House of Lords
Introduction: Lord Parker of Minsmere
Introduction: Baroness Foster of Oxton
Arrangement of Business
The Lord Speaker (Lord Fowler)
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally.
After a personal statement from the noble Lord, Lord Freud, Oral Questions will commence. Please can those asking supplementary questions keep them short and confined to two points. I ask that Ministers’ answers are brief as well.
Personal Statement
Lord Freud (Con)
My Lords, with the leave of the House I will make a personal statement. Today, the Commissioner for Standards has published a report into my conduct. The report relates to letters, to which I was a signatory, to members of the judiciary about references provided to the court to inform the sentencing of Mr Elphicke. My motive was purely to alert the judiciary to what I considered to be an important issue of principle. However, I recognise that it was not my place to do so, and that I should not have added my name to the letters. I apologise to the House and the judiciary.
Covid-19: Over-75s
(3 years, 10 months ago)
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Baroness Hodgson of Abinger
To ask Her Majesty’s Government what assessment they have made of the impact of (1) the COVID-19 pandemic, and (2) the subsequent restrictions put in place to address the pandemic, on those aged over 75.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)
My Lords, it is a sad fact that this horrible virus targets over-75s more than any other group. We should all be proud of the country’s determination to protect the lives of the elderly and the infirm and give thanks for the vaccines that save so many lives. I assure my noble friend that the NHS has remained open to all and will catch up on the backlog for all those who need medical intervention, irrespective of age.
Baroness Hodgson of Abinger (Con) [V]
My Lords, we all recognise that the pandemic has had a particularly devastating impact on the elderly, with them not being able to see loved ones, isolation increasing dementia and high death rates in care homes. While I congratulate the Government on vaccinating all those in care homes, can the Minister kindly tell us when those housebound and receiving care will all be vaccinated? Will the Government consider adopting the successful Tubbe system being used in many Belgian care homes, whereby management and residents cojoin in decision-making, thus giving the residents more control of their daily lives and helping them to cope?
Lord Bethell (Con)
My Lords, we have now reached more than 80% of over-80 year-olds. Local vaccination services, of which there are more than 1,000 in England, co-ordinate the delivery of vaccinations to people who are unable to attend a vaccination site, including visiting homes, the personal homes of housebound individuals and other settings such as residential facilities for those with learning difficulties. The rollout of the vaccine to those at home is progressing at great pace and we are getting great feedback from the front line.
Baroness Pitkeathley (Lab) [V]
Is the Minister aware that many people over 75, notwithstanding their age, are providing care for family members—a spouse or an adult child with special needs, for example? Research by Carers UK shows that two-thirds of these older carers are providing more than 90 hours’ care a week, having had to take on more duties during the pandemic. One-third of them say that they are reaching breaking point and that their own health, physical and mental, has been severely affected. How will the Government ensure that sufficient support is available to these older carers, on whom so many depend?
Lord Bethell (Con)
My Lords, I pay tribute to all those elderly carers, who, as the noble Baroness quite rightly points out, provide a huge service to society, to their loved ones and to the community. We have put in place a tremendous amount of support for carers, including PPE support. We have changed the arrangements for domiciliary care so that we can restrict the spread of the virus, and we have changed the way in which domiciliary care is paid for. The noble Baroness is entirely right: we should not forget the considerable contribution made by a large number of unpaid carers, many of whom are themselves elderly.
Lord O’Shaughnessy (Con) [V]
My Lords, as well as the direct health impacts that the pandemic has brought on older people, there are the indirect effects of increasing loneliness and isolation, which can have a devastating impact too. As the country emerges from lockdown, will my noble friend ensure that the right support for mental health and other support is in place for this group, including better access to their families and loved ones through more flexibility in the use of support bubbles?
Lord Bethell (Con)
My Lords, my noble friend is entirely right about the massive mental health challenge and, if not the challenge to mental health, that of the isolation and loneliness felt by many who are shielding or isolated. Seven hundred and eighty thousand individuals over 70 are considered clinically extremely vulnerable. We have changed the terms of the shielding arrangements to give them more flexibility, and we have published the well-being and mental health support plan relating to Covid-19, which sets out steps to strengthen the support available for those who are struggling. But my noble friend is entirely right: we must do more to support and help voluntary organisations, which play a critical role, as do local authorities.
Baroness Barker (LD)
Another wave of Covid is hitting care homes at the moment. Therefore, there is an urgent need for hand-held rapid testing kits that deliver accurate and swift results. What investment is being made in biotech companies and care staff to develop a rapid testing system that works at scale?
Lord Bethell (Con)
My Lords, the innovation and partnerships team at NHS Test and Trace has an enormous programme on this. The lateral flow devices are a huge development but, as the noble Baroness undoubtedly knows, the sensitivity of a lateral flow device means that it is not necessarily appropriate for the user case that she described. We have invested in DnaNudge and other small point-of-care devices, but having a fast-turnaround device that can be rolled out in mass numbers is a challenge, and we continue to search for the ideal format.
Baroness Pidding (Con) [V]
My Lords, with the opening up of appointment slots for the fourth cohort, as announced by the Secretary of State last night, can the Minister assure all those in earlier cohorts that their second dose of the vaccine will be given in a timely manner within the 12-week timeframe, and how will this be managed?
Lord Bethell (Con)
I completely recognise the concern of my noble friend and of many in the Chamber on this point, so I shall provide concrete reassurance. Everyone will receive their second dose within 12 weeks of the first one. All those booked in at vaccination centres will have an appointment, made at the same time, to receive their second dose, and those who do not have a date today will receive one from their GP.
Lord Laming (CB) [V]
My Lords, the Minister will know that six out of 10 people with dementia live in their own home, so they depend on a range of care workers coming into their home—sad to say, often without PPE and some even without face masks. In contrast, those living in residential care have now gone almost a year without being allowed a visit from a loved one—they are not able even to hold their hand. Does the Minister agree that now is the time to set up a formal review in order for us to learn the lessons of the impact of Covid-19 on the over-75s suffering from dementia?
Lord Bethell (Con)
The noble Lord explains the situation of those who have been in care homes and separated from their loved ones extremely well. We all feel extremely heartbroken by the stories of people who have been separated from their loved ones, but we need to put the saving of life as the first priority. Visits have been allowed outdoors, behind screens and in safe environments. I appreciate that that is not the same as an intimate face-to-face meeting but, where we can, we have put in place guidelines to ensure that people are protected. A review of the guidelines will happen on 22 February, and that seems the right moment to review these procedures.
Lord Bhatia (Non-Afl) [V]
My Lords, can the Minister confirm that those over 75 years of age must receive the vaccine first?
Lord Bethell (Con)
My Lords, the priority list from the JCVI indicates that all residents in care homes, older adults and those over 80 will be first. But, with the current state of the rollout, all those over 65 should have been offered a vaccine, and I encourage them all to step up and respond to the letter when they receive it.
Baroness Thornton (Lab)
I would like to ask the noble Lord about domestic abuse. Next year, ONS data collection will, for the first time, include those aged over 75 who suffer from domestic abuse. That is an important step forward. However, the pandemic has meant that many older people at risk of domestic abuse are indeed isolated and at risk. So what steps are the Government taking to collect data on the impact of domestic abuse on over-75s during the pandemic and to ensure that appropriate support is in place for older victims and survivors?
Lord Bethell (Con)
My Lords, the noble Baroness makes the point extremely powerfully. Of course, our prevailing feeling is of admiration for all those who have, through love and companionship, cared for those who are shielding or at home. But of course, as the noble Baroness alludes to, there are instances when, through either domestic tension or simple abuse, there is violence, and we cannot hide from that fact. I am not aware of a current trial or piece of research on this matter but I will take it back to the department and undertake to write to the noble Baroness with an update.
Lord Roberts of Llandudno (LD) [V]
I declare a personal interest in this question. One thing that has really helped to keep elderly people informed has been broadcasts, which they have accessed through the free TV licence. I hope that the Minister will make sure that the free licence continues long after the pandemic is over.
Lord Bethell (Con)
My Lords, that is slightly beyond the reach of the Department of Health and Social Care, but I appreciate the noble Lord’s point.
The Lord Speaker (Lord Fowler)
My Lords, the time allowed for this Question has elapsed and we now come to the second Oral Question.
Osteoporosis: Treatment
(3 years, 10 months ago)
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Lord Black of Brentwood
To ask Her Majesty’s Government what plans they have to ensure that people with osteoporosis have (1) equitable, and (2) timely, access to treatment.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)
My Lords, to reduce variation in osteoporosis services, NHS RightCare has published the pathway for falls and fragility fractures, which advises local commissioners on optimising osteoporosis services. The Government have also provided an extra £1 billion to fund elective recovery in 2021-22. Patients can also use the resources of the Royal Osteoporosis Society.
Lord Black of Brentwood (Con) [V]
My Lords, broken bones seriously impact on the lives of the elderly, causing significant ill health and premature death. Many arise unnecessarily as a result of undiagnosed or inadequately treated osteoporosis. Is my noble friend aware that one in five women who sustain a fracture have to break three or more bones before diagnosis and that fewer than half of women sustaining a hip fracture after the age of 50 receive treatment for osteoporosis the following year? As these are unacceptable figures, with huge costs to the NHS, what action will the Government take to ensure that patients are identified, treated and managed effectively in primary care, including proper access to fracture liaison services?
Lord Bethell (Con)
My noble friend is prescient to raise this issue on a day like today, which is slippy and dangerous for those who may take a fall. He is entirely right that the early diagnosis and treatment of osteoporosis are critical for those suffering bone fractures as well as for the system as a whole. The fracture liaison service can play a key role in reducing the risk of fractures in patients and to this end it has been promoted and recognised as best practice by NHS England. As part of the falls and fragility fracture audit programme the fracture liaison service database measures participation and standards in fracture liaison services.
The Lord Speaker (Lord Fowler)
Baroness Chisholm of Owlpen. No? I call the noble Baroness, Lady Bull.
Baroness Bull (CB)
My Lords, the Minister has rightly pointed to fracture liaison services and the vital role they play, but only half of the population in England currently has access to an FLS, compared to 100% in Scotland and Northern Ireland. Is the Minister aware of the recent economic analysis that suggested that upscaling provision to cover all over-50s in the UK could prevent an estimated 5,686 fragility fractures every year, with net cost savings of £1.2 million? Will the Government commit to 100% coverage for fracture liaison services and if not, why not?
Lord Bethell (Con)
The noble Baroness is entirely right. There is significant regional variation in the rates of fragility fractures within the older population with the lowest incidence observed in London, the east of England and the south-east and the highest in the south-west of England, Northern Ireland and Scotland. To reduce variation in osteoporosis services in 2017, NHS England’s RightCare programme published cases studies and pathways for the management of osteoporosis and fragility fractures. The noble Baroness is right that we should have high aspirations in this matter. I am not sure that I can commit to 100%, but I will return to the department and see if we could be doing more.
Baroness Quin (Lab) [V]
My Lords, I do not have a specific interest to declare, but I have been a member of the All-Party Parliamentary Osteoporosis Group and fully support the Royal Osteoporosis Society. Will the Government commit themselves to some kind of timetable for the achievement of a comprehensive system such as exists in Scotland and Northern Ireland? Will they meet the Royal Osteoporosis Society and interested parliamentarians to discuss the specific issue of delays in access to treatment which have understandably emerged during the current Covid crisis?
Lord Bethell (Con)
My Lords, the noble Baroness is right to press me for a timetable but, unfortunately, that is not something I can commit to from the Dispatch Box today. However, I would appreciate the opportunity to meet the Royal Osteoporosis Society and will put an appointment in the diary for as soon as possible.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, given the high incidence of osteoporosis in women aged over 50, of whom 50% are affected, and low levels of vitamin D in the population, what plans are there to help increase the consumption of vitamin D, which helps prevent osteoporosis? Is the mandatory nutritional fortification of some foods under consideration?
Lord Bethell (Con)
My Lords, the CMO has recently issued new guidance on the consumption of vitamin D and there has been widespread discussion about its dosage level. My understanding is that we are leaving the matter at that for the moment. I am not aware that the mandatory application of vitamin D to food is on the runway at the moment, but I am happy to check that point and write to the noble Baroness.
Baroness Wheeler (Lab)
My Lords, your Lordships’ House recently discussed the importance of medical research and government financial support for the fundraising and work of key charities on new brain tumour research treatments. With an estimated 3.5 million people aged over 50 currently affected by osteoporosis, many suffering chronic pain and disability, research on this is also vital. What resources does the NHS currently spend on osteoporosis research? Will the Minister undertake to consider the financial support, including match funding, that the Government can provide to the Royal Osteoporosis Society’s newly launched research academy and its potentially game-changing road map, which charts the key steps for researching a cure for this extremely debilitating disease?
Lord Bethell (Con)
My Lords, I do not have the figures for the precise amount that the Government spend on osteoporosis research at the moment, but I am happy to write to the noble Baroness with them if they are available. We are enormously grateful to the Royal Osteoporosis Society for its contribution to medical research. I can confirm that it has received a grant of £258,000 to support important work providing support for the vulnerable during the pandemic. That comes out of the package of £750 million that the Chancellor of the Exchequer announced to support the charity and voluntary sector during the Covid pandemic.
Lord Brownlow of Shurlock Row (Con) [V]
My Lords, I take this opportunity to congratulate my noble friend the Minister and thank him for his dedication at the Dispatch Box over the past 11 months. I declare my interest as a patron of the Royal Osteoporosis Society. Further to the comments of the noble Baroness, Lady Bull, is my noble friend aware that only 55% of the population in England have access to fracture liaison services, which have been shown to diagnose people with osteoporosis faster and move them on to treatment quicker? What plans do Her Majesty’s Government have to improve this and make access to fracture liaison services more available?
Lord Bethell (Con)
My Lords, the Royal Osteoporosis Society estimates that there are 95 fracture liaison services across England and Wales. While it is true that many cover more than one hospital, it should be remembered that they are non-specialist services and therefore CCGs are able to refer patients to fracture liaison services beyond their area. As I mentioned, we have a RightCare programme publishing case studies and pathways to encourage the greater rollout of best practice, but we are conscious that gaps remain and are working hard to close them as soon as possible.
Baroness Stuart of Edgbaston (Non-Afl)
My Lords, if the Minister were to go to Birmingham, he would find acclaimed fracture liaison services in the south, but in the north and east of the city they are not available, yet they are all part of the same clinical commissioning group. Will he encourage that group to ensure that there is equality of access across its geographical area and not to create a postcode lottery within it?
Lord Bethell (Con)
The noble Baroness alludes to a point slightly beyond the reach of the junior Minister in the department; we have a degree of federalisation, as she knows. However, I completely agree with and applaud the sentiment. We need more comprehensive coverage of fracture liaison services. We believe in the principle of 100% coverage, to which the noble Baroness, Lady Bull, alluded. I will look into whether we can do more in Birmingham to get a wider service.
Baroness Massey of Darwen (Lab) [V]
My Lords, the Royal Osteoporosis Society points out the enormous cost to the NHS of osteoporosis-related fractures and the distress of those who suffer. This implies that prevention should be improved. Will the Minister say how diagnostic services will be enhanced in relation to, for example, bone density scans and GP practices?
Lord Bethell (Con)
My Lords, we do a lot of work on prevention. Vitamin D is made available and we have fracture liaison services to look at those who present themselves with a fracture to diagnose osteoporosis. A vast amount is already done. I am sure that more could be done, but this is an elusive and difficult to diagnose condition, which relies on those who fear that their bone density may be low presenting themselves to their GP for diagnosis.
Lord Addington (LD)
My Lords, it is quite clear that preventive healthcare can assist here, through not only vitamin D but exercise patterns. Have the Government considered getting a comprehensive exercise plan for the over-50s that will encourage them to undertake activity that improves muscle mass and bone density, both of which protect against this?
Lord Bethell (Con)
My Lords, last year we launched a massive campaign, the Better Health campaign, to encourage healthier living with respect to both eating habits and fitness—I can report to the House that I have committed myself to that campaign and it is bearing some good fruit. We are spending hundreds of millions on marketing, we have engaged dieting services for those who wish to be involved in them, and we have mobilised a huge number of exercise regimes, including the park runs. These are bearing up well, but I encourage all those who wish to have a healthier life to do more.
The Lord Speaker (Lord Fowler)
My Lords, the time allowed for this Question has elapsed. We now come to the third Oral Question.
Overseas Territories: Humanitarian and Disaster Relief
(3 years, 10 months ago)
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Lord Lancaster of Kimbolton
To ask Her Majesty’s Government what assessment they have made of the United Kingdom Overseas Territories’ preparedness for humanitarian and disaster relief operations.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, the FCDO and MoD provide significant support to Bermuda and the Caribbean territories to ensure that they are ready for the annual hurricane season. The FCDO has helped to establish search and rescue capabilities in the territories, and new defence regiments in the Cayman Islands and the Turks and Caicos Islands will be trained to respond to such disasters. The FCDO continues to invest in capability building to ensure that territories are ready for a range of humanitarian and disaster operations.
Lord Lancaster of Kimbolton (Con)
The Royal Navy has a forward presence in the Caribbean during hurricane season to support our overseas territories, but the real challenge is getting access to islands once the hurricanes hit, as the ports and airports can be damaged. That is why in 2017, post Hurricane Irma, we raised two new Army Reserve units on the Cayman Islands and the Turks and Caicos Islands to deliver humanitarian assistance and disaster relief on island and open those ports. These have been a tremendous success with strong local support, and I was privileged in my military capacity to see the commissioning of the first officers at Sandhurst last year. Can my noble friend the Minister tell us whether there are now plans to raise similar units on Anguilla and the British Virgin Islands?
Lord Ahmad of Wimbledon (Con)
My Lords, I first pay tribute to my noble friend for his work during his term as Minister for the Armed Forces in creating, and being instrumental in establishing, these new units in both the Cayman Islands and the Turks and Caicos Islands, which joined Bermuda in this respect. He is quite right: these provide operational capacity and capability within the territories. No other territory has yet expressed an interest in establishing defence forces, but I assure my noble friend that we stand ready to support them if indeed they wish to do so.
Lord West of Spithead (Lab)
My Lords, as we speak, HMS “Medway” is on station in the West Indies, providing reassurance and support, safeguarding our north Atlantic Caribbean territories and getting to know the many islands and their civilian emergency services and support facilities, so as to assist in an emergency, whether it be a hurricane, volcanic eruption or instability caused by the drugs trade. Warships can move hundreds of miles a day, and offer communications, engineers, medics, food, fresh water and resilient, disciplined manpower. Bearing in mind that we have overseas territories across the south Atlantic, in the Indian and Pacific oceans, some with the largest marine protection zones in the world, does the Minister believe we have sufficient ships to safeguard them and their resources appropriately?
Lord Ahmad of Wimbledon (Con)
My Lords, I can assure the noble Lord that we have sufficient resources, in respect of both the military operations and the support. I have myself seen the strength of having military assets within the territories during and in the aftermath of such hurricanes. We all remember RFA “Mounts Bay” playing a sterling role as first responder. I assure him that, together with our military assets and the other investments we have made, we stand ready to support our territories within the region.
Baroness Northover (LD)
My Lords, as the Minister himself has admitted, the Government reacted too slowly to the devastating 2017 hurricanes in the Caribbean. In 2018, the Government, including the noble Lord, Lord Lancaster, announced that they hoped to secure multinational co-ordination in the region. What progress has been made?
Lord Ahmad of Wimbledon (Con)
My Lords, I will look at Hansard—I do not think I admitted to that. What I did say was that we had to respond afterwards; we had assets in the region. I am sure the noble Baroness will recall that we were among the first countries to react and work with key regional partners. I can assure her that we have been investing and working with regional partners. The multinational co-ordination cell of the Caribbean is a UK concept, and we are working with key partners from the United States and France and the Netherlands and Canadian militaries to co-ordinate a large-scale response if indeed the tragedy of hurricanes should hit again.
Baroness Hooper (Con)
My Lords, given the rich biodiversity of the overseas territories, where it is generally recognised that 94% of unique British species are to be found, what special assessment and consideration is given by the Government to this aspect of preparations for disaster relief emergencies?
Lord Ahmad of Wimbledon (Con)
My Lords, my noble friend is right to draw attention to the important work in this respect. The UK’s Darwin Initiative supports the OTs to increase their resilience in the face of climate change by funding projects. The CSSF has also provided OTs with over £4.6 million for capacity building through the Maritime and Coastguard Agency, and we are very proud of the 4.3 million square kilometres of MPAs within our overseas territories.
Lord Singh of Wimbledon (CB) [V]
My Lords, the Government and our Navy are to be congratulated on their timely assistance to our Caribbean and other overseas territories. Does the Minister agree that recurring natural disasters are a fact of life for many, and that the best way of mitigating suffering is to facilitate co-operation between territories in the regions to share best practice and ensure the pooling and rapid deployment of resources to the affected areas?
Lord Ahmad of Wimbledon (Con)
I can assure the noble Lord of that, as I said to the noble Baroness, Lady Northover. We work very closely with CDEMA, the regional emergency response agency in the region.
Lord Collins of Highbury (Lab)
My Lords, in an FCO press release in July 18, announcing the measures that we were taking to support the overseas territories following 2017, the Minister said we were going to work with partners for an “effective and strategic response” for future hurricanes. One of the four priorities of the Sendai framework is disaster risk governance and how we manage disaster risk. Can he tell us what mechanism the Government have put in place to support the overseas territories to do exactly that?
Lord Ahmad of Wimbledon (Con)
My Lords, I assure the noble Lord that we have done just that. In the event of a major hurricane impact, the relief and recovery unit leads on providing immediate and medium-term programme funding response. I have already referred to the multinational co-ordination cell within the Caribbean, and we work very closely with CDEMA specifically. It is based in Bermuda but, at the moment, given the Covid crisis, it is set up on a virtual basis.
Baroness Smith of Newnham (LD) [V]
My Lords, the Minister said that other overseas territories have not asked to have reserve units to deal with crisis response. Will the Government consider being proactive and suggesting to some of our overseas territories that it would be a good idea to follow the example of the Turks and Caicos?
Lord Ahmad of Wimbledon (Con)
My Lords, we were proactive; in this I pay tribute once again to my noble friend. It was he who wrote to me and we then acted together; he facilitated the training. However, I take on board the noble Baroness’s point, and we will continue to present the benefits of such regiments to all the territories.
The Lord Bishop of Coventry
My Lords, climate change is the context in which this conversation is happening. Given the marine diversity and repository of so much of the world’s biodiversity in the overseas territories, how will the Government ensure that the voices of the overseas territories will be amplified in the forthcoming COP 26 summit?
Lord Ahmad of Wimbledon (Con)
My Lords, as the Minister for the Overseas Territories, I assure the noble Lord that I have a loud voice in the Government, and I will ensure we do just that.
Lord Randall of Uxbridge (Con) [V]
My Lords, I declare my interest as a trustee of the UK Overseas Territories Conservation Forum. My noble friend the Minister will be aware of the environmental disaster affecting the coral reefs in the Caribbean, caused by stony coral tissue loss disease. This will have an enormous knock-on effect on tourism and, consequently, the economy of these overseas territories. Our noble friend Lord Goldsmith of Richmond is being extremely helpful with the environmental side, but will the Minister look into what further the FCDO can do to assist and avert what potentially could be a real disaster for those overseas territories?
Lord Ahmad of Wimbledon (Con)
I assure my noble friend that my noble friend Lord Goldsmith does not carry responsibilities only in Defra; he is also a Minister at the FCDO, and his views are well represented in our discussions on the point that my noble friend raises.
Lord McConnell of Glenscorrodale (Lab)
My Lords, when the United Nations sustainable development goals were agreed in 2015, resilience from the shocks of extreme weather events was a key element of the purpose behind agreeing them in such a comprehensive fashion. In their discussions with the overseas territories and others, will the Government ensure that setting a framework within the sustainable development goals is part of the long-term strategy for improving resilience to extreme weather events, rather than just reacting to them?
Lord Ahmad of Wimbledon (Con)
The noble Lord makes a very valid and practical point. That is exactly the focus for ensuring long-term resilience, as he suggests.
Lord Flight (Con)
My Lords, sending disaster relief can be less than successful and very expensive. There is thus a case for overseas territories having their own reserve units. As an example of those set up through my noble friend’s help, the Caymans and the Turks and Caicos have their own units. I believe that the Channel Islands have had reserve units for two or three centuries, or more. For how many other British Overseas Territories would it be viable to have their own reserve units?
Lord Ahmad of Wimbledon (Con)
I assure my noble friend that we are taking the example of the territories that have established these reserve units to see how others can build up their capacity and capability. I continue to engage with my noble friend who initiated this process. I assure my noble friend Lord Flight further that the overseas territories work very much in a collaborative fashion, as I have seen myself, whether in the sharing of assets or training, or in learning from each other. We as a Government facilitate those discussions.
The Lord Speaker (Lord Fowler)
My Lords, all supplementary questions have been asked and we now move to the fourth Oral Question.
Online Gambling: Stake Limits
(3 years, 10 months ago)
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Lord Foster of Bath
To ask Her Majesty’s Government, further to the announcement by the Gambling Commission on 2 February of new protections and controls for those who gamble through online slots games, what plans they have to introduce measures to apply stake limits to online gambling.
Lord Foster of Bath (LD) [V]
My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare my interests as set out in the register.
The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran)
My Lords, we welcome the Gambling Commission’s new measures on online slots games, which will help to reduce the intensity of play and protect vulnerable people. We are seeking evidence on the case for and against further controls, such as stake limits, as part of the Gambling Act review. It will be an evidence-based review to ensure that we get the right balance between respecting freedom of choice and preventing harms.
Lord Foster of Bath (LD) [V]
My Lords, I thank the Minister for her response but I was concerned by the Government’s apparent complacency. Only last week, shocking research by Oxford University revealed the devastating impact on the health of those who gamble more than they can afford, including an increased likelihood of suicide. That shows the urgent need for measures on affordability and tighter restrictions on advertising, for example. If the Gambling Commission also proposes online stake limits, will the Government ensure their early introduction without waiting for the outcome of the gambling review?
Baroness Barran (Con)
I cannot accept that this Government have been complacent about reviewing measures in relation to gambling and protecting vulnerable people. We have made a number of changes, most importantly in recently announcing the full-scale review. We will continue to implement things as quickly as they are needed and not wait for legislation.
Lord Empey (UUP) [V]
My Lords, my noble friend may be aware that our former Select Committee on Financial Exclusion, of which I was a member, learned that gambling companies deliberately targeted the most vulnerable in our community. They knew exactly who was watching TV at three in the morning. With the tidal wave of increased advertising, is it not time, given the severe damage being caused, for the Government to consider a precept or special tax on these companies to offset the increased costs in health and social care resulting from abuses that are clearly taking place in our country?
Baroness Barran (Con)
I thank my noble friend for his question. As we have said, we are considering all options in this regard but have also made major commitments to increasing provision for those who are negatively impacted by gambling. We hope very much that the evidence arising from the review will shape that thinking going forward.
Lord Smith of Hindhead (Con)
My Lords, I refer to my interests as set out in the register. Does my noble friend agree that if a limit on stakes for online prizes is introduced, as I think it should be, then such limits must apply equally to the maximum stake for all National Lottery online instant win games, which is currently £10?
Baroness Barran (Con)
The current maximum stake for National Lottery online instant win games has actually been changed to £5, following the Gambling Commission’s decision to withdraw all £10 online instant win games last summer. The National Lottery is regulated under a separate framework from commercial gambling, which reflects the lower ratios of harm observed there.
Lord Berkeley of Knighton (CB) [V]
My Lords, on the plus side, it is noticeable how advertising is now more strenuous in warning about the dangers of gambling. But specialists in addiction tell us that the mere act of suggestion—a bottle to an alcoholic, a syringe to a drug addict, and slot games or horses to gamblers—act as incentives to partake. So it is, as we have heard, the sheer frequency of advertising that is worrying. Does the Minister therefore feel that there is a genuine desire by the gambling industry to restrict the terrible damage that can affect whole families, given its obvious conflict of interests?
Baroness Barran (Con)
I obviously cannot speak on behalf of the industry but looking at advertising and marketing, direct and indirect, is a core part of the review and one of its six main aims. Two recent consultations on advertising have just closed and there will be a response soon—one in relation to the appeal of gambling adverts to children and vulnerable people, and one around advertising and selling items in video games. I think we are all aiming for the same goal of that balance between freedom and protection.
Baroness Armstrong of Hill Top (Lab) [V]
My Lords, I know that the Minister shares with me a concern about the apparently increasing number of women who are gambling, which has a huge impact on their lives and the lives of their families and children. What assessment have the Government therefore made of the number of women who suffer from a gambling disorder in the UK? Do the Government believe that we currently have the right treatment, and enough of it, to have proper intervention for women? Does the Minister feel that there are satisfactory levels of treatment and intervention?
Baroness Barran (Con)
The noble Baroness makes an important point. The latest data that we have shows that 87% of women gambled at the same level or less during the past year, while the quarterly survey that is run shows 0.3% of women gamblers identifying as problem gamblers. The noble Baroness is right that this data relates to the last year so more work and research needs to be done to understand the true extent, and therefore the need for additional treatment and support when we have understood that fully.
Baroness Bakewell of Hardington Mandeville (LD) [V]
My Lords, it has been suggested that stake limits online may drive gamblers to the unregulated black market. The most addictive form of online gambling is slots with no stake limit. Does the Minister agree that, while concerns around the gambling black market should be addressed, these should not impede reform of the regulated sector, including online gambling?
Baroness Barran (Con)
We are very keen to address all issues, such as online slots, which, as the noble Baroness says, is one of the most harmful and riskiest forms of gambling with the highest loss ratios. That is why these recent changes which affect the design of games are so important, but we will need to navigate in the review a number of overlapping factors, including the black market.
Lord Mancroft (Con)
My Lords, I wish to draw attention to my interests in the register. Gambling companies make 60% of their profits from just 5% of players and they create VIP schemes especially for high-spend customers to encourage them to play more and more—effectively, to lose more and more money. When are the Government going to ban these VIP schemes and put measures in place to ensure that what someone spends on gambling is affordable to them?
Baroness Barran (Con)
My noble friend is right to raise the issue of VIP schemes. Our understanding is that since the commission challenged the industry on this, the number of customers in VIP schemes has fallen by 70%, and the rules governing the schemes formally came into force at the end of October. We will continue to monitor them and, if further action is needed, the Gambling Commission is ready to take it.
Lord Sikka (Lab) [V]
My Lords, the Gambling Commission is, as always, playing catch-up. Does the Minister agree that it needs to be proactive? Will the Government introduce legislation under which all gambling products, prior to their launch, would be assessed for their capacity to cause social harm?
Baroness Barran (Con)
The Gambling Commission has been very active, particularly in the last year with the risks around Covid and lockdown. We are currently looking at funding, and there is a consultation out on an uplift to Gambling Commission fees, to make sure that it can keep pace with the industry.
The Lord Speaker (Lord Fowler)
My Lords, the time allowed for this Question has elapsed, which brings Question Time to an end.
Non-Domestic Rating (Public Lavatories) Bill
Lord Ashton of Hyde
That the order of commitment of 18 January committing the Bill to a Grand Committee be discharged, and that the Bill be committed to a Committee of the Whole House.
Business of the House
Lord Ashton of Hyde
That with effect from 18 February until further Order debates on motions for general debate, whether taken in the hybrid House or hybrid Grand Committee, shall be time limited to one of 1½, 3 or 5 hours, and that this time limit may be varied in accordance with this Order with the unanimous agreement of members taking part at the commencement of proceedings.
Lord Ashton of Hyde (Con)
My Lords, on behalf of my noble friend the Leader of the House, I beg to move the second Motion standing in her name on the Order Paper. This Motion will give us more flexibility in how we are able to schedule general debates, which since last May have been automatically time-limited to three hours. When scheduling such debates in future, any one of the three time limits set out in the Motion could apply. This was discussed and agreed at the last meeting of the Procedure and Privileges Committee and is the same system that exists for SIs, which has worked well.
Business of the House
Lord Ashton of Hyde
That, in the event of the Ministerial and other Maternity Allowances Bill having been brought from the House of Commons:
(1) Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Thursday 25 February to allow more than one stage of the Bill to be taken on that day;
(2) The report of the Committee on the Bill shall be received forthwith, whether or not the Committee amends the Bill, and no amendments shall be tabled for consideration on Report; and
(3) In accordance with Standing Order 48 (Amendments on Third Reading), amendments shall not be moved on Third Reading.
Lord Ashton of Hyde (Con)
My Lords, the Ministerial and other Maternity Allowances Bill was introduced to the House of Commons on Thursday last week. It is expected to be taken through all of its remaining Commons stages on Thursday this week. The Bill will have its Second Reading in this House on Monday 22 February, for which the speakers’ list is open. This Motion will allow us to take the Bill through its remaining stages on Thursday 25 February. The Motion provides for a substantive Committee stage, but not for a Report stage. In accordance with Standing Order 48, amendments will not be possible on Third Reading. Noble Lords will be able to table amendments for Committee between the point at which the Bill arrives and 4 pm on Monday 22 February. Any amendments will be marshalled and grouped in the usual way. I am grateful to the Legislation Office for the arrangements it has put in place. I beg to move.
Baroness Wheeler (Lab)
My Lords, this is a short, necessary Bill and the procedures are right to ensure it is in place in time for the Attorney-General’s maternity leave. We support it and particularly welcome the agreement with the Government for the Front-Bench teams in the Commons and the Lords to meet and go through related areas, such as paternity and adoption leave, and consider how they can be taken forward later this year. Indeed, we on these Benches look forward to the day when all women can get the maternity leave and pay which means they can take the time off to care for a newborn without a dramatic fall in income.
Lord Ashton of Hyde (Con)
I am very grateful to the noble Baroness for her words.
Arrangement of Business
Lord Ashton of Hyde (Con)
My Lords, I thought this would be a convenient point to confirm the arrangements for the Easter Recess. Subject, as is always the case, to the progress of business, we will rise at the conclusion of proceedings on Thursday 25 March and return on Monday 12 April. I will place a copy of these dates in the Royal Gallery.
UK Shellfish Exports
(3 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Jones of Whitchurch (Lab) [V]
My Lords, in the Commons yesterday George Eustice once again tried to portray the fishing settlement as a good deal, whereas the truth is that it is unravelling as we speak. It is no wonder UK fishers feel angry and betrayed. You would have thought that the negotiations of the trade and co-operation agreement would have tied down the future access of live bivalve molluscs to the EU at the time of the agreement, rather than as an afterthought when damage to the sector has already been done. As a result, hundreds of tonnes of stock have had to be dumped and the multi-million-pound industry has ground to a halt.
These are more than teething problems. The future of the sector is at stake. The Minister has described the negotiations as technical discussions, but what is to stop the EU reopening other aspects of the fishing deal in return for a settlement on live molluscs? In the meantime, can the Minister clarify exactly what compensation will be made available to those whose livelihoods are affected by the loss of that EU market? Will they have access to the £23 million disruption fund made available for other fishers whose markets have been disrupted? Will the Government consider increasing this fund now that many more fishers appear to need compensation?
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con) [V]
[Inaudible]—to Commissioner Kyriakides, because we want to restore the trade in undepurated live bivalve molluscs. That is the issue here. We think that the interpretation that the Commission has come to is not correct, and we wish to have discussions with the Commission about it. A 25% uplift in fishing opportunities is an important part of the trade and co-operation agreement, and we will be working on that. As the Government have announced, not only is there a £23 million fund for those who have been in difficulty in these early stages but we will invest in a £100 million fund for fishing over the next three years. There is a lot of promise and a lot of opportunity for British fishing interests and the shellfish industry as well.
Baroness Bakewell of Hardington Mandeville (LD) [V]
My Lords, it is unfortunate for the Government that the BBC is currently screening its series on the Cornwall fishing industry, filmed last year. All see the dramatic effect on the Cornish crab industry of the withdrawal of the Chinese market, and now the EU is refusing to take its shellfish, which was previously acceptable. The Statement says that scallops are less affected than other bivalve molluscs. This is not the impression that I am gaining from the television coverage of the scallop fisheries in Scotland. However, can the Minister explain what the exact problem is with the class B waters around Wales and the south-west? If these waters were acceptable before 3 February, why not afterwards?
Lord Gardiner of Kimble (Con) [V]
The noble Baroness has hit on why we wish to have discussions with the Commission. It interprets the matter as being one of public health. The point is that all molluscs exported from class B waters have to be depurated. That is undertaken by businesses near to the market on the continent, and it is on that we are seeking redress. The Commission made it clear in September 2019—and I can put copies of the correspondence in the House Library along with the letter to the Commissioner—that molluscs exported for purification can be certified. We therefore think that there is an issue that we need to clarify.
Lord Lilley (Con)
My Lords, is not this and other measures taken recently by the EU to punish the UK for leaving its jurisdiction a flagrant abuse not only of the EU’s own laws but of several international laws such as the WTO SPS agreement, which states that WTO members
“shall accept the sanitary or phytosanitary measures of other Members as equivalent, even if these measures differ from their own”—
ours, of course, are identical—as well as the recent TCA, which states that each party shall ensure that SPS measures
“are not applied in a manner which would constitute arbitrary or unjustifiable discrimination against … the other Party’s territory where identical or similar SPS conditions exist”,
which they do in this case? I hope that my noble friend will make this lawlessness apparent to this House, which always maintains the importance of upholding international law.
Lord Gardiner of Kimble (Con) [V]
Again, my noble friend is correct to raise this point. It is why the Secretary of State wrote to Commissioner Kyriakides yesterday. We wish to meet her and her officials, because we simply do not understand the legal interpretation of what has come out of the Commission very recently, which is entirely contrary to what we had been told previously.
Lord Kilclooney (CB)
My Lords, the Minister will be aware that molluscs cannot be transferred across the United Kingdom, from Great Britain into Northern Ireland, all due to the Northern Ireland protocol. Is he aware that there is today a meeting between the European Union and the Irish Government to reach an agreement whereby all new laws introduced by the EU which may affect Northern Ireland will first have to be submitted to the Dublin Government for their approval? This is a united Ireland in operation and in practice. The approval of events in Northern Ireland is now subject to the control and decision of Dublin and not of London.
Lord Gardiner of Kimble (Con) [V]
My Lords, what the noble Lord has said is important. The working of the Northern Ireland protocol and the fact that Northern Ireland is part, clearly, of the United Kingdom, our quartet of nations, are why the meeting that the Chancellor of the Duchy of Lancaster will have with the Vice-President of the Commission on Thursday is important. We wish to conduct trade as good neighbours, but within the context that we are a United Kingdom.
Lord Knight of Weymouth (Lab) [V]
My Lords, I have recently been in touch with my friend Ronnie Norquoy, who operates boats from Orkney. He tells me that this ban is only the latest in a series of crises: first, the restriction of the China market; secondly, Covid closing the hospitality sector market; thirdly, the wave of red tape and export chaos caused by Brexit; and, now, the Seafood Producers Resilience Fund, which barely covers two weeks of his operating costs. These are not teething troubles. When will the Government get serious about rescuing this vital sector that is fast going out of business?
Lord Gardiner of Kimble (Con) [V]
My Lords, that is precisely why we wish to discuss with Commissioner Kyriakides a situation that we do not think is founded on a correct interpretation of the law. It is clear that the fishing and shellfish industries are going through difficulties, as the noble Lord said, partly because of a reduction in demand due to Covid and partly because of issues that we need to resolve. However, in the long term this is a very important part of our food supply and we will support it.
The Earl of Caithness (Con) [V]
My Lords, it is frustrating that the EU is behaving in the way it is on so many issues. Would be it possible to get the class B waters up to class A, as in Scotland? Is it economically feasible to have our own processing and cleansing plants here, so that we can produce the end product rather than having to let the Europeans do that for us?
Lord Gardiner of Kimble (Con) [V]
My noble friend makes an important point, which is that we all need to work on improving water quality—it is part of the 25-year environment plan and it is addressed in the Environment Bill. We believe that the depuration capacity in GB is sufficient to depurate all oysters produced in GB, but there is insufficient cover for the depuration of mussels, for instance. The £100 million fishing fund could be used to support traders setting up, for instance, a depuration centre. We will continue to explore all those options.
Lord Truscott (Ind Lab) [V]
My Lords, UK shellfish catches were valued at £393 million in 2019, so this is a very serious matter for the fishing industry, especially in the south-west. Is this not yet another example of a loose end left over from a botched negotiation with the EU over Brexit? Does the Minister now think that Brussels is trying to punish the UK for leaving the EU?
Lord Gardiner of Kimble (Con) [V]
My Lords, the Secretary of State has written to Commissioner Kyriakides in a very friendly and a constructive spirit. This issue relates to undepurated live bivalve molluscs and we are now addressing it. I hope that the discussions will resolve this matter so that this important trade can be resumed. It is important for exports; it is also important to all those businesses on the continent that have set up depuration outlets because they wish to be close to the final destination market. I think that this is where discussions with the EU will be very important.
The Deputy Speaker (Lord Haskel) (Lab)
My Lords, the time allowed for this Question has elapsed.
Arrangement of Business
The Deputy Speaker (Lord Haskel) (Lab)
My Lords, hybrid proceedings will now resume. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
These proceedings will follow guidance issued by the Procedure and Privileges Committee. Since there are counterpropositions, any Member in the Chamber may speak. Any intending to do so should email the clerk or indicate when asked. All speakers will be called by the Chair. Short questions of elucidation after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk.
The groupings are binding. When putting the Question, I will collect voices in the Chamber only. Where there is no counterproposition, the Minister’s Motion may not be opposed. A participant, whether present or remote, who might wish to press a counterproposition to a Division must give notice to the Chair either in debate or by emailing the clerk. If a Member taking part remotely wants their voice accounted for, if the Question is put, they must make this clear when speaking. Noble Lords following proceedings remotely but not speaking may submit their voice—Content or Not Content—to the collection of the voices by emailing the clerk during the debate. Since there are two counterpropositions but only one debate, a Member who does any of these things must make it clear which Motion they are referring to: B1 or E1. Members cannot vote by email. The way to vote will be via the remote voting system.
Covert Human Intelligence Sources (Criminal Conduct) Bill
Tuesday 9th February 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Covert Human Intelligence Sources (Criminal Conduct) Act 2021 View all Covert Human Intelligence Sources (Criminal Conduct) Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 168-I Marshalled list for Consideration of Commons reasons and amendment - (5 Feb 2021)
15:19 - Division conducted remotely on Motion B1 (as an amendment to Motion B) - Ayes: 143 / Noes: 311 - Motion B1 (as an amendment to Motion B) disagreed.
15:35 - Division conducted remotely on Motion E1 (as an amendment to Motion E) - Ayes: 127 / Noes: 296 - Motion E1 (as an amendment to Motion E) disagreed.
Baroness Williams of Trafford
That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, I begin by paying tribute to all noble Lords who have contributed to the debates on this Bill. The quality and detail of discussion have been exceptional, and even where the Government have not agreed with the remarks of noble Lords, I recognise the value they have added to the debate. I also thank those noble Lords with whom I have discussed the Bill directly to seek to reach agreement on key issues, and I thank Opposition Front-Benchers in particular for the collaborative approach they have taken. I hope that today, we are able to reach consensus on the issues raised in these amendments, and to provide the certainty and assurance that CHIS and operational partners deserve when this Bill moves on to the statute book.
I have been clear throughout these debates that the Government’s position on this Bill is driven by the need to ensure that this important tactic remains operationally workable. We cannot risk the operation of the tactic or create unintended risk of harm to CHIS, or indeed the wider public, through damaging amendments, even where the sentiment behind them is well-intentioned. However, where we have been able to provide additional reassurances about the safeguards underpinning the power in an operationally workable way, we have welcomed the opportunity to do so. I again thank the noble Lord, Lord Anderson, for his amendments on real-time notification. I hope I can demonstrate that same approach to the amendments we will discuss today.
Amendment 1 would place on the face of the Bill the requirement that an authorising officer must reasonably believe an authorisation is necessary and proportionate. As I have previously confirmed, it is indeed the case that the belief of the authorising officer should be a reasonable one. The revised code of practice confirms this, and in response to concerns raised by noble Lords, this was further amended to make that clear. However, placing this requirement on the face of the Bill risks casting doubt on whether the belief must be reasonable when that is not specified elsewhere—for example, in Section 29 of Part II of RIPA.
However, the Government are willing to be clearer still in the code of practice and specify that
“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
I thank the noble Lords, Lord Anderson and Lord Paddick, and the noble Baroness, Lady Hamwee, for their engagement on this point, and I hope this provides the necessary reassurance on this issue.
Amendment 2 would place express limits on the face of the Bill. We have discussed at length why this is not workable and risks CHIS testing and harm to the public by enabling the development of wider initiation tests. To be clear, it is the assessment of operational partners that to explicitly rule out rape, for example, would lead to gangs asking potential members to rape people to prove that they are not working on behalf of the state.
Let me once again confirm that the necessity and proportionality tests and the Human Rights Act provide limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful, and this is clear in the training and guidance of all public authorities. I ask all noble Lords to seriously consider, therefore, whether we should risk CHIS testing and serious harm to the public when the practical effect of Amendment 2 is not necessary. The Government will not support this amendment for these reasons, and I implore noble Lords to place weight on the advice of operational experts and do the same.
Amendment 3 relates to the criminal injuries compensation scheme. As I said earlier, the Government are listening to ways of providing additional reassurances to Parliament and the public with regard to the safeguards underpinning this legislation where that is operationally workable. Therefore, recognising the views of noble Lords on Report, we are bringing forward an amendment in lieu which makes it clear that a person can access the compensation scheme where appropriate. Therefore, I hope noble Lords are reassured on this point.
Amendment 4 relates to the authorisation of juveniles and vulnerable adults. Let me start by thanking the noble Baroness, Lady Kidron, my noble friend Lord Young of Cookham and the noble Lords, Lord Russell of Liverpool and Lord Kennedy of Southwark, for their extensive engagement on this issue. I also pay tribute to Stella Creasy MP in the other place. This is an uncomfortable area and I completely understand why many noble Lords’ starting position would be to seek to prohibit any authorisation of a juvenile. The danger of that approach is that in prohibiting their use as a CHIS you increase their use by criminal gangs, which will be reassured that a juvenile cannot be working on behalf of the state.
Amendment 4 recognises this issue, and instead places additional safeguards into the Bill. The Government agree with the sentiment of this amendment but cannot support it in its current form, as it would create operational issues that would risk unintended consequences for the young person or vulnerable adult. For example, the amendment defines exceptional circumstances as those
“where all other methods to gain information have been exhausted”.
This requirement risks the workability of the power and, crucially, the safety of the juvenile. There may be occasions where there are other ways to gain the information, but these may not be the safest way to extricate the juvenile from the situation and lead to the best outcome for the juvenile involved.
Therefore, the Government have brought forward amendments in lieu. These capture the essence of this amendment and provide significant additional safeguards for the authorisations of these groups, but in an operationally workable form. The government amendments make clear that the authorising officer is under a duty to safeguard and promote the best interests of a juvenile and that the authorisation must be compatible with that duty. This reflects Article 3 of the UN Convention on the Rights of the Child. It also applies the same statutory safeguards that are in place for CHIS use and conduct authorisations to the new criminal conduct authorisations and requires the IPC to keep these enhanced safeguards under particular review. The use of such authorisations will therefore be subject to close and independent scrutiny, through both the real-time notification process, regular inspections and the IPC’s annual report, which is laid before Parliament.
I encourage all noble Lords to read the 2019 annual report, published in December last year, and I can quote from IPCO here to provide further reassurance today. The 2019 report stated:
“In the very rare instances when a juvenile is authorised as a CHIS, we conduct a close examination of the case. We examine every such case at inspection and focus on the safety and welfare of the juvenile and check that the use and tasking (conduct) is not endangering the CHIS or leading the juvenile to associate with criminals and environments that they would not otherwise encounter.”
I also reiterate another important point relating to oversight of authorisations. It will never be the case that just one individual in the public authority is involved in the authorisation process. RIPA requires the handler and the authorising officer to be different people, while the code of practice mandates that no authorising officer can authorise themselves, so no single officer could ever take a decision without consulting others.
In addition, recognising the views of noble Lords on Report, the amendments also place the requirement for a juvenile CHIS to be authorised only in exceptional circumstances into the Bill and tighten the existing definition of “exceptional circumstances”. Such circumstances will exist only where there is no reasonably foreseeable harm to the juvenile as a result of the authorisation, and where the authorisation is believed to be compatible with the best interests of the juvenile, as per Amendment 4.
The amendments in lieu further clarify that an appropriate adult must be in place for any meetings with an individual under the age of 16, and that there is a presumption that an appropriate adult will attend meetings with 16 and 17 year-olds, with any derogation from this position justified in writing. I hope noble Lords recognise the addition of this language to the Bill in response to concerns raised previously. I can also provide reassurance that the same principles apply to the underlying authorisation of the use and conduct of a juvenile CHIS; an appropriate adult must be in place for a meeting with a juvenile under the age of 16, and justification must be provided if one is not in place at meetings with 16 or 17-year olds.
The definition of “vulnerable adults” is deliberately broad so as to capture a wide range of people—including, for example, victims of modern slavery. The amendments recognise that children are a specific subset of vulnerable individuals, due to their age. It is appropriate for there to be consistent safeguards for all juveniles, as the reason for their vulnerability is the same. It is not possible to apply the “exceptional circumstances” requirement to all vulnerable individuals, as they will be considered to be vulnerable for a wide range of reasons and will require different levels of support. The safeguards, while still robust, recognise this distinction. The amendments add additional safeguards for vulnerable individuals, however. These require that an enhanced risk assessment must be carried out; the source must be capable of understanding and consenting to the deployment and any associated risks; and consideration must be given to the best interests of the source.
Baroness Chakrabarti (Lab) [V]
My Lords, at this stage in the journey of a Bill, I know your Lordships’ House will be mindful of its role as an unelected revising Chamber, but in the context of this Bill I humbly suggest that noble Lords be equally mindful of the serious constitutional, human rights and rule of law implications of the legislation, which was not a manifesto commitment of any party.
While mature democracies the world over have written constitutions and entrenched Bills of Rights, including ultimate strike-down powers with which their highest courts can protect fundamental rights and freedoms, that is not currently the case in the United Kingdom. Instead, the burden of protecting rights and freedoms must be more evenly shared between the judiciary and legislature. While your Lordships’ House lacks the other place’s elected legitimacy, it can in my view justify its existence at all only by having more of the independence of mind required to stand up for the most fundamental human rights of the vulnerable against state oppression, by accident or design, in the form of authorised criminality with total legal impunity.
Furthermore, the Joint Committee on Human Rights has an important role in our unusual constitutional scheme. It has been unequivocal in its critique of the ways this legislation violates the European Convention on Human Rights. Your Lordships took its clear advice, and that of my noble friend Lady Massey, in the form of the amendment banning the authorisation of certain grave crimes, in particular murder, rape and torture. The Government’s rebuttal is both circular and hollow. They argue that the grave offences in this amendment would provide a deadly checklist against which suspected undercover agents might be tested, but they also argue that the convention rights already provide these express prohibitions. This amendment might be either dangerous or superfluous, but it surely cannot be both. Which is it?
In the past, government lawyers have argued that the convention rights do not bind undercover agents of the state, and only recently, in the very litigation that provoked this Bill, they argued that agents are not precluded from committing murder. I am clear in my belief that the Human Rights Act binds undercover agents of the state, alongside the state itself. I would be grateful if the Minister could place her express agreement with that proposition on the record during today’s proceedings.
However, even that would not render this amendment superfluous, as the criminal law provides a clearer and more detailed set of instructions to all our citizens. This is essential to our nation’s compliance with convention rights. What would your Lordships’ House say if this kind of criminal immunity, without detailed limitation even for grave offences, were being passed in Russia, China or anywhere other than here? What would the Government say?
As a matter of conscience, and if only to record our grave concerns for the benefit of the litigators and senior jurists who will inevitably pick up the stitches that legislators have dropped, I will test the opinion of your Lordships’ House.
Baroness Hamwee (LD) [V]
My Lords, I will speak to Motions A, C and D and my noble friend Lord Paddick to Motions B and E. I thank the Minister and the Government for their engagement on the Bill, which raised far more issues than its slim size might have suggested.
The noble Lord, Lord Anderson, proposed the way forward on the first point, along with the noble and learned Lord, Lord Thomas. They and we on these Benches would have far preferred the new Section 29B to require criminal conduct authorisations to require “reasonable belief” on the part of the person granting them that they are necessary and proportionate and that the requisite arrangements are in place—in other words, for that to be placed in the Bill. Necessity and proportionality are dependent on a belief which, as the Bill is drawn, is subjective, which dilutes the safeguards. The House agreed with us.
The Government have been concerned that, because Section 29 of RIPA—the Regulation of Investigatory Powers Act—which deals with authorisation for the conduct and use of covert human sources, requires belief only, the different wording in new Section 29B would throw Section 29 into doubt. I understand the significance of consistency in legislation, but I do not entirely follow the argument in this case, since Section 32A, which was inserted into RIPA in 2012 and deals with authorisations, including those under Section 29—I hope noble Lords are following so far—provides for judicial authority if and only if the judicial authority is satisfied that there were reasonable grounds for believing and so on. Even if the argument is restricted to consistency, our view is that the term should be included in the Bill. The Commons disagreed with this on the basis of inconsistency, which would cast the doubt to which I have referred. The Solicitor-General assured them that
“the legal position is already that the belief must be reasonable, as a matter of public law.”—[Official Report, Commons, 27/1/21; col. 425.]
We have therefore come to the pragmatic solution that the statutory code of practice at paragraph 3.10 should not, as it says in the draft of the code, say that it is expected there should be reasonable belief. The noble and learned Lord, Lord Thomas, commented pithily that nothing could be less desirable. A mere expectation should not satisfy the Solicitor-General either. It is to be replaced by the words the Minister has quoted; I would be grateful if she could ensure that Hansard knows there are to be quotation marks around them, because they could have sounded descriptive rather than the text—the same changes are to be made at paragraph 6.4 of the code of practice. As the noble Lord, Lord Anderson, has commented, the police will rely on the code of practice—I hope I have not stolen his line.
On civil redress, during the passage of the Bill there have been different approaches to ensure that someone injured during the course of authorised conduct should be entitled to redress. We were repeatedly assured that no amendment was necessary; the Minister said the Bill did not “in practice” interfere with the criminal injuries compensation scheme, a term which I queried.
The cross-party amendment led on by the noble Lord, Lord Anderson, was agreed by the House by a very substantial majority. We now have a Commons reason that it would be
“inappropriate to create an exception to the effect of”
CCAs, which rather makes our point that an amendment is necessary, but I understand the sometimes slightly obscure process of coming to the formulation of reasons. We welcome this amendment, and we are pleased that the Government have found a form of words to cover the issue that they can live with and with which we are happy to live.
The Deputy Speaker (Lord Alderdice) (LD)
The noble Baroness, Lady Massey of Darwen, has withdrawn so I call the next speaker, the noble Lord, Lord Anderson of Ipswich.
Lord Anderson of Ipswich (CB) [V]
My Lords, I shall speak to Motions A, C and E on the basis that each of them relates in some way to an earlier amendment in my name.
Motion A concerns Amendment 1, which I originally moved in Committee. Like the noble Baroness, Lady Hamwee, I would have preferred the requirement that belief be reasonable to have been included in the Bill. However, I welcome the fact that it will at least now be plainly stated in the code of practice at paragraphs 3.10 and 6.4 in terms that improve significantly on the earlier suggested amendment—memorably described by my noble and learned friend Lord Thomas of Cwmgiedd as the “worst of both worlds”. The new paragraphs will say plainly that
“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
Something similar has been said from the Dispatch Box, but authorising officers will perhaps have the code of practice more readily to hand than the Official Report. I welcome the new wording and, like the noble Baroness, Lady Hamwee—who, with the noble Lord, Lord Paddick, took over this amendment on Report—I do not oppose Motion A.
I turn to Motion C on the availability of compensation for the victims of authorised crimes. Lords Amendment 3, which your Lordships passed on Report by a majority of 91, provided that there was no bar to the criminal injuries compensation schemes in Great Britain and Northern Ireland being available to victims of authorised crimes. Without such a clause, it was at least possible that Section 27 of RIPA, which renders authorised activity lawful for all purposes, would have prevented such recourse. The Commons rejected that amendment, with the stated basis being that it was
“inappropriate to create an exception to the effect of criminal conduct authorisations.”
I am pleased that the Government have thought again. Their new clause is, so far as I can see, simply a competently drafted version of mine. It will mean that, should an act of violence ever be authorised, the innocent victim will not be disqualified from compensation by the fact that the perpetrator was a CHIS. It improves the Bill in a specific but potentially significant way.
Finally, Motion E originates in an amendment from my noble and learned friend Lord Thomas of Cwmgiedd. That amendment would have improved my own Amendment 5 on real-time notification, which now constitutes Clause 3 of the Bill, by underlining what I believe in any event would be the practical reality: that the disapproval of a judicial commissioner will normally result in the cessation of all further activities undertaken pursuant to an authorisation. My noble and learned friend’s amendment was not agreed to in the other place, but he has negotiated in its place an acceptable alternative in the form of an amendment to the code of practice. It begins:
“Where a judicial commissioner makes observations in relation to a notification, it is for the authorising officer to determine what action should be taken”—
not whether any action should be taken, but what action should be taken, which implies that some action will be taken.
IPCO must then be informed of that action as soon as reasonably practicable, and the Investigatory Powers Commissioner retains full discretion to take what further steps may be thought appropriate—including, as the Minister expressly confirmed on Report, passing the file on to the Director of Public Prosecutions or his equivalent in Scotland and Northern Ireland. As the Minister clarified on 11 January, at cols. 497-98 of the Official Report of your Lordships’ House, if the authorisation is determined not to have met the statutory requirements of necessity and proportionality, nothing in this Bill or in RIPA itself prevents the prosecution either of those responsible for authorising the crime or of the person who committed it.
The consequences for anyone who has unlawfully issued a criminal conduct authorisation are therefore real and give the lie to any suggestion that the real-time notification procedure is without teeth. Successive Investigatory Powers Commissioners have been among our highest-ranking and most experienced judges, well capable of deploying both the bark and the bite. This Bill, read with its code of practice, equips them for both.
In short, we have a solution on each of these three amendments which is largely satisfactory. I thank the Bill team and the Minister for their constructive and courteous engagement with operational partners over many months. The Bill is not perfect—given the intractable subject matter, that is not surprising—but it has been very significantly improved by your Lordships. We can fairly say that we have done our job, and I look forward to seeing the Bill on the statute book.
Lord Paddick (LD) [V]
My Lords, I will speak to the two Motions on which the House will divide. Motion B asks that this House do not insist on its Amendment 2, which placed in the Bill a list of offences that a criminal conduct authorisation could not authorise. This amendment was suggested by the Joint Committee on Human Rights and was championed by the noble Baroness, Lady Massey of Darwen, and the noble Lord, Lord Dubs. The Commons disagree because doing this
“would place sources, and the wider public, at risk.”
As the Minister explained, the argument goes that sources could be tested against such a list to discover whether they were a CHIS and, further, that pursuant of testing to see if a person was a source, they would ask other people who were not CHIS to commit crimes listed in Lords Amendment 2.
Those arguments were demolished by the noble Lord, Lord Anderson of Ipswich, in Committee—and the Government have, to date, failed to address them. Australia, Canada and the United States of America have similar lists and they do not present the sort of difficulty in those countries that the Government claim would occur here. In a blatant act of whataboutery, the Minister responded that these countries were different because we have the Human Rights Act and they do not. On Report, the noble and learned Lord, Lord Hope of Craighead, comprehensively demolished the argument that the Human Rights Act was sufficient, but that is not why the Commons disagrees with Amendment 2.
What has the Human Rights Act got to do with the Commons disagreement? A list is published in each of the countries—Australia, Canada and the USA—of offences that CHIS cannot be authorised to commit, and the reasons the Commons has given for rejecting this amendment do not arise in those countries. Their CHIS are not tested against the list and there is no evidence that others are tested against it either. We are not talking about a hypothetical situation of “What if there was a list of prohibited offences?” but about the fact that this has been tried in practice for many years in similar jurisdictions and the Commons’ stated concerns do not exist.
The noble Lord, Lord Anderson of Ipswich, then went on to explain why he believed publishing a list is not a problem in those jurisdictions and why it would not be a problem here. If a gang tested a member by asking them to rape and the gang member refused, it could be that the gang member has scruples that he is not prepared to set aside. I could add to the noble Lord’s example and say that the gang member may be incapable of performing an act of rape in front of an audience or that his sexuality gets in the way of his being able to rape the man or woman he is being asked to rape. There are a host of more likely explanations as to why the gang member might not commit a serious crime other than that he might be a covert human intelligence source refusing to do so simply because he is a CHIS.
To paraphrase the noble Lord, Lord Anderson, a former Independent Reviewer of Terrorism Legislation, also with direct experience of Northern Ireland, he said he found it hard to understand why a shortlist bearing no relation to the types of crime that would routinely be authorised should increase the risk to a CHIS or other members of the public or make it more likely that he would be successfully outed as a CHIS by the criminal group in which he is embedded. As a police officer of over 30 years’ experience, including direct experience of managing police informants, I do not understand either.
Baroness Kidron (CB) [V]
My Lords, I wish to speak to Motion D, the government amendment in lieu of Lords Amendment 4. I, too, thank the Minister for her time and the care that she showed when we met. I wish also to recognise Stella Creasy MP, who has done so much to advance this issue.
I warmly welcome the enhanced protections, most particularly on the definition of exceptional circumstances. Experts have made clear to me that if that is applied rigorously, coupled with the amendment of the noble Lord, Lord Anderson, it will indeed make a real difference on the ground. Asking children to undertake illegal activities on behalf of the authorities is a place that none of us wants to be in, but as the Bill does precisely that, by formalising and giving permission to instruct child operatives to commit crime, it must be to the highest order of protection. It is the question of what a child is that I wish to raise once more.
A child of 16 or 17 is still a child, as defined by the UN Convention on the Rights of the Child and in our laws, and treated in our communities and families as a child—by right, by law and by practice—and yet the Bill does not afford 16 and 17 year-olds the protections due to children. While under-16s have the absolute right to have an appropriate adult with them when they meet a relevant person, in the case of 16 and 17 year-olds, a relevant person can decide that there are
“circumstances which justify the absence of an appropriate adult”,
even when that is a meeting that will lead to the child undertaking illegal activity on behalf of the authorities. This introduces an extraordinary conflict of interest that structurally undermines the Bill’s other requirement to act in the best interest of the child because it denies a 16 or 17 year-old child the automatic right to the presence of an adult who has the child’s interests as their unfettered concern.
Moreover, while I know the Minister’s assurance that more than one person must be involved, those circumstances can happen at the beginning of a child’s use as a CHIS, during their term as a CHIS and again under proposed new article 10 concerning the renewal of each four-month term, thereby making it possible for a child to be introduced, managed and repeatedly renewed as a CHIS, with no appropriate adult present at any time.
When we last debated this matter, a number of colleagues robustly criticised the amendment in my name, arguing that we should ban child CHIS altogether. However, while my heart is entirely with them, I had accepted the Government’s argument that if gang leaders knew beyond doubt that a child could not be a CHIS, it would drive further recruitment and exploitation of children by gangs. My, albeit reluctant, view was that the best way in which to protect children from being exploited by gangs was to allow the possibility of a child CHIS but to shroud the process in robust protections. We have failed to do that for 16 and 17 year-olds.
This is a failure of which the Front Bench of the Official Opposition in the other place should be ashamed, given that they have not fought for it. I am further disappointed that the Government have used their majority to walk through the Lobby rather than to protect the citizens they are elected to serve—in this case, vulnerable children being made more vulnerable at the behest of the state. All that is being asked here is that every child has an appropriate adult whose role is to make sure that what the child is being asked to do meets the bar of exceptional circumstances, and is understood, agreed to without pressure and in their best interests.
I do not doubt the principled behaviour of many in the enforcement community. I will work alongside officers in the UK and internationally whose commitment to exploited children online is nothing short of humbling. However, history is littered with examples of people in authority who have abused their position. In creating this glaring loophole, not only are we clearly exposing these children to the possibility of abuse by those in authority, we are also exposing those in authority to suspicion, and the Home Office itself to reputational and legal risk from even one bad apple.
Therefore, while the Bill is all but done, I still have some practical questions on both safeguarding and arrangements for meeting, as set out in proposed new Clause 29C(3)(b)(ii) and proposed new subsection (3)(c), where the word “believes” is the bar. In spite of the Minister’s assurance, that still appears to allow a relevant person to say that he or she thought that there was no harm in asking the child to do something illegal. Can she confirm that the guidance will include an objective test for both issues? Similarly, does the IPCO have to work out whether the officer “believed” that the illegal activity was in the child’s best interests or will they be looking to establish whether the action was “compatible” with the child’s best interests? In the event that the IPCO does not like the explanation, how quickly and by what process would it be challenged, bearing in mind that all the while a child is acting as a CHIS with no support? If the final port of call is reporting to Parliament, as we have heard, what level of detail is the IPCO to provide to Parliament? If, God forbid, something went wrong, is there an expectation that the police would reveal that a child was acting as an informant to serious case review, and would that automatically trigger an investigation?
The guidance, the code of conduct or, as the Minister rightly suggested, secondary legislation may be the last port of call for these children. Perhaps she can say when it will be ready, what form it will take and whether she would consider sharing it in advance so that parliamentarians with an interest in this matter can comment and input. Will the guidance be subject to a child rights impact assessment? I understand that it is frustrating to have to deal with so many questions at this late stage but almost every child CHIS has been or will be 16 or 17 years old. If the Bill fails this age group, it will have failed children overall.
In these extraordinary times, we have byzantine rules that make it difficult for colleagues to participate, so I want to put on the record that while the form of expression is mine, the view I am expressing is shared by scores of noble Lords on the Government Benches, the Opposition Benches and my own Benches, and a veritable flock of Bishops, who regret the lack of opportunity to make their views known.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, I wish to speak to Motion E. I have nothing to add to the eloquent observations made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson, on Motion A.
First, I thank the Minister, and in particular the Bill team, for the constructive discussions I have had since tabling my amendment. Its purpose is to add to the real-time notification a mechanism to ensure that action is taken if the judicial commissioner has made adverse comments or found that the authorisation should not have been granted. In the debate on Report, the noble Baroness, Lady Manningham-Buller said:
“It is difficult for me to imagine that if a judicial commissioner raised a serious concern about an authorisation, it would continue. But it might not be able to stop immediately. There would have to be some discussion, because the safety of the covert human intelligence source would be paramount.”—[Official Report, 11/1/21; col. 538.]
I believe that she was right to say what would happen if a judicial commissioner expressed that view.
However, I took the view then, and still take it, that there must be something which operates as a mechanism to ensure that something does happen: that in some cases the authorisation should be discontinued or unwound in an orderly manner. An amendment to the Bill would have been the better course, and I much regret my own failure to try to persuade the security services that it would be in their own interests to have it in the Bill. But taking into account what the noble Lord, Lord Carlile of Berriew, said in the same debate in relation to the utility of codes of practice, and my objective, I am glad that the Minister has agreed to insert into the code of practice the wording that she has read out.
It achieves a number of purposes. First, it goes slightly wider than my proposed amendment, in that it will apply to all observations, not merely saying that the authorisation should not have been granted. Secondly, it requires the person who gave the authorisation to take action, but to work out what to do. If that person gets himself or herself into the position of doing something that should not have been done, they should be responsible for working out how to get out of it. Thirdly, it requires a more senior officer to be notified of what is intended. It has always been my worry that a person in the position of an authorising officer whose action is disapproved of might try to cover up what has happened. Finally, it requires the office of the IPC to be notified of the intended action—that is, before the action is taken, save in cases such as urgency or where the action taken is simply to stop the activity. It enables the IPC to express a view and, if there is a difficulty, to work out what should happen in a collaborative manner.
As I have said, it would have been far better if there was a legislative provision of the type proposed, but as a matter of practical reality, I would hope that this insertion into the code of practice should ensure that if the judicial commissioner does not approve of the authorisation or of what has happened, or criticises it, there is a clear mechanism in place to stop the activity or modify it accordingly in a manner that protects the CHIS.
The IPC is a body with very great authority, comprised as it is of senior judges. It has been my experience throughout my former judicial career that remarks made in such circumstances as this are ignored only at the peril of the person concerned. I would hope and expect, therefore, that the observations will be acted on immediately and that the office of the IPC is notified of any intended action. If, contrary to my expectations, this does not work, the people who will suffer real damage will be the police and the security services; to them, the damage will be immense. What I hope would happen is that this provision will strengthen the view that before making an authorisation in unusual and not simply routine circumstances—most of these authorisations apply to routine circumstances—the police and the security services would serve their own interests far better by going to the office of the IPC before they authorise an action rather than afterwards.
The Deputy Speaker (Lord Alderdice) (LD)
The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord West of Spithead, Lord Young of Cookham, Lord Russell of Liverpool and Lord Adonis, and the noble Baroness, Lady Jones of Moulsecoomb. If any other Members in the Chamber wish to speak, I ask them to contact the clerk as soon as possible.
Lord West of Spithead (Lab)
My Lords, I felt initially that in Amendment 1 it was necessary and sensible to have the term “reasonable belief” in the Bill, but the inconsistency with RIPA 2000, the Solicitor-General’s statement in the other place and the changes that have been made to some of the paragraphs have now persuaded me that it is not necessary.
I view Amendment 2 in a much more serious light. We should be proud of the fact that our nation is at last putting our covert human intelligence agents’ behaviour on a statutory basis. We must not lose sight of the fact that agents save lives. In working undercover, CHIS need to be trusted by those on whom they are reporting. Put simply, if they are to be believed to be a gang member, they need to act like one. If they do not, it is no exaggeration at all to say that they could be killed. My experience in Northern Ireland certainly backs that up. Their handlers must be able to authorise them to break the law in certain circumstances and subject to specific safeguards. These safeguards have been strengthened by the work of this House, and we should be proud of that.
It will not help anyone if we put checklists of offences on the face of the Bill—nothing at all would be gained by that. The safety of CHIS should be central to the decisions of this House. We must not forget that they are very important individuals who are doing important things for us. I am afraid that this amendment also ignores that fact. Drawing parallels with the United States and Australia is dangerous and totally irrelevant. If there is a Division on the amendment, I will vote with the Government on this issue.
The Government have been somewhat vague about why they have opposed Lords Amendment 3 on the issue of criminal compensation but have now brought forward their own Amendment 3B, which shows that they have absolutely understood its necessity. The point was well argued by the noble Lord, Lord Anderson. I am happy to support government Amendment 3B. It meets the concerns of the House and provides assurances on the matter in the Bill, which is good.
On Amendment 4, I have thought long and hard about the use of adolescents. When one heard about this initially, one was taken aback, but I have come to realise that, to some extent, the concern about juveniles in relation to the Bill is due to the conflation of the broader question of whether under-18s should be used as CHIS at all. That of course is not the matter at hand that we are discussing, rather it is the narrower issue of whether those involved should be able to participate in criminality and with what safeguards, which is what the Bill addresses. On those CHIS below the age of 16, I now believe that, in very exceptional circumstances, we should use them. The government amendments will put appropriate safeguards in place which will ensure that that can be done with maximum gain and minimum risk.
The other place quite rightly accepted the core element of Lords Amendment 5, which requires all CCAs to be notified to judicial commissioners as soon as possible, and within seven days of being granted. The Government have come back with Amendment 5A, which would require any such activity to stop immediately, except where the judicial commissioner had allowed specific activities to continue for the purpose of discontinuing the authorisation, and they have of course amended the code of practice.
In the other place, the Solicitor-General said:
“On the extremely rare occasions where a judicial commissioner may find issue with an authorisation, the public authority will consult with the commissioner and may indeed stop, or not commence, the activity that they planned to commence. However, this should not be at the expense of the safety of the CHIS.”—[Official Report, Commons, 27/1/21; cols. 428-29.]
This final sentence is compelling for me. To take a hypothetical example, if MI5 authorised activity that was considered essential to the maintenance of a CHIS’s cover, requiring this activity to stop immediately could very well blow that cover and put their safety at risk. As I have said a number of times, the safety of CHIS has been central to the way this House has considered the Bill, and that is important.
The noble Lord, Lord Paddick, appreciated that fact, and his Amendment 5B would not require activity to cease immediately. However, I cannot support his amendment as I believe—indeed, I know—that the notification of prosecuting authorities will cause real problems from a practical and operational point of view, particularly for the agencies and their ability to run CHIS.
In summary, I believe the House should be proud of what it has done on the Bill by putting it on a statutory basis. Anything in this area is always unpleasant, but I believe that the Bill is necessary and a useful piece of legislation.
Lord Young of Cookham (Con)
My Lords, I will speak very briefly to Amendment 4, which deals with juveniles and vulnerable adults, and the government amendments to that part of the Bill. The background to this is the debate we had on 13 January, when a group of amendments, led by Amendment 12 in my name, sought to remove children aged under 18 and vulnerable adults from the Bill’s scope entirely. While this secured support from all sides of the House, it was clear that without support from the Official Opposition it was doomed. Therefore, I withdrew it.
The House then coalesced around Amendment 24, in the name of the noble Baroness, Lady Kidron, whose impact on this debate has been substantial. I pay tribute to that. I also supported her amendment, although it did not go quite as far as Amendment 12. Her amendment trumped government Amendment 26 in the same group by offering additional safeguards. Although the Government described these as unworkable, the House supported Amendment 24 in a Division by 339 to 235. As we heard, this was rejected in another place and we now have the government amendments we debate today.
My view, which is shared by the Children’s Commissioner, is unchanged—namely, that we should exempt children and vulnerable adults—but I accept that that will not happen. What we now have is a welcome improvement on government Amendment 26, and I am grateful to my noble friend for listening to the concerns and meeting them where she felt she could. I also pay tribute to the work of Stella Creasy in taking the debate forward.
Some relevant questions on the government amendments have been raised by the noble Baronesses, Lady Hamwee and Lady Kidron. I hope my noble friend will feel able to continue the dialogue once the Bill reaches the statute book, to focus again on the code of practice, in particular to consider extending the protections in the Bill to all children used as CHIS, not just those authorised to commit criminal conduct, and to reconsider the issue of appropriate adults for those aged under 18. In the meantime, I am happy to support the government amendments.
Lord Russell of Liverpool (CB)
My Lords, like the noble Lord, Lord Young, I will also speak very briefly to Motion D. I thank all noble Lords who have been part of a chorus of voices speaking on behalf of children, young people and vulnerable adults. It is very good news that their voices have been heard.
I thank the noble Lord, Lord Young, and the noble Baroness, Lady Kidron. I also thank the noble Baroness, Lady Young of Hornsey, who first tabled the amendment that the noble Baroness, Lady Kidron, then took on. I thank the noble Lord, Lord Anderson, because the initiative he brought forward to have greater involvement by IPCO has been and is extremely welcome. Stella Creasy has probably got enough plaudits without needing any more; it will doubtless go to her head. I thank the charity Just for Kids Law, which has been very active, helpful and constructive in realising what is and is not realistic.
The noble Baroness, Lady Kidron, asked all the questions that I would have asked, and probably rather better than I would have. I am sure the Minister will deal with them when she comes to respond. I quickly looked up whether a flock of Bishops is the right collective noun. It is actually a Bench of Bishops or a sea of Bishops, but unfortunately we do not have any with us today.
Lord Adonis (Lab)
My Lords, the Government have clearly moved on most of the contentious issues. We expect nothing less of the Minister, whom we hold in very high regard. The fundamental issue that is outstanding—you could argue that the use of under-18s is fundamental, but at least the Government have moved on that, although as it happens I agree with the noble Lord, Lord Young, and the noble Baroness, Lady Kidron, that under-18s should not be used—which the Government have not moved on and which we wish to press the Minister on is Amendment 2. I have listened to the debates, but I have not participated in them until now. We are at the crucial moment of whether the House will insist on its amendment, so it is reasonable for people to express a view on this crucial point.
The crucial question is the one put by my noble friend Lady Chakrabarti. We are talking about very weighty matters in Amendment 2 as to whether authorisations can be given in respect of murder, rape and torture. I thought the Minister equivocated on this in the example she gave in opening the debate. Can she say categorically when she replies that murder, rape, torture and their authorisation by agents of the state would contravene the European Convention on Human Rights and the Human Rights Act?
If she is saying that, then it is a complete mystery why the Government will not accept Amendment 2. As my noble friend Lady Chakrabarti so rightly said, Amendment 2 cannot be both dangerous and superfluous. If it is indeed superfluous because the authorisation of murder, rape and torture, even in the circumstances the Minister gave where it might somehow protect an agent’s cover, would itself contravene convention rights and the Human Rights Act, then how can we not be prepared to put it in the Bill? The only reason not to do so is to equivocate on whether murder, rape and torture are indeed against the European Convention on Human Rights and the Human Rights Act. This point seems fundamental.
I so rarely disagree with my noble friend Lord West, even on the need for more frigates; I generally agree with him even on the long list he has of further naval equipment that we need. In this case, I thought that he was in danger of simply parroting the lines of those people who clearly support having no legal safeguards at all in this respect. He said, slightly glibly, if I may say so, that we were talking about a checklist that it would be unreasonable for agents of the state to observe. We are talking not about a shopping list, but about specific exceptions for the most heinous crimes, which I do not believe that my noble friend, whom I know and trust greatly, would grant authorisations for.
The noble Lord, Lord Paddick, gave a very powerful speech; he has himself operated and manged agents and is not coming to this as a kind of naive human rights lawyer. But when he gave chapter and verse on other jurisdictions and how they have dealt with precisely the same issue, my noble friend said that Australia and the United States are—I noted down his phrase—“dangerous and irrelevant.” I was then waiting for him to expand on why they were dangerous and irrelevant, but he stopped at that point; he did not tell us why, somehow, the experience of the United States and Australia—not countries that play fast and loose with their own security—was not relevant to us here.
That leads on to the powerful points made by my noble friend Lady Chakrabarti about the role of the House and, if I may say so, the role of my party, the Labour Party. Those of us who engage in public life do so because we think that our parties express our values. My noble friend pointed out that these provisions were in no party’s manifesto. The Salisbury convention, which rightly governs our conduct, states that we should not insist on amendments in respect of a matter that the governing party has put in its manifesto and on which it has therefore had the explicit endorsement of the people. However, this issue is not covered by those arrangements.
Therefore, there is an important question of judgment as to why we are placed here: whether the House of Lords, as a second Chamber, should seek to insist on amendments concerning an issue in respect of which the Salisbury convention is not operating. Normally, we would not, and normally, I do not, because I am very conscious, as we all are in this place, that we are nominated and the other House is elected. But my noble friend made a very powerful point: that fundamental protections for human rights and the constitution are issues in respect of which, if the Government do not have explicit Salisbury convention mandates, we should be prepared to insist on amendments. The Parliament Acts themselves recognise that, because they except from the power of the House of Commons to override this House Bills to extend the life of Parliament. That was specifically put in to provide a constitutional protection, and in our enlarged understanding of the sphere of proper constitutional protections since the Parliament Act 1911, it is reasonable that fundamental human rights should be a part of that.
If this House does not exist to see that murder, rape and torture cannot be committed by agents of the state, then I am at a loss to understand why we are here at all.
Baroness Jones of Moulsecoomb (GP)
My Lords, I am not shy about admitting that I am critical of this Government, whose majority in the other place has made them quite shameless. They have, on occasion, asked your Lordships’ House to break the law, and this is another such occasion. Sometimes we are tough and we refuse; I hope that that is what will happen today.
It was superb listening to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Paddick. Of course, both Greens will be voting for the amendments because this is about the rule of law and human rights. I do not very often agree with the noble Lord, Lord Adonis —probably never, in fact—but on this occasion I agreed with every single word he said, and I wish I had said it first.
On the enhanced protections for children, I understand that the noble Baroness, Lady Kidron, and the noble Lords, Lord Russell and Lord Young of Cookham, feel that something is better than nothing. But quite honestly, this is child abuse. It is child abuse by the Government—using children as spies. I cannot see how any Government who care about the rule of law could put this in legislation. It is obvious that this Government do not care about the rule of law; they protect their own while throwing others to the dogs.
This Bill provides blanket legal protection for undercover police and their informants—who could be criminals—for crimes with pre-authorised immunity. Similarly, the forthcoming overseas operations Bill creates new protections against prosecution for military personnel acting overseas. The Government have fought strongly for these protections against prosecution for the police and the military. They fought against any attempt by your Lordships’ House to reduce or check these protections.
Yet, having granted such broad protections to the police and military, even in cases of fundamental wrongdoing, the Government then refuse what is a comparatively far more limited legal defence for survivors of domestic abuse—usually women. A public inquiry is under way examining the 40-year history of government agents abusing their power while spying on trade unions, green campaigners and those in the black community fighting for justice. Police officers were using sexual relations with women as a deliberate strategy, although we are now told that it was unlawful all the time. We see this Government protecting their own from the law while allowing the abuse of vulnerable people and women. That is what this Government do.
I do not want to pile in on the noble Lord, Lord West, who said that the safety of CHIS should be paramount, but quite honestly, I thought the rule of law and the safety of the realm were meant to be paramount. If you continue to break the law as a Government, you are not increasing the safety of the realm; you are actually making it more dangerous for us all. I very much hope that noble Lords will vote for these amendments today and refuse again to let the Government abuse the law.
Lord Rosser (Lab) [V]
I thank the Minister for her opening statement setting out the Government’s position on these motions. I also thank her for the helpful meetings that have taken place throughout the passage of this Bill.
On Motion A on Lords Amendment 1, we welcome the Government’s willingness to address this issue in the code of practice by including in the code the words, “that the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
On Motion B and Lords Amendment 2, we note that the Commons disagreed with the Lords amendment on the basis, as has been said, that it would place sources and the wider public at risk. The Minister repeated that view when she said that the Government would not support the amendment and implored this House to accept the advice of operational experts and do the same. We are disappointed that the Lords amendment has not been accepted. As my colleague, the Member for St Helens North, said in the Commons:
“if countries that are our allies, with similar criminal justice systems and with whom we co-operate on security matters, can do this, the Government need to set out a little more forcefully why we should not.”—[Official Report, Commons, 27/1/21; col. 431.]
I thank noble Lords who have raised their concerns today.
The Lords amendment was originally carried in this House by a small majority. We have already asked the elected House to think again on this issue, and it has not accepted the view we expressed. There was no indication, when it was debated and voted upon in the Commons, that our amendment had sufficient support to lead to a change in the Government’s position. We do not believe that sending the same amendment back a further time will produce any change in the legislation. For these reasons, we will not support the amendment to Motion B should the House divide, as it appears it will.
Motion C in respect of Lords Amendment 3 relates to the criminal injuries compensation scheme. We welcome the fact that on Report, the Government listened to the views of this House on redress for victims and have brought forward an amendment in lieu making it clear that an individual can access the scheme where appropriate. I pay tribute to the work done on the issue of redress for victims by the Joint Committee on Human Rights during its consideration of the Bill, and, in particular, by my noble friends Lord Dubs and Lady Massey of Darwen.
Motion D on Lords Amendment 4 relates to the authorisation of juveniles and vulnerable adults. I endorse the Minister’s comments on the involvement of noble Lords who have been particularly engaged with this issue—including my noble friend Lord Kennedy of Southwark and Stella Creasy MP—and pay particular tribute to the noble Baronesses, Lady Young of Hornsey and Lady Kidron, who tabled amendments that we supported throughout the Bill. The Minister will have heard the remaining concerns expressed by the noble Baroness, Lady Kidron. On this issue, we have not achieved everything that was asked for but we welcome the government amendments in lieu, which go further than previous government amendments on this issue.
Baroness Williams of Trafford (Con)
My Lords, I again thank all noble Lords for their thoughtful and detailed contributions to today’s debate and the lead-up to it. As the noble Lord, Lord Russell of Liverpool, pointed out, we have found a new way to work as a closed Committee without having to go through any of the bureaucracy of setting one up; I was very pleased to hear from him and other noble Lords that those sessions were very useful indeed. I have had many discussions with noble Lords, which have been very helpful. To echo the words of the noble Lord, Lord Rosser, we have made the Bill better, as we often do in your Lordships’ House.
The noble Lord, Lord Paddick, regretted that he could not have a meeting on his amendment. I thought that I had squared off all meetings that I possibly could. I spoke to him and the noble Baroness, Lady Hamwee, at the end of last week. It is unfortunate that he feels that his amendment could have been discussed further.
I also heard comment that the Bishops wanted to be here. The advancement of modern technology means that everybody can be here, remotely or otherwise, should they want to.
I particularly thank three noble Lords. The noble Lord, Lord West of Spithead, summarised the amendments very succinctly. The noble Lord, Lord Anderson, in typical forensic style, did similarly, as did the noble Lord, Lord Russell. A number of noble Lords, including the noble Lord, Lord West of Spithead, went into this Bill with some degree of scepticism. It is a tribute to the way in which our engagement has worked that they all feel that the Bill is better now that we have dealt with it than it was initially.
I want to start with the various responses and comments. First, in response to the noble Baroness, Lady Hamwee, I can confirm that the code of practice will state that
“the person granting the authorisation must hold a reasonable belief that the authorisation is necessary and proportionate.”
The noble Baroness, Lady Chakrabarti, raised the reporting of the recent Court of Appeal hearing as to whether MI5 had authorised offences as serious as murder; the noble Lord, Lord Adonis, also mentioned this. I have been clear throughout that the Bill does not provide a licence to kill and that our commitment to the safeguards in this Bill is firm. All authorisations issued under the Bill must comply with the Human Rights Act or they will be unlawful. I can therefore confirm and place on record that the Human Rights Act binds all authorised activity of undercover agents, alongside the state itself.
The noble Lord, Lord Adonis, asked me a specific question to which he required a specific answer: could I commit to there being no authorisation of murder, torture or rape? Obviously, I cannot be drawn on the crimes that can or cannot be authorised, for reasons that have been stated throughout the course of this Bill, but I note that all authorisations must be necessary and proportionate and must comply with the Human Rights Act. The independent IPC will be notified and see every authorisation in as close to real time as possible.
To clarify, the context of the remarks in the Court of Appeal—to which the noble Baroness, Lady Chakrabarti, referred—was a legal discussion that was solely about the existing vires for the Security Service to operate a policy that authorises its agents to participate in conduct that might, or would be, criminal. The First Treasury Counsel said that there is a power to authorise the commission of a crime under the Security Service Act and under the royal prerogative before that, although the power conferred no immunity from prosecution. The comment that the noble Baroness refers to concerns an entirely hypothetical question regarding the narrow point of whether the vires is limited to the commission of some crimes but not others. It was not and is not. That discussion is quite distinct from the question of whether an authorisation or subsequent conduct might be a breach of other law such as the Human Rights Act. I also note that the First Treasury Counsel said nothing about whether any particular type of conduct would or would not be authorised in practice or indeed compatible with a policy that requires it to be necessary and proportionate in any event.
The issue of whether certain conduct or types of conduct should be off limits has deliberately not been discussed in open court proceedings, for the same reasons as I have been unable to discuss these issues on the Floor of the House. It would not be appropriate for me to comment on the legal proceedings further. What I can say and what I have been consistently clear about is that, under the new regime introduced by the Bill, the necessity and proportionality test and the Human Rights Act provide legal limits to the conduct that can be authorised—and I say that again now.
On the subject of juvenile CHIS, I shall response to the points made by the noble Baroness, Lady Hamwee, on the government amendments. She is right that the amendment will prevent an authorisation being granted when the authorisation would put the juvenile in a position of reasonably foreseeable harm. In response to her question about injuries of a psychological nature, I reassure her that the definition of injury in the Bill includes that.
On the subject of the appropriate adult, they are there to support the young person to make informed decisions in relation to any tasking and nothing prevents them from playing an active part in the meetings that take place. The role of the appropriate adult in this setting differs from their role in a custody suite or an interview; they can have discussions with the CHIS and authorising officer outside those meetings, subject to any arrangements that the authorising officer may put in place to ensure that the safety of the CHIS and the adult themselves is assured at all times.
As to whether a juvenile CHIS would be used when other alternatives are available, they are used only in exceptional circumstances and, more importantly, when it is compatible with the best interests of that child. All authorisations must meet the proportionality threshold so, when using an adult could achieve the same outcome as using a child, that could be the correct option. However, even when an adult may be available, there may be occasions when the authorisation of a specific child is the only way in which to remove the child from a harmful situation.
In response to the noble Baroness, Lady Kidron, I pay tribute to her role in shaping the debate on this issue. This is a difficult and emotive area, and we all want to ensure that the well-being of a child is the priority of any authorisation, including for 16 and 17 year-olds. There is a presumption that there will be an appropriate adult in place for all meetings with CHIS aged 16 to 18 years. The justification for not having one will be available for IPCO to scrutinise and comment on; he or she will look at all aspects of an authorisation to ensure that all the enhanced safeguards have been applied, and they have stated that they pay particular attention to the welfare of the juvenile.
I assure the noble Baroness that the CHIS code of practice will be updated following the passage of the Bill and will provide the detail that underpins the authorisation process. There will be a public consultation on the updated code, followed by a debate and vote in both Houses. I encourage all noble Lords, as I have said previously, to feed into that process, and I certainly welcome any contribution from the noble Baroness and will make officials and operational partners available for any further discussion.
The noble Baroness asked about the level of detail given to Parliament. Clearly, there will be open and closed parts. The Prime Minister and Home Secretary will look at the closed part, and the open parts will, of course, be shared with colleagues.
As I said in my opening remarks, all criminal conduct authorisation will be the subject of rigorous independent oversight, which includes CCAs for juvenile CHIS, with the Investigatory Powers Commissioner seeing all authorisations in real time and being required to keep under review in particular the safeguards relating to juvenile or vulnerable individuals. The updated code will provide guidance on how the notification process will work and the enhanced safeguards that will apply to juvenile CHIS CCAs to supplement the detailed safeguards that we are bringing forward in the Bill.
I turn to the amendment of the noble and learned Lord, Lord Thomas, with regard to the points made by the noble Lord, Lord Paddick, on what happens if a judicial commissioner provides comments on an authorisation. Again, I offer reassurance on what would happen if the IPC or a judicial commissioner did not agree with an authorisation when notified of its grant. A judicial commissioner would flag it to the authorising officer, and would work collaboratively to address such concerns; it would not be the case that a public authority would simply ignore feedback from IPCO. This is collaborative, and the views of the commissioners carry very serious weight, but the commissioners have the power to refer an issue to the prosecution services if they felt it was necessary and, ultimately, it would then be for a court to determine the lawfulness and validity of an authorisation.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
I have received a single request to speak after the Minister. I call the noble Lord, Lord Adonis.
Lord Adonis (Lab)
My Lords, I am very grateful to the noble Baroness for the lengthy reply she has given. However, unless I misheard her, she did not in fact give a direct reply to my very fundamental question on Amendment 2. It was: would the authorisation by agents of the state of murder, rape and torture be against the Human Rights Act and the European Convention on Human Rights? If I understood her correctly, she said that nothing could be authorised that was against the Human Rights Act. Well, is it against the Human Rights Act or not? That is a straight question, but I noticed that she did not mention the European Convention on Human Rights at all in her reply. Can she say whether the authorisation of murder, rape and torture would be against that convention?
Baroness Williams of Trafford (Con)
I think that, like other noble Lords, the noble Lord will know that throughout the passage of the Bill I have very consistently said that I cannot be drawn on the crimes that can and cannot be authorised, for the reasons that I have stated consistently throughout the passage of the Bill. But I will say that all authorisations must be necessary and proportionate, and they must comply with the Human Rights Act. I will go no further than that.
Baroness Williams of Trafford
Moved by
That this House do not insist on its Amendment 2, to which the Commons have disagreed for their Reason 2A.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
I understand from the clerks that the noble Baroness, Lady Chakrabarti, has already indicated that she wishes to press her amendment.
Motion B1 (as an amendment to Motion B)
Baroness Chakrabarti (Lab) [V]
[Inaudible]—my noble friend Lord Adonis, in particular with regard to the exchange between them, so I would like to test the opinion of the House.
Baroness Williams of Trafford
That this House do not insist on its Amendment 3, to which the Commons have disagreed for their Reason 3A, but do propose Amendment 3B in lieu—
“Criminal injuries compensation
After section 27 of the Regulation of Investigatory Powers Act 2000 (lawful surveillance etc.) insert—
“27A Section 27: criminal injuries compensation for s. 29B conduct
For the purposes of—
(a) the Criminal Injuries Compensation Act 1995,
(b) the Scheme made under that Act,
(c) the Criminal Injuries Compensation (Northern Ireland)
Order 2002 (S.I. 2002/796 (N.I. 1)), and
(d) the Scheme made under that Order, section 27(1) has no effect in relation to conduct authorised under section 29B.””
Baroness Williams of Trafford
That this House do not insist on its Amendment 4, to which the Commons have disagreed for their Reason 4A, but do propose Amendments 4B, 4C, 4D, 4E, 4F, 4G, 4H and 4J in lieu—
“Criminal conduct authorisations: safeguards for juveniles
(1) After section 29B of the Regulation of Investigatory Powers Act 2000 (inserted by section 1(5)) insert—
“29C Criminal conduct authorisations: safeguards for juveniles
(1) This section applies in relation to the grant of a juvenile criminal conduct authorisation.
(2) “A juvenile criminal conduct authorisation” is an authorisation under section 29B for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source where that source is under the age of 18 (“the juvenile source”).
(3) In addition to satisfying the requirements of section 29B, a person may grant a juvenile criminal conduct authorisation only if—
(a) the person has considered the results of an appropriate risk assessment;
(b) there are exceptional circumstances such that—
(i) it is not reasonably foreseeable in the circumstances as the person believes them to be that any harm to the juvenile source would result from the grant of the authorisation, and
(ii) the person believes the authorisation would be compatible with the need to safeguard and promote the best interests of the juvenile source; and
(c) the person believes that appropriate arrangements for meetings are in force.
(4) For the purposes of subsection (3)(a), “an appropriate risk assessment” means an assessment which—
(a) identifies and evaluates the nature and magnitude of the risks of harm to the juvenile source arising in the course of, or as result of, the conduct authorised by the authorisation; and
(b) is carried out in accordance with provision made by the Secretary of State by regulations under this paragraph.
(5) In subsections (3)(b)(i) and (4)(a), “harm” means—
(a) physical injury; or
(b) psychological distress.
(6) For the purposes of subsection (3)(c), “appropriate arrangements for meetings” are such arrangements for the juvenile source’s case as are necessary for ensuring—
(a) that, at all times when the juvenile source is under the age of 16, there will be a relevant person who will have responsibility for ensuring that an appropriate adult is present at all meetings in relation to the authorisation which take place between the source and a person representing a relevant investigating authority; and
(b) that, at all times when the juvenile source is 16 or 17 years old, there will be a relevant person who will have responsibility for—
(i) ensuring that an appropriate adult is present at all meetings in relation to the authorisation which take place between the source and a person representing a relevant investigating authority, other than any such meeting in relation to which a relevant person decides there are circumstances which justify the absence of an appropriate adult, and
(ii) maintaining a record of the reasons for each such decision that there are circumstances in relation to a meeting which justify the absence of an appropriate adult.
(7) In subsection (6)—
“appropriate adult”, in relation to a juvenile source, means—
(a) the parent or guardian of the juvenile source; or
(b) any other person who—
(i) has for the time being assumed responsibility for the juvenile source’s welfare, or
(ii) is otherwise qualified to represent the interests of the juvenile source;
“relevant investigating authority”, in relation to a juvenile criminal conduct authorisation, means the public authority, or (as the case may be) one of the public authorities, for whose benefit the activities of the juvenile source as a covert human intelligence source are to take place;
“relevant person”, in relation to a juvenile criminal conduct authorisation, means a person holding an office, rank or position with a relevant investigating authority in relation to the authorisation;
and in this subsection, “guardian”, in relation to a juvenile source, has the same meaning as “guardian of a child” in the Children Act 1989 (see section 105 of that Act).
(8) No provision made by or under this section affects the power to make additional provision by order under section 29B(4)(c) or (10) in relation to the grant of a juvenile criminal conduct authorisation.”
(2) The Regulation of Investigatory Powers (Juveniles) Order 2000 (S.I. 2000/ 2793) is amended in accordance with subsections (3) to (8).
(3) In article 2 (interpretation)—
(a) in the definition of “relevant investigating authority”, after “authority”” insert “, in relation to an authorisation under section 29 of the 2000 Act,”;
(b) after that definition insert—
““relevant investigating authority”, in relation to an authorisation under section 29B of the 2000 Act, means the public authority, or (as the case may be) one of the public authorities, for whose benefit the activities as a source of the source to whom the authorisation relates are to take place;
“relevant person”, in relation to an authorisation under section 29B of the 2000 Act, means a person holding an office, rank or position with a relevant investigating authority in relation to the authorisation;”.
(4) Before article 3 insert—
“Authorisations under section 29 of the 2000 Act”.
(5) In article 3 (sources under 16: prohibition), after “authorisation” insert “under section 29 of the 2000 Act”.
(6) In article 5 (sources under 18: risk assessments etc.), after “An authorisation” insert “under section 29 of the 2000 Act”.
(7) In article 6 (sources under 18: duration of authorisations), after “an authorisation” insert “under section 29 of the 2000 Act”.
(8) After article 6 insert—
“Authorisations under section 29B of the 2000 Act
7 Sources under 16: prohibition
(1) No authorisation under section 29B of the 2000 Act may be granted authorising criminal conduct in the course of, or otherwise in connection with, the conduct of a source if—
(a) the source is under the age of 16; and
(b) the relationship to which the relevant conduct would relate is between the source and—
(i) the source’s parent, or
(ii) any person who has parental responsibility for the source.
(2) “The relevant conduct” means the conduct of the source which the authorised conduct would be in the course of or otherwise in connection with.
8 Sources under 18: additional requirements
(1) An authorisation under section 29B of the 2000 Act may not be granted or renewed in any case where the source to whom the authorisation relates is under the age of 18 at the time of the grant or renewal unless the person granting or renewing the authorisation—
(a) has considered whether the relationship to which the relevant conduct would relate is between the source and—
(i) a relative or guardian of the source, or
(ii) a person who has for the time being assumed responsibility for the source’s welfare; and
(b) where the relationship would so relate, has taken that fact into account as a particular consideration.
(2) In paragraph (1)(a), “the relevant conduct” has the same meaning as in article 7.
9 Sources under 18: arrangements regarding best interests of the source
Where the source to whom an authorisation under section 29B of the 2000 Act relates is under the age of 18, the arrangements referred to in section 29B(4)(c) of the 2000 Act must be such that there is at all times a relevant person who has responsibility for safeguarding and promoting the best interests of the source.
10 Sources under 18: duration of authorisations
In relation to an authorisation under section 29B of the 2000 Act where the source to whom the authorisation relates is under the age of 18 at the time the authorisation is granted or renewed, section 43(3) of the 2000 Act is to have effect as if the period specified in paragraph (b) of that subsection were four months instead of twelve months.”
(9) The amendments made by subsections (3) to (8) to the Regulation of Investigatory Powers (Juveniles) Order 2000 (S.I. 2000/2793) are to be treated as having been made under section 29B(4)(c) or (10) or section 43(8) of the Regulation of Investigatory Powers Act 2000 as the case may be (and may be amended or revoked under those powers accordingly).”
“Criminal conduct authorisations: safeguards for vulnerable adults
After section 29C of the Regulation of Investigatory Powers Act 2000 (inserted by section (Criminal conduct authorisations: safeguards for juveniles)) insert—
“29D Criminal conduct authorisations: safeguards for vulnerable adults
(1) This section applies in relation to the grant of a vulnerable adult criminal conduct authorisation.
(2) “A vulnerable adult criminal conduct authorisation” is an authorisation under section 29B for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source where that source is a vulnerable adult (“the vulnerable adult source”).
(3) For the purposes of this section, a “vulnerable adult” is a person aged 18 or over who by reason of mental disorder or vulnerability, disability, age or illness, is or may be unable to take care of themselves or to protect themselves against significant harm or exploitation.
(4) In addition to satisfying the requirements of section 29B, a person may grant a vulnerable adult criminal conduct authorisation only if the person—
(a) has considered the results of an appropriate risk assessment;
(b) believes that the risks of harm identified by that risk assessment have been properly explained to and understood by the vulnerable adult source; and
(c) has taken into account the need to safeguard and promote the best interests of the vulnerable adult source.
(5) “An appropriate risk assessment” means an assessment which—
(a) identifies and evaluates the nature and magnitude of the risks of harm to the vulnerable adult source arising in the course of, or as result of, the conduct authorised by the authorisation; and
(b) is carried out in accordance with provision made by the Secretary of State by regulations under this paragraph.
(6) For the purposes of subsections (3), (4)(b) and (5)(a), “harm” means—
(a) physical injury; or
(b) psychological distress.
(7) No provision made by or under this section affects the power to make additional provision by order under section 29B(4)(c) or (10) in relation to the grant of a vulnerable adult criminal conduct authorisation.””
“(4B) In keeping under review the exercise of the power mentioned in subsection (4A), the Investigatory Powers Commissioner must, in particular, keep under review whether public authorities are complying with any requirements imposed on them by virtue of Part 2 of the Regulation of Investigatory Powers Act 2000 in relation to juvenile criminal conduct authorisations and vulnerable adult criminal conduct authorisations.
(4C) For the purposes of subsection (4B)—
(a) “a juvenile criminal conduct authorisation” is an authorisation under section 29B of the Regulation of Investigatory Powers Act 2000 where the covert human intelligence source to whom the authorisation relates is under the age of 18; and
(b) “a vulnerable adult criminal conduct authorisation” is an authorisation under section 29B of the Regulation of Investigatory Powers Act 2000 where the covert human intelligence source to whom the authorisation relates is a vulnerable adult within the meaning of section 29D(3) of that Act.”
“(ba) in the case of an authorisation under section 29B where the source is under the age of 18 (“the juvenile source”), the person—
(i) becomes aware of circumstances in which it is reasonably foreseeable that harm, within the meaning of section 29C(5), to the juvenile source would result from the authorisation,
(ii) is satisfied that the authorisation would no longer be compatible with the need to safeguard and promote the best interests of the juvenile source, or
(iii) is satisfied that arrangements for the juvenile source’s case that satisfy the requirements of subsection (3)(c) of section 29C no longer exist; or”
Baroness Williams of Trafford
That this House do agree with the Commons in their Amendment 5A.
Lord Paddick
Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 5A and do propose Amendment 5B in lieu—
“(6) If upon notification under subsection (3) a Judicial Commissioner determines that the authorisation should not have been granted—
(a) the person who granted the authorisation must be immediately informed,
(b) the Director of Public Prosecutions and the Director of Public Prosecutions for Northern Ireland must be immediately informed, and
(c) all further activities that will or might be undertaken pursuant to the authorisation are not “lawful for all purposes” under section 27(1).””
Lord Paddick (LD) [V]
My Lords, I have three things to say. First, I beg to move; secondly, I wish to test the opinion of the House; and, thirdly, please take into account my voice when taking soundings in the Chamber.
Arrangement of Business
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, I will call Members to speak in the order listed in the annexe to today’s list. Members are not permitted to intervene spontaneously; the Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted.
During the debate on each group I invite Members, including Members in the Chamber, to speak to the clerk if they wish to speak after the Minister. I will call Members to speak in order of request and call the Minister to reply each time. The groupings are binding and it is not possible to de-group an amendment for separate debate. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice, either in the debate or by emailing the clerk.
Leave should be given to withdraw amendments. When putting the question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the question is put, they must make this clear when speaking on the group. We will now begin.
Counter-Terrorism and Sentencing Bill
Tuesday 9th February 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 129-II Second marshalled list for Committee - (4 Feb 2021)
“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.
Lord Marks of Henley-on-Thames (LD) [V]
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.
Lord Morris of Aberavon (Lab) [V]
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.
Lord Paddick (LD) [V]
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.
Lord Ponsonby of Shulbrede (Lab) [V]
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.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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.
Lord Marks of Henley-on-Thames (LD) [V]
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.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment and the amendment at page 29, line 14 are consequential on the removal of Clause 35.
Member’s explanatory statement
See the explanatory statement to the amendment at page 28, line 30.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
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.
Amendment 19
Baroness Hamwee
“(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.
Baroness Hamwee (LD) [V]
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.
Lord Faulks (Non-Afl) [V]
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.
Lord Thomas of Gresford (LD) [V]
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.
Lord Marks of Henley-on-Thames (LD) [V]
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.
Lord Falconer of Thoroton (Lab) [V]
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?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, I have received a request from the noble Lord, Lord Robathan, to speak after the Minister.
Lord Robathan (Con)
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.
Lord Wolfson of Tredegar (Con)
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.
Baroness Hamwee (LD) [V]
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.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
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.
Lord Falconer of Thoroton
“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.
Lord Falconer of Thoroton (Lab) [V]
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.
Baroness Hamwee (LD) [V]
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.
Lord Woolf (CB) [V]
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.
Lord Thomas of Gresford (LD) [V]
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.
Lord Morris of Aberavon (Lab) [V]
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.
Lord Paddick (LD) [V]
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.
Lord Wolfson of Tredegar (Con)
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 Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
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.
Lord Falconer of Thoroton (Lab) [V]
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.
Lord Wolfson of Tredegar
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.
Member’s explanatory statement
See the explanatory statement for the amendment at page 93, line 28.
Member’s explanatory statement
See the explanatory statement for the amendment at page 93, line 28.
Member’s explanatory statement
See the explanatory statement for the amendment at page 93, line 28.
Member’s explanatory statement
See the explanatory statement for the amendment at page 53, line 41.
Member’s explanatory statement
See the explanatory statement for the amendment at page 53, line 41.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
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
Amendment 27
Lord Anderson of Ipswich
“(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.
Lord Anderson of Ipswich (CB) [V]
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.
Baroness Hamwee (LD) [V]
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.
Lord Thomas of Cwmgiedd (CB) [V]
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.
Lord Faulks (Non-Afl) [V]
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.
The Lord Bishop of Manchester [V]
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.
Lord Strasburger (LD) [V]
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.
Baroness McIntosh of Pickering (Con) [V]
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.
Lord Paddick (LD) [V]
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.
Lord Falconer of Thoroton (Lab) [V]
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.
Lord Parkinson of Whitley Bay (Con)
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.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received one request to speak after the Minister and I call the noble Lord, Lord Paddick.
Lord Paddick (LD) [V]
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”.
Lord Parkinson of Whitley Bay (Con)
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.
Lord Anderson of Ipswich (CB) [V]
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.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
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
Amendment 29
Baroness Hamwee
“(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.”
Baroness Hamwee (LD) [V]
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.
Lord Anderson of Ipswich (CB) [V]
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 Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
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.
Lord Thomas of Cwmgiedd (CB) [V]
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.
Lord Strasburger (LD) [V]
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.
Lord Paddick (LD) [V]
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.
Lord Ponsonby of Shulbrede (Lab) [V]
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.
Lord Parkinson of Whitley Bay (Con)
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.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Paddick.
Lord Paddick (LD) [V]
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?
Lord Parkinson of Whitley Bay (Con)
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.
Baroness Hamwee (LD) [V]
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.
Lord Parkinson of Whitley Bay (Con)
Only to disappoint the noble Baroness, but also to reassure her that I will add that to the information I provide in writing following the debate.
Baroness Hamwee (LD) [V]
I am grateful for that. We are in Committee, so it is appropriate that I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
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
Amendment 30A
Baroness Hamwee
Member’s explanatory statement
This amendment would prevent relocation for resource reasons.
Baroness Hamwee (LD) [V]
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.
Lord Paddick (LD) [V]
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.
Lord Falconer of Thoroton (Lab) [V]
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; the amount of resources that would be required if it was to be enforced where they normally live becoming disproportionate; or the amount of resources that would be required where they had been located becoming disproportionate. If that is right, I would have expected the measure in new subsection (1A) in Clause 39(2) to reflect something about proportionality. But there is nothing in it, and I would be interested to hear what the Minister has to say. I hope he will indicate that resource relocations will occur only when it is effectively necessary to provide for national security.
Lord Parkinson of Whitley Bay (Con)
My Lords, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, have explained, this amendment is intended to prevent the possibility, as proposed by Clause 39, of varying a TPIM subject’s relocation measure for reasons connected with the efficient and effective use of resources in relation to that individual. I hear what they say about wanting to understand and explore that through this amendment.
We do not believe that the amendment as drafted would have that effect in practice, and we think that it could inadvertently broaden out the application of the clause to enable relocation of the TPIM subject for the second time for any reason. However, as I say, I understand the questions which lie behind their tabling it.
The Government are committed to future-proofing the TPIM regime to ensure that our operational partners are fully supported to manage TPIMs efficiently and effectively. Clause 39 has an important role in doing that. It will allow the Home Secretary to move an already relocated TPIM subject to an alternative location, if necessary, for resource-related reasons, provided that the national security reason for requiring relocation still exists—that is key to note.
We want to ensure that operational partners, and in particular counterterrorism policing, are supported in their function of managing this small but significant cohort of high-risk individuals within the community. This clause seeks to ensure that there is a greater degree of flexibility in the system, so that there can continue to be effective management of a TPIM subject when operational circumstances evolve.
To provide a real-world example of where a police force finds that resources are affected, I draw the Committee’s attention to the Novichok poisonings in Amesbury, in Wiltshire, in June 2018, which suddenly and significantly diverted police resource in a small force for a considerable period of time to that important and high-profile investigation. In such a scenario, if a TPIM subject was residing within the force area, it might no longer be possible for counterterrorism policing to provide the same dedicated resources to ensure that the TPIM was being managed effectively and in a way that reduced the threat to the wider public.
The new ground to vary the relocation measure could also potentially be used to cover the following: first, a temporary move of the TPIM subject because all relevant counterterrorism officers with the necessary skills become unavailable at the same time due to illness or another temporary reason, such as during the current pandemic, for example, which I am sure will be on noble Lords’ minds; or, secondly, in circumstances where the presence of the TPIM subject becomes known locally and, as a result, there is increased pressure on counterterrorism resources to keep the subject both monitored and safe.
The noble and learned Lord, Lord Falconer of Thoroton, asked about the test for the Home Secretary. When first deciding where to relocate a TPIM subject, provided there is a national security reason to do so, the Home Secretary takes into account various factors to arrive at a proportionate decision. These include but are not limited to: the personal circumstances of the individual; the availability of services and amenities, including access to employment, education, places of worship and medical facilities; the proximity to prohibited associates; and the demographics of the community. It is reasonable to apply a similar approach when deciding whether the police force area in which the TPIM subject currently resides continues to be the most appropriate area for them to be placed.
We do not anticipate this ground to vary the relocation measure being used except in exceptional circumstances. We fully recognise that the relocation of a TPIM subject —or the re-relocation of the subject, as would be the case if relying on this new ground—is a significant action to take given the potential impact on the individual and could be used only when necessary and proportionate to do so, taking into account their Article 8 rights. The Government understand that stability in a subject’s life is a crucial factor behind their rehabilitation and supporting them to move away from an extremist mindset, which, of course, we want them to do.
The noble and learned Lord, Lord Falconer, rightly said that this amendment does not address head-on the question of relocation. However, as he raised it and noble Lords are interested, it is worth reiterating that the Home Secretary can relocate a TPIM subject only if it is necessary and proportionate to prevent and restrict involvement in terrorism-related activity, that consideration is always given to the subject’s Article 8 rights, and that, furthermore, a TPIM notice does not prevent an individual seeking or maintaining employment or study—in the past, TPIM subjects have pursued both of those. It is also worth reminding the Committee that TPIMs are different from the control order regime. Under control orders, somebody could be relocated anywhere in the country, whereas under TPIMs, relocation is up to 200 miles away from their home address.
We assess that, in most cases where a TPIM subject has been relocated but there is then a requirement to move them to a new place of residence, that is provided for within existing legislation. However, as with several of the changes we are seeking to introduce through this Bill, we deem it important expressly to create this flexibility for our operational partners within the TPIM Act 2011 as part of our mission to future-proof the system and to ensure that TPIMs can be managed efficiently and effectively.
Decisions to vary the relocation measure for resource reasons will be capable of appeal. As with other unilateral variations to the TPIM notice, the function of the appeal court will be to review whether the variation was necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. Additionally, however, for variations to the relocation measure on resource grounds, the appeal court will also review whether the variation was necessary for the efficient and effective use of resources.
Given the crucial tasks that we expect of our operational partners, we want to ensure that we support them as best we can in their effective management of TPIM subjects, as well as in their ability to respond to other high-priority work such as the examples I have given.
Amendment 30B is consequential on Amendment 30A, and the same arguments apply. I therefore invite the noble Baroness not to press her amendments.
Baroness Hamwee (LD) [V]
My Lords, I shall of course withdraw Amendment 30A and I shall not move Amendment 30B. The questions asked about proportionality and national security should be at the heart of this. The flexibility to which the Minister referred seems to suggest that subjects might be moved closer together for ease of management, which is the exact opposite of what I thought was one of the objectives of this regime.
I am still puzzled that
“purposes connected with preventing or restricting … involvement in terrorism-related activity”
in new Section 12(1A)(b) does not cover the Salisbury example that the Minister used, but, as one always does, I will look at the explanation, because I may well have missed it.
I did not miss the fact that my drafting was inadequate, but I do not take exception to that comment—that could be corrected later if necessary. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
We now come to the group beginning with the Question that Clause 40 stand part of the Bill. 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 debate.
Clause 40: TPIMs: extension of residence measure
Baroness Hamwee (LD) [V]
My Lords, Clause 40 stand part is grouped with Amendment 31 in the names of the noble Lords, Lord Hunt and Lord Bach, which is very different. I shall confine my remarks to the clause. A curfew can be more than overnight. All the points about amendments we have debated this evening are relevant to the time—the hours of the day and night—during which a subject may be required to remain wherever he is living—plus, of course, in particular, engaging Article 5 of the European Convention on Human Rights, on the deprivation of liberty.
The ECHR memorandum published with the Bill is explicit that this provision is so that an individual can be required to observe longer curfew hours. That is not a justification, however. We have some case law, as I am sure other noble Lords may mention. In JJ, Lord Bingham said that account should be taken of
“a range of factors such as the nature, duration, effects and manner of execution or implementation”
of a measure—very much as noble Lords said on a previous group. The noble and learned Lord, Lord Brown, took the view that the absolute limit was 16 hours, and I understand that no curfew has been for a period longer than 16 hours since.
The ECHR memorandum makes the point that the principle of curfew does not breach Article 5, and I take that point, but the particular issue I want to raise in this connection is that the clause—that is, the change—makes it that much easier for the limits to be pushed longer and longer and throws on the individual the need to challenge them, rather than having clear limits set on the Secretary of State through legislation.
I am sure that noble Lords will understand, when it comes to the appetite, and indeed the ability, of an individual to challenge each measure, or extended measure, it is not an easy task. The balance—I think it is called “equality of arms”—moves completely out of balance through this clause. I beg to move.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, rather like the noble Baroness, Lady Hamwee, I am not sure that our two amendments have any connection whatever. None the less, it is a pleasure to be able to make this short intervention on the Bill and to probe just a little more than I did at Second Reading the role of police and crime commissioners.
I do support the strengthening of the TPIM provisions. That the Government would have to do so was entirely foreseeable in 2011, when the coalition Government insisted on the abolition of control orders, despite the warnings that I and other noble Lords gave at the time.
My amendment was drafted after discussions with the West Midlands police and crime commissioner, David Jamieson. Clearly, the provisions are potentially extremely resource-intensive and need to be used proportionately and only when absolutely necessary. I would like to make two specific comments.
As the thresholds for a TPIM are lowered and the range of measures extended, it is important that greater scrutiny and oversight are implemented to give reassurance to individuals and communities that the legislation is being used fairly. These are of course issues of grave national security concern. The oversight offered by a police and crime commissioner could help to give the Home Secretary reassurance that full consideration had been given ahead of any decision regarding a TPIM. Local oversight could also enhance the ability of the Home Secretary to make an informed decision when considering a TPIM application, variation or extension. It would enable PCCs to submit any additional information or make recommendations to the Home Secretary in respect of the community impact and the impact on local police force resources—which, as has already been discussed, can be intensive for a TPIM.
It is not entirely clear how police and crime commissioners are currently made aware of TPIMs within their local area. Certainly, the chief constable should advise the police and crime commissioner when a TPIM is being considered, but there are no clear guidelines on how this should take place. My amendment would formalise this process. We know that the number of TPIMs in place nationally is small, and therefore it should not be envisaged that this additional step in the process would present a burden for police and crime commissioners or forces. As part of this process, the information would of course have to be shared within the most appropriate, secure environment.
At Second Reading, the noble Baroness, Lady Williams, responded to that point by saying that the Home Office already works very closely with the police before a TPIM is imposed and during its lifetime. She went on to say:
“The process ensures that TPIMs are imposed only following engagement with the relevant local police force and that community impact assessments are kept up to date.”
She then said:
“The Bill already contains a clause that will allow a TPIM subject’s relocation measure to be varied where necessary on operational resource grounds.”
On those grounds, she considered that my
“proposed amendment for an additional role for PCCs … in TPIM processes is … not necessary.”—[Official Report, 21/9/20; col. 1653.]
That was disappointing. The key issue here is that TPIMs are an intervention that places significant restrictions on a person’s life, based on the balance of probabilities. Given that, PCCs could add value in the process by seeking reassurance that due process had been followed. I remind the Minister that they do this for other policing powers that might be regarded as controversial, including stop and search and the use of covert services, and it would be appropriate if it were extended to TPIMs. I commend the amendment and hope that the Minister will be sympathetic.
Lord Anderson of Ipswich (CB) [V]
My Lords, I have just a little to add to what has already been said about Clause 40.
The current requirement that a residence condition be “overnight” has acted as a limitation on the maximum length of the nightly period of house arrest that may be imposed under a TPIM; the noble Baroness, Lady Hamwee, referred to some of the case law on this subject. Confinement to the home during substantial parts of the day may sound almost familiar in times of Covid but it would represent a major reversal of past practice. I see that my own 2012 report, to which the Minister was kind enough to refer, confirms that even control orders featured curfews of only up to 16 hours.
In that context, I have three questions. First, if Clause 40 is passed into law, for how many hours a day will it be permissible to confine TPIM subjects to their designated residences if that is considered, in the Minister’s words, “necessary and proportionate”? Is there any reason why it should not be for 23 or, indeed, 24 hours?
Secondly, what are the specific circumstances that make it necessary for public safety to extend these already formidable powers in this way? If they are to be credible after 15 years of real-world experience, please may we have actual examples, even if they must be anonymised, rather than hypothetical ones?
Thirdly, and more generally, my sense from the last few debates is that the Government will have to work quite hard if they are to persuade noble Lords of the operational case for some of these changes—particularly as they appear not to have persuaded their own independent reviewer, with all his privileged access to classified material. What proposals does the Minister have in that regard?
Lord Bach (Lab) [V]
My Lords, I declare my interest as the elected and serving police and crime commissioner for Leicester, Leicestershire and Rutland. I have been in that post for nearly five years now but in three months’ time, if the 6 May elections take place as the Government propose, I will no longer have this interest to declare. I look forward to once again playing a greater role in your Lordships’ House.
However, when, as in this Bill, issues of delicate constitutional importance arise—issues that affect the relationship between the state, in the guise of the Home Secretary and the police, and the individual, in the guise here of the reasonably suspected person—surely it is important to examine with great care, as this House always does and clearly has done today, the implications for the rule of law and individual liberty. That is why I put my name to my noble friend Lord Hunt of Kings Heath’s Amendment 31, which, strangely, is in this group.
Amendment 31 suggests a practical and sensible way forward—one that balances the interests of all involved, I would argue. It suggests a role for police and crime commissioners that seems entirely appropriate and consistent with the Police Reform and Social Responsibility Act 2011. When the coalition Government proposed the setting up of what I will call PCCs, they deliberately gave them considerable responsibilities and powers. Not only were they described as the “local policing body”; the Policing Protocol Order 2011 insisted that police and crime commissioners had a role in the “totality of policing”. Sometimes, it seems as though the then Government’s intentions, as contained in the Act passed by Parliament, have not always been fulfilled by succeeding Governments, who, although keen to support the legislation, seem to draw back from some of its consequences. I very much hope that the way in which the Minister deals with this amendment will show that I am wrong.
Of course, we all agree that strong powers are needed to protect society from those who would use, aid or support terrorism to get their own way. In this Bill, there is an obvious intention to strengthen the power of the state against the individual, pointed out repeatedly by noble Lords from all sides. This involves the removal of basic safeguards, as we have heard today: first, the need for there merely to be reasonable suspicion, rather than proof of a balance of probabilities, and, secondly, the open-ended nature of a TPIM. The dangers of that last approach were referred to by the noble and learned Lord, Lord Thomas, in the context of recent public prevention legislation. Immense executive power attaches to the Home Secretary and the police, who are tasked with TPIM powers.
Lord Strasburger (LD) [V]
My Lords, as we have heard, Clause 40 will allow the Secretary of State to extend the overnight curfew on a person subject to a TPIM to the maximum: every hour of every day. If the clause passes into law, it will mean that a person who has not been convicted of any offence can be condemned to full-time house arrest indefinitely, possibly until their death.
It so happens that we are all experiencing a very mild form of this regime right now during the Covid pandemic lockdown. I say a mild form because we are allowed to go to work. We can get out for exercise, to buy food, to seek medical advice or for a host of other exceptions. We know that this confinement, with all its exceptions, will last for only a few weeks, or at most months. Even so, cabin fever is rife and the increase in mental illness in the community is very real and alarming.
Imagine, if you will, how it would be if this serious constraint on our way of life and infringement of our liberties was permanent and without any of the opportunities to get out of the house that we have under lockdown. It would be unbearable. In some ways, it would be worse than a long prison sentence. In a maximum security prison, you still get some exercise outside your cell every day. But this is what the Government intend to be able to do to people who may well be innocent, whose incarceration has occurred without the Government even having to prove their guilt beyond reasonable doubt or on the balance of probabilities.
Under Clause 37, a Minister would merely need to suspect that they may be a terrorist—a truly flimsy threshold of proof, which is so insignificant as to be pointless and non-existent. Nevertheless, on this flimsy basis, Clause 40 allows a Minister to condemn a quite possibly innocent person to indefinite full-time detention in their home. Can the Minister please give a meaningful explanation or operational case for this change? In doing so, if he is going to deploy the flexibility argument again, could he explain who needs the flexibility, to do what and why? It is seriously unconvincing to me.
This change to the TPIM regime is cruel, inhumane and unfair. It must be seriously damaging to the subject’s mental health and that of those around him or her. This House must expunge this clause from the Bill.
Lord Paddick (LD) [V]
My Lords, at the risk of sounding like a broken record, we believe that the existing TPIMs are sufficient and are at the limits of what a country that has a reputation for upholding human rights should tolerate. The extension proposed in Clause 40 would extend the requirement to remain at or within a specified residence from “overnight” to what could amount to total house arrest. As the noble Lord, Lord Anderson of Ipswich, said, that is a requirement to remain at or within the specified residence between any hours. “As are specified” is yet another step too far, as my noble friend Lord Strasburger said.
On Amendment 31, I commend the noble Lords, Lord Hunt of Kings Heath and Lord Bach, for their relentless attempts to get police and crime commissioners more involved in operational policing decisions, including operations that may have national security implications. I accept that stop and search may be considered controversial, but it does not involve issues of national security of this nature, and I am not convinced that their amendment is necessary or desirable in this case.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, we have had two different debates in this group. The noble Baroness, Lady Hamwee, moved that Clause 40 should not stand part of the Bill, and I can do no better than the noble Lord, Lord Anderson, and his three questions, which I thought were very apposite and to the point. I will listen with interest to the Minister’s answers to those three questions.
My noble friends Lord Hunt and Lord Bach then spoke to their Amendment 31. As we have heard, the gist of the amendment is to formalise a relationship between the Secretary of State, PCCs and local chief constables to give more direct input by PCCs. In the words of my noble friend Lord Bach, PCCs are responsible for the “totality of policing” in their area. As we have heard, they are already involved in controversial matters such as stop and search and covert activities. Of course, I support my noble friends in trying to give the PCCs more formal involvement in TPIMs in their own areas.
I look forward to my noble friend Lord Bach playing a greater part in the proceedings of our House. He has for many years brought great insight into his many roles on the Front Bench, and occasionally on the Back Benches, but he will improve that even further when he comes back as a PCC. He may, of course, have to do extra time; we wait to see. I will listen with interest to what the Minister has to say, and I will support my noble friends.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank all noble Lords who have spoken in this debate. As some have remarked, Amendment 31 might have as easily sat in the previous group as this one. I turn first to that amendment, in the names of the noble Lords, Lord Hunt of King’s Heath and Lord Bach. It aims to increase the oversight that local policing bodies, including police and crime commissioners, have of TPIM notices in their area. It would require the Home Secretary to notify the relevant local policing body when a TPIM notice is imposed in their area, and when a TPIM is withdrawn, ends or is relocated, so that it no longer falls within their area. It would also require the local policing body to provide six-monthly reports to the Home Secretary, which could include recommendations regarding variations to the TPIM and its continued necessity.
Because of the operational nature of the amendment and the impact that it would have on existing processes, officials at the Home Office have consulted colleagues in Counter Terrorism Policing Headquarters on it, and they support our view that it is not needed in the Bill. Engagement with police forces is already an integral part of the TPIM regime. The Home Office works very closely with CT policing, both nationally via CTPHQ and with regional CT units, before a TPIM is imposed and during its lifetime, including regular engagement at quarterly TPIM review group meetings chaired by the Home Office. This well-established process ensures that TPIMs are imposed only following engagement with, and ultimately the consent of, the relevant local police force. This existing practice also means that local community impact assessments are kept up to date, which supports the effective and efficient management of the TPIM subject by the Home Office and operational partners.
Given the current close working relationship that we have with operational partners in the ongoing management of a TPIM subject, there is no need for the local policing body to produce six-monthly reports; review meetings are already in any event held at more regular intervals than the amendment would require reports to be written, and those meetings already consider the types of issue that the amendment is seeking to ensure are included in any report. The amendment would also distort existing roles and responsibilities; it would be inappropriate for the relevant local policing body or police and crime commissioner to put recommendations for varying a TPIM or its continued necessity directly to the Home Secretary. Those judgments are, quite rightly, led by the Home Office in conjunction with the Security Service, which makes fully informed recommendations based on its expert assessment of national security risk. Like the noble Lord, Lord Paddick, I think the examples that noble Lords gave of stop and search and other decisions are in a different category from the imposition of a TPIM.
It is vital that TPIM oversight and management processes protect the highly classified information that flows through a TPIM regime, including the details of the TPIM subject and the underlying national security case against them. The Government, CTPHQ and the Security Service are concerned about how the amendment could work in practice with regard to sharing and disclosure of such highly sensitive information. The close working relationships already in place and well-tested processes on information-sharing between the Home Office, CT policing and the Security Service make it unnecessary.
I turn to Clause 40, which amends the existing overnight residence measure in Schedule 1 to the TPIM Act to strengthen the ability of the Home Secretary to specify certain hours when a TPIM subject must remain at a specified residence. Taken literally, the amendment in the names of the noble Lord, Lord Paddick, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks of Henley-on-Thames, would remove Clause 40 from the Bill altogether and prevent several operational benefits from being realised. That is why the Government cannot support it.
Having a residence measure at our disposal is vital in managing an individual of national security concern and the risk that they pose to the public. That has long been the case, but our engagement with operational partners has established that the existing overnight measure could and should be improved to allow for greater flexibility in the way in which it can be imposed—specifically, by introducing 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 to manage the risk that they pose. The updated residence measure that Clause 40 introduces will allow the Home Secretary to specify a period that could be longer than overnight or spilt into varying segments throughout a 24-hour period, if considered necessary.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received one request to speak after the Minister, so I call the noble Lord, Lord Paddick.
Lord Paddick (LD) [V]
My Lords, unfortunately, the imperfection of the current system of remote participation means that one has to put in one’s request to speak “after the Minister” before the Minister has finished speaking. If the Minister in his last few sentences answers the question that you were going to ask, your question becomes obsolete, as is the case here.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I now call the noble Baroness, Lady Hamwee, to respond to the debate.
Baroness Hamwee (LD) [V]
I am in much the same position as I was with an earlier amendment: I do not see what is not already provided for in current legislation. I would be interested to know whether the examples used by the noble Lord, Lord Parkinson—the radicalising threats to children and the case of someone who is suspected of being a not-yet-fulfilled attack planner—are examples of where the police have had a real problem.
I am not reassured that a measure is “likely” not to be over 16 hours. In response to various questions, we seem to be getting the answer, “It’s necessary because it’s necessary”. We will, of course, think about this particular aspect after today; tonight, I will not seek to oppose this clause standing part of the Bill.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 30C. 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, or anything else in this group, to a Division must make that clear in debate.
Clause 41: TPIMs: polygraph measure
Amendment 30C
Baroness Hamwee
Member’s explanatory statement
This amendment would ensure section 12 of the Terrorism Prevention and Investigation Measures Act 2011 is not overridden.
Baroness Hamwee (LD) [V]
My Lords, we have Amendments 30C and 30D in this group, as well as the clause stand part debate. These take us to polygraph measures, where we were not so many hours ago in connection with terrorist offenders—those were, of course, “offenders”, while the individuals subject to TPIMs are not.
If a polygraph measure is imposed as a requirement of a TPIM and the subject refuses to comply, then one asks: so what? That becomes an offence, as I understand it, and the subject would be liable to imprisonment for up to five years and/or an unlimited fine. In an attempt to think about the “so what?” question, Amendment 30C refers to Section 12 of the 2011 Act. That section deals with the variation of measures, with some safeguards. I will not hold it against the noble Lord if he says that the drafting leaves a lot to be desired; I dare say it does. The point is to seek to be sure that what is learned from a polygraph, and so points the examiner and therefore the police in a particular direction, cannot override the safeguards in legislation.
On Amendment 30D, we know that polygraphs cannot be used as evidence in proceedings. Can they be used to point to where there may be evidence? I assume that they can, so will the Minister therefore confirm whether this can be used as evidence of a breach of a TPIM, or to extend or impose a further TPIM? I think the Law Society has made the point—I hope I am not misquoting it—that polygraphs should not be used as a route to impose a TPIM. I beg to move.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
The noble Baroness, Lady McIntosh of Pickering, has withdrawn from this group, so I call the next speaker, the noble Lord, Lord Paddick.
Lord Paddick (LD) [V]
My Lords, I do not have anything to add on the substance of the amendments which my noble friend Lady Hamwee has outlined. However, I would like to go back to something that my noble friend Lord Thomas of Gresford raised in relation to the use of polygraph tests on convicted terrorists who were subject to licence: the right to silence. Quite rightly, the noble and learned Lord who was the Minister at the time said that, because these people would be convicted offenders under licence, they had no right to silence. But TPIM subjects are not convicted offenders on licence; they are unconvicted. That is the whole idea of a TPIM, and so they do have a right to silence. The question for the Minister is: would it be a breach of TPIM conditions, which is a criminal offence for which the person could be sent to prison, if they refuse to participate in a polygraph test or if, in a polygraph test, they refuse to say anything?
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I have nothing of substance to add to the comments of the previous two speakers, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. I, too, was going to raise the point made by the noble Lord about the right to silence of someone who is subject to a TPIM, as they are not convicted of an offence. The noble Baroness adequately covered the other points, so I have nothing more to add.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank noble Lords for their contributions and brevity in this group so that we can make as much progress as possible. All these amendments are in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee.
Clause 41 provides for the addition of a polygraph measure into Schedule 1 to the TPIM Act 2011. Doing that will, in circumstances where it is assessed to be necessary and proportionate, help our operational partners to assess an individual’s compliance with his or her TPIM notice and support the decision-making on whether variations to the notice are required. That could include relaxations as well as restrictions.
As with all TPIM measures, polygraphs will not be mandatory for all TPIM subjects. I should like to reassure the Committee that we anticipate this measure being used sparingly, in a targeted and proportionate manner. Operational partners will consider its utility in relation to each TPIM subject on a case-by-case basis and make a recommendation to the Home Office for its imposition where appropriate.
By way of example, the results of a polygraph test may indicate that a TPIM subject is meeting someone whom he or she is prohibited from seeing for national security reasons at a particular location. While any findings from the polygraph test will be considered in the round by operational partners—that is, without an overreliance on the test findings and considered against other available information—the findings could inform a recommendation for the TPIM measures to be varied to restrict the subject from frequenting that specific location. The results could also be used to inform an assessment of whether a subject’s engagement with rehabilitation programmes under the TPIM notice is genuine.
We recognise that the prospect of polygraph testing understandably creates questions about the way in which information gleaned from tests may be used. That is precisely why we have taken steps to ensure that the wording of the clause is clear on that issue. The polygraph testing should only be carried out with a view to monitoring the individual’s compliance with other specified TPIM measures and assessing whether any variation of their measures is necessary. We have also specified that such information cannot be used in evidence against the individual in any criminal proceedings.
To further reassure the Committee of the steps that we are taking to ensure that this addition is both proportionate and considered, the clause sets out that the new measure will not be used unless and until the Home Office introduces regulations to make provision for the conduct of the polygraph sessions. Those regulations are likely to include detail, for example, on the qualifications and experience needed by polygraph operators and how records of the polygraph sessions should be kept, thereby ensuring transparency on how this measure will be applied in practice. The regulations would be laid before Parliament for scrutiny in the usual manner.
As with all other measures contained in Schedule 1 to the TPIM Act, this measure will not be imposed unless the Home Secretary reasonably considers it necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. It is important that we harness available technology and provide our operational partners with the tools necessary to protect the public, and that is what the clause will do.
Turning our attention to Amendment 30C, as I have set out, Clause 41 adds the new polygraph measure to the list of available measures in Schedule 1 to the 2011 Act. Following Royal Assent, if the polygraph measures are imposed, a TPIM subject will be required to undertake a polygraph test. Failure to do so would, to answer the question posed by the noble Lord, Lord Paddick, be a breach of the TPIM measure. We appreciate the spirit in which the amendment has been tabled, but we respectfully disagree about the necessity of it. Condition D in Section 3(4) of the TPIM Act 2011 requires,
“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”
under a TPIM notice. In addition, Section 12(1)(c) of the TPIM Act requires,
“the Secretary of State reasonably considers that the variation is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.”
Therefore, all the measures imposed under a TPIM notice and any subsequent variation must be considered to be necessary for those purposes.
Baroness Hamwee (LD) [V]
My Lords, I may have missed it, but I am not sure that the noble Lord answered the point about the right to silence. It is difficult to read body language from eight miles away.
Lord Parkinson of Whitley Bay (Con)
I apologise. I did not do so, but if the noble Baroness is happy, I will write to her and follow it up, along with any other questions that I might have missed.
Baroness Hamwee (LD) [V]
Equally, of course, we will go through the Official Report to see whether all our concerns have been addressed. For now, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group consisting of Amendment 30E. 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.
Clause 42: TPIMs: drug testing measure
Amendment 30E
Baroness Hamwee
Member’s explanatory statement
This amendment would require reasonable suspicion before a requirement may be imposed under this section.
Baroness Hamwee (LD) [V]
My Lords, I think that, on the last grouping, the question which lay behind this amendment was answered—but let me just check. Clause 42 covers the drug testing measure. My first thought was whether a subject could be caught up in being tested and fail the test because someone else in the house was using drugs which were detected, perhaps under his fingernail. The amendment raises the issue of reasonable suspicion, but I think the noble Lord has confirmed condition D—that the Secretary of State reasonably considers, in this case, drug testing necessary for the purposes we have talked about. It is the “reasonableness” of that consideration; I think he has confirmed that that will apply. So that he can confirm it again, I beg to move.
Lord Paddick (LD) [V]
My Lords, our Amendment 30E relates to subjecting the subject of a TPIM to drug testing for class A and class B drugs only, at a police station by a constable only. I have rather different questions from those of my noble friend Lady Hamwee. The question I cannot find an answer to—and I cannot think of one myself—is, “Why?” One might cynically argue that a suspected terrorist high on cannabis might be too chilled out to conduct a terrorist attack; conversely, if the Government fear a suspected terrorist might do something stupid, for example being emboldened under the influence of a class A or class B drug, why not test for alcohol?
Bearing in mind the restrictions on the subject’s movements and communications and on who they can associate with, where do the Government think the subject of a TPIM will get his supply of class A or class B drugs? Indeed, if the subject is taking class A or class B drugs, under the noses of the police or security services, does this not raise questions about what else he might be getting his hands on, such as explosives? In short, what is the point, other than placing further restrictions, being even more intrusive and making the subject’s life even more difficult?
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I have nothing to add to the points made by the previous two speakers.
Lord Parkinson of Whitley Bay (Con)
My Lords, through Clause 42 we are adding a new measure to the list of available measures in Schedule 1 to the TPIM Act 2011. If it is imposed, a TPIM subject would be required to submit to a drug test and provide a relevant sample.
Operational experience has shown that, in certain circumstances, drug use can exacerbate the risk of a subject engaging in terrorism-related activity. This new measure will support operational partners to mitigate this risk by confirming suspected drug use through a mandatory drug test and, where necessary, mandating attendance at rehabilitation programmes. They will want to follow up the questions raised by the noble Lord, Lord Paddick, about where those drugs were obtained.
We consider this amendment unnecessary because the TPIM Act already contains robust safeguards regarding the imposition of all measures on TPIM subjects. Section 3 of the TPIM Act requires that at the point that a TPIM is first imposed the Home Secretary must reasonably consider that the TPIM notice and the measures specified within it are necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. Section 12 of the TPIM Act also requires that variations of measures specified in an existing TPIM notice, which would include the imposition of a drug testing measure, cannot be made unless the Home Secretary reasonably considers that the variation is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.
Given that existing requirement, the amendment proposed does not go further than the safeguards already in place. Furthermore, the existing requirements of the TPIM Act, to which I have just referred, apply to all measures rather than being confined solely to the drug testing measure as this amendment has it. For those reasons, we invite the noble Baroness to withdraw the amendment.
Baroness Hamwee (LD) [V]
My Lords, one might expect the Home Secretary asked to approve the measure to respond by asking those requesting it what the hell—sorry—the police were doing if they had not spotted that the subject was getting hold of drugs. As I anticipated, my question had already been answered. I hope that the hours that will be imposed—to pick up my noble friend’s comparison, which is not a comparison: alcohol is a drug too—will make it impossible to get hold of alcohol as well as drugs. However, my underlying question has been answered. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group consisting of Amendment 30F. 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.
Clause 43: TPIMs: provision of information
Amendment 30F
Baroness Hamwee
Member’s explanatory statement
This purpose of this amendment is to question the disclosure of information about an electronic device used by any other person.
Baroness Hamwee (LD) [V]
My Lords, Clause 43 is about the provision of information, including information about electronic communication devices—not just devices used by the individual, but those used by any other person in the individual’s residence. I have already referred to the impact of a TPIM on other members of the family. My recollection, which may not be absolutely accurate, is that a child’s lack of access to a computer was one of the things highlighted when control orders were abolished. The burden on children is, as I said, considerable, with bullying, confusion, being called a jihadi kid and all those things. This is presumably also one of the occasions when the condition about it being reasonably necessary will apply. Can the Minister confirm that this will not be invariable? In other words, will this disclosure requirement always be applied or will an assessment be made of its necessity? I beg to move.
Lord Paddick (LD) [V]
My Lords, the only thing that I will add to what my noble friend Lady Hamwee has said about this amendment is an assumption that, even if the subject of the TPIM provides the authorities with all the details of his or her communications equipment—computers, mobile phone and so forth—it would be possible that they could end up borrowing a device from somebody else in his or her household. That is what the authorities are seeking disclosure of, to ensure that they keep track of all the communications the subject of the TPIM is engaged in. As my noble friend Lady Hamwee said, the provisions contained within Section 43(2)(a) reinforce the fact that TPIMs can impact to a highly intrusive extent on innocent people living with the subject of the TPIM.
Lord Falconer of Thoroton (Lab) [V]
This amendment is probing the additional power given by Clause 43 of the Bill to allow the Secretary of State to seek disclosure of
“such details as may be specified of any electronic communication device possessed or used by the individual or any other person in the individual’s residence.”
Its purpose is readily understandable: namely, if the purpose of TPIMs is in part to prevent the subject of the TPIM communicating with anybody or receiving communications from anybody, the authorities should have the ability to look at all the electronic devices to which he or she has access.
However, as the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have both pointed out, that means, for example, that the wife, husband or children of a subject become subject themselves to an intrusive order. I would be very interested to know whether the authorities are going to take a different approach to the question of the subject of a TPIM’s own electronic devices, as opposed to those of his family or those belonging to those with whom he lives. What is the standard going to be? Necessary and proportionate? Strong case? I would be very interested to hear what it is. Just before I depart, I will pay tribute to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Although I have not agreed with every one of their amendments, they have shown indefatigable probing of this Bill and incredible good nature throughout.
Lord Parkinson of Whitley Bay (Con)
My Lords, I wholeheartedly agree with the final comments of the noble and learned Lord; that is exactly what Committee stage is for. It has been thorough but good natured, and long may that continue.
Clause 43 amends the existing electronic communication device measure in order that a TPIM subject will be required, upon request, to provide details of electronic communication devices—also known as ECDs—which they possess or use, or any such devices belonging to other individuals in their residence. It almost goes without saying that in the digital age in which we now live there is vast scope for ECDs to play a key role in the conduct or facilitation of terrorism-related activity, including attack planning and the radicalisation of others in a bid to inspire them to carry out a terrorist attack.
Amendment 30F would prevent the Home Secretary from being able to require TPIM subjects to provide details of electronic communication devices belonging to other people in their residence. This would significantly undermine the utility of the changes we are seeking to make and would ultimately be to the detriment of national security. We have seen in the past that TPIM subjects will access or try to access devices belonging to others in their household, as the noble Lord, Lord Paddick, rightly noted.
Clearly, there is an important balance to be struck between security and civil liberties, particularly of family members such as children. But we are clear, particularly given how sparingly we envisage this measure being imposed, that any impact on those residing with the TPIM subject—such as their family members—will be proportionate.
Preventing the Home Secretary from being able to require the provision of certain ECD-related information, as this amendment would have it, would leave a gap in a potentially useful information source which can assist with the effective management of the TPIM subject. I am happy to reassure noble Lords that, as with all measures contained in Schedule 1 to the TPIM Act, this measure will not be applied unless the Home Secretary reasonably considers it necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.
The Committee has already heard during the course of today’s debate that the TPIM regime has inbuilt and robust judicial oversight. This includes all TPIM subjects having an automatic right to have a court review of the imposition of their TPIM notice and each of the measures imposed, as well as a right of appeal should a TPIM subject wish to challenge a variation to one or more measures contained within the TPIM notice. This oversight will of course apply to the updated ECD measure proposed in this clause.
I hope that that provides noble Lords with the reassurances that they were hoping to receive and I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee (LD) [V]
My Lords, yes, I will seek to leave to withdraw my amendment.
I find it a bit difficult to understand in this connection how one applies proportionality. The question I asked of the Minister was whether this condition would be imposed in the case of every measure. Obviously, if there is nobody else living at the residence, it would be irrelevant. However—this is a bit rhetorical—how can one apply proportionality in this connection? Either you are concerned about communications through any electronic devices or you are not. I should probably leave that hanging, because it is really a rhetorical question.
I should not finish without thanking both noble Lords who have commented on our indefatigability and good humour. I am not sure whether the good humour showed throughout; I am glad that it appeared to. I acknowledge that picking up so many separate points must seem quite tedious, but quite a lot has come out, certainly that will help us to assess how to address these clauses at the next stage of the Bill, and reading every line and every word is what we are here for.
I apologise to noble Lords who had expected to be able to take part in the Statement on Myanmar, which is a very important and urgent issue. I am very sorry: it has nothing to do with any of us who are speaking and it is a great shame that that Statement was displaced from this evening.
I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 32. 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 debate.
Clause 47: Persons vulnerable to being drawn into terrorism: timing of independent review
Amendment 32
“(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 1 July 2021”.”Member’s explanatory statement
This amendment would reinstate a statutory deadline for the independent review of the Prevent strategy, which would have to report by 1 July 2021.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, my Amendment 32 would put into legislation a deadline for the Prevent review to be published. The Government commissioned the independent review in January 2019; it has been repeatedly delayed and postponed. The initial statutory deadline of 12 August 2020 will now be missed. The Government say that they intend to have the report by the summer of this year, but they will not commit to putting a date in the Bill. We have long campaigned for a wide-ranging and robust review, which we believe is the right approach. This amendment would reinstate a statutory deadline for the independent Prevent review.
Amendment 33 takes a slightly different approach, which is to put in place a timetable. It would ensure that the Prevent review and any recommendations were laid within 12 months rather than 18 months, as the Bill currently states. This issue has been mentioned a number of times in Committee, and I think I can guess what the Minister is going to say in response to these amendments. Nevertheless, we need to be as confident as we can be that we can get this deadline and have a reasonable timetable, because it is important that we get these things right and that people can consider the effectiveness of the Prevent programme. I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, I pay personal tribute to the stamina and persistence of my noble friends Lady Hamwee and Lord Paddick. I pay tribute also to the Ministers. The noble Lord, Lord Parkinson, came off the bench half way through the second half, and my noble friend Lord Paddick put up a high one, which unfortunately he dropped: the clash between the presumption of innocence and the requirement to answer a question in a polygraph, which I raised earlier. I was not satisfied with the answer that I got—that it is appropriate to question somebody after conviction, when they face a further term of imprisonment, without any form of caution. I do not think that our law is that they have to answer.
The Prevent strategy, with its statutory duty for schools, NHS trusts, prisons and local authorities to report concerns, has received much criticism. It is clear that it has not been thought fit for purpose in the Muslim community, which regards it, rightly or wrongly, as discriminatory. A lack of trust leads to a lack of co-operation. Consequently, the Government should accept the burden of completing at the earliest opportunity the review that they have announced. Deadlines have already been passed. I have no wish to go into the appointments that have been made save to wonder to what extent those who are immediately affected by the strategy have been involved.
Lord Paddick (LD) [V]
My Lords, I completely agree with my noble friend Lord Thomas of Gresford’s comments on the suspicions that many communities have about the Prevent programme, which is why, in the Counter-Terrorism and Border Security Act 2019, this House required the Government to undertake an independent review and report on the Government’s strategy for supporting people who are vulnerable to being drawn into terrorism. A timetable was set in the 2019 Act for the Government to make arrangements within six months of that Act being passed and to report within 18 months. As my noble friend said, Clause 47 attempts to remove any timetable for starting, let alone completing, the independent review of Prevent.
As my noble friend said, and as I said at Second Reading, the most important and effective way to keep people safe from terrorist attacks is to prevent those at risk of becoming involved in terrorism-related activity doing so in the first place. It is vital that we know how effective Prevent is at identifying those at risk of being radicalised and diverting them away from potential terrorist activity, and that this is done as quickly as is reasonably practicable. Unless problems are identified and addressed, lives could be put at risk.
The noble Lord, Lord Ponsonby of Shulbrede, suggests what might be described as a challenging and optimistic target of completing the review by 1 July 2021 in his Amendment 32. With the difficulties the Government have experienced over who should lead the review and the potential challenges ahead, there is a danger that a review within this timetable might not be thorough enough.
On 26 January, less than two weeks ago, the Government appointed a replacement independent reviewer of Prevent, William Shawcross. Mr Shawcross’s previous comments on Islam and the Iraq war have raised concerns in some quarters but, assuming he remains in post, the alternative timetable in our Amendment 33 should be achievable. This would give the Secretary of State six months to make arrangements for the review and for Mr Shawcross to lay before Parliament the report and any recommendations within a period of 18 months, beginning with the day this Bill is passed. I might be biased, but we prefer our Amendment 33.
Lord Parkinson of Whitley Bay (Con)
My Lords, both amendments in this group would add a new statutory deadline for the completion of the independent review of Prevent. I certainly share the Committee’s firm commitment to the success of that independent review. It was clear in this short but important debate that our common objective is for a thorough and effective review to take place—one that will help us to learn how best to safeguard those who are vulnerable to being drawn into terrorism.
However, we must allow the new reviewer sufficient time to conduct such a thorough and effective review. These amendments would limit his options for reasonable flexibility, shorten the timeframe that he is given and put at risk his ability to do his job properly.
As the noble Lord, Lord Paddick, outlined, the review restarted two weeks ago, on 26 January, with the appointment of William Shawcross as the new independent reviewer. Our aim has been for the review to be completed by no later than August this year, but we will agree the precise timetable with Mr Shawcross shortly. We want to enable him to complete the review as swiftly as possible while affording him the consideration that his important task requires.
Of course, the uncertainties posed by the ongoing pandemic, such as the prospect of further ongoing restrictions on travel and face-to-face meetings, could, self-evidently, have implications for the reviewer, as well as for his team and all those who wish to provide input into the review. I am afraid that we therefore have to consider the potential impact of that on his ability to take evidence, including the vital work of engaging with different parts of the community. As the noble Lords, Lord Thomas of Gresford and Lord Paddick, highlighted, that work is vital, as is, for example, the reviewer witnessing for himself Prevent delivery in action so that he can deliver the thorough and evidence-based review, with practical recommendations for improvement, that we would like.
The Government believe that August this year is achievable, but this is of course dependent on the views of the new reviewer. He is independent, so I cannot speak for him at the Dispatch Box. We therefore recommend that the legislation affords the reviewer flexibility, should he feel that he needs it, to ensure that the valuable work of this review is not undermined. But we certainly hear what all noble Lords have said about the urgency, and I hope that they can hear that we share that. For those reasons, I urge the noble Lord to withdraw his amendment.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I thank the noble Lord, Lord Thomas, for the rhetorical flourish at the end of his speech, when he said that the noble Lord, Lord Paddick, had been asking, “Why?”, on many of the previous groups. In his speech today, the noble Lord, Lord Thomas asked, “When will we get the Prevent review deadline?”
The Minister gave his reasons for putting Mr Shawcross in place. He has been in place for only two weeks and I understand that the Government have had problems in getting this review off the ground. I will not take a partisan view. I do not think that the amendment in my name is better than the one in the name of the noble Lord, Lord Paddick, but it is important to try to get a realisable date or timetable in the Bill so that the Government are held to that.
I will withdraw my amendment, but we might come back with a similar one at a later stage. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
We now come to the group beginning with Amendment 37. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and that anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Amendment 37
“Lone terrorists: review of strategy
(1) The Secretary of State must commission a review and publish a report on the effectiveness of current strategies to deal with lone terrorists.(2) A review under subsection (1) must be conducted by a person who meets the criteria for qualification for appointment to the Supreme Court, as set out in section 25 of the Constitutional Reform Act 2005 (qualification for appointment).(3) A review under subsection (1) must consider—(a) counter-terrorism policy;(b) sentencing policy as it applies to terrorist offenders;(c) the interaction and effectiveness of public services with respect to incidents of lone terrorist attacks.(4) For the purposes of subsection (3)(c), “public services” includes, but is not limited to—(a) probation;(b) the prison system;(c) mental health services;(d) local authorities; and(e) housing providers.(5) The Secretary of State must lay a copy of the report before Parliament.(6) A Minister of the Crown must table a motion in the House of Commons in relation to the report no later than three months after the report has been laid before Parliament.”Member’s explanatory statement
This new Clause ensures that the Government orders a judge-led review into the effectiveness of current strategies to deal with lone terrorists including, but not exclusively, current counter-terrorism and sentencing policy.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, Amendments 37 and 40 concern “lone terrorists” and the review of the strategy concerning them. Amendment 37 ensures that the Government will order a judge-led review into the effectiveness of current strategies to deal with lone terrorists, including, but not limited to, current “counter-terrorism policy” and “sentencing policy”. My right honourable friend Nick Thomas-Symonds has called for such a review, following the shocking and tragic incident in Reading on Saturday 20 June 2020, which was the third time in seven months that such devastation caused by a lone attacker has been seen on UK streets.
The review would undertake an assessment of the systemic response needed to address this threat, building on prior research and expertise. It would include an analysis of various public services: probation services, prisons, mental health services, housing providers and local authorities. Professor Ian Acheson, who completed a report for a Conservative Government, said last year:
“Our unsafe prisons provide a fertile breeding ground in which predators, peddling extremist and violent ideologies, can prey upon the vulnerable, creating significant risks to national security and the public at large.”
What steps are the Government taking to put forward a deradicalisation strategy in the prisons?
Amendment 40 looks at MAPPA—multiagency public protection arrangements—and its purpose is to encourage the Government to define which agencies are included within them. I have received a short briefing on this from Napo, and the point that the probation officers make is that the input into the MAPPA arrangements varies according to the individuals one is dealing with: it may be local faith-based groups, housing providers, social services, education providers or substance misuse agencies—a multitude of organisations could be called on to work within the MAPPA system. In this example—and, I have to say, in all examples that I have come across—the system is all about integrated working, and it would be helpful if the Government could offer some perspective on the agencies that they think should be working within the MAPPA system. I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, the lone terrorist poses a particular danger. “We do not understand them,” said the noble Lord, Lord Robathan, earlier this afternoon. By definition, the lone terrorist is not engaged in communications of any nature that could lead to his apprehension through ordinary surveillance methods and techniques. His motivation may be obscure and entirely personal to himself.
Nevertheless, he can cause huge and unexpected damage, as we saw in the London Bridge episode in Fishmongers’ Hall. In that case, the attacker had been released in the belief that he was no longer a danger to the public—yet, without any obvious motivation, he launched himself against those who were trying to help him.
I support Amendment 37, on the basis that public safety demands that we burrow down into the causes and motivations of the lone actor. The threat to public safety is such that the appointment of a judge, with all the powers that a Supreme Court judge has, is very appropriate.
Lord Paddick (LD) [V]
My Lords, the imperfections of remote working have again unfortunately intervened. I did ask to speak after the Minister on the last group, and I hope the Committee will indulge me if I ask one question of the Minister about the former group. The Government are saying that they hope the new independent reviewer of Prevent will produce his report by August this year. In our amendment, by my calculation, we are setting a deadline of August next year. Perhaps when the Minister responds to this group, he could also answer the question of why a 12-month deadline beyond what the Government are proposing themselves is not considered a reasonable time for that review to be undertaken.
Turning to this group of amendments, Amendment 37 requires a review and report on the effectiveness of current strategies to deal with lone terrorists. Amendment 40 calls for a report on which agencies are included within Multi Agency Public Protection Arrangements—or MAPPA—for the purpose of managing terrorist offenders. Both amendments are in the name of the noble Lord, Lord Ponsonby of Shulbrede.
In December 2017, the noble Lord, Lord Anderson of Ipswich, published his independent assessment of police and MI5 reviews into the Manchester Arena attack and three other incidents in London—all of which involved lone terrorists—which killed a total of 36 people. The report made 126 recommendations, later consolidated into 104 things that could have been done better by counterterrorism officials.
In 2019, the noble Lord, Lord Anderson of Ipswich, published a stocktake of progress on the recommendations in his 2017 report, including multiagency centres for managing the risk posed by those suspected of being engaged in terrorist activity, which presumably includes lone terrorists. I am not sure to what extent the review and reports the noble Lord, Lord Ponsonby, is calling for overlap with the work of the noble Lord, Lord Anderson of Ipswich. Perhaps the Minister can advise the Committee.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I apologise to the noble Lord. The delay in getting messages to the iPad on the Woolsack meant that I did not get the message that he wished to speak on the last group. But I now call the Minister, the noble Lord, Lord Parkinson of Whitley Bay.
Lord Parkinson of Whitley Bay (Con)
My Lords, the noble Lord, Lord Paddick, continues to prove himself doughty in the face of technological challenges, and I am happy to address the question he would have asked in the previous group. He makes a valid point about the much longer timeframe proposed in his amendment, which we debated in that group. As I said, however, because Mr Shawcross is an independent reviewer, I cannot speak for him at the Dispatch Box. We must speak to him and see what he feels is the timeframe he needs. If we are able to have that conversation and he feels able to give a view before Report stage, we will of course come back and report it, but it is for the independent reviewer to make his assessment of how long he needs to do the thorough job required, as I hope the noble Lord will understand.
Turning now to this group, Amendment 37 would require the Home Secretary to commission a new, judge-led review of the effectiveness of the Government’s strategy to deal with lone-actor terrorists. While I welcome the constructive spirit in which the noble Lord, Lord Ponsonby of Shulbrede, tabled this amendment, I must respectfully disagree over the need to add it to the Bill.
I reassure the noble Lord that a great deal of work is already under way to combat the terrorist threat, including that posed by lone actors. My right honourable friend the Security Minister talked in some detail about this in a speech he gave at RUSI in November last year—particularly the term “lone actor” itself. If the noble Lord has not seen it, it is well worth reading. I would be very happy to provide noble Lords with a copy of that speech if they would like it.
The Government have been clear that we will not hesitate to act where necessary. Following the attacks at Fishmongers’ Hall and in Streatham, we brought forward legislation to address flaws in the way terrorist offenders were managed. The legislation we are now debating marks the largest overhaul of terrorist sentencing in decades. It follows on from the Terrorist Offenders (Restriction of Early Release) Act 2020, which came into force in February last year. That Act was, as noble Lords will remember, emergency legislation. One of its effects was to prevent around 50 terrorist prisoners being automatically released after serving only half their sentence, by amending their release point to at least two-thirds of their sentence and ensuring they are released only after an assessment by the Parole Board.
Following the attack at Fishmongers’ Hall in November 2019, the Lord Chancellor and the Home Secretary commissioned Jonathan Hall QC to carry out an independent review of the effectiveness of the Multi Agency Public Protection Arrangements, or MAPPA, when it comes to the management of terrorism, terrorist connections and offenders of terrorism concern in the community. MAPPA is the process through which the police, the Prison Service and the probation service work together and with other agencies—including children’s services, adult social services, health trusts and authorities, and youth offending teams—to protect the public by managing the risks posed by violent and sexual offenders living in the community.
That review found that MAPPA is a well-established process, and Mr Hall did not conclude that wholesale change is necessary. He made a number of recommendations on how the management of terrorists can be improved. In response to the review, the Government will shortly be bringing forward policing and crime legislation implementing a number of his recommendations, including new powers of premises and personal search, and an urgent power of arrest for counterterrorism policing.
This ongoing work builds on the response to the 2017 attacks. Three of the attacks in 2017 were carried out by lone actors, as was the attack in Reading, as the noble Lord, Lord Ponsonby, reminds us, which we sadly saw more recently. In 2018, the Government published a strengthened counterterrorism strategy, known as Contest, following operational improvement reviews overseen by the noble Lord, Lord Anderson of Ipswich. As part of that strategy we have piloted new multiagency approaches at the local level—in London, the West Midlands and Greater Manchester—to enable MI5 and counterterrorism policing to share more information with a broader range of partners, including government departments, the devolved Administrations and local authorities. This has enabled us to identify, mitigate and disrupt threats earlier. Our superb police, and security and intelligence agencies work around the clock to keep us safe: they have disrupted 27 terrorist plots since 2017.
There are now more than 20 government departments and agencies involved in the delivery of Contest, and we have worked to build strong relationships with the private sector, the third sector and the wider public. We will continue to invest in these relationships and drive greater integration, recognising that to reduce the risk of terrorism we need not only a whole-of-Government but a whole-of-society approach. In the context of the wide-ranging work already under way and recently completed, the Government do not consider that the noble Lord’s amendment is needed.
I turn now to Amendment 40. This proposed new clause would require the Secretary of State to lay a report within 12 months of the Bill being passed, defining which agencies are included within MAPPA for the purposes of managing terrorist offenders. The agencies included in MAPPA are already listed in Section 325 of the Criminal Justice Act 2003. As has been mentioned already, these include criminal justice agencies such as the police and the probation service, as well as other agencies, including mental health services, social services and NHS England. These agencies are placed under a statutory obligation to work together to assess and manage the risk presented by serious offenders.
Moreover, agencies with a legal duty to co-operate with MAPPA must have regard to statutory guidance issued by the Ministry of Justice. This guidance, which also sets out which agencies must co-operate, is publicly available. Agencies that do not have a statutory duty to co-operate with MAPPA are not obliged to engage. There are, however, no barriers in place to prevent this engagement for the purposes of assessing and managing the risks presented by serious offenders. It is our belief that the right agencies already have a duty to co-operate in place, and, as such, they are listed publicly in the Criminal Justice Act.
I have already mentioned Jonathan Hall’s recent review of MAPPA. On the question of the identity of the agencies involved in MAPPA, he raised no issues. He did, however, raise questions about the way in which MAPPA agencies share information with each other, and the Government have confirmed in our response to his review that we will clarify the position in upcoming legislation to put the matter beyond doubt. We believe, therefore, that since this knowledge is already publicly available and enshrined in legislation, there is no need for this amendment. I hope the noble Lord agrees and that he will be willing to withdraw it.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I thank everyone who has spoken on this short group of amendments. The Minister offered to send the RUSI speech of his friend, which I would indeed be happy to read. The gist of his comments on Amendment 37 was that a judge-led review is not needed because there are other government reviews currently under way. I hear what he says, but I will reflect on the view he expresses.
On Amendment 40, he listed the statutory bodies that are required to co-operate with MAPPA, but I thought it was interesting that the list he read out was a much shorter list than the one I got from the probation officers, who said it was very important to go wider than the short list he mentioned and include, for example, local faith-based groups, education providers and third sector substance misuse agencies. Those sorts of agencies may well be very useful and informative for the MAPPA system. I hear what the noble Lord says about Jonathan Hall and the plan to help the different MAPPA agencies co-operate with each other, which must be the right way to proceed. I will reflect on what he said, and I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, we now come to the group beginning with Amendment 41, which is all government amendments. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate.
Schedule 13: Consequential and related amendments
Amendment 41
Lord Wolfson of Tredegar
“(b) in paragraph (a), for “that Act” substitute “the Counter-Terrorism Act 2008.””Member’s explanatory statement
This amendment makes a further consequential amendment to section 23A of the Terrorism Act 2000 needed as a result of Clause 1 of the Bill.
Lord Wolfson of Tredegar (Con)
My Lords, I shall speak also to Amendments 42 to 65 inclusive and to Amendments 69, 71, 72, 74 and 76. I make four very short points. First, the hour is late and getting later. Secondly, these are all technical and consequential amendments. Thirdly, we have placed an explanatory note for each of them, which I am sure Members of the Committee will have looked at. Fourthly, I propose to set out in a letter, which I shall place in the Library, a more detailed analysis of the admittedly somewhat arcane and, in many cases, technical and consequential nature of these amendments. I hope that in those circumstances, I can draw my remarks to a close there. Obviously, if noble Lords have specific questions, I will attempt to answer them now, but otherwise, I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, since requests to speak after the Minister are delivered to the Deputy Chairman of Committees by forked stick, perhaps I might comment on the earlier group concerning the review. Mr William Shawcross’s report on compensation for Libyan-backed terrorist atrocities in Northern Ireland was discussed on Monday. It was received by the Government last May but not published, as we have discussed. I hope that any review or report in the field that we have been discussing will not similarly be kept clutched to the Government’s bosom.
I have considered the government amendments to this schedule, and I am satisfied that they are consequential to amendments to legislation made necessary by this Bill and do not contain in themselves any questions of principle. I would not be surprised, given the complexity of the Bill, if other amendments emerged in the course of time.
Lord Paddick (LD) [V]
I am very grateful to my noble friend Lord Thomas of Gresford for doing the heavy lifting in looking at these amendments and reassuring me that there is nothing ugly lurking in the pile. I am grateful for the undertaking from the Minister to write to us with further details.
Lord Falconer of Thoroton (Lab) [V]
The only amendment I would like to mention is Amendment 60, which amends Section 250 of the Criminal Justice Act 2003 so that, according to the explanatory statement,
“the Parole Board will set the licence conditions for all prisoners to whom section 247A of that Act applies (restricted eligibility for early release) whose release is directed by the Board.”
Is this dealing with licence conditions where there is no right to early release or with licence conditions where there is a right to early release? If so, what is the effect of the amendment? It is the only amendment in this group that looked as if it might be doing something substantive. If the Minister would like to write to me, I will quite understand.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the comments of the noble Lords, Lord Thomas of Gresford and Lord Paddick. In response to the specific point put to me by the noble and learned Lord, Lord Falconer of Thoroton, in one sentence, the change is needed to ensure that there was clarity over the authority for setting licence conditions for terrorist offenders, whether serving standard, determinate, extended or other sentences. I shall include an explanation of the amendment in my letter. I hope that satisfies him; if he wants any further information, I would of course be happy to provide it.
Lord Wolfson of Tredegar
“Counter-Terrorism and Security Act 2015 (c. 6)
2A_ In section 44(2)(e) of the Counter-Terrorism and Security Act 2015 (provisions subject to review by the independent reviewer of terrorism legislation), for “Schedule 1” substitute “Schedules A1 and 1”.”Member’s explanatory statement
This amends the list of terrorism legislation which is subject to review by the independent reviewer to include the new Schedule A1 inserted into the Sentencing Code by Schedule 1 to the Bill.
Member’s explanatory statement
This removes a repeal to Schedule 2 to the Sentencing (Pre-Consolidation Amendments) Act 2020 that has already been made by the Sentencing Act 2020.
“(3A) In Schedule 22, paragraph 4 (prospective addition of offences to Schedule 1 to the Code), and the heading above it, are repealed to the extent that paragraph 4 is not yet in force when section 1 of this Act comes into force.”Member’s explanatory statement
This repeals a prospective amendment to the Sentencing Code made by Schedule 22 to the Sentencing Act 2020. The repealed amendment will be unnecessary if not yet in force when Clause 1 of the Bill comes into force.
Member’s explanatory statement
This amendment is consequential on the amendment at page 121, line 17.
“(6A) In section 255C (extended sentence prisoners and those not suitable for automatic release)— (a) for the heading, substitute “Prisoners not suitable for automatic release”;(b) in subsection (1)(a), after “prisoner” insert “or a serious terrorism prisoner (see section 255A(7) and (7A))”.”Member’s explanatory statement
This makes a consequential amendment to section 255C of the Criminal Justice Act 2003 reflecting the fact that those serving serious terrorism sentences will not be eligible for automatic further release after recall to prison.
Member’s explanatory statement
This removes an unnecessary amendment to the Sentencing Code.
Member’s explanatory statement
This removes an unnecessary amendment to the Sentencing Code.
“(21) In section 417(3) (commencement of provisions of Schedule 22 which relate to prospective abolition of sentences of detention in a young offender institution)—(a) in paragraph (a), for “38” substitute “38B”;(b) in paragraph (d), for “268” substitute “268C”;(c) in paragraph (f), after “paragraphs” insert “68A,”.(22) In Schedule 22 (amendments of the Sentencing Code, including in relation to the prospective abolition of sentences of detention in a young offender institution)—(a) for paragraph 36 substitute—“36_ In section 15 (committal for sentence of dangerous adult offenders)—(a) in subsection (1)(b), omit—(i) “of detention in a young offender institution or”;(ii) “266 or”;(b) in subsection (1A), omit “268A or”.”;(b) in paragraph 37 (amendments of section 59 of the Code)—(i) for “59(2)(h)” substitute “59(2)”;(ii) after “court)” insert “—(a) in paragraph (ga), for “sections 268B and” substitute “section”;(b) in paragraph (h),”;(c) in paragraph 38 (amendments of section 61 of the Code), after sub-paragraph (a) insert—“(aa) in subsection (2B), omit “268C(2)(b) or”;”;(d) after paragraph 38 insert—“38A_ In section 73(2A) (reduction in serious terrorism sentence for guilty plea), omit “268C(2) or, as the case may be,”.38B_ In section 74(4A) (reduction in serious terrorism sentence for assistance to prosecution), omit “268C(2) or”.”;(e) in paragraph 40 (amendments of section 166 of the Code), for “paragraphs 3 and 4” substitute “entries 3, 4 and 4A”;(f) in paragraph 46 (amendments of section 231 of the Code), at the end insert—“(d) in subsection (6A), for “sections 268C(2)(b) and” substitute “section”.”; (g) after paragraph 57 insert—“57A_ In section 282A (serious terrorism sentence of imprisonment: persons 21 or over), in the heading omit “: persons 21 or over”.57B_ In section 282B (serious terrorism sentence of imprisonment: circumstances in which required), omit subsection (1)(c).”; (h) in paragraph 62 (amendments of section 308(1) of the Code), after paragraph (a) insert—“(aa) in paragraph (aa), omit “268B or”;”;(i) after paragraph 68 insert—“68A_ In section 323 (minimum term order: other life sentences)—(a) in subsection (4), omit “268B(2) or” in both places;(b) in subsection (6)(b), omit “268B(2) or”.”;(j) in paragraph 70 (amendments of section 329 of the Code)—(i) after the opening words insert—“(za) in subsection (3), for “(4) to (5A)” substitute “(4), (4A) and (5)”;(ii) after paragraph (a) insert—“(aa) omit subsection (5A);”;(iii) in paragraph (b), after “(e)” insert “, (ea)”;(k) in paragraph 72 (amendments of section 397(1) of the Code)—(i) the words from “in the definition” to the end become sub- paragraph (a);(ii) at the end insert—“(b) in the definition of “serious terrorism sentence”, omit paragraph (a)(including the word “or” immediately after that paragraph).”;(l) for paragraph 73 (amendments of section 399 of the Code) substitute—“73_ In section 399 (mandatory sentences)—(a) in paragraph (b)—(i) in the opening words, omit “, custody for life”;(ii) in sub-paragraph (i), omit “, 274”;(iii) in sub-paragraph (ii), omit “273 or”;(b) in paragraph (ba), omit “268B or”.”;(m) before paragraph 80 (amendment of Schedule 18 to the Code) insert—“79A_ In Schedule 17A (serious terrorism offences), after paragraph 24 insert—“Space Industry Act 201824A_ An offence under any of the following provisions of Schedule 4 to the Space Industry Act 2018—(a) paragraph 1 (hijacking of spacecraft);(b) paragraph 2 (destroying, damaging or endangering the safety of spacecraft);(c) paragraph 3 (other acts endangering or likely to endanger safety of spacecraft);(d) paragraph 4 (endangering safety at spaceports).””;(n) in paragraph 101 (amendment of section 37 of the Mental Health Act 1983)—(i) in sub-paragraph (1), omit “, as amended by paragraph 73 of Schedule 24”;(ii) in sub-paragraph (2), for “273” substitute “268A, 273”;(iii) in sub-paragraph (3), after “(1B)” insert “—(a) in paragraph (aa), omit “section 268A or” and “282B(2) or”;(b) ”.”Member’s explanatory statement
This makes further amendments to Schedule 22 to the Sentencing Act 2020 (prospective amendments to the Sentencing Code in connection with the abolition of detention in a young offender institution) in consequence of the introduction by clauses 4 and 5 of serious terrorism sentences in England and Wales.
Member’s explanatory statement
This is consequential on the amendment at page 108, line 18.
Member’s explanatory statement
This is consequential on the amendment at page 108, line 18.
“(2A) The amendment made by sub-paragraph (2) does not apply where a person is convicted of an offence before the day on which this paragraph comes into force.”Member’s explanatory statement
This ensures that the transitional provision set out in Clause 21(2) in relation to the introduction of the new Schedule 13 to the Sentencing Code by that Clause also applies to the related consequential amendment.
Member’s explanatory statement
This leaves out an amendment to the Sentencing Act 2020 which is consequential on Schedule 8 to the Bill rather than Clause 21 (see also amendment at page 119, line 41).
“(a) in subsection (6A)(a), for “265” substitute “252A, 265”;”Member’s explanatory statement
This adjusts a consequential amendment to section 264 of the Criminal Justice Act 2003 to reflect an amendment made to that provision by the Sentencing Act 2020.
“(25A) In section 417(3) (commencement of provisions of Schedule 22 which relate to prospective abolition of sentences of detention in a young offender institution), in paragraph (c), after “51” insert “, 51A”.(25B) In Schedule 22 (amendments of the Sentencing Code, including in relation to prospective abolition of sentences of detention in a young offender institution)—(a) after paragraph 51 insert—“51A_ In section 252A (special sentence of detention for terrorist offenders of particular concern aged under 18), in subsection (4), for “21” substitute “18”.”;(b) in paragraph 70 (amendment of section 329 of the Sentencing Code in relation to the prospective abolition of sentences of detention in a young offender institution), before paragraph (a) insert—“(zb) in subsection (4A), omit paragraph (b) (and the word “or” immediately before it);”.”Member’s explanatory statement
This makes further amendments to the Sentencing Act 2020 which are consequential on the introduction of the new sentence for offenders of particular concern aged under 18 at the time of the offence by Clause 22.
Member’s explanatory statement
This is consequential on the amendment at page 115, line 24
Member’s explanatory statement
This is consequential on the amendment at page 115, line 24
“33A(1) The Rehabilitation of Offenders Act 1974 as it forms part of the law of Scotland is amended as follows. (2) In section 5 (rehabilitation periods for particular sentences)—(a) in subsection (1)(d), after “or section 209” insert “or 224B”;(b) in subsection (2F)(a)(ii), after “209” insert “or 224B”.(3) In section 5B (Table B - disclosure periods: service disciplinary cases), in the sixth entry of Table B, after “209” insert “or 224B”.”Member’s explanatory statement
This makes amendments to section 5 of the Rehabilitation of Offenders Act 1974 as it extends to Scotland, to ensure that section deals with the service equivalent of the new sentence for offenders of particular concern aged under 18 at the time of the offence, introduced by Part 3 of Schedule 8 to the Bill.
“(4A) In section 418 (commencement of provisions of Schedule 26 in relation to prospective abolition of sentences of detention in a young offender institution) after subsection (2) insert—“(2A) Paragraphs 13A, 20A and 24A (and paragraph 1 so far as it relates to them) also come into force at that time.”(4B) In Schedule 25 (amendments of Armed Forces Act 2006), omit paragraph 45(5).(4C) In Schedule 26 (further amendments of the Armed Forces Act 2006 in relation to prospective abolition of sentences of detention in a young offender institution)—(a) after paragraph 13 insert—“13A_ In section 219ZA (serious terrorism sentence for offenders aged 18 or over)—(a) in subsection (1)(e), omit “a sentence of custody for life or (as the case may be)”;(b) omit subsections (4) to (6);(c) in subsection (7), omit “Where the offender is aged 21 or over when convicted of the serious terrorism offence,”.”;(b) in paragraph 14 (amendments of section 219A of the 2006 Act), for sub-paragraph (a) substitute—“(a) in subsection (1)—(i) in paragraph (d), omit sub-paragraphs (i) and (iii);(ii) in paragraph (da), omit sub-paragraph (i);”;(c) in paragraph 15(a) (amendments of section 224A of the 2006 Act), after paragraph (ii) insert—“(iii) in sub-paragraph (iii), for “detention or imprisonment under section 268A or 282A” substitute “imprisonment under section 282A”;”;(d) in paragraph 18 (amendment of section 239 of the 2006 Act), after “pleas)” insert “—(a) in subsection (3A), omit—(i) “(4) or”;(ii) “268A or”;(b) in subsection (3B), omit “268C(2) or, as the case may be,”;(c) ”;(e) in paragraph 19 (amendments of section 260 of the 2006 Act)—(i) in sub-paragraph (a), after paragraph (ii) insert—“(iia) in paragraph (ca), omit “268A or”;”; (ii) for sub-paragraph (b) substitute—“(b) in subsection (4B)—(i) in paragraph (za), omit “268C(2) or”;(ii) in paragraph (a), omit “268(2) or”.”;(f) in paragraph 20 (amendments of section 261 of the 2006 Act), at the end insert— “(c) in paragraph (ba), omit “268A or”.”;(g) after paragraph 20 insert—“20A_ In section 261A(3) (life sentences: further provision)—(a) in paragraph (b), omit “268B(2) or”;(b) in paragraph (c)(i), omit “268B(2) or”.”;(h) in paragraph 21 (amendments of section 262A of the 2006 Act), for the words from “, in subsection (4)” to the end substitute—“(a) in subsection (2A), omit paragraph (b);(b) omit subsection (3A);(c) in subsection (4), omit paragraphs (d), (da), (e) and (f) treated as substituted in subsection (7) of section 329 of the Sentencing Code.”;(i) after paragraph 24 insert—“24A_ In section 304C (to be inserted by the Armed Forces Act 2016: reduction in sentence), in subsection (5A)—(a) omit “268C(2) or”;(b) for “section 219ZA(5) to (8)” substitute “section 219ZA(8)”.””Member’s explanatory statement
This amendment makes further amendments, to the provisions of the Sentencing Act 2020 dealing with the abolition of detention in a young offender institution, which are consequential on the provisions of the Bill dealing with sentencing under service law.
“(2A) In section 250 (licence conditions)—(a) in subsection (5A), in each of paragraphs (a) and (b), after “a prisoner” insert “, other than a terrorist prisoner,”;(b) after subsection (5A) insert—“(5AA) Subsection (5B) also applies to a licence granted, either on initial release or after recall to prison, to a terrorist prisoner in a case where the licence is granted following a direction of the Board for the prisoner’s release.”;(c) omit subsection (5BA);(d) after subsection (8) insert—“(9) In this section “terrorist prisoner” means a prisoner to whom section 247A applies, or would apply but for the prisoner’s having been released on licence.””Member’s explanatory statement
This amends section 250 of the Criminal Justice Act 2003 so that the Parole Board will set the licence conditions for all prisoners to whom section 247A of that Act applies (restricted eligibility for early release) whose release is directed by the Board.
“Social Work (Scotland) Act 1968 (c. 49)
45A_ In section 6A(1)(d) of the Social Work (Scotland) Act 1968 (inquiries into detention of children under certain enactments), after “44” insert “, 205ZC(5)”.”Member’s explanatory statement
This amendment enables an inquiry to be held under section 6A of the Social Work (Scotland) Act 1968 into the detention of a child under the new terrorism sentence introduced by Clause 23.
“Rehabilitation of Offenders Act 1974 (c. 53)
45B_ In section 5 of the Rehabilitation of Offenders Act 1974 as it forms part of the law of England and Wales (rehabilitation periods for particular sentences), in subsection (1)(d)—(a) for “Act 1975” substitute “Act 1995”;(b) for the words from “section 206” to the end substitute “section 205ZC(5) or 208 of the Criminal Procedure (Scotland) Act 1995;”. 45C_ In section 5 of the Rehabilitation of Offenders Act 1974 as it forms part of the law of Scotland (rehabilitation periods for particular sentences)—(a) in subsection (1)(da), after “section” insert “205ZA(6)(serious terrorism sentence for young offenders), 205ZC(4) or (5)(terrorism sentence for young offenders or children),”;(b) in subsection (12), in paragraph (b) of the definition of “custodial sentence”, after “44,” insert “205ZA(6), 205ZC(4) or (5),”.”Member’s explanatory statement
This makes amendments to section 5 of the Rehabilitation of Offenders Act 1974 so that it will deal with the new sentences introduced by Clauses 6 and 23.
“(1) The Prisons (Scotland) Act 1989 is amended as follows.”Member’s explanatory statement
This amendment is consequential on the amendment at page 122, line 18.
Member’s explanatory statement
This amendment is consequential on the amendment at page 122, line 18.
“(3) In section 40(3)(a)(arrest of absent prisoners: application of section to persons sentenced or ordered to be detained under certain provisions of the 1995 Act), after “205” insert “, 205ZC(5)”.”Member’s explanatory statement
This amendment amends section 40(3)(a) of the Prisons (Scotland) Act 1989 so as to make section 40 applicable in relation to children sentenced to detention under the new terrorism sentence introduced by Clause 23.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
We now come to the group beginning with Amendment 66. I remind noble Lords that anyone wishing to speak after the Minister’s reply should email the clerk during the debate.
Amendment 66
Lord Stewart of Dirleton
“(1A) In section 1(3A) (release of short-term, long-term and life prisoners serving concurrent sentences), for “section 1A” substitute “sections 1A and 1B”.”Member’s explanatory statement
This amendment is consequential on the insertion of new section 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 made by the amendment at page 123, line 6.
Lord Stewart of Dirleton (Con)
In moving the amendment in the name of my noble friend Lord Wolfson of Tredegar, I shall speak also to Amendments 67 and 70, also in his name. These amendments are intended to modify Scottish provisions on sentencing with the intention of providing that, throughout the United Kingdom, terrorist offenders serve the appropriate custodial period of sentences for terrorism offences. They are made necessary by an aspect of Scottish sentencing practice that does not appear elsewhere in the United Kingdom.
The three amendments, taken together, make provision for technical sentence calculation adjustment. They clarify how terrorism sentences will operate when served consecutively with non-terrorism sentences. The amendments come at the end of a positive engagement with the devolved Government; as a result of that engagement, the Scottish Government have now tabled a legislative consent Motion in respect of this Bill.
As I said in the course of these brief remarks, the amendments are technical in nature and I shall be happy to place detail of them and their implications in a letter in the Library of this House. I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, I am most grateful to the noble and learned Lord, Lord Stewart, for moving these amendments and for pronouncing “Tredegar” correctly. I am sure that the noble Lord who hails from, or has a connection with, Tredegar, will be happy with his pronunciation as well. I have looked at these Scottish provisions. I agree that they are technical, and I really have nothing to add.
Lord Paddick (LD) [V]
My Lords, I am minded to say, “Like the last lot”—but I am very grateful to my noble friend Lord Thomas of Gresford, and to the noble and learned Lord, Lord Stewart, for his offer to write with details. I would just say that I think it is rather cruel and inhumane to expect three government Ministers to be forced to remain to the end of the evening; perhaps they can come to some better arrangement on a future occasion.
Lord Falconer of Thoroton (Lab) [V]
Like the noble Lord, Lord Paddick, I too am grateful to the four Ministers for the care and good humour with which they have dealt with it all. Of the three amendments, Amendment 66 looks entirely technical. As the noble and learned Lord, Lord Stewart of Dirleton, says, Amendment 67 deals with a situation where you have a non-terrorist sentence and then, consecutively, before or after, a terrorist sentence. I cannot work out how you deal with that situation for the purposes of licences as a result of this amendment. Hopefully, that will be explained to us—for reasons that may be entirely my fault, it is not entirely clear to me from the wording of the amendment. As I understand it, Amendment 70 again deals with the position of consecutive sentences; and again, the effect of that is not entirely clear to me. It might be significant, because what we are dealing with are very long sentences. So I hope that the noble and learned Lord will explain this when he comes to write his letter to us. I am very much obliged.
Lord Stewart of Dirleton (Con)
My Lords, I will undertake to provide that explanation on what are, as all the speakers who have kindly commented on the provisions have remarked, matters of a technical nature.
Lord Stewart of Dirleton
“(3) In the heading of section 1A, after “to” insert “certain”.(3A) After section 1A insert— “1B Prisoners serving consecutive sentences including at least one terrorism sentence(1) This section applies where—(a) a prisoner has been sentenced to two or more terms of imprisonment which are to be served consecutively on each other,(b) one or more of the sentences (the “terrorism sentence”) was imposed in respect of an offence within section 1AB(2), and(c) the sentences were imposed on the same occasion or, where they were imposed on different occasions, the prisoner has not been released under this Part at any time during the period beginning with the first and ending with the last of those occasions.(2) If the prisoner is serving a terrorism sentence and a sentence imposed in respect of an offence that is not within section 1AB(2) (a “non-terrorism sentence”), the terrorism sentence is to be served (or, where subsection (7) applies, treated as being served) after the non-terrorism sentence irrespective of when the sentences were imposed.(3) Where subsection (2) applies, the prisoner is to be taken to begin serving the custodial part of the terrorism sentence (or first such sentence) as soon as the prisoner has served the custodial part of the non-terrorism sentence.(4) If (but for this section) the prisoner would have been released on licence under this Part in respect of a non-terrorism sentence, the period during which the prisoner would have been on licence under this Part is to be served concurrently with the custodial part of the terrorism sentence.(5) The prisoner may not be released under this Part in respect of the terrorism sentence unless and until the prisoner has served the aggregate of—(a) if the prisoner is serving a non-terrorism sentence, the custodial part of the sentence, and(b) the custodial part of each terrorism sentence that the prisoner is serving.(6) Subsection (7) applies where—(a) a non-terrorism sentence is imposed on the prisoner (the “new sentence”), and(b) the prisoner has already served part of the custodial part of a terrorism sentence (the “served part”).(7) The prisoner is to be treated as having served—(a) where the served part is less than the custodial part of the new sentence, such part of the custodial part of the new sentence as is equal to the served part,(b) where the served part is equal to the custodial part of the new sentence, the custodial part of the new sentence,(c) where the served part exceeds the custodial part of the new sentence—(i) the custodial part of the new sentence, and(ii) so much of the custodial part of the terrorism sentence as is equal to the amount by which the served part exceeds the custodial part of the new sentence.(8) Nothing in this Part requires—(a) the Scottish Ministers to release the prisoner in respect of any of the terms of imprisonment unless and until they are required to release the prisoner in respect of each of the other terms of imprisonment,(b) the Scottish Ministers or the Parole Board to consider the prisoner’s release in respect of any of the terms of imprisonment unless and until the Ministers are or the Board is required to consider the prisoner’s release, or the Ministers are required to release the prisoner, in respect of each of the other terms. (9) If the prisoner is released on licence under this Part the prisoner is to be on licence, on and after the release, until the prisoner would, but for the release, have served a term equal in length to the aggregate length of the term of imprisonment of any non-terrorism sentence and the term or, as the case may be, terms of imprisonment for the terrorism sentence or sentences less the period mentioned in subsection (10).(10) The period is—(a) any period served concurrently in accordance with subsection (4), and(b) if (but for this section) the prisoner would have been released unconditionally under section 1(1) in respect of a non-terrorism sentence, the period equal to one-half of the term of that sentence.(11) Where a prisoner to which this section applies is released on licence under this Part (other than a licence under section 3AA), the release is to be on a single licence which is to be subject to such conditions as may be specified or required by this Part in relation to all the sentences in respect of which the prisoner has been so released.(12) In this section “custodial part”, in relation to a term of imprisonment means a period equal to the part of the term that (but for this section) the prisoner would be required to serve before—(a) the Scottish Ministers are required to release the prisoner under this Part, or(b) the Parole Board is first entitled under this Part to make a recommendation that the prisoner be released on licence under this Part.(13) In this section—(a) references to a non-terrorism sentence include references to two or more such sentences that are treated as a single term by virtue of section 27(5) (whether imposed before, after or both before and after a terrorism sentence), and(b) where subsection (7) applies, the references in that subsection to the “custodial part of the new sentence” include references to the custodial part of the single term.””Member’s explanatory statement
This amendment inserts new section 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993. New section 1B makes provision where a prisoner is serving consecutive sentences including at least one terrorism sentence to which section 1AB of the 1993 Act applies, including provision consequential on the amendment of section 27 of the 1993 Act made by the amendment at page 125, line 15.
“(5A) In section 3A (re-release of prisoners serving extended sentences)—(a) in the heading, after “serving” insert “certain terrorism sentences and”;(b) in subsection (1), for the words from “an” to “sentences)” substitute “a sentence mentioned in subsection (1ZA)”;(c) after subsection (1) insert—“(1ZA) The sentences are—(a) a sentence imposed under section 205ZA of the 1995 Act (serious terrorism sentence);(b) a sentence imposed under section 205ZC of that Act (terrorism sentence with fixed licence period);(c) an extended sentence under section 210A of that Act.”;(d) in subsection (3), after “term with” insert “the sentence under section 205ZA or, as the case may be, section 205ZC or”;(e) in subsection (4), for the words from “if” to the end substitute— “(a) where—(i) the prisoner is serving a sentence imposed under section 205ZA or 205ZC of the 1995 Act or an extended sentence under section 210A of that Act in respect of a terrorism offence, and(ii) the Board is satisfied that the condition in subsection (4A) is met (but not otherwise),direct that the prisoner should be released;(b) where—(i) the prisoner is serving an extended sentence under section 210A of that Act in respect of a sexual or violent offence, and(ii) the Board is satisfied that the condition in subsection (4B) is met (but not otherwise),direct that the prisoner should be released.”;(f) after subsection (4) insert—“(4A) The condition is that it is no longer necessary for the protection of the public that the prisoner should be confined.(4B) The condition is that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined.”(5B) In section 3B (review of decisions as to determinate sentences)—(a) in subsection (1)(a), after “from” insert “a sentence imposed under section 205ZC of the 1995 Act or”;(b) in subsection (1)(b)—(i) after “serving” insert “a sentence imposed under section 205ZC of the 1995 Act or”;(ii) after “sentence”, in the second place it occurs, insert “or extended sentence”;(c) in subsection (4)(b), after “relates to” insert “a sentence imposed under section 205ZC of the 1995 Act or”.”Member’s explanatory statement
This amendment amends sections 3A and 3B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in consequence of the new terrorism sentences introduced by Clauses 6 and 23.
“(aa) in subsection (5), after paragraph (a) (but before the final “and”) insert—“(aa) sections 3A and 3B of this Act apply to children on whom detention has been imposed under section 205ZC(5) of the 1995 Act as they apply to long- term prisoners;”;”Member’s explanatory statement
This amendment amends section 7(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 so as to ensure that sections 3A and 3B of that Act apply in relation to children who are sentenced to detention under the new terrorism sentence introduced by Clause 23.
(a) in respect of an offence within section 1AB(2), and(b) on or after the coming into force of paragraph 48(3A) of Schedule 13 to the Counter-Terrorism and Sentencing Act 2021.”Member’s explanatory statement
This amendment makes provision so that terrorism sentences to which section 1AB of the Prisoners and Criminal Proceedings (Scotland) Act 1993 apply will not be treated as a single term for the purposes of Part 1 of the Act.
Lord Wolfson of Tredegar
“(i) Part 3 of that Schedule, except as mentioned in subsection (3)(hb);(ia) Part 4 of that Schedule;”Member’s explanatory statement
This is consequential on the amendment at page 44, line 11.
Member’s explanatory statement
This amendment is consequential on the amendments at page 122, line 2.
“(q) sections 31 and 32;”Member’s explanatory statement
This amendment will ensure that Clause 32 of the Bill (polygraph conditions for terrorist offenders: England and Wales) comes into force 2 months after Royal Assent (rather than by regulations).
“(i) Part 1 of that Schedule, except as mentioned in subsection (3)(ha);(ia) Part 2 of that Schedule;”Member’s explanatory statement
This is consequential on the insertion made by the amendment at page 44, line 11.
Member’s explanatory statement
This amendment is consequential on the removal of Clauses 33 to 35 of the Bill and on the amendment at page 43, line 27.
“(ha) paragraph 6(3)(a) and (3A) of Schedule 13 as they have effect for the purposes mentioned in paragraph (a) above (and section 48 to the extent that it relates to those provisions for those purposes);(hb) Part 3 of Schedule 13 as it has effect for the purposes mentioned in paragraph (f) above (and section 48 to the extent that it relates to that Part for those purposes);”Member’s explanatory statement
This amendment ensures that consequential amendments made by Schedule 13, so far as they relate to provisions in the Bill which will be brought into force by regulations, will also be brought into force by regulations.
Lord Parkinson of Whitley Bay (Con)
My Lords, with thanks to all noble Lords who have enabled us to complete the Committee’s scrutiny of the Bill this evening, I beg to move that the House do now adjourn.