely what the Government seek to do: to provide an additional tool for the management of these offenders. The point he made regarding deradicalisation is, if I may say so, very perceptive. It is a difficult part of the overall structure we are putting in place in the Bill, as we have in other legislation.
I am delighted to hear that my noble friend found the teach-in session helpful. I am particularly grateful to him for putting on record the names of the people who presented it. I know that they put a lot of work into putting it together.
The only point I would respectfully disagree with my noble friend on is one that I had cause to point out to another Member of your Lordships’ House—I think last week. One must really stop apologising for not being a lawyer. I think my noble friend did it twice. I pointed out last week that what is regarded as a cause for apology in this House is generally regarded as a badge of honour everywhere else. The question put to me by my noble friend exemplifies how this is a matter for lawyers and non-lawyers.
My Lords, at the briefing by the MoJ, I was one of those who volunteered—at some point when we are able to travel again—to undergo a test, because I would like to experience what it is like. I sound a note of caution about the use of private—sometimes confidential but certainly private—sessions. They are terrific and helpful, but only so far; I do not believe that they can take the place of public debate. I could respond at some length to the noble Lord, Lord Robathan, but it would be outside the scope of the amendment. The purpose of scrutiny and its place in the development of legislation mean that it must be undertaken in public. I do not mean to sound too pompous in saying that, but it is something that I believe very profoundly.
The Minister apologised for being a pesky lawyer, but I think that being a pesky lawyer or an activist lawyer is a badge of honour. I disagreed with the comment of my noble friend Lord Thomas that people would not want to apply polygraphs in criminal proceedings. I can imagine that there are a lot of situations when people in court think that they would very much like to apply a polygraph to some witnesses—but that is by the by. I have told myself that I would not take up too much time with this response, because we have a lot of amendments to get through.
Inevitably, perhaps, this turned into a more general debate. On the specific amendment, we are told that it is unnecessary, and that what one might take—I cannot think of the right term— from a polygraph would be unsuitable for use in court, because it would be hearsay. I shall have a look at that after today, but I think that there is a little bit of circularity in all that. Certainly, in the real world, the questions that might be asked would, I am sure, provide material for the police, if not the prosecution—but that is a common-sense response. I beg leave to withdraw the amendment.
Amendment 19 withdrawn.
Clause 32, as amended, agreed.
Clauses 33 and 34 disagreed.
Clause 35: Polygraph licence conditions in terrorism cases: supplementary provision
Amendments 19A and 19B not moved.
Clause 35 disagreed.
We now come to the group consisting of Amendment 20. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press the amendment to a Division must make that clear in the debate.
20: After Clause 35, insert the following new Clause—
“Review of polygraph testing on terrorist offenders
(1) The Secretary of State must, within six months of this Act being passed and before sections 32 to 35 come into force, conduct a pilot of the use of polygraph testing on terrorist offenders.(2) The outcome of the pilot must be reported to Parliament within 12 months of this Act being passed.(3) The report must include—(a) data on the number of terrorist offenders who have been subject to polygraph testing during the pilot;(b) an explanation of how the results of polygraph tests have been used during the pilot;(c) an analysis of the effect polygraph testing has had on the licence conditions of terrorist offenders;(d) data on the number of terrorist offenders who were recalled to prison on the basis of polygraph test results;(e) a recommendation from the Secretary of State as to whether sections 32 to 35 should enter into force following the pilot; and(f) evidence from independent research on the reliability and value of polygraph testing of terrorist offenders.” Member’s explanatory statement
This new Clause requires the Secretary of State to conduct a pilot test of the use of polygraph testing on terrorist offenders and report the outcome to Parliament, in addition to setting out evidence for the reliability of polygraph tests based on independent research.
This amendment proposes that the Secretary of State, within six months of the Bill being passed, should set up a pilot to see how the polygraph condition works in relation to terrorist offenders. It is a probing amendment. It may well be that a different or longer period would be required for the pilot, but the purpose of a pilot is to test a number of aspects of polygraph testing. We have gone through this on the previous group, and I do not want to spend too much time on it because we have already discussed it a lot, but I have three particular concerns that would be tested by a pilot.
First, how does polygraph testing operate in practice? I would be grateful if the Minister, who was very helpful on the previous amendment, would give us some indications about how it works in practice. By that, I mean the following. If one asks a question of an offender in a polygraph test, “Did you, in breach of your conditions, visit a certain place?”, and he gives an answer to which there is—to use the language of the Minister and the briefing—a significant response, does that mean that further investigations take place? If there is no significant response, would that mean, for example, that there would not be any further investigation? Does that give rise to risks that too much reliance will be placed on the answers in polygraphs to, for example, not undertake further investigations?
My second area of concern is the one raised by the noble Baroness, Lady Hamwee, on Amendment 19. It would appear from the very helpful answer given by the Minister on the previous group that answers given would be admissible in proceedings against another offender, albeit that their admission would be subject to the discretion of the trial judge for the other offence. In certain circumstances I can see very clearly that they might be of real evidential value—for example, because they constituted an admission or because they constituted evidence of a conspiracy, depending on the content of what is being said. Can I take it that the Government are saying that they might in certain circumstances be admissible and that they are content for that to be the position? It is important that the Committee knows what the position is.
Thirdly, am I right in saying that decisions about recall are made not by a court but by a probation officer, and are there any reasons why he or she should not rely on a significant response—to use lay man’s language, a failure—of a polygraph test? I beg to move.
My Lords, the questions that have been asked are important. We cannot assume that the rules that currently apply for use with sex offenders are going to apply in terrorism cases. Indeed, Clause 35(2) tells us that there may be particular rules for terrorism cases, and even if that was not in the Bill, we know that rules can be changed at any time, relatively easily.
Polygraphs do not have a great reputation with the public, and “The Jeremy Kyle Show” did not enhance it, which is another reason for wanting to explore details today. I made the point only yesterday on the Domestic Abuse Bill that operators have to follow courses accredited by the American Polygraph Association, and I was interested—I will try to use a neutral term—that we in this country are following American practice.
Under the rules, there are requirements about reports and records. I had a look at the 2009 rules, under which the operator is required to explain the requirements of the session: that anything disclosed might be communicated to the probation officer, and that there must be consent—or, rather, written confirmation—from the offender that these explanations have been given. I stopped myself calling it “consent” because, in that situation, I wonder whether the anxiety to which my noble friend Lord Thomas referred would preclude a complete understanding by the offender of what is happening. In that situation, knowing that refusal to take a test would amount to a breach of licence conditions, would you not sign anything?
The current reviewer of terrorism legislation has called for a pilot, and, if not a pilot, then post-legislative scrutiny. Not many Bills come along for post-legislative scrutiny by Parliament. The noble and learned Lord, Lord Stewart, painted a picture that I did not quite recognise. It sounded rather more like a departmental review—an internal review—than scrutiny by Parliament to see how an Act is getting on.
At last week’s briefing, I asked about the reliability of polygraphs used on subjects who have undergone some extreme experiences, such as having been in a war zone. I understand that that cohort is particularly in the Government’s mind at the moment. The professor of psychiatry—Professor Grubin, I think—who, I understand, advises the Home Office, realised that I was referring to trauma. I had not wanted to assume that they were subjects who had been traumatised, but he was right. I remain concerned not only about what might be perceived from offenders’ reactions but that the test itself might be retraumitising, so I think that the questions being posed are very helpful.
My Lords, it has been a privilege to listen to the speeches this afternoon. I have benefited very much from what has been said by all noble Lords and I make these submissions bearing that in mind.
At the moment, I see Clause 35(1) as the most important provision dealing with polygraph licence conditions. What we have heard this afternoon indicates just how clearly we are engaged on a learning curve at present. As I read it, subsection (1) provides that the power to use polygraph licence conditions will be limited by the regulations made in that subsection. Therefore, it seems that the whole of this debate should be conditioned by that provision, and that is why I thought it right to intervene in this almost private party that is dealing with these issues.
It seems to me that we are on a learning curve not only with regard to the provisions of this Bill but generally on the use of polygraphs in this country. It is obviously very useful to have as much material as we can so that, before we give the Government such powers as we consider appropriate, we know what the limitations will be.
I of course recognise that the Ministers we have heard address the House today would have given the assurances they did only if they were confident that they would in fact be applicable. But the provisions will be in their final form only after the regulations have already been drafted and the limitations expressed. That is why I think the whole concept in the amendment proposed by the noble and learned Lord, Lord Falconer, should be treated as being very appropriate, because this is the mechanism by which those limitations are going to be defined.
My Lords, I was very happy with the Minister’s reply when he said that a significant response—not a failure—does not lead to a recall and to the loss of liberty of the person who is being examined by polygraph. That seemed to be a very clear statement. But the noble and learned Lord, Lord Falconer, has raised some interesting questions and I would like to pursue them a little further.
He asked how it works in practice; I ask how it works in principle. For example, on 26 January I raised the point of the right to silence. The person who is obeying the conditions of his licence by taking part in a polygraph test is asked a series of questions. Nobody has suggested that he is warned that he need not say anything unless he wishes to do so. He does not have a caution, and he does not apparently have a right to silence, because if he refuses to obey the condition of his licence—regardless of anything he may or not say about his position—he is presumably open to be recalled to prison and to lose his liberty. That is a very important point that we should consider and address.
The noble and learned Lord, Lord Falconer, also introduced an interesting concept in relation to the third person—namely, can the transcript of a polygraph test be used as evidence of a conspiracy? We would like a straightforward response to that from the Minister.
Finally, my noble friend Lady Hamwee revealed something that I had not appreciated: the recall to prison—the loss of liberty—is determined not by the court but by a probation officer. A probation officer takes the decision. “Well, he’s refusing to answer the polygraph test, he’s breached his conditions and I’m going to send him back to prison.” That, to my mind, introduces an important point of principle.
I wholly support the proposal in the amendment that there should be a pilot to investigate these practical and principled questions that have been raised.
My Lords, I support this amendment in the name of my noble and learned friend Lord Falconer, who has asked some very important questions. I say immediately that I valued very much the teach-in that I attended on Microsoft Teams on the working of the polygraph, and I thank the Minister for arranging it.
We are in a new field in this context, and an issue of this kind, when it is embedded on the face of the Bill, demands very close attention. I raised the issue briefly in my speech at Second Reading, and I support the noble and learned Lord, Lord Woolf, when he states that we are on a learning curve. Having assisted my Minister, Barbara Castle, many years ago, in piloting through the House of Commons the breathalyser legislation to tackle drink driving, which was a very controversial issue at the time, I would be the last to oppose innovation per se, and I do not oppose this proposal. All I am anxious to know, in the fullness of time, is how it is working.
I learned at the teach-in that the polygraph is a useful tool in the management of offenders. It only gives an indication of past conduct, but it could be used to pick up warning signs on what might be done in the future, and is a significant tool for the management of offenders. The important point above all else was that an offender could not be recalled for failing a polygraph test. I believe that the Minister confirmed this in his reply to an earlier amendment. It is not a magic bullet and it is not 100% accurate. The examples given of its use, in the course of the teach-in, involved such questions as, “Have you had contact with other terrorist offenders?” or “Have you used the internet for any purposes contrary to your licence conditions?”. The polygraph cannot predict future conduct, only past conduct.
At the teach-in, the noble Lord, Lord Carlile, asked whether the polygraph was used in other jurisdictions such as Canada, Israel and the USA. The reply was that it tended to be used for vetting purposes. It was not clear to me whether it could be used for other purposes. If I am wrong in my understanding of the observations that we have heard on this very helpful tool from a panel of experts, the Minister will correct me. However, the limited use of the polygraph is made clear in subsections (1) and (2) of the proposed new clause. It is important to put on the face of a Bill, as my noble and learned friend Lord Falconer of Thoroton has put in the amendment, the need for a pilot to be in use within six months, with a report to Parliament, in the terms of the amendment, within 12 months,
I will not take up the House’s valuable time in repeating the details that are set out in the amendment itself. All I will say is that, given the kind of problem that we face in the management of offenders, we should not shut our eyes to the possibilities of the actions now proposed. How important it will turn out to be will be a question of degree. Therefore, I support this amendment.
My Lords, I wish either that this group had been grouped with the previous group or that I had spoken in the previous group, as we seem to be going over the same ground. Can I also push my luck, at the invitation of the noble and learned Lord, as an out and proud non-lawyer and wonder out loud whether lawyers feel somewhat threatened that there might be a machine more able to tease out whether someone is telling the truth or not, or even to tease out a disclosure, than a lawyer? I do not believe lawyers need to worry. I feel this group and the previous one turned into an extension of the teach-in. But I shall press on.
Amendment 20, moved by the noble and learned Lord, Lord Falconer of Thoroton, to which my noble friend has added her name, calls for a review of polygraph testing on terrorist offenders based on a pilot scheme. I take a slightly different view to my noble friends Lady Hamwee and Lord Marks, probably because they are pure Liberal Democrats, unlike me, who am contaminated by 30 years’ experience as a police officer.
Yesterday, in discussion on the use of polygraph testing in the Domestic Abuse Bill, the Minister talked about how polygraph tests were used. I join other noble Lords in saying how helpful the teach-in on polygraph testing provided by the Ministry of Justice was, and I thank the ministry for it. In that presentation, if I recall correctly, we were told that the tests are 80% to 90% accurate, on the basis of tests carried out on sex offenders. The tests measure physiological changes that occur if someone is trying to think of a wrong answer about an experience they have had in the past. People usually instinctively think of the truthful answer before they offer a dishonest alternative, and this produces physiological changes that the tests pick up. The evidence suggests a dishonest response cannot be used in court, and it is not used to recall someone to prison, but it might prompt further investigation by the police. Failing the test is not a replacement for any other form of risk assessment.
From the notes I made at the time, which take me back to giving evidence in court as a police officer, polygraph tests also prompt disclosures that might not otherwise occur. If such a disclosure indicates the subject has breached their licence conditions or is a threat to the public, this can result in prison recall. In short, disclosures can result in immediate sanction, but failing the test can only lead to further investigation.
Although polygraph tests have been used on a large number of sex offenders and have, therefore, been thoroughly evaluated, it will be more difficult, even with a pilot, to evaluate use with terrorists, as there are far fewer of them. My noble friend Lord Thomas of Gresford mentioned the right to silence, recalling what we were told in the teach-in. The difference here is that these are convicted offenders on licence, who have no right to silence. However, the science is the same whether we are dealing with sex offenders or terrorists, and polygraph tests are useful where there is a pattern of behaviour rather than a single act. It is, therefore, anticipated that their use in terrorism cases will be similarly effective. There has already been considerable experience of using polygraph tests and evaluating the results, somewhat at odds with the comments of the noble and learned Lord, Lord Woolf. But in agreeing with the noble and learned Lord, I think that it is true to say there has been very limited, if any, experience of using polygraph tests in connection with terrorism offences.
I feel sure that the Government will use polygraph testing with terrorists and, as we will hear in a later group, those subject to TPIMs, on a trial basis, as they intend to do in relation to domestic abuse. But the opportunities to evaluate their effectiveness with terrorists will be more limited, because, as I said, the numbers are considerably smaller. I am sure the Minister will say whether I got that right.
My Lords, on the face of it the purpose of this amendment, tabled by the noble and learned Lord, Lord Falconer of Thoroton, is to provide for a pilot of polygraph testing for terrorist offenders in the UK and for a report to be prepared and laid with a recommendation on commencement before the provisions are commenced. I appreciate, however, that the debate has gone a little broader than that, and I will try to respond in my remarks to all the points put to me. I should say at the outset that I am impressed by the note-taking ability of the noble Lord, Lord Paddick, which has obviously not diminished with time. I hope that the notes which he took are consistent with not only what he was told at the meeting, as I am sure they are, but with what I said on the previous group and what I am going to say on this group as well.
Polygraph examinations have been used successfully in the management of sexual offenders by the National Probation Service since 2013, following an initial pilot. Offenders involved in the pilot stated that, although they did not like being tested, for many it helped them modify their behaviour and comply with other licence conditions. While I therefore respectfully agree with the comments of the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon, that we are on a learning curve, we are in fact someway up the curve, if I may put it in those terms. The noble and learned Lord, Lord Woolf, was right to remind us of Clause 35(1), which provides for regulations in this context. The breathalyser is a good example, as put before the Committee by the noble and learned Lord, Lord Morris of Aberavon, of how we must always in the criminal justice field avoid being shy of using technology where it is available. The question is how it is to be used; it is in that context that I come to the questions put to me by the Members of the Committee.
Having put that provision in place for sexual offenders, the independent evaluation of mandatory testing on sexual offenders carried out by the University of Kent produced extremely positive results. As the Committee is aware, we have since rolled out polygraph testing in that context. We must therefore be wary of two things. First, we must be wary of the trap of saying that because something might or might not be used in “The Jeremy Kyle Show”, it should form no part of the criminal justice system. “The Jeremy Kyle Show”, which I think has now stopped, can look out for itself. My concern is to ensure that we have proper provisions for polygraph testing in the criminal justice system.
The second thing we must be careful of, if I may respectfully say so, is not to fall into the trap of thinking that anything which comes from the United States of America is inherently suspect in the criminal justice field. I would gently point out to the noble Baroness, Lady Hamwee, that the American Polygraph Association’s standards are those of an international professional association for polygraph examiners. That association carries out research and provides accredited training for examiners. It also provides mandatory professional development training, which all examiners must complete every two years to maintain their accreditation. Its standards are used by examiners across the world, and the Government want to ensure that those standards are maintained for examinations conducted on terrorist offenders.
The central point raised in the amendment tabled by the noble and learned Lord, Lord Falconer, is that of the pilot, so I will deal with that first. While a pilot was important for the initial use of polygraph testing with sex offenders, and while we also intend to conduct a pilot for its use with domestic abusers, we have decided not to pilot its use with terrorist offenders, simply because there are insufficient numbers of relevant offenders to carry out a pilot that would produce meaningful results. Therefore, I respectfully disagree with the noble and learned Lord that a pilot prior to commencement would add value. However, we are committed to conducting a robust internal review of testing terrorists after a two-year period, which we anticipate will provide more meaningful results.
Various points put to me by Members of the Committee go beyond the scope of the amendment as drafted but, since they were raised, I hope the Committee will permit me to respond to them. A number of points were raised by the noble and learned Lord, Lord Falconer of Thoroton. First, on how this will operate in practice, he gave an example of a question—“Did you visit a certain location?”—and asked what would happen if there was, or was not, a significant response. If there was a significant response, the person conducting the test would consider whether that merited further investigation. Should he or she so consider, those further investigations would be undertaken. If there was no significant response, that too would be evaluated as part of the overall assessment. Indeed, that was the point that I sought to make in the previous group. This is, to use that phrase again, another tool in the toolbox; it is part of an overall package of evidence, which is assessed.
The second point put by the noble and learned Lord concerned how this would work vis-à-vis another offender; that is, whether the polygraph result would be admissible against another person. I hope that I answered that clearly in the last group by making clear the express prohibition: the results may not be used in criminal proceedings in which the person taking the test is a defendant—and I explained the position with regard to other people. It is important to remember that the question of evidence must be a question for the judge in a particular case unless there is an express statutory prohibition, and I have made clear the limits of the express statutory prohibition. Normally, however, as a matter of principle, things said by an accused outwith the presence of a co-accused would be inadmissible against the co-accused. I stress that admissibility of evidence is not a matter for the Government from the Dispatch Box but a matter for the judiciary in a particular case. I hope that that answers the second point put to me by the noble and learned Lord.
The third point was whether a probation officer would rely only on the polygraph test if it was a tool available to him. Again, this is the tool in the toolbox point: polygraph testing does not replace any existing forms of risk assessment or management. It provides that additional tool, and it provides information that otherwise would not be available. Certainly, I can reassure the noble and learned Lord that there is no evidence from the testing of sexual offenders that polygraph results are being used as a substitute for other forms of risk assessment and management, which, as I understand it, was the burden of his third question.
I now turn to the points put to me by the noble Lord, Lord Thomas of Gresford. He made a point about the right to silence. This is an important right in English law and applies to somebody who has not been convicted. Somebody on licence here who has been convicted of a terrorist offence does not enjoy a presumption of innocence, not least because he has been convicted. We are therefore not talking about a right to silence at all. We are, in fact, talking of a circumstance in which taking the test is a condition of the licence. It is therefore quite right and proper that a refusal to take the test should be something that may result in a recall. Indeed, in that context, I respond to the point put by the noble Baroness, Lady Hamwee, by saying that, frankly, I am less concerned about retraumatising—to use her word—people convicted of terrorist offences than about making sure that they comply with the licence conditions imposed on them.
The second point put to me by the noble Lord, Lord Thomas of Gresford, was about conspiracy. I think that substantially raises the same issue as the second point of the noble and learned Lord, Lord Falconer, so I hope I have already answered it.
The third point put to me was whether the probation officer would have the ability to decide on a recall to prison. I have two points here. First, as I said in the last group, and as identified by the noble and learned Lord, Lord Morris of Aberavon, the position is that polygraph testing may inform a risk-based recall, but a “failed” polygraph examination will never be solely used to recall someone to prison. It is part of an overall assessment. In that context, I point out to the noble and learned Lord, Lord Falconer of Thoroton, that no doubt that is why his proposed new subsection (3)(d) refers to the number of terrorist offenders recalled to prison on the basis of polygraph test results. We would have to read “on the basis of” in that context to mean one of the factors taken into account, because, as I said, it cannot be solely on the basis of a failed test.
The second part of my answer to the noble Lord, Lord Thomas of Gresford, is that it is not unusual that this is a matter for the probation officer. He will appreciate that statutory and Parole Board procedures are in place for an offender to challenge the recall should they wish to do so.
I am just checking that I have responded to all the points put to me. I believe I have; I will check the Official Report and write to any noble Lords if they have raised points to which I have not expressly responded. I am conscious that this debate has gone a little—or quite a lot—further than the scope of the amendment itself. I hope, having heard my response on the particular point of the pilot and to the noble and learned Lord’s three questions, that the noble and learned Lord, Lord Falconer, will be content to withdraw his amendment.
Noble Lords may be pleased to know that we have had no requests to speak after the Minister, so I call the noble and learned Lord, Lord Falconer of Thoroton.
I am grateful to everybody who has participated in the debate, particularly the noble Baroness, Lady Hamwee, the noble Lords, Lord Thomas and Lord Paddick, and the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon—all of whom, with the possible exception of the noble Lord, Lord Paddick, supported the idea of some sort of pilot. I am also very grateful to the noble Lord, Lord Wolfson of Tredegar, for his response.
I take from this debate that there are very considerable issues and uncertainty around the use of polygraphs because they are quite new in this country. Like everybody else, I am concerned that, if they are a genuinely useful tool, they should be available to the authorities.
I am struck by what the noble Lord, Lord Wolfson, said about not having enough terrorist offenders on which to base a pilot, and I take note of that. I understood him to say that the Government will themselves carry out a review within two years. In light of what he said, I am minded to think that the right thing to do is to come back on Report with an amendment suggesting a pilot which can embrace all the terrorist offenders, because there will not be that many. That will not restrict the Government from using them now, but it will require them within two years—not the 12 months I have referred to—to come back with the information referred to in proposed new subsection (3) of the amendment. That would be good from the point of view of informing the public about polygraphs and, more importantly, informing the Government on how they do it, because they have to make a report on it.
I am very grateful to the noble Lord, Lord Wolfson, for his response, and I beg leave to withdraw my amendment.
Amendment 20 withdrawn.
Clause 36 agreed.
Schedule 11: Release on Licence of Repatriated Terrorist Prisoners
Amendments 21 to 26
21: Schedule 11, page 93, leave out lines 28 to 32
Member’s explanatory statement
This amendment, and the amendments at page 94, line 15, page 94, line 29 and page 94, line 41 are consequential on the removal of Clause 33.
22: Schedule 11, page 94, line 15, leave out “or (3B)”
Member’s explanatory statement
See the explanatory statement for the amendment at page 93, line 28.
23: Schedule 11, page 94, leave out lines 29 to 33
Member’s explanatory statement
See the explanatory statement for the amendment at page 93, line 28.
24: Schedule 11, page 94, line 41, leave out “or (4)”
Member’s explanatory statement
See the explanatory statement for the amendment at page 93, line 28.
25: Schedule 11, page 95, leave out lines 4 to 10
Member’s explanatory statement
See the explanatory statement for the amendment at page 53, line 41.
26: Schedule 11, page 95, line 37, leave out “or (4B)”
Member’s explanatory statement
See the explanatory statement for the amendment at page 53, line 41.
Amendments 21 to 26 agreed.
Schedule 11, as amended, agreed.
We now come to the group beginning with Amendment 27. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division must make this clear in the debate.
Clause 37: TPIMs: condition as to involvement in terrorism-related activity
27: Clause 37, page 34, line 35, leave out from “subsection (1)” to end of line 37 and insert “after “Secretary of State” leave out “is satisfied, on the balance of probabilities,” and insert—
“(a) for the first year of the TPIM, has reasonable grounds for suspecting; and(b) for any further years of the TPIM, is satisfied on the balance of probabilities,””Member’s explanatory statement
This amendment would leave in place the existing standard of proof for the second and subsequent years of any TPIM notice.
My Lords, TPIMs, or terrorism prevention and investigation measures, are the successors to, and relatives of, control orders. They may be imposed at the discretion of the Secretary of State, unless a court, on a preliminary look, considers them “obviously flawed”, if specified criteria are satisfied. They are summarised like this in the March 2020 annual report of the Independent Reviewer of Terrorism Legislation:
“There are up to 14 measures that can be imposed including overnight residence requirements; relocation to another part of the United Kingdom; police reporting; an electronic monitoring tag; exclusion from specific places; limits on association; limits on the use of financial services and use of telephones and computers; and a ban on holding travel documents. Breach of any measure is a criminal offence.”
It is common for all or substantially all of those measures to be imposed, severely limiting the basic freedoms of the subjects and impinging heavily on their families. Relocation—removed by the coalition in 2012—was reinstated in 2015. Additional measures are, of course, contained in the Bill.
The issue raised by Clause 37 and by these amendments, including Amendment 27 in my name and that of my noble and learned friend Lord Thomas of Cwmgiedd, is: how strongly must the Secretary of State suspect a person of involvement in terrorism before choosing to impose a TPIM on them? Since TPIMs succeeded control orders in 2012, the Secretary of State has been required to have a reasonable belief that the intended subject is or has been involved in terrorism-related activity—a belief, in other words, that the person has been involved in some capacity in the wide range of activity spelled out in Section 4 of the TPIM Act 2011. That range is not limited to the commission, preparation or instigation of acts of terrorism; it extends also to those who encourage, support and assist such behaviour. Nor need any specific act of terrorism be in prospect.
The “reasonable belief” formulation was amended in 2015 to one of satisfaction on the balance of probabilities, but the meaning is to all intents and purposes the same. The bottom line is that, before imposing this most extreme of all executive measures, the Home Secretary needs to have formed the view only that someone is, or was, probably involved in terrorism. That is already an easy standard to satisfy in the case of anyone who is likely to be a candidate for a TPIM—resource-intensive measures, as they are, that are not lightly applied for.
It is not a court that has to apply the balance of probabilities, on the basis only of admissible evidence. The judgment is entrusted to the Secretary of State, and she makes it, crucially, on the basis not just of admissible evidence but of the intelligence assessments with which she is provided by the Security Service and others. Such intelligence far exceeds what could be placed before a civil or criminal court. It is likely to include intercept material, or material supplied by foreign liaison partners who are unwilling to see it deployed in a public setting, or reports from a covert human intelligence source, whose existence could never be publicly disclosed. The Secretary of State sees all that in the form of documents, which, when I reviewed these things, I repeatedly described as thorough and conscientious. Everything is available to her, and she is required to conclude only that it probably demonstrates some involvement, past or present, in terrorism-related activity.
Policy-making is often a question of taking a stab at an uncertain future, but not in this case. The Government have experience of six years with control orders and nine years with TPIMs. They have had to consider whether to impose them on, among others, the hundreds of British citizens who have returned to this country from war zones in Syria and Iraq. I suggest that it is of great significance that the Minister Chris Philp candidly accepted on Report in the other place, consistent with the evidence of Assistant Chief Constable Tim Jacques before the Commons committee, that
“there has not been an occasion on which the security services wanted to give a TPIM but could not do so because of the burden of proof.”—[Official Report, Commons, 21/7/20; col. 2093.]
That precisely conforms with my own observations as Independent Reviewer of Terrorism Legislation: that the existing standard is satisfied in every case where a TPIM might possibly be thought useful. It is not simply that the case for reducing the standard has not been made out—that case is refuted by the police evidence and by the words of the Commons Minister himself. The change that is none the less proposed is to substitute “reasonable suspicion” for “reasonable belief”. The difference between those tests was explained by the late and much-lamented Lord Justice Laws in the Court of Appeal, which I take the liberty of quoting in full:
“Belief and suspicion are not the same, though both are less than knowledge. Belief is a state of mind by which a person thinks that X is the case. Suspicion is a state of mind by which the person in question thinks that X may be the case.”
Under the proposal in this Bill, the Home Secretary will no longer need to have formed the view that somebody probably did encourage, support or assist a terrorist. It will be enough that she thinks they may have done one of those things. Reasonable suspicion is most familiar as the arrest standard: the state of mind which must be present before someone can be detained by the police, often in the heat of the moment. Arrest may be followed by detention prior to charge for a few days only. Even in terrorist cases, the maximum, which is rarely used, is 14 days if a court continues to so permit.
This Parliament famously and rightly rejected an extension of that period to 90 days, and then to 42 days, during a period following the London attacks of 2005 when our intelligence agencies were trying to adapt to a new reality and the terrorist threat level was higher than it is now. Yet it is now proposed that the same threshold of reasonable suspicion should be the benchmark for an indefinite period of relocation to a strange town, accompanied by comprehensive surveillance and the most severe restrictions on freedoms to associate, to communicate, to work and to study; and with judicial supervision which, because of the highly classified nature of the intelligence that tends to be relied on, can operate only long after the event and with all the well-known constraints that attend closed material proceedings.
The Minister will point out, fairly enough, that other criteria must also be satisfied before TPIMs can be imposed. It is perfectly true that, under the terms of the Terrorism Prevention and Investigation Measures Act 2011, the Secretary of State must reasonably consider a TPIM notice to be necessary to protect the public. But it would be a brave court which—applying the judicial review test as it is directed to do—would second-guess such an evaluation by an elected Minister with full access to the intelligence. The only truly fact-dependent element of the test is the Minister’s assessment of involvement in terrorism-related activity. That is why Clause 37 is so significant: it makes legal challenge harder by lowering the bar that the Minister must surmount on the element of the test that is best suited to adjudication.
In view of what I have just said, some of your Lordships may be surprised by the modesty of Amendment 27. Unlike its companions in this group, it leaves in place the lower, reasonable suspicion standard for the first year of any TPIM. It does so in an attempt to meet a point previously made by the Government: that there may be urgent cases in which the higher standard cannot be met immediately. Whether that is a merely theoretical point or whether there is a basis for it in experience, I do not know, and I will keep my ears open. However, the words that I have quoted from the Minister in the Commons tend to suggest the former.
I am conscious that the standard to which the Government wish to return is that which was in place when control orders were first introduced in 2005. At that time, we had little experience of the deadly new threat from al-Qaeda-inspired and al-Qaeda-directed terrorism in the UK and no experience of orders of this kind. But the competing standards of proof have been tested over a period of years. The evidence is now in and the results seem to be, by the Minister’s own admission in the Commons, incontrovertible: the lower standard restricts basic liberties without keeping us any safer. In that connection, I was interested to see that the noble and learned Lord, Lord Falconer, from the Opposition Front Bench has put his name to Amendment 28, which is even a little stronger than mine. I beg to move.
My Lords, given the experience of those who have put their names to the amendments in this group, I wonder whether I should say nothing so as not to damage the arguments—but I will join in.
It will be clear enough to the Committee that we on these Benches have considerable concerns about this part of the Bill. I hope that the Committee will understand that this does not mean that we do not take very seriously indeed the threat and actuality of terrorism and the work undertaken by our agencies. I say that because our amendments to the Covert Human Intelligence Sources Bill, which we completed earlier, seemed to be heard by some noble Lords as opposition to covert sources period when we were directing ourselves to authorisations to commit crime by the mechanism of making the action not a crime. I do not want too much to be read into what I am saying. This is not opposition, as I say, to the work of those who keep us as safe as they possibly can.
We are not hugely keen on TPIMs, especially on their acquiring extensions that take them back closer to control orders. We consider it appropriate to test these administrative measures in terms of how they measure up to the presumption of innocence, fair trial, liberty and all the matters that we as a society hold to be important, knowing the damage that might be done by letting them slip. We are of course aware of the Government’s argument that it is not the TPIMs themselves that we should be looking to, but the application of particular measures. If you look at that from a slightly different perspective, it is a good argument for legislative safeguards.
At the time of the last three-monthly report to Parliament on 30 November, only three TPIM notices were in force, there having been six the previous May. That begs the question as to the need for these clauses. The Home Office fact sheet on lowering the standard of proof tells us that this would
“increase flexibility by making it more practical for operational partners to demonstrate an individual is, or has been, involved in terrorism-related activity.”
That requirement should indeed be more than merely suspected.
The noble Lord, Lord Anderson, referred to the statement in the Commons by the Minister. The current standard of proof does not seem to have prevented the imposition of TPIMs. The current independent reviewer has made the same point, so this is not even a matter of administrative convenience. These measures may be civil but they can, quite understandably, be perceived as a parallel system of punishment without trial, but currently on the basis of the civil standard.
The noble Lord, Lord Anderson, and the noble and learned Lord, Lord Falconer, seek to meet the Government part way. We take the view that the alterations are not justified. I have referred to the current Independent Reviewer of Terrorism Legislation. To quote from his note on this part of the Bill,
“it is inevitable from the nature of intelligence that mistakes may be made. The significance of an individual’s actions may potentially be misinterpreted; their adherence to a cause overstated; their intentions misunderstood, if only partially. A safeguard that requires the Secretary of State to consider the intelligence presented to her by officials, and decide whether the individual has actually been involved in the terrorist-related activity that is alleged against them, and which allows a court to review that decision in the light of all information presented to it, is not an impediment to safeguarding national security.”
We oppose this clause standing part of the Bill.
My Lords, the noble Lord, Lord Anderson of Ipswich, spoke with such eloquence in making all the points that I can confine myself to making four short points.
First, as he rightly stressed, this is an important part of the conditions for TPIMs because it enables a judge and the Home Secretary, when making the decision, to concentrate on the factual evidence in relation to terrorist activity. The other conditions are more difficult to establish, or it might be more a question of judgment, but this at least concentrates on the facts.
Secondly, the amendment seeks what some may feel is an overgenerous compromise. I do not think so; I think that it is right to say that, for the first and initial period, a lower standard can be acceptable.
However, thirdly, that cannot be acceptable when one is looking at longer periods where a person’s liberty is to be constrained—particularly with the amendment that we will come to next, which concerns the indefinite detention period.
Fourthly, and finally, it seems to me that there can be no justification for making such a change unless there is evidence. Indeed, what was said about the position in the other place has been clearly set out.
I ask the Minister to set out fully what he believes is the evidence for this change. If he cannot do so in public on this occasion, there must be a means of informing those who are interested in this matter of the evidence so that it can be carefully reviewed before we impose on people accused of obviously very serious issues a standard of proof that really is completely unacceptable in any civilised society.
My Lords, the noble Lord, Lord Anderson, has given your Lordships a very clear and succinct history of control orders and TPIMs—as one would expect, given his experience. He pointed out very fairly that control orders had the very same test that it is now proposed in the Bill should be used to decide whether a TPIM is appropriate. It is also worth pointing out that control orders were highly controversial and subject to a considerable number of challenges in the courts to see whether they survived a proper challenge based on the European Court of Human Rights and the convention. They survived that, which will reassure your Lordships.
I accept that the amendment put forward by the noble Lord, Lord Anderson, which is supported by the noble and learned Lord, Lord Thomas, is relatively modest, and I understand the reasoning for it, whereas the amendment put forward by the noble and learned Lord, Lord Falconer, goes rather further and seems to involve a degree of subjectivity—although I will listen with interest to what he says—and that subjectivity might be difficult to satisfy.
As I understand it, these TPIMs are very much a last resort. Before they are sought, a decision has to be made about whether the criteria are satisfied, and then a court will review them, subject to the limitations pointed out by the noble Lord, Lord Anderson, and the subject of a TPIM has a chance to challenge that review. The fact that, as the noble Baroness, Lady Hamwee, pointed out, only three people are subject to TPIMs at the moment shows how sparingly they are used. As I understand it, they are very resource-heavy, and they are clearly suboptimal. What is plainly much more desirable is that there should be a prosecution, which is why control orders and their successors TPIMs have been so controversial but, subject to all those reservations, they clearly have their uses.
However, I ask myself why there is a change in the standard of proof. Has there been real difficulty in obtaining these TPIMs in the relatively rare circumstances in which they are considered appropriate? I, too, read what the Minister in the House of Commons said about the lack of difficulty in obtaining TPIMs, so I asked myself in what circumstances this change in the standard of proof would help. Are there circumstances in which a TPIM might be obtained with the new provisions which would not have been under the existing provisions? I ask that question genuinely not knowing the answer. Is it, perhaps, because there may be real fears about what those who return from war in Syria might do, but just not quite enough to satisfy the old test and so would satisfy only the new test? I do not know. It may be that there is a suggestion of radicalisation with very serious consequences—and we know what they might be—but it does not quite get over this hurdle. I do not know. It is clearly very important that there should be this provision. It is subject to very considerable safeguards, but at the moment I am rather neutral on the question.
I do not share the hostility of the noble Baroness, Lady Hamwee, to TPIMs as a whole, but I say they should be used sparingly. Of course, she will remember that TPIMs were brought in when the Liberal Democrats and the Conservatives were in coalition, so there may not have been much enthusiasm on their part, but TPIMs were part of government policy. They were actually a modification of the Labour Party’s control orders so long ago. This is a difficult area. I look forward to the Minister’s clarification of the thinking behind this change.
My Lords, I draw the Committee’s attention to my interest in criminal justice matters, specifically as chair of the Greater Manchester Police independent ethics committee, as set out in the register.
I am grateful to the noble and learned Lord, Lord Falconer, for tabling Amendment 28. I also note with interest Amendment 27 in the name of the noble Lord, Lord Anderson. His arguments are powerful, not least in distinguishing clearly between belief and a mere suspicion, a distinction which for me as a bishop lies at the heart of my day job.
As I indicated to your Lordships’ House in my maiden speech at Second Reading, this is a Bill that I welcome and support. My city of Manchester has all too recently suffered a terrorist attack that killed 22 innocent people and maimed and traumatised hundreds more. We remain deeply grateful for the support we received from members of this House, government Ministers and many others at that time and since.
What I seek from the Bill are provisions that will most effectively reduce terrorism across our nation. My concern, particularly with regard to this clause, is that sanctions that are deemed by particular sections of the British public as either too severe or to be based on insufficient evidence will prove counterproductive. Measures that are overly harsh or that can plausibly be presented as such breed a sense of injustice and resentment, and if those sanctions appear to be directed against particular sections of the community, that may deepen into alienation, and alienation remains one of the most effective recruiting sergeants for incipient terrorists.
We rightly demand a high level of proof for a criminal conviction and a lesser but still significant standard on the balance of probabilities for civil cases. What we are presented with in Clause 37 as it stands is far weaker. All we are offered as an evidential base for a TPIM is “reasonable grounds for suspecting” an individual. That turn of phrase, suspicion, has a somewhat troubled history. Large sections of our community have, I would argue “reasonable grounds for suspecting” that policing interventions justified by reference to that phrase have been used disproportionately against people of their colour, religion or lifestyle. To apply this suspect standard to something as significant as a TPIM, which may be extended for some years, will increase the very risks to our society that it is intended to address.
In his Amendment 28, the noble and learned Lord, Lord Falconer, offers us a modest strengthening of the wording to include a test of probability alongside that of reasonableness. I hope that the Minister will be able indicate to this House that some form of strengthening the clause, either through Amendment 28 or otherwise, will be supported by Her Majesty’s Government as we continue to debate the Bill.
My Lords, it is a pleasure to follow the right reverend Prelate, particularly because he and I are cuckoos in this nest of lawyers. I speak in opposition to the Question that Clause 37 stand part of the Bill.
The TPIM system is seriously problematic because it bypasses the criminal justice system to avoid the usual safeguards that protect liberty and fairness. The system allows a Government to rely on secret, undisclosed evidence while bypassing fair-trial rights and impose measures that severely interfere with the right to liberty, privacy, association and movement, and makes a breach of those measures a criminal offence. I do not expect to win the argument today about TPIMs per se but must object in the strongest terms to Clauses 37, 38 and 40. Between them, they make this troubling TPIM system far more constrictive while removing the main current safeguards.
The Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, called the combined effect of Clauses 37 and 40 a “double whammy”. Taken together, they significantly lower the burden of proof at the same time as allowing TPIMs to endure forever for a person who has not been formally charged or prosecuted. The independent reviewer made it clear that he supports not changing the burden of proof and advises that it be left as it is. To my knowledge, the Government have yet to come forward with any convincing evidence for hardening the TPIM regime in any of the three ways that these clauses, Clauses 37, 38 and 40, would bring about. Indeed, the Independent Reviewer of Terrorism Legislation said in his note on the proposed reforms that it is,
“not clear why there is any need to change the law in the manner proposed.”
Even a third-ranking police officer, an assistant chief constable, who was wheeled out to support the Bill in oral evidence to the Bill Committee, conceded that,
“there have not been occasions thus far when the current burden of proof has prevented the application of a TPIM”.—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 20.]
Therefore, my two questions to the Minister are: why have the Government ignored the independent reviewer’s advice and where is the evidence to justify that decision? I look forward to his answers. I hope that he can do better than the “another tool in the box” mantra.
Clause 37 will reduce the burden of proof to such a low level as to make it almost no barrier at all. “Reasonable grounds for suspecting” covers a host of situations where an innocent person could unjustly lose their liberty and other rights, perhaps on the basis of a single, flimsy and uncorroborated piece of evidence. The courts have interpreted the standard of suspicion as a belief not that the person is a terrorist, only that they may be a terrorist. If a Minister merely believes that a person may be a terrorist, that is sufficient justification under this clause to impose a TPIM on them. With the best will in the world, this is such a low burden of proof that it makes the ministerial decision to impose a TPIM into a rubber-stamping exercise, more or less, with no constraints on the action whatever. The implications of such a severe and unfettered executive power should worry every Member of this House.
Combined with Clause 38, Clause 37 would mean that a Minister would have the authority to severely constrain the liberty of a possibly innocent person for ever, on the flimsiest justification, possibly cooked up by a rogue policeman, intelligence agent or government official, or it might just be that someone in the chain of command made an innocent mistake. We cannot allow this proposed new power to deprive someone of their liberty and other rights indefinitely—possibly longer than if they were convicted of a terrorist offence in a criminal court—when the process that put them there is so wide open to errors and abuse. There must be a meaningful burden of proof, but Clause 37 removes that. It therefore must not stand part of this Bill.
My Lords, I am delighted to follow the noble Lord, Lord Strasburger. Like him, I have some difficulty with Clauses 37, 38 and 40. I am a non-practising member of the Faculty of Advocates, so I have no direct experience of these issues, but in preparing for today I have been grateful for the excellent briefing that the Law Society of England shared with me. I am grateful to the noble Lord, Lord Anderson, for setting out so clearly the thinking behind his Amendment 27. We will hear in a moment the thinking behind Amendment 28 from the noble and learned Lord, Lord Falconer of Thoroton.
It says something when the past Independent Reviewer of Terrorism Legislation and the present one both have enormous difficulties with Clauses 37, 38 and 40 as they stand. Like my noble friend Lord Faulks, I would like to understand the thinking behind why, in the context of this Bill on counterterrorism and sentencing, the Government feel moved to introduce these provisions against the weight of opinion of the current Independent Reviewer of Terrorism Legislation and, so it would appear, legal practitioners on the front line as solicitors dealing with these issues.
I am entirely in agreement with noble Lords who have explained the reasons behind their concerns about Clause 37 as it stands. It will deprive people of their liberty, as it contains measures that would relax the evidential threshold on imposing a TPIM, allowing the Home Secretary to impose one on the basis of having “reasonable grounds for suspecting” rather than being
“satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity”.
I understand that TPIMs are not currently widely used and that only five were in force as of November 2019, so I struggle to understand why we are seeking to change the law in this way. As the right reverend Prelate the Bishop of Manchester said in his excellent contribution, we want to have confidence in the legislation. He expressed that his aim is to reduce terrorism and not give any cause to query the legislation before us.
I end my short contribution with a question directly to the Minister. Considering the issues that we have heard about in a number of contributions in this little debate, would he agree with the noble Lord, Lord Anderson, and share the misgivings of legal practitioners that this clause is not required? What guarantees can my noble friend give me today that the measures in Clauses 37 and 38 will not lead to an increased use of TPIMs in situations where they are not appropriate? With those few remarks, I look forward to the reply from my noble friend.
My Lords, as my noble friend Lady Hamwee has explained, we wish to see the current arrangements for terrorism prevention and investigation measures remain as they are, despite having concerns about them existing at all. As the name implies, these measures were designed to prevent terrorism while an investigation takes place. As the noble Lord, Lord Anderson of Ipswich, has explained, intelligence is often received in relation to suspected terrorists that cannot be used in a criminal trial, either because it is not legally admissible or because it would reveal the source and potentially put the source’s life in danger. That needs to be balanced against Article 6 of the European Convention on Human Rights, enshrined in British law by the Human Rights Act 1998. It requires that, in the determination of a person’s civil rights and obligations or for any criminal charge against an individual, everyone is entitled to a fair public hearing within a reasonable time by an independent and impartial tribunal established by law—this despite what the noble Lord, Lord Faulks, has said about control orders withstanding such challenges in the past.
The answer to these potentially conflicting obligations is TPIMs, which are supposed to be a means of protecting the public while an investigation secures the evidence necessary to convict a person of a criminal offence. They were not intended to be indefinite house arrest without trial. As we will see in the groups that follow, the Government seek to overturn this principle of a time-limited safeguarding tool during an investigation into effectively indefinite deprivation of human rights without trial.
The conditions imposed by a TPIM can be draconian, as the noble Lord, Lord Anderson of Ipswich, said. The subject can be told where to live and have to tell the authorities about anyone else who lives with them. They may need to get permission to stay somewhere else, they may not be allowed to travel outside a specified area without permission, they may have to surrender their passports and they may be prohibited from going to a particular place or area without permission or without being accompanied by a police officer. The authorities can have complete control over the subject’s bank and credit card accounts and they can be told that they cannot possess cash over a certain amount. The authorities can have complete control over the sale or transfer of any property that the subject has and complete control over transferring money to anyone, as well as complete control over use of phones, computers and any other electronic communication device owned or used by the subject or by anyone else who lives with the subject—these measures affect not only the subject but their innocent loved ones as well.
Authorities can have complete control over who the subject meets or communicates with and over where the subject works or studies. The subject may be required to report to a specified police station at specified times and to have their photograph taken at whatever time and location the Secretary of State requires and they can be electronically tagged. On the one hand, noble Lords will understand why the authorities might want to impose such conditions if the person is believed to be a terrorist threat, but they will also understand that TPIMs amount to interference with some of the most fundamental human rights of the subject.
These restrictions on someone’s freedoms and human rights have echoes of the sort of restrictions imposed by ISIS when it declared territory it once held a caliphate. As the noble and learned Lord, Lord Goldsmith, said in a Guardian article written when this House was considering the Counter-Terrorism Bill on 13 October 2008,
“we should fight to protect the liberties the terrorists would take from us, not destroy them ourselves.”
The first element the Government want to change through the Bill, which is covered by this group of amendments, is the standard of proof required before someone can be subjected to a TPIM. Originally, as we have heard, in the Terrorism Prevention and Investigation Measures Act 2011 the Secretary of State had to “reasonably believe” that the subject is or has been involved in terrorism-related activity. This was changed by the Counter-Terrorism and Security Act 2015 to the Secretary of State having to be satisfied
“on the balance of probabilities”
—the standard required for a court to be satisfied in a civil case. The Government want to change this standard of proof to
“has reasonable grounds for suspecting”.
A police constable may arrest someone when he has reasonable cause to suspect, and I can tell the Committee from my own personal and professional experience that this is a very low bar indeed. Of course, we are not talking about a police officer detaining someone for a few minutes or a few hours but about restricting someone’s human rights for up to two years, or indefinitely, if the Bill passes unamended. That is a shocking and frightening prospect.
If noble Lords’ common sense and sense of justice are not engaged by my arguments, perhaps they will be convinced by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whom other noble Lords have mentioned. He has said:
“I am not aware of cases where the authorities would like to have imposed a TPIM if the standard of proof had been lower … If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; cols. 6-7.]
That is actually seven words, but I think we understand what he meant. To which, no doubt, the Government will deploy the same argument successive Labour Governments used in trying unsuccessfully to extend the period that a terror suspect could be detained by the police without charge, initially under Tony Blair’s premiership to 90 days, and subsequently under Gordon Brown to 42 days. Operational partners argued that, although limits on the period a subject could be detained without charge had not been a problem up until then, they could envisage a situation where it might be an issue in the future. I suspect that is similar to the arguments the Government will deploy here. Both times, Parliament resoundingly defeated the proposals.
It is important that we consider the reputation of this country throughout the world for the effective protection of human rights. We should not allow such draconian limits on people’s civil liberties to be imposed on the basis of such a low standard of proof—lower than any court employs, even in civil cases.
The noble Lord, Lord Anderson of Ipswich, in his Amendment 27, offers a compromise, which he is developing a reputation for, trying to steer between what is arguably necessary and reasonable and what he, not without precedent, thinks the Government might accept. He suggests in his amendment that, for the first year, while intelligence-gathering is in its infancy, a TPIM might be imposed on the Government’s standard of “reasonable grounds for suspecting”. After a year, the authorities should have been able to gather sufficient evidence for the Secretary of State to be convinced on the existing balance of probabilities. I see where the noble Lord is coming from but, with the greatest of respect to him, I am with the current Independent Reviewer of Terrorism Legislation on this one rather than with the former.
The noble and learned Lord, Lord Falconer of Thoroton, was not only a member of the Labour Governments to which I have just referred but, from memory, was fairly central to the attempts to extend detention without trial. His Amendment 28 would substitute the standard of proof required with
“on the basis of reasonable and probable grounds”.
I look forward to hearing his explanation of how this differs from the existing and government-proposed standards of proof, as, I must confess and with the greatest respect to the noble and learned Lord, when I wrote this speech on Sunday morning I had neither the energy nor the required determination to work it out for myself. Having finished at midnight last night, I have even less energy this evening.
The current Independent Reviewer of Terrorism Legislation thinks that we should leave the standard of proof where it is. We agree, which is why we believe that Clause 37 should not stand part of the Bill.
I am delighted to follow the noble Lord, Lord Paddick, as ever. I am sorry that he did not have the energy to get to my amendment, but I completely understand why that would be. The difference between my amendment and that of the noble Lord, Lord Anderson, is that mine seeks to unpack what the standard of proof would be; it requires an objective standard of “probable grounds”: in effect, balance of probabilities, but more spelled out. The difference between the amendments is that, in effect, the noble Lord’s amendment would give a year when the lower standard—namely, reasonable suspicion—could apply and thereafter insist on the balance of probabilities. The real difference is that first year of grace which the noble Lord, Lord Anderson, would give to the Government or the Secretary of State to have a lower standard of proof.
Our position on this side of the House is that the TPIM powers have utility to the Government for fighting terrorism. The noble Lord, Lord Paddick, indicated clearly the intrusive effect of TPIMs on those subject to them; for example, having to move to a different location, not being entitled to go to particular places, or not being able to associate or communicate with particular people. These are powers of utility for the Government. They are, however, intrusive and infringe against what would otherwise be people’s rights. Before those rights are taken away, it is for this House to decide what the right balance should be between those individuals’ rights and the protection of the public.
All those who have looked at it in any detail, in particular the noble Lord, Lord Anderson, and his successor as the terrorism reviewer, take the view that the higher standard of proof from that which the Government currently propose—namely, the balance of probabilities—has not caused them any difficulty in imposing TPIMs where they want to. As the noble Lord, Lord Anderson, put it, there is no need to lower the standard to keep the public safe.
In addition to the point that no change is required, a significant change is being made to the ability to roll over TPIMs indefinitely, so the consequence of the proposed amendments to the existing law being suggested by the Government in this Bill is to lower the standard of proof for no purpose and to do so on the basis of indefinite restrictions on individuals’ liberty.
The right reverend Prelate the Bishop of Manchester was, in my view, correct to say that the right approach is to ensure that the Government have the right powers but also to ensure that people are confident that they are being properly imposed. If people do not have that confidence, it will cause difficulties down the line.
I am unpersuaded of any need for significant change, though I would happily unpack it in the way my amendment does. I note the attempt by the noble Lord, Lord Anderson of Ipswich, to reach a compromise but, as yet, there is no evidence to suggest that a first year with a lower burden of proof is required. I will be interested to hear whether the Minister puts forward any arguments that would justify either the reduction in the burden of proof or the reduction in the burden of proof for a year.
My Lords, I thank noble Lords who have tabled and introduced their amendments and all the noble Lords who have spoken in this debate.
Following the dreadful attacks at Fishmongers’ Hall and in Streatham, the Government reviewed the range of disruption and risk management tools at the disposal of those agencies whose job it is to keep us safe and identified areas that could be strengthened to improve public protection. We are committed to ensuring that the police and Security Service have the necessary tools to support them in their vital work.
TPIMs are an important part of those tools available to our operational partners. They were, as noble Lords have said, introduced in 2011, replacing control orders as a tool to prevent or restrict an individual’s involvement in terrorism-related activity. TPIMs are a last resort to protect the public from dangerous individuals whom it is not possible to prosecute or deport and offenders who remain a real threat after being released from prison. Clause 37 will increase the flexibility of TPIMs by amending the Terrorism Prevention and Investigation Measures Act 2011, lowering the standard of proof from “balance of probabilities” to “reasonable grounds for suspecting”.
Amendment 27 in the name of the noble Lord, Lord Anderson of Ipswich, would, as he outlined, require the Home Secretary to be satisfied, on the balance of probabilities, that an individual has been involved in terrorism-related activity when extending a TPIM notice beyond a second year. The standard of proof for initially imposing a TPIM under his amendment would be “reasonable suspicion”, the same as proposed by the Bill. I thank the noble Lord not only for the way he introduced his amendment but for his helpful outline of the background to TPIMs, control orders and the landscape against which we must examine these questions. Like everyone in your Lordships'’ House, I have immense respect for the noble Lord, who began his time as Independent Reviewer of Terrorism Legislation before I started working as an adviser at the Home Office and was still in post long after I had left. With respect, however, we do not agree with the need for his amendment.
As the noble Lord, Lord Anderson, anticipated, I will point out that the 2011 Act requires that five conditions be met before a TPIM can be imposed. These are:
“Condition A is that the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity.”
Clause 37 amends that condition so the standard of proof will be “reasonable suspicion”. The Act continues:
“Condition B is that some or all of the relevant activity is new terrorism-related activity … Condition C is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual … Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual's involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual … Condition E is that … the court gives the Secretary of State permission under section 6”
to impose the TPIM. This happens in advance of the TPIM being imposed, or shortly after in an urgent case.
The Government are amending only one of these conditions—condition A, regarding the standard of proof. Lowering the standard of proof does not mean that the Government will be able to extend TPIMs whenever there is a suspicion of terrorism-related activity. To address the question raised by my noble friend Lady McIntosh of Pickering, this is not about the frequency of TPIMs but about their flexibility as a tool for our operational partners. All the other conditions will remain unchanged, and with robust safeguards. These require the Home Secretary to be satisfied that it is necessary and proportionate, to protect the public from a risk of terrorism, to impose a TPIM notice and the measures specified in it on an individual. The Government contend that proving past terrorism-related activity and demonstrating necessity are separate and distinct limbs of the TPIM test. It is also the Government’s contention that demonstrating necessity and proportionality is the key factor when considering whether a TPIM notice should be renewed beyond its first year, rather than the standard of proof applied to terrorism-related activity.
The Section 16 appeals process is particularly important in the context of longer TPIMs. I am certain that the court will take great care, when considering Section 16 appeals, that conditions C and D, which I outlined a moment ago, continue to be met. It may help if I offer a hypothetical case to demonstrate how an enduring TPIM might work in practice. Let us imagine a scenario in which a charismatic radicaliser has been relocated, has had an overnight residence measure imposed, is prohibited from accessing internet-enabled devices and is banned from associating with several individuals. Over time, it would be reasonable to expect the TPIM notice to contain ever fewer measures, so that, for example, only one prohibited associate remained. In that sense the TPIM might function similarly to licence conditions.
There is clear precedent from the control order regime which operated under a previous Government and which, as the noble and learned Lord, Lord Falconer of Thoroton, will remember, allowed for control orders to be renewed without placing a limit on the number of renewals or increasing the standard of proof the longer they endured for the orders not to last indefinitely. Within the lifetime of control orders, 30 individuals were subject to an order for up to two years, eight for between two and three years, four for between three and four years, and only three for between four and five years. There were many cases in which the then Government either revoked or decided not to renew the control order on the grounds that the necessity test was no longer satisfied. A similar approach would be taken with TPIMs following the enactment of this clause. The Government have no desire to keep people on a TPIM any longer than is necessary and proportionate to protect the public. Removing the time limit is intended to address the risk of TPIM subjects riding out the current maximum of two years with no change to their mindset, and to address the risk of a cliff edge being created by forcing a TPIM to be removed when a risk to public safety remains. I am conscious that we will look at this issue in more detail in the next group, but I make those points because the noble Lord, Lord Anderson, said he would be keeping his ears open for a response.
As the noble Lord, Lord Anderson, said, the Public Bill Committee in another place, heard from Assistant Chief Constable Tim Jacques, Deputy Senior National Coordinator for Counter Terrorism, who spoke not just for the police but on behalf of the security services, and outlined some hypothetical cases where a lower standard of proof could make a substantive difference. I think it would be helpful to highlight the practical examples he gave. The first scenario is where significant concern about an individual’s behaviour or activities as a radicaliser has led to their arrest. There may be, however, insufficient material to reach the prosecution threshold and the individual would have to be released. As ACC Jacques says, the lower burden of proof may help to manage the risk posed by the individual while further investigative and risk-mitigation measures are pursued.
The second scenario ACC Jacques gave is where an individual’s risk profile accelerates rapidly in the form of their moving quickly from consuming terrorist material online to presenting a future risk of attack. We have sadly seen this in the case of many lone-actor terrorists. There will not always be sufficient evidence to prosecute in a scenario such as this, particularly where an individual does not have a long history of terrorism-related activity. While a variety of tools and controls to manage this risk will be considered by our operational partners, and a TPIM may not be the measure that is ultimately deemed most appropriate, lowering the standard of proof will help to ensure that a TPIM can be used where it is deemed the best tool for mitigating the risk.
The third scenario that ACC Jacques gave was where an individual has been to, say, Syria to fight for a terrorist organisation, but evidence of their activities while they are overseas is hard to gather. This addresses the point raised by my noble friend Lord Faulks. There will be a range of tools which the Government and their operational partners will consider using on a case-by-case basis to prevent or to manage that individual’s return to the UK and, if they return, prosecution will remain our strong preference. However, if there are evidential difficulties, as understandably there are when we talk about activity in theatre in places such as Syria, and we cannot meet the burden of proof required by a criminal court—that is, beyond reasonable doubt—but we do have a reasonable suspicion that a person has been involved in terrorism-related activity, then the lower standard of proof will ensure that a TPIM can be considered as a risk management tool to protect the public here in the UK.
I think it was worth setting those out in detail because these are credible and not unlikely scenarios for which we must be prepared. That is why we contend that setting the standard of proof at reasonable grounds for suspecting at the extension stage is just as important as at the imposition of a TPIM to maintain a TPIM for as long as necessary.
I now turn to Amendment 28 in the name of the noble and learned Lord, Lord Falconer of Thoroton. His amendment would require the Home Secretary to believe
“on the basis of reasonable and probable grounds”
rather than have “reasonable grounds for suspecting” that an individual is, or has been, involved in terrorism-related activity before imposing a TPIM. Again, with respect to the noble and learned Lord, we do not agree with the necessity of this amendment.
The noble and learned Lord’s amendment proposes a mixture of recognised standards of proof within the TPIM regime. Specifically, it appears to blend the standards of “reasonable belief” and “balance of probabilities”. As the noble and learned Lord said, he has suggested this formulation with the intention of creating a new middle ground between those two standard—that is, a balance between the standard which applied when the 2011 Act was first introduced, and the current standard of proof following changes made by the Counter-Terrorism and Security Act 2015. Although I am not a lawyer and, mindful of the entreaties of my noble friend Lord Wolfson of Tredegar, I do not apologise for that—I speak as a non-lawyer—but I must suggest that the mixing of established standards of proof which are recognised by the courts and by decision-makers would not be helpful or appropriate. We are not aware of evidence that the recognised standards are, in and of themselves, inoperable as thresholds. Given the potential for confusion in the application of this amendment—that is, blending legal tests of belief and probability—we urge the noble and learned Lord to withdraw his amendment on this ground alone.
Additionally, the amendment would require a higher standard of proof than is proposed under the Bill. That goes against the policy intent of the Bill, which is to ensure that our operational partners can make use of TPIMs more flexibly in their efforts to protect the public. The pace at which the Security Service and the police must operate to thwart attacks and manage risk to the public is faster than ever before. The question of whether a person has carried out terrorism-related activity will often depend on an incomplete jigsaw puzzle of intelligence rather than hard evidence, as the noble Lord, Lord Anderson of Ipswich, outlined in opening this debate. In such cases, it is right that we give our operational partners the option of a TPIM as a risk management tool.
I have already referred to the evidence given by ACC Tim Jacques, which outlined the Security Service’s assessment of the benefits of lowering the standard of proof. The three scenarios he outlined—the activities of a known radicaliser, a rapidly escalating risk from someone who has consumed terrorist-related content online and a foreign fighter returning from Syria—all apply in relation to this amendment as well and form part of the Government’s justification for respectfully disagreeing with it.
It is worth reiterating that the standard of proof is just one of five conditions that need to be met to impose a TPIM, and that the other four conditions remain unchanged. As the noble Lord, Lord Anderson, said, my honourable friend Chris Philp has been entirely candid in another place, on behalf of the Government, that the Security Service has not been prevented from imposing a TPIM under the current standard of proof. We are happy to be candid about that, but the fact that it has not been hitherto does not amount to an absence of evidence or justification for this change. We are equally candid that this is about future-proofing the legislation, because the TPIM cases of tomorrow may differ from the TPIM cases of today. We are happy to say that the benefits here may perhaps be marginal but in matters of counterterrorism small margins can save lives and help protect the public.
I hope that addresses the point raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, who asked about the evidence for changing the standard of proof. In any event, as my noble friend Lord Faulks pointed out straight after the noble and learned Lord had posed the question, this was the standard of proof used for control orders when they existed. Those were well tested in the courts and found to be compatible with the European Convention on Human Rights.
The noble Lord, Lord Strasburger, asked whether we are ignoring the views of the independent reviewer. We are not; we are extremely grateful to him for his work. It is natural that Governments’ operational partners and independent reviewers will not always reach the same conclusions. Indeed, as has been noted in this debate, independent reviewers do not always reach the same conclusions as each other. Another former independent reviewer, the noble Lord, Lord Carlile of Berriew, has reached a different view, for instance. The independent reviewer’s opinions are rightly made public, so that the public and Parliament—in both your Lordships’ House and another place—can probe the Government, as we are doing today in Committee. The independent reviewer will of course continue to provide extremely valuable oversight and challenge under the Bill’s proposals.
A number of other questions were raised, particularly by the noble Lord, Lord Paddick, which I am conscious we will come to in later groups. We have many groups which we need to cover today, so I hope noble Lords will forgive me if I return to those points in later debates. The Government’s first priority is, as I say, the protection of the public. That is why we have proposed lowering the standard of proof, and why we urge the noble Lord to withdraw his amendment.
I have received one request to speak after the Minister and I call the noble Lord, Lord Paddick.
I am grateful to the Minister for his explanation but I am somewhat confused. He cites the evidence given by assistant chief constable Tim Jacques and the three examples that he gave. I will carefully read his evidence in Hansard and what the Minister has said the assistant chief constable said.
From what the Minister was saying, the assistant chief constable was saying why TPIMs were necessary. It was because—I think I am quoting the Minister accurately—there was not sufficient evidence to reach the criminal standard of proof, but the criminal standard of proof is “beyond reasonable doubt”. From the examples that the assistant chief constable gave—as I say, I shall go back and read them carefully—I thought there was definitely evidence that the person may be involved in terrorism on the balance of probabilities. There would therefore be no reason in the three scenarios that the assistant chief constable gave for issuing a TPIM against those three people, on the current evidence.
The Minister has apparently ignored the history of this Parliament and its views on so-called future proofing, when it comes to the deprivation of people’s liberties and the severe imposition of restrictions on people’s human rights, as evidenced by the former Labour Government’s attempts to extend the period that terrorist suspects could be detained by the police without charge. Parliament does not take kindly to, “Well, okay, we accept that there is no evidence that a change in the standard of proof is necessary in this case, but it might be in the future, so we’re doing it just in case”. We cannot deprive people of their liberty to the extent that TPIMs do on the basis of “Well, it might be required in future”.
My Lords, there were a number of questions in the noble Lord’s intervention there. I certainly encourage him to reread the evidence given by ACC Jacques on 25 June 2020. Asked specifically about the proposal to change the burden of proof, he said:
“The Security Service points to three instances where it thinks this would have utility from an operational perspective.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Public Bill Committee, 25/6/20; col. 20]
He then outlined the three scenarios that I have just repeated—but it is certainly worth looking at his evidence in full.
We are not ignoring the views of Parliament; that is why we are here in Committee, rightly scrutinising this Bill. But I repeat that we are talking about a burden of proof that has previously existed and been enacted by your Lordships’ House and the other place; it was repeatedly tested in the courts and found to be compatible with the ECHR, so I am not sure that I agree with the characterisation that the noble Lord gives.
I am grateful to the Minister for his courteous response. I do not think I ever had the pleasure of meeting him in Marsham Street, although I had a good deal of respect for his boss. I am also grateful to noble Lords from all three main parties, the Cross Benches and the Bench of Bishops, who made such interesting and supportive contributions to this debate.
Those speeches will repay careful study and, after my long opening speech, noble Lords would not thank me for revisiting their many highlights. I will say simply that it was striking to hear the observation of a former Lord Chief Justice that the change now proposed, described by the Minister as “marginal”, is “completely unacceptable in a civilised society”. I defer to the right reverend Prelate on the theological distinction between belief and suspicion, while making a mental note to ask him some time where faith fits into the spectrum.
The central question, to which, with respect to the Minister, I received no satisfactory answer, is this: if, as Chris Philp said in the Commons, the current standard of proof has, in almost 10 years, not stopped a desired TPIM from being granted, why do we need to change it? The Minister spoke of “hypothetical” cases of, for example, a returning Syrian fighter. Well, we have had 15 years-worth of real cases under control orders and TPIMS, including several hundred returned Syrian fighters who were screened and considered for these measures, and it remains the case that this issue has not posed any problem in practice.
The Minister spoke of “flexibility”. Well, most of us are flexible enough to countenance some compromise, even of basic freedoms, if there is a pressing reason for it, whether that be public health or public safety. However, until I have seen that pressing reason—or at least fully understood what it is supposed to be—I cannot support Clause 37.
The point was well made by the noble Lord, Lord Paddick, that the hypothetical cases put forward in support of 90-day police detention were without foundation. We have managed perfectly well in practice for 10 years with the 14-day limit introduced by the Conservative-Liberal Democrat coalition.
No doubt we will come back to these issues at a later stage. Before that, I shall reflect on the fair challenge from both the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer, that, in formulating Amendment 27, I may, in the absence of evidence for its position from the Government, have been too ready to compromise in respect of the first year. As to that first year, the Minister said nothing very specific—unless I missed it. However, for now, as is usual at this stage of the proceedings, I beg leave to withdraw my amendment.
Amendment 27 withdrawn.
Amendment 28 not moved.
Clause 37 agreed.
We now come to the group beginning with Amendment 29. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Clause 38: TPIMs: extension of time limit
29: Clause 38, page 35, line 2, at end insert—
“(za) in subsection (3)(a), after “met” insert “and the court gives the Secretary of State permission”;(zb) after subsection (3), insert—“(3A) In determining the extension, the court must apply the principles applicable on an application for judicial review.”
My Lords, we have Amendment 29 in this group, and we oppose Clause 38 standing part of the Bill. The noble Lord, Lord Anderson, has Amendment 30. The clause allows for repeated renewals a year at a time, instead of the two-year time limit. I should perhaps acknowledge that the rubric or clause heading is “extension of time limit”. However, I noted that the Minister, in responding to the last group, referred to an “enduring TPIM”.
It is difficult to disaggregate the changes and their impact, because they will be cumulative, but this group of amendments is about the time limit. So, when he focuses on that, I hope that the Minister can share with the Committee real cases where the expiry of a TPIM has caused a problem. In other words, this is a parallel question to the questions asked and the points put in the debate on the last group regarding the standard.
TPIMs were originally intended as targeted temporary measures under emergency legislation that Parliament had to reapprove each year. As I have said, our concerns about the standard are compounded by the removal of the time limit with no additional safeguards. Even if the notice has been revoked and revived, or expired, it seems that it can be continued. Can the Minister help me by confirming whether, once subject to a TPIM—at any rate, one imposed after this Bill has been enacted—one is always subject to it being reimposed? I am intrigued that the extension cannot apply to a current TPIM but, presumably, there is nothing to stop there being a new TPIM. What is the difference between the current three measures in force, which I referred to in the previous group, and those which are expected to come within the scope of this clause?
The current Independent Reviewer of Terrorism Legislation is critical in his notes on this, as on the previous point. He says:
“If there is an operational need … despite the fact that fresh terrorism-related activity cannot be shown … it should be possible for the Home Secretary”
to be satisfied that there is an “exceptional or compelling case” to go beyond two years. He comments on processes, described as a “tick in the box”, the absence of judicial oversight, and the lack of an upper limit to ensure that different cases are not parked—or, as he says,
“at the very least, a requirement to specify an exit strategy including how the severest measures … can be tapered off.”
The noble Lord, Lord Parkinson, referred to a reduction in conditions—for instance, being able to associate with more people as years go by. Combined with the comment about an exit strategy, that seems to be extremely important, but this is the first time I have heard about the reduction in conditions. It would be very reassuring to know that this is as much a part of the Government’s programme as the other points we are considering. References to flexibility and tools really do not meet the point; one would expect those who are operational to want as many tools as possible. I look forward to other comments on the time limits and to hearing more of the Government’s thinking on why they have included this provision in the Bill. I beg to move.
My Lords, I will speak in this group to Amendment 30, which I have signed, together with my noble and learned friend Lord Thomas of Cwmgiedd. Clause 38, to which all these amendments relate, seeks to return in another respect to the days of control orders by removing the maximum time limit on TPIMs. Though I oppose Clause 38, as I did Clause 37 in the previous group, I would accept that the issues in this group are less clear-cut and the right solution less obvious.
In a report on the control order regime published in March 2012, shortly after that regime came to an end, I described control orders as an effective means of protecting the public from a small number of suspected terrorists who presented a substantial risk to national security but whom it was not feasible to prosecute. I observed a conscientious administrative procedure, coupled with close judicial scrutiny, which ensured a substantial degree of fairness to the subject. However, I added that those individuals were placed under extraordinary and intrusive restrictions; that this could go on indefinitely; that legal review was far from immediate; and that when the hearing did come around, controlled persons spent crucial parts of it excluded from the court, oblivious both of the detailed accusations made against them and of the submissions made by special advocates, who were able neither to communicate fully with them nor to call evidence on their behalf. I concluded that only in the face of strong necessity could it ever be justifiable for the individual to be placed in such a position by the state.
As will be the case if Clause 38 is enacted, there was no limit on the number of times a 12-month control order could be extended, so long as the statutory test continued to be met. During the currency of the control order regime, from 2005 to 2011, 15 persons were subject to control orders for more than two years—three of them for periods exceeding four years. Each of the four who had been subject to control orders for more than two years at the end of 2011 were transferred to TPIMs, where, as I recall, they served an additional two years, which was the maximum under that regime unless fresh evidence came to light—it rarely does.
Experience shows, therefore, that where the law has permitted it, Home Secretaries have considered it appropriate to keep British citizens who have never been convicted of a terrorist offence under these kinds of extreme constraints for periods in excess of five years. Indeed, had it not been for the introduction of the two-year limit, as originally recommended for all save exceptional cases by my noble friend Lord Carlile —my predecessor as Independent Reviewer of Terrorism Legislation—it is fair to assume that some subjects could have been detained in this way for far longer periods. That has been the experience with other, less all-encompassing executive orders, such as terrorist asset freezes. After all, who wants to be the civil servant or the special adviser to recommend the discharge of a control order, and who wants to be the Secretary of State to agree to it?
At the monthly TPIM review group meetings, at which all subjects were discussed, it became evident to me that the new two-year maximum limit was bringing some benefits. Since it was no longer possible for a TPIM to be used to warehouse a subject indefinitely, more serious and connected thought started to be given to an exit strategy: a suitable job, a suitable course of study, and the forging of new relationships away from the subject’s previous associates. However, as will be equally obvious, there could still be subjects who use their two years to lie low and who might still be adjudged to pose a threat when their TPIM comes to an end. That was the reasoning of those who had requested, agreed to and endorsed control orders for much longer periods than two years. I reported myself in 2013, echoing my noble friend Lord Carlile, that it was tempting to wish for longer than two years in the most serious cases.
If the goal is to minimise the potential threat regardless of the cost to civil liberties, the Government are justified in imposing indefinite executive detention. Yet that goal could also be used to justify warrantless searches of the home and general, suspicionless stop and search. All of us, surely, would instinctively recoil at such measures. I also note that, although they are notionally available in Northern Ireland, no control order or TPIM has, for whatever reason, ever been imposed there. I accept that TPIMs, although so far imposed predominantly, if not exclusively, on Muslims, have so far been only a minor rallying point for grievance: the numbers of TPIMs have been small, and the vast majority of British Muslims are only too glad to see dangerous extremists firmly dealt with. But the echo of internment can still be heard in Northern Ireland, nearly half a century on—a reminder that excess of zeal in this sensitive area can quickly become counterproductive.
There is wisdom in the words of the noble and learned Lord, Lord Clarke of Nottingham, who wrote, when Justice Secretary, in 2011:
“The primary role of any government is to keep its citizens safe and free. That means both protecting them from harm and protecting their hard-won liberties.”
Where is the correct balance to be struck? We no longer live in times when a Conservative Government could come into power promising in relation to counterterrorism law, as they did in 2010,
“a correction in favour of liberty”.
So my amendment does not seek a perpetuation of the status quo. Indeed, it would double the current maximum limit, in the absence of additional evidence, to four years, allowing plenty of time to work on TPIM subjects, while still requiring the authorities to focus on an exit strategy. Coupled with the amendment that I have already moved on standard of proof, or one of the other amendments in the previous group, it would represent a toughening of the present regime, while still at least attempting to combine the two imperatives that the noble and learned Lord, Lord Clarke, identified.
Terrorism in this country has cost us almost 100 lives since 9/11, and the threat level, although reduced only yesterday, is still “substantial”. However, as this pandemic reminds us, the existence of a threat cannot by itself dictate where the balance should be struck. The balance is for Parliament, and I suggest that a maximum of four years for these unpalatable measures—tough as it undoubtedly is—gets it about right.
The noble Baroness, Lady McIntosh of Pickering, has withdrawn from this group, so I call the next speaker on the list, the noble and learned Lord, Lord Thomas of Cwmgiedd.
I want to add only one point to what the noble Lord, Lord Anderson of Ipswich, has just said, because I agree with the entirety of it. That one point is derived from my own experience of dealing with people who were imprisoned indefinitely under the IPP regime. During the hearing of several appeals, it became apparent that indefinite detention often makes someone more dangerous because you take away hope. I very much anticipate that we would never get to the stage where we made TPIMs that lasted for a person’s entire lifetime. The TPIM would have to come to an end at some stage, and, to my mind, giving someone a clear expectation of when the period of restriction is to end helps in dealing with the individual and prevents making him more dangerous by depriving him of any hope.
My Lords, I wish to argue that Clause 38 should not stand part of the Bill. In my contribution on Clause 37, I mentioned my general worries about the TPIM regime and how it circumvents all the safeguards in the criminal justice system. Those safeguards are there for a very good reason: to ensure that our trials are fair and that we do not punish people without a high degree of certainty that they deserve it. However, for the purposes of this debate, I will focus on the process that the imposition of TPIMs follows in place of a proper criminal trial and how unsatisfactory that process is by comparison with the real thing.
For TPIMs, a criminal trial is replaced by civil proceedings before a High Court judge. The Government present evidence to support their case for the target person to have their liberty and their other rights curtailed. I have called them “the target person” rather than “the defendant” because they have not been charged with anything and they are completely unable to defend themselves. That is because the evidence against them is presented in private to the judge without the target person’s knowledge. They are unable to see, challenge or contradict the so-called evidence because neither they nor their lawyer is aware of it. This process, known as closed material proceedings, is a very poor substitute for a proper trial, where evidence is presented in open court and the defendant’s lawyer can challenge it, present other evidence that contradicts it and cross-examine the person who provided it.
I mention all this because Clause 38, if enacted, would mean that a person made the subject of a TPIM in such an unfair and unsafe manner and confined to their home and subjected to other losses of their rights could find themselves in this position indefinitely, for ever, even for the rest of their lives. That is extremely harsh treatment for someone who may be innocent and has not been convicted of any crime. This treatment is far harsher than if they had been convicted in a criminal court and been sentenced to a few years in prison. In the worlds of the noble Lord, Lord Anderson, when he was the Independent Reviewer of Terrorist Legislation:
“TPIMs … are as stringent as anything available in a western democracy.”
He considered the case for lifting the two-year cap, as Clause 38 would do, in his report on TPIMs in 2012. He concluded that the two-year limit was an acceptable compromise because two years was a serious length of time in the life of an individual and TPIMs should not be allowed to become a shadow alternative to criminal prosecution. Indeed, the Government themselves endorsed the two-year limit and in 2015 cited the observation of the noble Lord, Lord Anderson, that there was no need to “put the clock back”. The Government went further and said:
“The two-year limit is a reminder that executive constraints of this kind are no substitute for the criminal process, and no long-term solution”.
What has changed the Government’s mind such that they wish to turn it into a long-term process? I am hoping the Minister will enlighten the House when he responds, and I hope that this time he can come up with something better than a meaningless reference to flexibility or that there is no need for it now but who knows what we might need in the future. To abolish the two-year time limit and replace it with an indefinite period of successive extensions, without even troubling the court, there would need to be a compelling operational case, would there not? However, no such compelling case has been made. In fact, no case at all has been offered by the Government, so far as I am aware. Given that fact, and given, as I mentioned earlier, the flimsy and unsatisfactory nature of the TPIM process as an alternative to our proper and fair criminal justice system, we cannot countenance allowing TPIMs to be made indefinite by means of Clause 38. It must go.
My Lords, as I said on the previous group, we wish the current arrangements for terrorism prevention and investigation measures to remain as they are. I also said on the previous group that TPIMs were designed to be a temporary measure to protect the public from terrorism while an investigation gathered evidence to put before a criminal court. Currently TPIMs are in force for one year and can be extended by another year only once, although the Home Secretary can impose a new TPIM if necessary. Clause 28 allows a TPIM to be extended indefinitely. We do not believe that Clause 28 should stand part of the Bill, and Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation agrees.
As I described in the previous group, the restrictions that can be imposed under a TPIM can in some respects be similar to imprisonment, and in other ways more draconian than imprisonment. The Government do not normally seek to restrict those who can visit you in prison, or take control of your bank account. In important respects, it can be akin to detention without charge.
On the subject of detention without charge, my friend, the late Lord Lester of Herne Hill, also a former member of the Labour Party, said in a debate on a previous Counter-Terrorism Bill on 13 October 2008:
“To those noble Lords who say that the threat of terrorism is so appalling that we must do anything to counter it, logically their position is—or should be—in favour of internment”—
something that the noble Lord, Lord Anderson of Ipswich, has just mentioned—
“without any time limits, until the evidence has been forthcoming. That is what, at the height of the Second World War, Winston Churchill described as,
‘in the highest degree odious’,
and I think he was right … That is why this Committee has a peculiar responsibility today to strike a fair balance, as has been said, between the need to protect the lives of our people against a serious threat of terrorism and the need to uphold our tradition as a country which respects the rule of law”.—[Official Report, 13/10/08; col. 519.]
I think that they were both right. Were all the possible conditions available under TPIMs to be imposed, they would amount to internment. If they were imposed without time limit, it would amount to a breach of Article 6 of the European Convention on Human Rights. Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, has said:
“The Bill is conspicuous for its lack of safeguards. Safeguards are appropriate however carefully the Home Secretary and her officials consider TPIMs, and however much resource constraints inevitably limit the appetite for more and longer TPIMs.”
He suggests that the Home Secretary should be required to seek the court’s permission for any extension beyond two years, in the same way as she currently does when a TPIM is first made. Our Amendment 29 seeks to impose such a requirement on the Secretary of State.
The current Independent Reviewer of Terrorism Legislation goes on to suggest that, at the very least, an upper limit be placed on a TPIM. The master of compromise, the noble Lord, Lord Anderson of Ipswich, suggests in his Amendment 30 that there should be a four-year limit, double the current limit but short of indefinite, as the Government seek. I have to say that the noble Lord’s speech this evening was authoritative and convincing.
We believe that this is not a question for compromise but a question of principle. TPIMs are and should remain a temporary means of safeguarding the public during an investigation, and not a form of indefinite detention without trial.
I am relatively new to these debates, but I remember making the point at Second Reading about the importance of rehearsing these arguments each time we make these types of orders. These orders are some of the most intrusive that we have in our country. Young people listening to these debates need to be convinced regularly of how important these orders are and that they are proportionate and protect our liberties.
In her introduction, the noble Baroness, Lady Hamwee, drew a parallel with the group; there are obvious parallels between the legal tests in the previous group and the length of the TPIMs that we have been discussing in this group. Interestingly, in responding to the previous group, the noble Lord, Lord Parkinson, talked about a reduction in the measures within TPIMs as they progress in time. I hope that the noble Lord will be able to expand on that when he winds up the debate.
As I am now used to, the noble Lord, Lord Anderson, has given a balanced view. He has put forward another compromise, although I sense that the Liberal Democrats and perhaps my own party, the Labour Party, are less convinced by this type of compromise, but nevertheless he has set one out in his amendments. I thought that he put an interesting challenge to the Minister, who is a former special adviser in the Home Office. I do not think that it was a rhetorical challenge, but I would be interested to know the noble Lord’s response. Would he have felt comfortable about recommending a discharge to an indefinite TPIM when he was in that role? It would be a difficult thing for a Minister or a special adviser to do. If the orders had a natural time limit, that would not put people in such a difficult and invidious position.
The other point made by the noble Lord, Lord Anderson, was that excessive zeal can be counterproductive. The noble and learned Lord, Lord Thomas, also made the point when he drew an interesting parallel with the IPP regime and the importance of not taking away hope from people who are subject to orders, whether they be for imprisonment or a form of effectively indefinite house arrest. The noble Lord, Lord Paddick, summed up these arrangements very well. He quoted the noble Lord, Lord Lester of Herne Hill, who I remember well in the House, when he drew parallels with internment. In fact, I may have been here when he made that speech. The noble Lord, Lord Paddick, also quoted Jonathan Hall extensively when he said that there should at the very least be an upper limit to the time that a TPIM can be in place without a further court order.
For all these reasons, the amendments as put forward by the other speakers in this group are worthy of our support.
My Lords, I thank all noble Lords who have spoken in the debate on this group. Amendment 29, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would require the Home Secretary to secure the permission of the court before signing a TPIM extension notice. We do not think that that is a necessary amendment to the Bill. To demonstrate why, it might be helpful to the Committee if I explain first the process by which the Home Secretary considers whether a TPIM notice should be extended, a process that will remain in place after the removal of the time limit as proposed by the Bill. I hope that that provides some reassurance to the Committee both about the thorough consideration which goes into whether the continuation of a TPIM is necessary and about the robust judicial oversight that is already built into the process.
At this stage, I should say in response to the question from the noble Lord, Lord Anderson of Ipswich, which I was certainly hoping to treat as rhetorical but which the noble Lord, Lord Ponsonby of Shulbrede, rightly picked on, these are rightly not matters in which special advisers are involved. They are questions for the Secretary of State and Ministers.
When extending a TPIM, the Home Secretary will consider the Security Service’s assessment as to whether it remains necessary. It is true that significant weight is placed on the professionalism and expertise of the Security Service, but the process is not simply a tick box exercise. The Home Office routinely challenges the Security Service’s assessments to ensure that they are robust. The scrutiny is demonstrated by the public comments which have been made by successive former Independent Reviewers of Terrorism Legislation, who, for instance, have noted that through the quarterly TPIM review group meetings all TPIM notices in force are reassessed, including whether the measures imposed or the TPIM notice itself are necessary and proportionate, and what the exit strategy is for the notice.
If the Home Secretary considers that the extension of a TPIM notice is necessary, she will then consider whether the current measures remain necessary and proportionate to restrict the individual’s involvement in terrorism-related activity, or whether any of them need varying. To address the point raised by the noble Baroness, Lady Hamwee, this can be in the form of a removal, a relaxation, or further restrictions.
This might be a good point to talk a little more about rehabilitation. To answer the question that the noble Baroness asked about whether somebody who has been subject to a TPIM could theoretically be subject to another, yes, they could, although that would have to rely on a separate national security case or evidence of terrorism-related activity. TPIMs are not designed as a tool of punishment; they are a tool of prevention and rehabilitation. Part of them involves encouraging subjects to attend what are known as desistence and disengagement programmes to assist with their rehabilitation and to turn them away from behaviour that leads them to be subjects of concern.
Decisions to extend a TPIM notice are not taken lightly but are based on detailed assessments by the Security Service and counterterrorism policing’s experience of managing the subject. The assessment that the Security Service provides will not only be based on the original national security case put forward for the imposition of the TPIM; it will also include the intelligence, both covert and overt, gathered over the course of the preceding 12 months. This could include evidence of further terrorism-related activity or non-compliance that does not reach the criminal threshold or which cannot be exhibited in open court. When extending a TPIM notice, the TPIM subject is invited to make representations before a decision is made. These are put before the Home Secretary.
As I outlined in our debate on the previous group, the 2011 Act established robust judicial oversight of the TPIM process. I will set out what that means. I hope to reassure the noble Lord, Lord Paddick, on some of the existing safeguards. The court will consider at a permission hearing whether the Home Secretary’s initial decision to impose a TPIM was “obviously flawed” and will overturn a notice or its measures where that is the case. This is known as a Section 9 hearing. If I understand the amendment, this is a process that the noble Baroness and the noble Lord would like to see replicated when a notice is extended beyond a second year.
Section 16 of the TPIM Act provides an appeal route for TPIM subjects to challenge any refusal to vary their notice or to extend it, in addition to the Section 9 hearing. The in-built appeal route available through Section 16 makes it difficult to see in practice what the amendment would achieve in establishing an additional safeguard beyond that.
In addition to the Section 9 hearing and the Section 16 appeal process, the TPIM Act also requires the Home Secretary to keep under regular review the ongoing necessity of a TPIM notice under Section 11. This responsibility is also taken seriously. It is why the Home Office runs the quarterly TPIM review groups, where all TPIM subjects are discussed, including the notices to which they are subject and whether these remain proportionate and necessary.
I turn to Amendment 30, in the name of the noble Lord, Lord Anderson of Ipswich. I thank him for outlining it. His amendment would amend the 2011 Act so that a TPIM notice can be extended on “one or more” occasions if the conditions in Section 3 of that Act continue to be met. Currently, a TPIM notice can be extended only once and therefore has a maximum duration of two years. However, we respectfully disagree with the noble Lord on the need for his amendment. It would prevent a TPIM notice being renewed for as long as it is necessary for the purposes of public protection. Instead, it would set a new upper limit of four years. While we disagree with the noble Lord’s amendment, I should say at the outset that we support its principle in so far as it recognises that there are circumstances where it may be necessary to impose a TPIM beyond the current two-year limit, which the Government contend is too short.
There are several policy and operational justifications for Clause 38. First, experience has shown that there are TPIM subjects who pose an enduring risk beyond the two-year limit. This has meant that a new TPIM has had to be imposed after reaching the current limit and, as a consequence, a dangerous cliff edge has been created while the individual is at large in the community without the appropriate risk management tools in place before a new TPIM can be imposed. That has happened on more than one occasion. ACC Tim Jacques spoke to this risk when he gave evidence to the Public Bill Committee in another place.
Secondly, extending the maximum duration of a TPIM beyond two years will provide more time for the TPIM subject to engage in rehabilitative programmes, adopt a different lifestyle and break away from their previous extremist contacts, which is a key part of the intention. Unfortunately, within the current time limit, we have seen that certain TPIM subjects are only biding time—that is, waiting for the current maximum of two years to expire with no change to their mindset. This is an issue on which another former Independent Reviewer of Terrorism Legislation publicly reported. There needs to be more incentive—a carrot-and-stick approach, if you like—for subjects to engage with rehabilitative measures and demonstrate that the TPIM notice is no longer necessary.
Thirdly, removing the time limit will multiply the benefits of the TPIM by restricting the TPIM subject’s involvement in terrorism-related activity, supporting efforts to degrade the subject’s wider network—should they belong to one—and reducing the wider long-term threat from others who may have been influenced by them, were it not for the TPIM measures, particularly in the case of known charismatic radicalisers. I acknowledge that the amendment in the name of the noble Lord, Lord Anderson, still provides for those benefits. However, I should also be clear that it does so to a more limited extent than the Government would like, which is why they cannot accept it.
The Government believe that a TPIM imposed for the purposes of public protection should be removed only when the risk to the public has been managed. By imposing a maximum length, even four years as the amendment would do, which would be known by the TPIM subject, there would still be a potential cliff edge at the end of the TPIM rather than it being capable of renewal for as long as is needed. Clause 38 will not alter condition (c) of the TPIM Act, which requires, as I said previously, that the Home Secretary reasonably considers it necessary to impose a TPIM for the purposes of protecting the public from a risk of terrorism. If necessity can no longer be demonstrated, the TPIM must be removed, regardless of the removal of the time limit in Clause 38.
There is clear precedent for the Government’s approach under the control order regime, as I have mentioned, the framework for which was heavily tested in court and found to be compatible with the European Convention on Human Rights. As was acknowledged in the report of the noble Lord, Lord Anderson, on control orders in 2011, there were many cases in which the Government either revoked or decided not to renew a control order on the grounds that the necessity test was no longer satisfied. A similar approach will be taken with TPIMs following the commencement of Clause 38.
Within the lifetime of control orders, three exceptionally dangerous individuals were subject to an order for between four and five years. That underscores why the Government are not prepared to accept a four-year limit, as proposed in this amendment. All TPIM notices are subject to regular scrutiny, including through quarterly and annual reviews, and where it is no longer considered necessary and proportionate to extend or maintain a TPIM notice, it will not be extended or will be revoked. The Independent Reviewer of Terrorism Legislation is invited to attend the review meetings. Through those regular meetings, key considerations such as the case for the individual’s prosecution and their TPIM exit strategy, both of which are extremely important, are kept under careful review. The former independent reviewer Max Hill’s report, The Terrorism Acts in 2017, provided a positive assessment of TPIM review group meetings, including the careful monitoring of the proportionality of the measures in place and the exit strategy for the individual. Again, this will not change with the changes proposed in this Bill.
The TPIM Act includes safeguards for the protection of the civil liberties of those subject to TPIM notices. All TPIM subjects are granted an automatic review on the imposition of their TPIM notice, and Section 16, as I say, provides an avenue of appeal for subjects who wish to challenge the decision to extend their TPIM notice for a further year. The Government have no desire to keep an individual on a TPIM any longer than is necessary and proportionate. However, protecting the public is the Government’s foremost priority and we must be able to restrict and prevent an individual’s involvement in terrorism-related activity for as long as necessary, rather than being confined by an arbitrary time limit on the length of a TPIM, which could put people at risk. These are the reasons why I respectfully urge noble Lords to withdraw their amendment.
My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Paddick.
My Lords, I am grateful to the Minister. I have two questions. First, he spoke about Section 9 hearings and the appeal route under Section 16 making our amendment unnecessary. Can he tell the Committee how many times TPIMs have been revoked or restrictions eased as a result of each of these types of hearing?
Secondly, terrorism prevention and investigation measures are, as their title describes, temporary means of preventing terrorism taking place while an investigation tries to establish evidence to convict the person in a criminal court. Control orders, on the other hand, have been used in the past for public protection. If the Government are changing the nature of TPIMs and abandoning them as a temporary measure to enable an investigation to take place in safety, why do they continue to call them TPIMs? Why not now call them control orders, which are in fact what the Government are trying to use here?
I will take the questions in reverse order. Prosecution is always the preferred method of disrupting those involved in terrorism-related activity. That will continue to be the case even under this Bill. Under the TPIM Act 2011, the Home Secretary is required to keep prosecution under review. That will not change with the amendments we propose to the Bill. If it becomes clear that there is an avenue for prosecution, the Home Office will support the police and the Crown Prosecution Service in bringing that prosecution against the individual and seek to remove the TPIM notice if it is no longer necessary and proportionate.
On the noble Lord’s first question about the number of times that appeals have been raised, if he is happy it would be better if I write and provide that information to him and the rest of the Committee so that I can be certain that it is up to date and accurate.
My Lords, I hope that noble Lords will forgive me if, in the interests of time, I do not comment on every contribution. I must say, I have edited my notes as we have gone along, and it is more or less the same cast of characters throughout the clauses and amendments on this part of the Bill.
I noted in particular two comments that I think are well worth keeping in mind: my noble friend Lord Strasburger saying that two years is a serious length of time, and the noble and learned Lord, Lord Thomas—who, as ever, put pithily and succinctly an issue that is at the heart of the case, as it were—saying that the effect of indefinite detention or what is perceived as indefinite detention, by the taking away of hope, is to create greater danger.
In response to the question about how many new TPIMs there have been because of the cliff-edge issue, we were told it was “more than one occasion”. If the noble Lord is able to expand on that, I would be grateful. I observe with regard to reviews—I use that term quite broadly—that it is difficult, if not impossible, for the subject to make effective representations because he does not know what points put to the Secretary of State he is responding to. It is worth saying one final sentence on the carrot—yes, that is what it is—of investing. One cannot even say that it is investing in rehabilitation, because no offence has been proved, but investing in managing the risk has to be worth it, even if you look at it coldly in terms of pounds and pence, because of the cost of enforcing and supervising TPIMs. I am looking at my screen to see whether the Minister will be able to respond to the question that I just put. As he has not leapt up—oh, he has.
Amendment 29 withdrawn.
Amendment 30 not moved.
Clause 38 agreed.
We now come to the group beginning with Amendment 30A. I notify noble Lords that at the end of this group we shall have a short break. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate and anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 39: TPIMs: variation of measures
30A: Clause 39, page 35, leave out lines 39 to 41
Member’s explanatory statement
This amendment would prevent relocation for resource reasons.
My Lords, this takes us to the issue of location and relocation. It was probably very naive of me to be taken aback at seeing the provision for variation expressed in resource terms, though perhaps I should acknowledge the Government’s transparency in doing so in the Bill. The Secretary of State already has wide powers of location and relocation so I would be interested in understanding the balancing factors to be taken into consideration. I ask this because the impact of being lifted from one’s community can be considerable. I realise that community connections may be the problem, but the support of the community can also be very positive.
I appreciate the powers are intended to have a considerable impact, but so might being placed somewhere utterly unfamiliar, where visits from friends and extended family are much more difficult because of distance as well as the deterrence of security clearance. There are more likely to be problems seeking work—if reporting and other conditions permit work—and from being cut off from one’s belief systems when one may have only a tenuous grip on reality. It could be that for that lone wolf—the lone actor, as he was referred to earlier—not being well established in the community is a significant part of the problem, which will be exacerbated.
If there is a family, what about the impact on the spouse and children? I have heard the words “depression”, “anxiety”, “enduring sense of injustice” and “stigma”, applied to how this might be experienced by children. Family cohesion breaking down is unlikely to be beneficial to the management of the subject. I have also heard relocation described as creating toxic social effects. The longer the restrictions go on, the more likely a breach is, because of the loss of hope, to which the noble and learned Lord, Lord Thomas, referred. The best course is positive engagement, and we have just been talking about that, but TPIMs seem to be the opposite, and relocation must often mean compounding a disaffection with society. I beg to move.
My Lords, as my noble friend Lady Hamwee said, requiring a TPIM subject to relocate can have significant consequences, particularly, for example, if he or she has school-age children. It is a well-established fact in the rehabilitation of offenders that social ties are powerful in preventing reoffending. Relocating to another part of the country, presumably, would have the opposite effect.
Clearly, if there is a national security issue that requires the TPIM subject to be relocated somewhere they are not easily in contact with people they should not be in contact with, relocation should be considered. But to allow relocation simply to save police resources seems neither necessary nor proportionate.
This amendment does not address head-on the power under a TPIM to require somebody to relocate. This amendment is only touching on whether the Secretary of State should by notice have power to vary a relocation measure, in part, because
“the variation is necessary for reasons connected with the efficient and effective use of resources.”
While I recognise the intrusive effect that relocation can have, I accept that there may be cases where national security demands it. I am interested to hear from the Minister what test is to be applied where a variation of a relocation order occurs when it
“is necessary for reasons connected with efficient and effective use of resources.”
I do not know, but I suspect that this concerns the perception that someone should relocate for national security reasons. Where they relocate to might be affected by the circumstances in which such an order might be enforced