House of Lords
Arrangement of Business
The Senior Deputy Speaker (Lord McFall of Alcluith)
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber and others are participating remotely, but all Members will be treated equally. I ask all Members to respect social distancing, and if the capacity of the Chamber is exceeded, I will immediately adjourn the House. Oral Questions will now commence. Please can those asking supplementary questions keep them no longer than 30 seconds and confined to two points? I ask that Ministers’ answers are also brief.
Northampton Town Football Club
(3 years, 9 months ago)
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Lord Kennedy of Southwark
To ask Her Majesty’s Government what assessment they have made of the report by KPMG Northampton Borough Council: Report in the public interest regarding the Council’s loans to Northampton Town Football Club, published on 27 January; and what steps they are taking in response to any such assessment.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and in doing so I declare my registered interest as a vice-president of the Local Government Association.
The Minister of State, Home Office and Ministry of Housing, Communities and Local Government (Lord Greenhalgh) (Con)
We are aware of the public interest report concerning Northampton Borough Council. However, it is for the council to consider and respond to the issues raised in the report. On 22 February, the council set out its response to the report’s recommendation, and it will be for it and its successor council to implement.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, does the noble Lord, Lord Greenhalgh, agree that this is a terrible scandal—a failure of due diligence, of governance and of leadership which has let down the residents of Northampton and lost them over £10 million, and has let down the supporters of Northampton Town Football Club, who have a half-built stand? The club was formed in 1897 and was affectionately known as “The Cobblers” in recognition of the town’s historic connections to the boot and shoe industry. Northampton Borough Council is about to be abolished, so can the noble Lord tell me how those responsible for this scandal will be held to account and made to pay?
Lord Greenhalgh (Con)
My Lords, I join the noble Lord in condemning any situation where money is lent in a way that does not secure the amount that has been lent, resulting in taxpayers being out of pocket. We recognise the importance of carrying out the recommendations that were outlined in the public interest report and will monitor the situation and see how things progress.
Lord Flight (Con) [V]
What lessons can be learned from the Northampton Town Football Club case and what steps, if any, should the Government take to ensure that all councils have rigorous procedures for protecting and safeguarding public funds?
Lord Greenhalgh (Con)
My Lords, there is a trend towards an increasing reliance on commercial income as a way of balancing the books. Therefore, the Government are doing two things. We are undertaking a complete review of the prudential framework that governs loans of this nature, and the Public Works Loans Board has changed the lending conditions to ensure that local authorities cannot take on debt as a way of pursuing commercial income.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, the Minister is missing the point. Will he confirm that David Mackintosh was leader of the council when this loan, which is the subject of irregularities, was made, and that the chairman of Northampton Town Football Club and some of the businessmen associated with it then gave money to David Mackintosh’s election account when he stood as a Tory Member of Parliament? These donations were not declared, and the Electoral Commission has asked the police to investigate this as well. Will the Minister explain what the police are doing, when they will report, and when the Conservative Party will admit that this has been a terrible scandal on its watch?
Lord Greenhalgh (Con)
My Lords, if there are criminal matters, it is for the police to investigate those, and it is for the Electoral Commission to investigate any other wrongdoings. It is important that we learn the lessons of this, so that it does not happen again, and that the recommendations that follow from the public interest report are carried out in full.
Lord Addington (LD)
My Lords, if we take it as read that something has gone very wrong politically here, could the Minister cast his eye over the situation of Northampton football club? Would its situation be better if the Government had taken seriously the suggestion by the Minister’s honourable friend Helen Grant that there should be a commissioner to look at football finance, which could be funded by football? Surely that might have taken the edge off the situation.
Lord Greenhalgh (Con)
My Lords, I am not an expert in football finance, but I can say that it is very ill-advised for the leader of any council to undertake a loan that is not properly secured; this has resulted in the loss of a tremendous amount of income to the people of Northampton.
Lord McColl of Dulwich (Con) [V]
My Lords, I am very pleased to hear that the Government plan to try to deal with the situation, but it is not a petty party-political thing. The noble Lord, Lord Kennedy of Southwark, is of course not involved in petty party politics; he was just trying to make sure that this situation did not arise in the future.
Lord Greenhalgh (Con)
My Lords, I take that as a comment on the intentions of the noble Lord, Lord Kennedy, rather than a question.
Lord Mann (Non-Afl)
There are good examples abroad of effective state investment into football facilities; for example, the huge Ajax stadium owned by the council in Amsterdam. Should not the Government consider, in good time, looking at the relationship between local government and major sport and learning some of the positive lessons from abroad, where money has been invested but with good returns and some community benefit guaranteed?
Lord Greenhalgh (Con)
My Lords, in preparation for this Question, I asked my officials whether it was in any way illegal to loan the money to Northampton Town Football Club. It is not illegal. The issue at hand is that the terms and security that were guaranteed were not sufficient. I am sure that there are lessons to be learned on the involvement of public expenditure in supporting sport in the way described.
Lord Holmes of Richmond (Con)
My Lords, building on the point made by the noble Lord, Lord Mann, would my noble friend agree that there are good examples of local authority investment in sport stadia and other commercial entities and that it can be a clear part of place-based growth and a real sense of community? What went wrong here? Is there any need to review the legislation governing local authorities in this regard?
Lord Greenhalgh (Con)
My Lords, there are plenty of examples of investment in community sport infrastructure by local authorities and a lot of them make sense. What does not make sense is the pursuit entirely for commercial income. We saw in the London Borough of Croydon the investment in the Croydon Park Hotel, for instance. Another example is the Robin Hood Energy company in Nottingham, where there was an overreliance on commercial income to balance the books.
Lord McNally (LD) [V]
My Lords, will the Minister promise to bring this exchange to the attention of his colleague Nigel Huddleston, the Minister for Sport, and suggest to him that it is time for the Conservative Government to fulfil their manifesto commitment to a fan-led inquiry into the governance of football?
Lord Greenhalgh (Con)
My Lords, I am happy to take away all these suggestions around how we can improve the governance of our national game.
Lord Taylor of Warwick (Non-Afl) [V]
My Lords, this is sad, because football is about romance, not just finance. Fans love their local club, whatever division it plays in. Although this is about a council loan, the loyal fans of Northampton Town Football Club, which formed in 1897, had their hopes of a new stadium dashed. Will the Government take into account the findings not only of the KPMG public interest report but the report of the then internal auditor, PricewaterhouseCoopers, in 2016, which also made various recommendations?
Lord Greenhalgh (Con)
My Lords, I am sure that the successor council will take on board the recommendations of the public interest report and any recommendations that have come out of the local audit system. It is important that those are acted on.
Lord Bhatia (Non-Afl) [V]
[Inaudible]—the football club will not be able to repay the loan in view of the pandemic restrictions.
Lord Greenhalgh (Con)
I am not entirely sure I got the gist of the question. I am sure that the noble Lord agrees with the sentiment that we should learn the lessons of this transaction and ensure that future investment is properly secured.
The Senior Deputy Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have been asked and we now move to the second Oral Question.
United Kingdom Resettlement Scheme
(3 years, 9 months ago)
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Baroness Ludford
To ask Her Majesty’s Government what is the planned (1) programme, and (2) timetable, for refugee resettlements under the United Kingdom Resettlement Scheme.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the UK Government are committed to resettling refugees to the UK and we continue to work closely with domestic and international partners to assess capacity for resettlement activity as we recover from the pandemic. This commitment, alongside a fair and firm asylum system, will ensure that we continue to offer safe and legal routes to the UK for vulnerable refugees who need our protection.
Baroness Ludford (LD) [V]
My Lords, only 800 people were resettled in the UK last year, compared to 5,600 in 2019. This is against the UNHCR’s assessment of the global need for almost 1.5 million places. Why have the Government failed to fulfil their pledge of a new consolidated UK resettlement scheme to succeed the schemes closed a year ago? Will the Minister now give an assurance not only of 5,000 places here in the current year but of an ambitious 10-year commitment to resettle vulnerable refugees from Syria and other conflict areas?
Baroness Williams of Trafford (Con)
I am very glad that the noble Baroness recognises the extent of our efforts to resettle people who need our protection. She is right to point out that not many resettled last year, but of course we had, and continue to have, a global pandemic. To move people, unless absolutely vital, was not advisable at that time. However, it is vital that we continue to provide those safe and legal routes for people in need of our protection. Refugee resettlement will continue to be a core safe and legal route for those vulnerable people.
Lord Touhig (Lab) [V]
Across Europe, hundreds—perhaps thousands—of unaccompanied young refugees are suffering. They are being abused and trafficked, are self-harming and some have taken their own lives. In January 2020, the Parliamentary Assembly of the Council of Europe, which Winston Churchill helped found and of which we remain leading members, called for each member state to appoint a parliamentary commissioner to oversee the work of caring for refugee migrant children. What has been the Government’s response?
Baroness Williams of Trafford (Con)
The noble Lord will know that we have left the European Union—[Interruption.] I will get to that if noble Lords do not interject. Our commitment is to resettle people from around the world who need our protection. It has been difficult to achieve resettlement in the last few months, but our commitment is not dimmed despite the pandemic hindering some of our efforts.
Baroness Sheehan (LD) [V]
My Lords, the Government’s own documents say that resettlement schemes
“target those in greatest need … including … survivors of violence and torture, and women and children at risk.”
Does the Minister agree that an apology is owed to the 3,477 people accepted on to the new UK resettlement scheme this year for the unexplained and, quite frankly, inexplicable delay to their arrival in the UK?
Baroness Williams of Trafford (Con)
Naturally the pandemic has hindered our efforts. Everything has been delayed, including resettlement schemes. We have restarted the resettlement schemes because we have reached over 20,000 under our previous commitment. I am not sure “apology” is the right word as we are doing everything we can, and we have restarted our resettlement schemes.
Lord Vaizey of Didcot (Con)
My Lords, I mention in passing how much work is being done by Arts Council-funded organisations to support and help refugees. I have a specific question for the Minister: how many family reunion visas have been granted in the last five years?
Baroness Williams of Trafford (Con)
I join my noble friend in paying tribute to those Arts Council organisations. Their efforts are very much appreciated. We have issued almost 30,000 family reunion visas in the last five years. This House often goes on about Dublin transfers, quite rightly, but those figures pale into insignificance compared with the number of family reunion visas we have issued.
Baroness Wheatcroft (CB) [V]
My Lords, the Minister explained delays in getting refugees into this country as being due to the pandemic. But in 2019, UK resettlement took 63 weeks on average, compared with the 35 weeks that had previously been the norm. Can the Minister explain why that process had lengthened to such an extent and reassure the House that this prolonged delay is not an attempt to reduce refugee resettlement?
Baroness Williams of Trafford (Con)
Any delays in resettlement are in no way an attempt to frustrate resettlement—quite the contrary. My noble friend will have heard me say how many people we resettled between 2010 and this year under the vulnerable persons resettlement scheme, which was well over 20,000—far in excess of some of the numbers suggested. It is absolutely not an attempt to frustrate the system; in fact, we have restarted our resettlement schemes.
The Lord Bishop of Durham [V]
I am a trustee of Reset and a member of the RAMP project. As the Minister knows, stakeholders continue to warn that, without parity of the timing of the resettlement scheme and a long-term funding commitment, they are unable to plan their services to resettle refugees. Indeed, some are having to place staff on notice and scale back their existing operations. Can the Government confirm now when the scheme will be launched for the long term with secure funding from the Treasury?
Baroness Williams of Trafford (Con)
I am most grateful to the right reverend Prelate for the meeting I had with him and Reset. We talked about funding and the importance of the security of funding. We will continue with resettlement. That process has been paused and almost stopped at times, but we are reworking our approach to asylum to deliver a fair but firm system. I look forward to bringing those provisions forward.
Lord Balfe (Con)
My Lords, the key word in the Minister’s Answer was “legal”. I point out that we have a lot of refugee programmes and a visa programme for Chinese nationals. When we look at the resettlement scheme, I ask the Minister to ensure that, when we choose the refugees to resettle, we pay some attention, like the Canadian Government do, to the contribution they can make to the British economy and its future?
Baroness Williams of Trafford (Con)
I totally agree with my noble friend. Just because someone is a refugee, it does not mean they cannot contribute to society and the economy. Many of them can and are highly skilled. Going back to the conversation I had with the right reverend Prelate the Bishop of Durham, that is precisely what we are looking at. These people have much to contribute to our economy.
The Earl of Sandwich (CB) [V]
We in the UK cannot easily imagine and must not forget the extent of suffering in cities such as Aleppo and Idlib. I am glad we have a good reputation for resettlement. Following the right reverend Prelate’s question, can the Government explain the true situation of local authorities and confirm that they really are ready to welcome a further 5,000 vulnerable refugees under the new UK resettlement scheme? What is the cause of any delay? I understand people are being laid off.
Baroness Williams of Trafford (Con)
The noble Earl is right to point out that we are dependent on local authority places and accommodation to bring forward resettlement. We are very grateful to local authorities, but we cannot go beyond their capacity. We will launch the new UK global resettlement scheme in March this year. We intended to launch it in March last year, but clearly the pandemic placed restrictions on this. Resettlement arrivals have been coming since December 2020. We have received regular calls for that commitment, and it will be forthcoming.
The Senior Deputy Speaker (Lord McFall of Alcluith)
My Lords, all supplementary questions have now been asked and we move to the next Question.
Wales: Replacement Funding
(3 years, 9 months ago)
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Lord German
To ask Her Majesty’s Government how the money replacing funding previously provided by the European Union in Wales will be administered.
The Minister of State, Home Office and Ministry of Housing, Communities and Local Government (Lord Greenhalgh) (Con)
The UK shared prosperity fund will help to level up and create opportunity across the United Kingdom in places most in need and for people who face labour market barriers. The UK-wide investment framework will be published later this year. In addition, to help local areas prepare over 2021 and 2022 for the introduction of the UK shared prosperity fund, we will provide £220 million of additional UK funding to support our communities to pilot programmes and new approaches.
Lord German (LD) [V]
The Minister told the House last year that Wales would receive at least the same sums of money that it had previously received from the EU—that is, money that was administered by the Welsh Government to meet priorities they set in devolved areas. Can the Minister tell us what portion of this £400 million-plus annual funding will be administered by the Welsh Government? Will the UK Government make a portion biddable across the UK? Can the Minister reassure the House that they will not use these funds to cut across devolved areas of competence without the approval of the Welsh Government?
Lord Greenhalgh (Con)
My Lords, the UK Government have a responsibility to support the economic health of people, businesses and communities across the entirety of our United Kingdom. The Government have committed that the devolved Administrations will be represented on the governance structure for the UK shared prosperity fund.
Lord Morris of Aberavon (Lab) [V]
My Lords, will the Minister confirm that the Government are committed to
“at least matching current EU receipts for Wales”?
Since farming is an important way of life for so many in Wales and agriculture is a devolved matter, will the Minister give a specific assurance that funding decisions will be decided solely by the Welsh Government in this field?
Lord Greenhalgh (Con)
My Lords, I am afraid I cannot give that assurance but we will continue to ramp up funding so that the total UK-wide funding will at least match EU receipts of, on average, around £1.5 billion per year.
Baroness Finlay of Llandaff (CB) [V]
During the passage of the Internal Market Bill in both Houses, Ministers committed to collaborate closely with the devolved Administrations, not simply to have them represented. Will the previous £375 million of EU structural funds now be built into the shared prosperity fund allocation to Wales, and will the Welsh Government’s framework for regional investment, which has been developed through extensive local consultation, be respected?
Lord Greenhalgh (Con)
My Lords, I note the points made by the noble Baroness but I think we need to wait for the UK investment framework that underpins the shared prosperity fund for those sorts of details.
Baroness Wilcox of Newport (Lab) [V]
The Welsh Counsel General’s requests to meet UK Ministers leading the shared prosperity fund have unfortunately been met with silence. Meanwhile, the Welsh Government have engaged with hundreds of key stakeholders, as the noble Baroness, Lady Finlay, just said, on the development of successor arrangements. The framework for regional investment in Wales was published three months ago and it sets out high-level strategy for achieving prosperity and inclusive Wales-wide economic interventions. Will the Government agree to meet Welsh Ministers to use their consultative plan for moving investment into Wales, or is the lack of engagement with the Welsh Government a further example of this Government’s undermining of the devolution settlement?
Lord Greenhalgh (Con)
My Lords, we are committed to working with the devolved Administrations. In fact, there have been 26 engagement events, attracting more than 500 representatives, all about the UK shared prosperity fund. Sixteen of those events took place in the devolved Administrations and I am sure Ministers will be meeting representatives of the devolved Administrations in due course.
Baroness Randerson (LD) [V]
My Lords, in 2019 the Conservative manifesto promised that the shared prosperity fund would, at a minimum, match the size of EU structural funds in each nation. In the last six years, Wales received £400 million a year in ESI funds. That is £123 per person on average. I ask the Minister again—to give him the opportunity to confirm today—to say that the Government will be keeping their promise to Wales and that this funding will be specifically identifiable over and above current UK sources of funding.
Lord Greenhalgh (Con)
My Lords, again, we need to see the publication of the investment framework but I can commit to saying that the overall envelope of funding will be at least the amount that we receive from EU structural funds of around £1.5 billion per year.
Lord Hain (Lab) [V]
My Lords, can the Minister confirm that, far from increasing funding through the Barnett formula to devolved Governments as was promised, money is being spent on priorities set in Whitehall, not Cardiff; that official-level meetings have involved no sharing of any information about Whitehall’s plans for the pilot shared prosperity fund in Wales; and that Welsh Ministers have not had a single ministerial-level meeting on this subject since the Government took office? Is this not yet another London power grab and betrayal of devolution?
Lord Greenhalgh (Con)
My Lords, we need to recognise the improvements of moving away from EU structural funds. This will allow for quicker delivery of funding, better targeting and better alignment with domestic priorities and will certainly be less bureaucratic and burdensome than the current EU structural funds arrangements.
Lord Wigley (PC) [V]
My Lords, the Minister will recall that the EU scheme for structural funds comprised two parts: the money that came from Brussels and match funding from the Treasury that had to be additional to normal spending programmes. Will he confirm that the UK Treasury will henceforward make available, additional to the Barnett-based block, two sums of money to be wholly administered by the Welsh Government, one corresponding to the EU allocated funding and the other to the match funding based on the additionality principle?
Lord Greenhalgh (Con)
My Lords, I cannot make specific funding commitments. However, I point out that as well as the UK shared prosperity fund we have talked about the additional funding of £220 million. There is also the levelling-up fund, which provides further opportunities for funding in the devolved Administrations. All of this will go to ensure that we deliver the levelling-up agenda between and within areas.
Lord Berkeley of Knighton (CB) [V]
My Lords, I associate myself with the comments of the two previous speakers. I want to ask the Minister a specific question. When Brexit was being discussed, we heard of European companies which might be shutting down or withdrawing from Wales, particularly south Wales. Have the Government made any assessment of whether that has come to pass and should not money go to those areas that might be very deprived now?
Lord Greenhalgh (Con)
My Lords, the whole purpose of the UK levelling-up fund of some £4.8 billion is precisely to provide the funding to underpin the regeneration required to make areas in Wales as competitive as possible. Of course, we keep changes in the industrial landscape under close scrutiny.
Lord McConnell of Glenscorrodale (Lab)
My Lords, the partnership between local communities, the devolved Governments and other local authorities in England inside the UK and the European Commission was a real strength of the old structural funds. They had their problems but they also had those strengths. Why have the Government moved away from that model? There was a real opportunity here to set a structural fund-type analysis for the whole of the UK and priorities that could be shared within this shared prosperity fund, and then to implement it in practice with the devolved Governments and regional and local authorities throughout the UK. That partnership will be missing from this new model and simply sticking a UK flag on a fund then distributed straight to Scotland or Wales will not solve the problems the United Kingdom has in terms of respect in Scotland and Wales right now.
Lord Greenhalgh (Con)
My Lords, I underpin the commitment to collaborate very closely with the devolved Administrations. That is why they will be an important part of the governance structure of this new fund. The new fund gives us opportunities to improve on the funding approach used by the EU structural fund, not least because there are now only two layers of government that need to work closely together.
Baroness Jolly (LD) [V]
Will the Minister explain how EU funding for Cornwall will be replaced, given that Cornwall would have received around £600 million over the next seven years? Cornwall is still some way from being as prosperous as our south-west neighbours. When does the Minister expect the shared prosperity fund to be designed and funds made available for growth and investment?
Lord Greenhalgh (Con)
What applies to Cornwall will apply to other areas. Further details on the operation of the fund will be set out in the UK-wide investment framework for the UK shared prosperity fund that will be published in 2021. The funding profile for the UK shared prosperity fund will form part of the next spending review.
The Senior Deputy Speaker (Lord McFall of Alcluith)
My Lords, the time allowed for this Question has elapsed.
Stop and Search
(3 years, 9 months ago)
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Lord Paddick
To ask Her Majesty’s Government what assessment they have made of the report by Her Majesty’s Inspectorate of Constabulary Disproportionate use of police powers—A spotlight on stop and search and the use of force, published on 26 February.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, the Government support the police in the fair and legitimate use of stop and search and, where necessary, reasonable force to tackle criminality and violent crime. We have worked with the police to put safeguards in place to ensure that no one is targeted because of their race.
Lord Paddick (LD) [V]
My Lords, like previous research, this report doubts the efficacy of stop and search in reducing serious crime—but, more importantly, it highlights the impact of disproportionality on trust in, and the legitimacy of, the police. Some 40 years ago, in his report on the Brixton riots, Lord Scarman said that enforcement of the law needed to be balanced against the negative impact of enforcement on communities. This report effectively criticises the police service for not having learned the lessons of the 1981 Scarman report. What action are the Government going to take?
Baroness Williams of Trafford (Con)
My Lords, I trust the police to use their powers in a fair way to tackle serious violence and protect communities. It is right that these powers are used to stand firm against criminals who break the law. Every knife taken off our streets is a potential life that is saved, and, in 2019-20, stop and search removed over 11,000 weapons and firearms from our streets and resulted in over 74,000 arrests. It is a tragedy that young black men are disproportionately more likely to be the victims of knife crime—no one should be targeted because of their race. The extensive safeguards in place now, such as statutory codes of practice and the use of body-worn video, are important safeguards to ensure that it does not happen.
Lord Harris of Haringey (Lab) [V]
I refer to my interests in the register. We all want proper scrutiny of stop and search, but we have also seen highly disturbing clips on social media of what appear to be inappropriate stops. Those who post them have surely waived their right to privacy. Given that, as police body-worn video makes it possible to see the context—particularly what went on before the stop and why it took place—will the Government make it possible for the police to publish the full videos in a timely fashion to counteract misleading impressions from truncated social media clips?
Baroness Williams of Trafford (Con)
I totally concur with the noble Lord that, sometimes, what you see in a snapshot is not actually indicative of what happened in the round. Obviously, the police are operationally independent of government, but the safeguards, which include body-worn video and data, are very important in this area. We now collect more data on this than ever before, allowing local scrutiny groups, police and crime commissioners and others to hold the forces to account. However, I thank the noble Lord for that question because it is a very important point.
Baroness Jones of Moulsecoomb (GP)
My Lords, this was an exceptionally damaging report from Her Majesty’s Inspectorate of Constabulary. It talks about how the use of stop and search for drug possession is not an effective use of police time. As such, one option for the Home Office is perhaps, as it is the lead department on drugs policy, to update this and make it more relevant, bearing in mind this report. Is that something it will do?
Baroness Williams of Trafford (Con)
I think the noble Baroness takes one aspect of this—drug use—and conflates it with what is actually a much more complex issue. Possession of drugs, knives and offensive weapons are linked in a complex web of criminality and victimhood: young people carry knives to protect themselves. This is all linked and complex, and I go back to the point that any stop and search should be reasonable and proportionate.
Lord Davies of Gower (Con) [V]
As a former police officer, I recognise the importance of stop and search as a tool—but training is a recurring theme in the report, which is clear that:
“The results of our review of stop and search records suggests that supervisors need further training on their responsibilities and how best to supervise their officers’ use of stop and search powers.”
It goes on to say:
“Research shows that lasting improvements are only achieved when a force’s culture promotes diversity, inclusion and equality.”
I argue that these ingredients are the responsibility of those at the top and throughout the organisation to develop and engender. Does my noble friend agree that if the police are to rid themselves of accusations of disproportionality, they must first address these training issues at all levels?
Baroness Williams of Trafford (Con)
I totally agree with my noble friend because good training and, as he said, diversity, with enforcers, should really improve the performance in this area. Training is crucial because, unless these officers are trained, they will not be equipped to deal with these issues.
Lord Woolley of Woodford (CB) [V]
My Lords, this is an honest and fair report. I declare my interest as a board member for Police Now, which seeks to recruit graduate police officers, particularly from black, Asian and minority ethnic communities. Our job is made that much worse when we see the levels of stop and search for black youths at nine times higher than for their white peers. When 95% of the nation was in lockdown, stop and search for black youths went up 25%, and they were often humiliated as well as being stopped and searched. It was not for knives, in general; 70% of it was for drugs. Often the smell of marijuana—
The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)
Could the noble Lord please ask a question?
Lord Woolley of Woodford (CB) [V]
Does the Minister agree with me that this disproportionality, which alienates so many youths and puts off so many of them from joining the police, must change? We must police by consent.
Baroness Williams of Trafford (Con)
I agree that we must police by consent. I also agree that someone should never be stopped on the basis of their race, and that the use of stop and search must be both reasonable and proportionate.
Baroness Sanderson of Welton (Con)
My Lords, we were told that increasing the use of Section 60 powers was necessary to suppress levels of violence and knife crime, yet, according to this report, of all Section 60 searches in 2019-20, only 3.7% found a knife or a weapon. Meanwhile, disproportionality has increased, with black people 18.1 times more likely to be searched under Section 60 than white people. Given the damage that Section 60 searches can cause to community relations and in the light of the very low find rates, can my noble friend the Minister tell me whether there are any plans to review this policy?
Baroness Williams of Trafford (Con)
As the noble Baroness is probably alluding to, we eased the restrictions on stop and search back in 2019, and stop and search went up by 53%, but it led to 74,000 arrests and 11,000 arrests for knives and weapons. The important thing is that, when people are stopped and searched, there is intelligence to underpin the reasons for stop and search.
On that point about black people being 18 times more likely, it is a very troubling figure. It has actually gone down rather than up, so the situation was actually worse—not that that justifies it. But to go back to that reasonable and proportionate approach, that is the important thing.
Lord Rosser (Lab) [V]
It seems that no force fully understands the impact of the use of stop and search powers, disproportionality persists and no force can satisfactorily explain why, and there are wide differences in performance between forces in the use of stop and search powers and in disproportionality. What action do the Government intend to take to ensure greater consistency of approach between forces on the use of these powers? Surely there should be at least a broad national standard that is actually adhered to, or do the Government disagree and believe that it is all an operational matter for each individual chief constable?
Baroness Williams of Trafford (Con)
The use of data is very important, and police collection of data is very important to interrogate why some of the trends that we see are happening. I would also say that, in many ways, it is more complex than just the data we have, and some of the social and economic factors in this have to be taken into account. It is very important that the collection of data is also scrutinised as we go forward.
The Senior Deputy Speaker (Lord McFall of Alcluith)
The time allowed for this question has elapsed.
Arrangement of Business
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing.
Yemen: Aid Funding
(3 years, 9 months ago)
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Lord Collins of Highbury (Lab)
My Lords, in response to the global pandemic, every other G7 member has increased aid. The UK is alone in choosing to cut it. What impact will this cut have on the UN’s ability to prevent famine in Yemen? I hope that the Minister and his Government will rethink this move and the plan to abandon the 0.7% target.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, let me assure the noble Lord that we remain very much committed to resolving the continuing conflict in Yemen. In terms of specific aid, our recent announcement is in addition to the £214 million we will spend in the current tax year on humanitarian aid and support for Yemen. Our additional aid for 2021-22 will feed an additional 240,000 of the most vulnerable Yemenis every month, support 400 health clinics and provide clean water for 1.6 million people. We are extending support to the special envoy in Yemen, Martin Griffiths, to bring peace and get all parties to the table.
Lord Purvis of Tweed (LD)
My Lords, there has been a 49% reduction in our contribution of support to the world’s poorest country, which has been afflicted with the worst cholera outbreak in global history. Will the Government now rethink the unlawful cut from 0.7% to 0.5%? If the Government were correct, and the focus of overseas aid was to be on the world’s poorest, there must have been a humanitarian impact assessment for this cut. Was one carried out? Will the Government publish it if it was?
Lord Ahmad of Wimbledon (Con)
My Lords, first, in terms of announcements, the final settlement on ODA is still being finalised within the department. I will be able to answer with more detail once that has been agreed. As I have already alluded to, we stand by our commitments to Yemen from previous years, and famine alleviation remains a key priority. But it is a challenging announcement in terms of the reduction and the challenges that the country is facing at the moment. Notwithstanding that, we remain committed to supporting the people of Yemen in not just humanitarian aid but resolving the conflict.
Lord Jay of Ewelme (CB) [V]
My Lords, cutting British aid, particularly to Yemen, in the middle of a humanitarian emergency looks less like global Britain than little England at its worst. Let us hope that it is not too late to reverse it. How will we use our chairmanship of the G7 group of rich nations this year to help the poorest and most vulnerable people in Yemen and elsewhere?
Lord Ahmad of Wimbledon (Con)
My Lords, I assure the noble Lord that global Britain means that we remain committed to helping the most vulnerable. The noble Lord, Lord Purvis, raised the issue of cholera, and we should acknowledge the role that British aid and support has played in ensuring that cholera treatment is delivered. That is why we have given the commitment to both CEPI and Gavi, in addition to the COVAX facility, for the current crisis. Providing support to the most vulnerable is high up the priority list of the G7 agenda.
Baroness Chalker of Wallasey (Con)
My Lords, will the Minister get the department to look again at the money going to non-governmental organisations working in Yemen under incredible difficulties? There is a simple reason: they are more effective than anyone else at delivering help in the benighted situation faced there. I repeat that we really should not cut aid to Yemen, let alone to all the other countries. We really need to look at this again.
Lord Ahmad of Wimbledon (Con)
My Lords, as ever, I listen carefully to my noble friend, who has great insight on international development. I note the concerns she has previously aired to me directly as well as what she has said today. Her point about the important role that NGOs play in Yemen is at the forefront of our mind, although I am sure she would acknowledge that things have been extremely challenging on the ground, particularly in some of the areas controlled by the Houthis.
The Lord Bishop of Leeds
My Lords, the Minister rightly used the word “peace” a number of times when referring to the Government’s commitment to bringing peace in Yemen, and yet we continue to sell arms to Saudi Arabia, which is part of the violent problem there. Does this not reflect badly on the moral case for global Britain, at a time when we have cut our aid to what are acknowledged to be the poorest and most suffering people in the world—look at the television programme the other night on the nine year-old blind boy teaching in a derelict school—when they need it most?
Lord Ahmad of Wimbledon (Con)
My Lords, I align myself with the news story that the right reverend Prelate relates. As a parent, I totally understand the issue of children, in particular, who are suffering in Yemen and elsewhere in the world. That is why we remain very much committed to our programmes on vaccination, but also, importantly, as noble Lords have brought to our attention again today, to humanitarian aid. On the issue of our support to the Kingdom of Saudi Arabia, that is subject to a very rigorous arms control regime which is applied quite specifically. It was also revisited after the court case a couple of years ago, to ensure that the application of that regime could be more specific.
Baroness Clark of Kilwinning (Lab) [V]
This is an almost 50% cut in aid compared with last year, at the same time as the UK Government have granted £6.7 billion of arms sales to Saudi Arabia to be used in Yemen. Surely given the humanitarian crisis in Yemen, and as the UN penholder on Yemen at the UN Security Council, the UK should be increasing aid to Yemen and putting all our endeavours into trying to get peace talks going.
Lord Ahmad of Wimbledon (Con)
The noble Baroness is right to point out that we are the penholder of the UN Security Council. It is through our leadership, both in resolutions and regular updates, that the situation in Yemen has been at the forefront of each discussion of the UN Security Council, no matter who holds the presidency of that body. We have also extended support to the UN special envoy’s office in pursuit of peace, with £342,000 provided in direct support to the peace process, and have seconded advisers to the UN special envoy Martin Griffiths. We will continue to support the international community in alleviating the humanitarian crisis currently engulfing Yemen, but the best way out of it is through a political settlement.
Lord Eames (CB) [V]
My Lords, does the Minister agree that no political, economic or other issue supersedes the moral issue on the question of Yemen? Does he agree that we are painting a very confused picture to the world of our compassion, or lack of it, having supplied arms at the same time as reducing our humanitarian aid? I add my voice to those pleading for a revision of this situation.
Lord Ahmad of Wimbledon (Con)
My Lords, we take extremely seriously the point that the noble and right reverend Lord has raised about arms export licensing. Indeed, our rules ensure that we focus specifically on international humanitarian law. If we look at what the United Kingdom has done over the last five years, we see that we have provided more than £1 billion in aid. However, I concur with what he says: we must ensure that we focus on the most vulnerable in what are very challenging circumstances for our budget, and that is exactly what we are seeking to do.
Baroness Helic (Con) [V]
My noble friend will be aware that 80% of the population of Yemen rely on humanitarian support, and that a child dies every 10 minutes from diarrhoea, malnutrition or other preventable causes. The situation in Yemen today is as dire as it has ever been since the conflict started in March 2015. What consideration has been given to this dire situation—[Inaudible.] I ask the Government to reconsider—[Inaudible.]
Lord Parkinson of Whitley Bay (Con)
My Lords, I fear there was a difficulty, and we did not catch all of that question. If the noble Baroness is able to repeat the end of her question, that would assist us.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
Does the noble Baroness, Lady Helic, want to repeat the last part of her question?
Lord Parkinson of Whitley Bay (Con)
I fear we have lost the connection with the noble Baroness, so the Minister will write in response to her.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
My Lords, I regret that the time allowed for this Question has elapsed, and I apologise to the noble Baroness and other Peers who were unable to get in.
Domestic Abuse Bill
The Earl of Courtown
That the Bill be considered on Report in the following order: Clauses 1 to 38, Schedule 1, Clauses 39 to 68, Schedule 2, Clauses 69 to 80, Title.
The Earl of Courtown (Con)
My Lords, I beg to move the Motion standing in the name of my noble friend on the Order Paper.
Arrangement of Business
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing. I will call Members to speak in the order listed. Short questions of elucidation after the Minister’s response are discouraged. Any Member wishing to ask such a question must email the clerk. The groupings are binding. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the Question, I will collect the 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.
Counter-Terrorism and Sentencing Bill
Wednesday 3rd March 2021
(3 years, 9 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 169-I Marshalled list for Report - (26 Feb 2021)
14:00 - Division conducted remotely on Amendment 1 - Ayes: 126 / Noes: 281 - Amendment 1 disagreed.
16:58 - Division conducted remotely on Amendment 16 - Ayes: 316 / Noes: 267 - Amendment 16 agreed.
17:13 - Division conducted remotely on Amendment 18 - Ayes: 103 / Noes: 300 - Amendment 18 disagreed.
17:51 - Division conducted remotely on Amendment 21 - Ayes: 106 / Noes: 292 - Amendment 21 disagreed.
“(aa) after subsection (1) insert—“(1A) The court may not assume that an offence has a terrorist connection for the purpose of this section unless—(a) the defendant has admitted in person and in open court that the offence has such a terrorist connection, or(b) where the defendant does not make such an admission, the court is satisfied beyond reasonable doubt upon a trial of the issue that the offence has a terrorist connection.(1B) A trial held pursuant to subsection (1A)(b) above must be determined by a jury unless the court determines that the interests of justice would be better served by a trial by a judge alone upon evidence admissible in a criminal court.””Member’s explanatory statement
This amendment would require a trial of the issue as to whether or not there is a terrorist connection in relation to an aggravated offence.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I argued in Committee that Clause 1 should not stand part of the Bill because it would create a whole raft of new aggravated offences, for which offenders would be sentenced on the basis that the offences had a terrorist connection without the question of whether they had such a connection ever having been tried by a jury or a judge or even tried on the basis of admissible evidence.
For the purpose of Section 69 of the Sentencing Act, which is to be amended by this clause, an offence has a terrorist connection if it is, or takes place in the course of, an act of terrorism or is committed for the purposes of terrorism. The principal point I made in Committee was that the decision that the offence had a terrorist connection was not made by the jury before the offender was convicted but was reserved to the judge at the sentencing stage. A defendant might be convicted by a jury of the basic offence, for which the appropriate penalty might be a short term of imprisonment, but sentenced on the basis of a decision taken by a judge alone, without hearing any evidence, that the offence had a terrorist connection and merited a sentence of a long term of imprisonment. I said then and repeat now that that feature would cut across the principle of our criminal law that no one should be convicted of an offence except upon admissible evidence, open to challenge in a trial and, if in the Crown Court, heard by a jury.
Prior to this Bill, offences with a terrorist connection that would act as an aggravating factor in sentencing comprised a relatively limited range of very serious offences which might often be expected to have a terrorist connection, such as murder, a number of explosives offences, hijacking, hostage-taking and serious aviation offences. They were listed in Schedule 2 to the Counter-Terrorism Act 2008 and would all normally merit long terms of imprisonment.
For that reason, the effect of aggravating the sentence was less objectionable than it is to be as a result of Clause 1 of this Bill. That is because this Bill broadens the range of offences that may be treated as aggravated by a terrorist connection to include any offence that carries a sentence of imprisonment of more than two years. An offence of assault occasioning actual bodily harm, for example, carries a maximum sentence of seven years’ imprisonment, even though the violence involved can be relatively minor and the harm caused can be restricted to bruising or pulled muscles. The basic offence might merit a fine or a short term of imprisonment, but the offence committed with a terrorist connection might attract the maximum sentence. While the offender’s guilt of the basic offence would be determined by a jury, the terrorist connection would be a matter for the judge alone at the sentencing stage.
The finding that an offence has a terrorist connection does not simply increase the likely sentence; it also has the effect of activating the notification requirements for terrorist offences, thus classing the offender as a terrorist, with lifelong consequences, and the further effect of activating a number of forfeiture provisions. In addition, the increased sentence is subject to the restriction on early release under the so-called TORA Act, the Terrorist Offenders (Restriction of Early Release) Act 2020 that we passed as emergency legislation last year. Not only would the sentence be longer, but the proportion served in custody would be greater. In short, the consequences of a finding of a terrorist connection are devastating for the offender.
It was the fact that those consequences could be imposed without a trial of the fact of the terrorist connection that led us in Committee to oppose Clause 1 standing part of the Bill, despite our complete acceptance of the central proposition of this Bill that terrorist offences call to be treated with the greatest severity, for the protection of the public as well as the punishment of the offenders.
Amendment 1 is far more targeted than the opposition to the clause standing part. I am extremely grateful to the noble Lord, Lord Wolfson, and the noble and learned Lord the Advocate-General for discussing this amendment with me at a meeting yesterday. Importantly, the noble and learned Lord, Lord Stewart, reminded us that in Scotland the different charging arrangements and arrangements for jury verdicts would enable verdicts to be given making it clear whether a terrorist connection was proved or not.
Not being a Scottish or Northern Irish lawyer, I had not attempted to formulate amendments that would apply in Scotland and Northern Ireland. At the suggestion of the Public Bill Office, I have confined my amendment to England and Wales in the hope that, if it is agreed, the Government will draft and bring back suitable amendments for Scotland and Northern Ireland. However, it is to be noted that Section 31 of the Counter-Terrorism Act 2008, which applies to Scotland and is also to be amended by this Bill—although not materially for this purpose—requires that, before an offender in Scotland can be sentenced for the aggravated offence,
“(a) it is libelled in an indictment, and
(b) proved”.
Only then does the court take into account the aggravation of the offence. This was, no doubt, what the noble and learned Lord had in mind, proving once again to this Englishman how often Scotland is more enlightened than England and Wales on justice issues.
In the short debate in Committee on 26 January, my noble friend Lord Thomas of Gresford raised the possibility of a Newton hearing—a hearing to determine a question of fact relevant to sentence—as a way of determining whether an offence had the necessary terrorist connection to justify treating it as aggravated. That point was also hinted at by the noble and learned Lord, Lord Falconer of Thoroton.
The applicable legislation does not provide for such a hearing. Section 30 of the Counter-Terrorism Act 2008 provides only that the court must determine whether the offence has or may have a terrorist connection. Under subsection (3):
“For that purpose the court may hear evidence, and must take account of any representations made by the prosecution and the defence, as in the case of any other matter relevant for the purposes of sentence.”
That provision is entirely unsatisfactory for the wide range of aggravated offences now proposed, many of them not of the greatest seriousness in the absence of the aggravating factor.
Our amendment would require that before an offence is taken to have a terrorist connection, either the defendant must admit
“in person and in open court that the offence has such a … connection”
—in much the same way as a plea of guilty would entitle the court to pass sentence—or there must be a trial of the issue. That trial would be by a jury
“unless the court determines that the interests of justice would be better served by a trial by a judge alone”.
At the trial of the issue, evidence admissible in a criminal court would be adduced and the court could proceed on the basis that the offence had a terrorist connection only if satisfied of that fact beyond reasonable doubt.
I suggest that this amendment strikes a proper and important balance between the public interest in securing severe punishment for offences with a proved terrorist connection and the public interest—also of great significance—in ensuring that sentences are imposed for offences that are properly proved before the court upon admissible evidence. That is the way our criminal law has generally proceeded, and that is the way it should proceed. I will wish to test the opinion of the House if the Government do not accept the amendment. I also wish to record the fact that I would like my voice to be heard when the voices are counted. I beg to move.
Lord McCrea of Magherafelt and Cookstown (DUP) [V]
My Lords, I strongly support the Bill, and welcome its extension to Northern Ireland. It is absolutely right that we have a unified approach to the sentencing and release of offenders across our United Kingdom. Although I share the desire expressed by the noble Lord, Lord Marks, to uphold the principles of our criminal justice system and defend everyone’s right to a fair trial, I believe that the concerns underlying Amendment 1 have been overstated.
At present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing, for a defined list of non-terrorism offences. Clause 1 would extend that requirement to all non-terrorism offences with a maximum penalty of more than two years. Importantly, for the aggravating factor to be applied, the offence would have to be committed in the course of an act of terrorism or for the purposes of terrorism. I see no compelling argument that consideration of those issues at the point of sentencing represents a disproportionate burden on a defendant or restricts their rights. Judges already have discretion in many cases, including for the offence of murder, to increase or reduce a sentence in accordance with their view of the evidence.
The key factor in this case, therefore, is the need for effective guidance relating to the threshold for an aggravated offence, and its fair application. Only if there is enough evidence to satisfy the criminal standard of proof that there is a terrorism connection should the judge apply an aggravation. We have to remember, especially in an ever more digital and connected world, that terrorist offending can take many forms, so it is appropriate that the range of routine offences that can come under the scope of counterterrorism legislation is being extended. Ultimately, this process will help identify offenders who might otherwise have fallen through the cracks, and will ensure that they are registered, monitored and subject to notification requirements.
I make these points not because I am not committed to due process, or to respecting the fundamental rights of defendants, but because I believe that we must take a strong but balanced approach to enhanced sentencing and release provisions in such hearings.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, the noble Lord, Lord Marks, set out his amendments clearly, and concentrated on the fact that the decision about a terrorist connection is made by a judge at the sentencing stage, not by the jury when they are assessing guilt or otherwise.
The noble Lord said that prior to the Bill, a limited number of offences were included. Those were serious offences, so his argument was that it did not make that much difference if there was a terrorist connection. He gave the example of ABH, for which the maximum sentence is seven years’ custody, although the penalty for low-level ABH may be some type of community order. His argument was that putting a terrorist connection on a wider range of lower-level offences would have a much larger effect on the likely sentence.
The noble Lord also spoke about activating notification requirements, and early release provisions. He prayed in aid the noble Lord, Lord Thomas of Gresford, who previously raised the possibility of Newton hearings. I am much more sympathetic to that possibility than that laid out in the amendments tabled by the noble Lord, Lord Marks, which would mean that either somebody admitted in open court that there was a terrorist connection or there would be a trial of the issue.
Surely that determination should be made by the judge. A judge could make a determination that a Newton hearing was the right way forward. Perhaps the Bill should be amended to enable the judge to make a determination for a Newton hearing, or to take it on himself or herself to make a determination of whether there is a terrorist connection. For that reason, we will abstain on these amendments—but if, at a later stage, amendments along the line that I have just suggested, giving the judge discretion to order a Newton hearing, are tabled, we may well be in favour of those.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to all noble Lords who spoke in this short debate. The amendment would require a trial of the issue as to whether there is a terrorist connection to an aggravated offence. I am grateful to the noble Lord, Lord Marks, for the way in which he set out his amendment, but I am afraid we feel that it would represent a fundamental departure from existing processes—a significant divergence from practice within the wider criminal justice system—and it is therefore not an amendment that the Government consider necessary or appropriate.
It may be helpful if I first briefly recapitulate why the Government are making the changes that we propose in the Bill. The noble Lord, Lord McCrea, gave a good summary. Clause 1 will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism, or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. At present only specified offences can be so considered. Closing this loophole will make for more effective and flexible legislation, reflecting the fact that terrorist offending takes a wide variety of forms.
The noble Lord, Lord Marks, gave some examples of offences that are and are not covered. It might be helpful to include further examples. Various offences under the Firearms Act 1968 are not currently covered, including possessing a firearm with an intent to endanger life; as are offences under the Criminal Damage Act 1971, including destroying or damaging property with an intent to endanger life, and arson. There are many more, but I hope that provides an illustration of some of the offences that we think ought to be considered, if needed.
These changes will also ensure that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact, as the noble Lord noted. It must be treated as an aggravating factor when sentencing, helping to ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk that they pose to public safety. It will also result in offenders being subject to the registered terrorist offender notification requirements following their release from prison, which supports the police to manage their risk more effectively.
Finally, under the Bill, these offenders will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk. I emphasise that both the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and the Crown Prosecution Service expressed their strong support for this change. In fact, Mr Hall stated in his oral evidence to the Public Bill Committee in another place that this change, out of all the measures in the Bill, would make the most substantial difference to public safety.
Having set out the background, I will address the substance of the noble Lord’s amendment, which proposes a significant change to the process by which the courts in England and Wales, and in Northern Ireland, determine a terrorist connection at the point of sentencing. This process is well-established, having been in successful operation for more than a decade since the provisions of the Criminal Damage Act 1971 came into force. It is also consistent with the wider criminal justice system.
Under the existing process, courts are required to apply the criminal standard of proof—beyond reasonable doubt—when determining whether an offence has a terrorist connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing—that is, the trial evidence or evidence heard at a Newton hearing, if necessary, following a guilty plea—and take into account any representations by the prosecution or defence, as well as any evidence heard.
Furthermore, in England and Wales, and in Northern Ireland, it is the standard approach for the judge, rather than the jury, to determine the presence of aggravating factors as part of the sentencing function. To provide one example, Section 66 of the Sentencing Act 2020 requires the court to aggravate a sentence for an offence if it was motivated by hostility based on certain protected characteristics, such as race or sexual orientation. The judge will determine such a finding as part of the sentencing. The terrorist connection provision works in exactly the same way. This very issue was debated by your Lordships’ House in 2008, when the terrorist connection provisions were first enacted. It was concluded then that the existing process is appropriate and the reasons that I will now outline still stand.
During the passage of the Counter-Terrorism Act 2008, the then Government set out that, as part of their consultation on that Bill, they considered whether the determination of a terrorist connection should be made by the jury, rather than the judge at sentencing. That included discussing the option with experienced prosecutors in this area. It was concluded, however, that there were significant practical issues in taking that approach. For example, having to prove the terrorist connection as part of the trial would lead to lengthy diversions, were the defence to argue that the action of the suspect did not fall within the definition of terrorism. Such an approach would divert the prosecution from its primary aim to secure swift justice for the substantive offence—that is to say, securing a conviction or freeing the individual on trial—and would unnecessarily create significantly longer terrorism trials.
Alternatively, if the jury were to be responsible for determining whether there was a terrorist connection as part of a sentencing exercise after the trial, it would have to be summoned to make such a determination following a guilty plea. This would be entirely novel and run counter to well-established sentencing procedure. We therefore strongly believe that it would not be right to put it in the Bill. It was concluded then, as we maintain now, that sentencing is properly a function for the judge.
That is why the Government cannot accept the amendment of the noble Lord, Lord Marks: it would impose unusual requirements on the finding of a terrorist connection, deviate significantly from well-established practice and, in doing so, put that process out of kilter with the courts’ considerations of other similar aggravating factors. The current system provides adequate safeguards against the erroneous finding of a terrorist connection. A judge who has determined that the offence was committed with a terrorist connection is required to state in open court that that is the case. That determination is capable of being appealed to the Court of Appeal. For the reasons outlined, despite the noble Lord being minded to do otherwise, I hope that he will see fit to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I heard what the noble Lord, Lord McCrea, said, and he seemed to accept that the aggravating factor should be proved to a court, on admissible evidence, to the criminal standard of proof. He did not answer the point that there ought to be a trial of the issue.
The noble Lord, Lord Ponsonby, had sympathy for the principles behind our amendment. He preferred the idea of a Newton hearing before a judge to the possibility of jury trial to determine a terrorist connection. That is a compromise position that is allowed for in my amendment, where the interests of justice require that there should not be a jury trial. The important thing is that this issue should be tried on evidence, not simply permission for there to be evidence, if the judge deciding the issue decides to have evidence; or, otherwise, that the court must listen to representations—that is submissions, which are necessarily partial.
The reason our amendment is framed in the way it is is that we believe in trial by jury. Since the aggravation of having a terrorist connection changes the whole nature of the offence, to have that issue tried by jury is, we say, consonant with our way of doing criminal justice and consonant with the way we have always conducted criminal trials.
The Minister suggested that this amendment represented a significant divergence from the criminal justice system. Most of his speech was, with respect, devoted to establishing that point. However, the Bill and much of the counterterrorist legislation of the last few years have involved such divergence. What is unique about the Bill is that the aggravating factor can raise a pretty commonplace offence into an offence of terrorism, with very severe consequences. I have heard nothing to answer the point that establishing that terrorist connection in a trial, on admissible evidence, before a jury or, in suitable cases, a judge, should be the way to proceed.
Nothing that I have heard from the Minister or the noble Lord, Lord McCrea, allowed for the possibility that an offender guilty of only the basic offence, but not guilty of committing an offence with a terrorist connection, would nevertheless be sentenced following a judge who heard only representations on the basis of the aggravated offence, with all the consequences that that would have. That is what runs counter to our criminal justice system.
Our point is limited and principled. The Government have made no concession to our principle at all. We say that there has to be a trial of the issue, not at the same time as the trial of the basic offence, but afterwards. To establish that principle, I wish to test the opinion of the House and have my voice heard when the voices are counted.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We now come to the group consisting of Amendment 2. Anyone wishing to press this amendment to a Division must make this clear in the debate.
Clause 27: Removal of early release for dangerous terrorist prisoners: England and Wales
Amendment 2
Lord Carlile of Berriew
“Continued imprisonment of terrorist prisoners during the extension period of an extended sentence of imprisonment
(1) The Criminal Justice Act 2003 is amended as follows.(2) In section 247A(7) (restricted eligibility for release on licence of terrorist prisoners), at the beginning insert “Subject to section 247B,”.(3) After section 247A insert—247B Continued imprisonment of terrorist prisoners during extension period of an extended sentence of imprisonment(1) This section applies to a terrorist prisoner within the meaning of section 247A, where— (a) an extended sentence of imprisonment was imposed on the prisoner under section 226A or 226B, or under section 254, 266, 268A, 279 or 282A of the Sentencing Code, and(b) the prisoner is in custody, in accordance with section 247A, immediately before the expiry of the appropriate custodial term.(2) The prisoner must only be released under section 247A(7) in accordance with the provisions of this section.(3) It is the duty of the Secretary of State to refer the case of the prisoner to the Board—(a) as soon as the prisoner has served the appropriate custodial term, and(b) if the prisoner is still in custody, every year, before the anniversary of the conclusion of the appropriate custodial term.(4) It is the duty of the Secretary of State to release the prisoner on licence as soon as the Board has directed the release of the prisoner under this section.(5) The Board must not give a direction under subsection (4) unless—(a) the Secretary of State has referred the prisoner’s case to the Board, and(b) the Board is satisfied that—(i) the prisoner does not represent a grave risk to the public, and(ii) it is no longer necessary for the protection of the public that the prisoner should be confined.(6) Where the Secretary of State has not released the prisoner in accordance with subsection (4) by the conclusion of the extension period, it is the duty of the Secretary of State to release the prisoner immediately upon the conclusion of the extension period.(7) For the purposes of this section—“appropriate custodial term” has the same meaning as in section 247A,“extension period”, in relation to a sentence imposed under section 226A or 226B, or under section 254, 266, 268A, 279 or 282A of the Sentencing Code, means the period determined as such by the court under that provision.(8) Nothing in this section affects the duty of the Secretary of State to release a person whose release has been directed by the Board before this section comes into force.””
Lord Carlile of Berriew (CB) [V]
My Lords, I should like at the outset to acknowledge the assistance that I have received from the Bingham Centre in preparing the amendment and the courtesy of Ministers in this House and their staff in discussing it. I will briefly give my reasons for the amendment.
First, I am clear in my belief, which is shared by many others, that some men and women imprisoned for terrorist offences—I repeat, some—represent a threat to public safety and national security beyond the length of their sentences, and that the consequences of that risk may be the death of innocent citizens. Some examples of such people can easily be identified and are well known, but it is clear that others who present such a risk are much more difficult to identify.
It is to be noted that the recidivism rate for terrorist offences is extremely low compared with that for most other offences—under 3%, on the most recent figure that I have seen—and that a fraction of the recidivism rate therefore applies to terrorist offences. Their recidivism rate is a fraction of that for other offences, including serious offences such as armed robbery. So far, at least, projects in prisons to achieve deradicalisation or even recognition of the wrongness of the acts taken as radicals have been difficult to assess. It is extremely difficult to know whether prisoners are deradicalised and such efforts to assess prisoners have suffered significant failures. The room for erroneous judgments is high. I shall give only one of several examples, that of Usman Khan, the Fishmongers’ Hall terrorist.
As part of the effort to identify whether prisoners remain a serious risk to the public, I support the use of polygraphs but only as one instrument of assessment—one component only in such determinations. It has been proved in other areas—for example, in relation to sexual offences and in the context of some immigration matters—that polygraphs can provide useful corroboration, though one should be careful not to use them as primary evidence.
A great deal of work has been done to enable terrorist prisoners to be assessed because it is known that, to date, the evidential analysis of such prisoners has proved fragile. It has been extremely difficult to assess the threat that they may present on release. Where has most of the work been done in relation to making judgments about such prisoners? I emphasise that we are talking about judgments. It has been done by the Parole Board and it is about its potential role that I am mainly speaking.
The Parole Board in its ordinary duties deals at present with people who have been sentenced for terrorist offences and, indeed, with prisoners who have become radicalised in prison, though not sentenced for terrorist offences. To deal with that, the Parole Board embarked on an extensive and detailed training programme so that its members—chairs and lay members—could fulfil empirically their existing role with that cohort of prisoners. The board is recognised as offering a fair procedure that is legal and justiciable in a way that is familiar to prisoners and their legal advisers, and is understandable to commentators and us parliamentarians.
I have met the argument that it would be a mistake to extend the role of the Parole Board beyond its present functions. However, given what I have said about the training that it has given to its members in relation to terrorism offences, and looking at what the board does in a more rounded way, I suggest that it is entirely fitted to have its range of responsibilities broadened to deal with wider issues. They could properly include a possible extension of sentences within appropriate statutory limits. Those decisions may not be made by the Parole Board if the Government or others do not find that acceptable, although, in my view, the board is well suited to making such decisions about the possible extension of sentences. For example, it could refer certain cases to the Court of Appeal Criminal Division or the Senior Presiding Judge for England and Wales, so that if a sentence was to be extended beyond its temporal determination, that could be done by a senior judge or judges.
Given the very serious risk posed by a small percentage of terrorist prisoners, there is a danger that the majority who have been reformed may become the victims of the 3% or so who are unreformed. That should be avoided if at all possible, for I am sure that we would agree that what may seem like a failure to recognise that a prisoner truly is reformed and remorseful may create the very opposite effect and leave them to become reradicalised.
The aim of my amendment is to attempt to persuade Her Majesty’s Government to change the architecture of the process of extended sentences in relation to terrorism offences. I accept that the amendment does not complete the task, which is why I will not press it to a Division. However, I hope that it will be possible to discuss this matter further with Ministers before we reach the end of the procedures of the Bill.
I suggest that the changed architecture, as I have called it, should allow, first, the sentencing judge to inform and warn a defendant at the time of sentence—no ifs, no buts—that at the time when otherwise they may or should be released, they will be subject to assessment by the Parole Board and that that assessment will be based on whether they represent a serious and continuing risk to the public. It should be clearly said by the judge at the time of sentencing in accordance with the discretion of judges, who as has been said earlier, not least by the noble Lord, Lord Parkinson of Whitley Bay, are used to dealing with sentencing scenarios.
Further, I suggest that the changed architecture should allow the following: if a prisoner presents a serious and continuing risk to the public, the ensuing procedure, founded on comprehensive evidence from both sides, as happens at Parole Board hearings, could result in the sentence being extended further, and possibly on more than one occasion. In my view, such an architecture would provide for a fair process that is clearly understood by a prisoner at the time he or she is sentenced. I suggest, therefore, that such a procedure would be fairer and certainly more capable of review before the courts, and safer for the small cohort of very dangerous prisoners envisaged by this Bill.
I also invite the Minister to confirm in his reply that the Parole Board has been consulted about any additional roles it might take, either along the lines that I have described or in the general context of this Bill. I would, as I have said, welcome further discussions with Ministers.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, it is a great privilege to follow the noble Lord, Lord Carlile of Berriew, particularly given his deep and long experience in counterterrorism and the legislation in this area, along with his wide experience of the workings of the Parole Board.
Clause 27 was the subject of considerable controversy in Committee because as it stands, it would remove the role of the Parole Board from the determination of whether, and at what stage, a terrorist offender should be released from custody. Without wishing to repeat the arguments that were canvassed in the debate on the clause at that stage, many of us felt then and continue to feel strongly that the Parole Board has had, and should continue to have, an important part to play in determining whether and at what stage even dangerous terrorist offenders should be released on licence.
The amendment of the noble Lord, Lord Carlile, refers to prisoners who are serving extended sentences and applies after they have completed their custodial term, thus changing the architecture of extended sentences, as he has put it. Such prisoners’ release would be contemplated only after the custodial term, at which stage their cases would be referred to the Parole Board for consideration, as they then would on every further anniversary of the completion of that custodial term.
As the noble Lord, Lord Carlile, has explained, before the board could direct release, it would have to be satisfied that two important conditions had been met: first, the prisoner did not represent a grave risk to the public, and secondly, it was no longer necessary for the protection of the public that the prisoner should be confined. We would have preferred that the amendment went further and applied more widely for the reasons that we expressed in Committee, but we regard the work of the Parole Board, whose members are specialists in the field, as extremely valuable. We are firmly of the view that a full hearing before the Parole Board is the best way to determine whether a prisoner should be released after a suitable minimum custodial term, having regard to the elimination of the threat that the prisoner posed to public safety and to such progress as might have been made in the prisoner’s deradicalisation, rehabilitation and reform.
I should emphasise that throughout our approach to this Bill, we have maintained the position that hope of rehabilitation should always be part of the process of punishment, even in severe terrorist cases, and that sentences which offer no hope are counterproductive. We recognise that all prisoners are likely to be released one day and that rehabilitation is more achievable in the context of a release on licence than it is in the context of continued incarceration. That is a position that was rightly taken and recognised by the experts who briefed a number of Peers at the Joint Extremism Unit drop-in session that was arranged for us by the Ministry of Justice. Those who attended found it to be interesting and informative, and we are all very grateful. For my part, however, I confess to remaining perplexed that the Government have decided to cut the role of the Parole Board in the way set out in Clause 27. This amendment would reduce the impact of that particular cutting axe, and I therefore support it.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, Amendment 2 in the name of the noble Lord, Lord Carlile, sets out an alternative possible architecture for assessing terrorists and the possibility of extending sentences. In speaking to the amendment, the noble Lord and the noble Lord, Lord Marks, expressed their faith in the Parole Board and the view that it should play a much fuller role in assessing terrorist prisoners who are coming towards the end of their sentences. I too joined in the very useful expert panel held last week with presentations from Home Office experts as well as senior psychologists who have an overview of this work.
The probation service itself employs around 350 psychologists, some of whom are specialists in this work. The message I got from that meeting last week is that it is very complicated work and there is no guarantee of success. However, that does not mean that there should not be efforts—indeed, very strenuous efforts—made to try to rehabilitate these offenders.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I understand that the intent of this amendment, tabled by the noble Lord, Lord Carlile of Berriew, is to do two things: first, to introduce a role for the Parole Board where, otherwise, the changes in the Bill would make its role superfluous; and, secondly and at the same time, not to reintroduce eligibility for early discretionary release for this cohort.
I will begin by outlining briefly the effect of the amendment in a little more detail. It would replace Clause 27, which restricts early release for offenders convicted of a serious terrorism offence—that is, those listed in Schedule 2 to the Bill—who receive an extended determinate sentence, or EDS, or a new serious terrorism sentence so that they instead serve the full custodial term of their sentence. In its place, the amendment would insert a provision that would change the release provision for all terrorist offenders sentenced to an EDS. Further, and while I understand that this may not be the noble Lord’s intent, this amendment would also apply to those currently serving an EDS for a terrorist offence.
The replacement release provision in the noble Lord’s amendment would continue to restrict early release, but there is an important difference. At the end of the custodial term, the scheme set out in the amendment would instead refer the offender to the Parole Board. The Parole Board would then determine whether the offender represents a grave risk to the public and whether it is necessary for the protection of the public that the offender continues to be imprisoned. Under the scheme in the amendment, this consideration would continue annually until release was granted, or to the end of the extended licence period, when the offender would then be released, unconditionally, into the community. The effect would therefore be that, if release were not granted until the end of the extended licence period, there would be a cliff edge and the offender would at that point be released unconditionally into the community. There would be no period of supervision and reintegration. For the reasons set out by the noble Lord, Lord Marks of Henley-on-Thames, that is a matter of concern.
I have carefully considered the proposed changes, especially as they arise from an amendment from the noble Lord, Lord Carlile. I hope I may be permitted to say that contributions from him on this subject always merit the most careful consideration, and I can assure both him and the House that I have done so in this case. None the less, having undertaken that careful consideration, I must set out the Government’s view that the changes to the release provisions for the EDS, as set out in the amendment, would be contrary to safeguards set out in the European Convention on Human Rights and its case law governing sentencing and release. That case law is usefully summarised in a recent decision of the Supreme Court of this country in Brown v Parole Board for Scotland—we seem to be referring to Scottish cases everywhere today. It is reported at [2017] UKSC 69, in particular the discussions between paragraphs 49 and 55. While every decision of the Supreme Court is obviously a decision of a strong court, that court, for which the noble and learned Lord, Lord Reed, spoke, contained three former and current Presidents of the Supreme Court.
The reason the proposal would be contrary to the case law is that the EDS comprises two distinct parts. The first is a punitive component—namely, the custodial term—imposed for the length a judge considers commensurate with the seriousness of the offending. The second is a separate preventive element—namely, the extended licence—imposed to protect the public from the danger posed by other, future, yet to be determined serious offending. To that extent, we agree with the noble Lord, Lord Carlile, who was right to draw attention to the question of serious risk to the public. That is what the second part of the EDS does.
If the Government were to detain EDS prisoners into their extended licence period for reasons related to their initial offending, that detention would be contrary to the nature and intended purpose of the community supervision component of the sentence, and contrary to the court’s order imposing the EDS. As the noble and learned Lord, Lord Reed, for the Supreme Court, put it in the Brown case,
“the purpose of detention during the extension period is materially different from that of a determinate sentence.”
The noble Lord, Lord Carlile, acknowledged that this amendment would require further development, either in the form of a new sentence or by further alteration to the existing EDS regime. I am grateful for that acceptance. However, I must state that the Government would not support such a proposal, because there is no need for such a new sentence. The EDS and the new serious terrorism sentence are deliberately structured to do two things: to provide punishment and, separately, to aid public protection and reintegration through the licence period. We have no desire to change this overall approach or, to use the metaphor of the noble Lord, Lord Carlile, to change the architecture.
For those who are not dangerous, the sentence for offenders of particular concern sufficiently caters for release with a role for the Parole Board and yet without the risk of an unsupervised cliff edge, which the amendment would introduce. I understand, as the noble Lord, Lord Carlile, noted, that the amendment is born of a desire to introduce a role for the Parole Board. But there is no role for the Parole Board here because it is not necessary. There is no early release and no parole so, accordingly, there is no role for the Parole Board. That is, therefore, my answer to the question put to me by the noble Lord, Lord Marks, who asked why there is no role for the Parole Board. It is for the reasons I have just given. While I suspect that my answer may not leave him persuaded, I hope it means that he is no longer perplexed.
The noble Lord, Lord Ponsonby, asked me whether we are saying that the alternative can do a better job than the Parole Board. I accept that, as the premise behind that question would admit, some Peers consider the Parole Board the only qualified body to deal with the specialised nature of setting licence conditions for terrorist offenders. But in answer to the noble Lord, Lord Ponsonby, I must respectfully reject that approach. The reason the Parole Board is responsible for setting licence conditions when it directs the prisoner’s release is that that is part and parcel of the Parole Board’s decision that the offender can be safely released and managed in the community. The Parole Board decides that the offender can be released and, as part of that, decides the licence conditions that will govern such release.
However, with an EDS for a serious terrorism offence and the serious terrorism sentence, there is no provision for early release before the end of the custodial period. The corollary of that proposition is that release at the end of the custodial period is automatic. Where release is automatic, there is no reason why the Parole Board specifically should consider licence conditions.
Furthermore, offenders will be subject to management under MAPPA—Multi Agency Public Protection Arrangements—through which the police and the probation and prison services work with other agencies to manage the risks posed by offenders living in the community in order to protect the public. In cases under the Terrorism Act 2000—TACT—and TACT-connected cases, that involves the probation service, the releasing prison, counterterrorism police, security services, the Joint Extremism Unit of HMPPS, and social services.
With the creation of the national security division of the National Probation Service, we will see even greater specialism in making such recommendations. That ensures that professionals with a detailed knowledge of the offender are involved in identifying the licence conditions which are necessary and appropriate. The key point is that that happens regardless of whether the final decision-maker on setting the licence is the Parole Board or HMPPS—the governor. While ultimately the board or the governor makes the decision, that decision is always directly informed by those with intelligence of and expertise in managing the offender. I therefore assure the noble Lord, Lord Carlile, that the process is no less rigorous and the outcomes are no different.
The noble Lord, Lord Carlile, asked a specific question about our discussions with the Parole Board. We have shared the Bill with the Parole Board and discussed its implications with it, but there has not been a formal consultation, if that is what the noble Lord was driving at in his question.
For those reasons, which I hope I have explained clearly and fairly, I remain of the view that there is no role for the Parole Board where there is no consideration of early release. That point, combined with the issues I have explained around the legality of this amendment from an ECHR standpoint, leads me to consider this amendment unnecessary. I therefore respectfully urge the noble Lord, Lord Carlile, to withdraw it. Of course, I am happy to continue our conversations with him about this matter, as I am sure we will continue to benefit from an exchange of views about other matters in the Bill also.
Lord Carlile of Berriew (CB) [V]
My Lords, I am grateful to all who have spoken in this debate, to the noble Lords, Lord Marks and Lord Ponsonby, for their broad support for what I have suggested, and to the noble Lord, Lord Wolfson of Tredegar, for his detailed response.
When I was at school, I had a teacher who taught us about different forms of argument, one of which is entitled “argumentum ad maiorem”—argument using a greater authority. In those days, I suppose it was something like “Because Sir Winston Churchill said something, it must be right.” The Minister’s argumentum ad maiorem was about the case of Brown v the Parole Board for Scotland, which, it will not surprise your Lordships to know, I have read.
I do not propose to embark on and bore your Lordships with a legal moot about that case. I say simply that I respectfully do not agree with the noble Lord, Lord Wolfson, despite his eminence as a lawyer, about the effect of that case on my proposal. I believe that my proposal, because of the change of the architecture that I suggested, including the fact that the sentencing judge would clearly refer to the potential extension provisions at the time of sentence, would come within the judgment of Brown v the Parole Board for Scotland.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We now come to the group beginning with Amendment 3. Anyone wishing to press this or any other amendment in this group to a Division must make that clear in the debate.
Clause 29: Further provision about release of terrorist prisoners: Scotland
Amendment 3
Lord Stewart of Dirleton
“(a) a sentence of imprisonment imposed under section 205ZA of the 1995 Act (serious terrorism sentence),(b) a sentence of imprisonment imposed under section 205ZC of that Act (terrorism sentence with fixed licence period), or(c) an extended sentence imposed under section 210A of that Act in respect of a terrorism offence.”Member’s explanatory statement
This amendment expands the scope of new section 26ZA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 by making it applicable also in relation to a person who is serving an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 in respect of a terrorism offence.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, in order to ensure that terrorist offenders in Scotland serve the appropriate custodial period of sentences for terrorism offences when they are imposed consecutively to other sentences, we introduced several amendments in Committee. Following these changes, we are now making a series of minor, technical amendments to provide further clarification and to ensure that the legislation will operate as intended.
The amendments have a variety of complementary effects but, taken together, they ensure that new Section 1B, which was introduced in Committee, operates effectively within the Scottish jurisdiction. Given the complexity of the amendments, we have continued to consider their effect with the Scottish Government, resulting in these final amendments, which have been agreed by all parties.
Many of the amendments simply insert the relevant terminology into the new clauses and deliver consequential changes to ensure the smooth operation of Section 1B. The overall effect is to ensure that terrorist offenders in Scotland serve the appropriate custodial period when they are serving multiple sentences, including for non-terrorism offences, and that offenders who receive multiple sentences for terrorist offences—and therefore multiple licences—will serve only one, aggregated licence period.
I draw your Lordships’ attention specifically to Amendment 31, which ensures that the sentence calculation provided for in Section 1B will apply retrospectively. This will provide clarity in calculating release dates where sentences for both terrorism and non-terrorism offences are imposed, ensuring the effective application of the Terrorist Offenders (Restriction of Early Release) Act 2020 in all cases.
Should noble Lords wish to see an individual breakdown of these amendments and their effect, I would be happy to place in the Library a letter in terms similar to the one I issued following Committee to explain the purpose of each one. I beg to move.
Lord Paddick (LD) [V]
My Lords, as the noble and learned Lord has explained, most of these amendments are technical in nature. The first group relates to a person who is serving an extended sentence in respect of a terrorist offence.
Amendments 27 to the end of the group amend Schedule 13. As the noble and learned Lord has explained, in Scotland—unlike in the rest of the UK—multiple sentences being served concurrently or consecutively are amalgamated into one sentence with one release date. This is known as “single terming”. Part 7 of Schedule 13 disapplies single terming for individuals where one of the offences is a terrorism offence, to ensure that the provisions of the Bill apply correctly. The noble and learned Lord did not exactly say that, but that is what he meant.
I had two questions for the Minister. The noble and learned Lord has already answered the first—on Amendment 31. The second is about Amendment 43, which makes changes to Section 24 of the International Criminal Court (Scotland Act) 2001. Can the noble and learned Lord give the House some idea of the extent of this change? How many prisoners serving sentences in Scotland have been sentenced by the international court, and what is the effect of these changes on them?
I gratefully acknowledge the support of the noble Lord, Lord Thomas of Gresford, in advising me on these matters.
Lord Falconer of Thoroton (Lab) [V]
My Lords, I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for explaining these measures. It would probably be helpful for a similar letter to that provided in Committee to be placed in the Library of the House so that we can have a clear view about it.
We do not object to any of these amendments. They have a quite significant effect on a very small number of cases, because the consequence for people convicted of a serious offence and a serious terrorist offence is that they may stay in prison for years longer. But that is the policy decision and the consequence of the Bill, and I accept that.
I am slightly anxious that this has happened so late in the process and that what the Bill contains depends on when the music stops. The Bill was introduced in the Commons in May 2020. Ten months have gone by. There has been this quite massive change of effect on a few cases. Can the noble and learned Lord explain how that has happened? I was struck by the noble Lord, Lord Wolfson, saying to the noble Lord, Lord Carlile, that he was happy to continue discussions on the issues. This is good and nice, but the Bill has a cliff edge. I worry that it is very late in the day to make these sorts of changes but, as I said, we do not object to them.
Lord Stewart of Dirleton (Con)
My Lords, I am grateful to both noble Lords for their contributions to this very short debate. The noble Lord, Lord Paddick, asked about the number of prisoners affected by this in relation to the International Criminal Court. I do not have that information to hand, but I undertake to supply it to the noble Lord.
The noble and learned Lord, Lord Falconer of Thoroton, raised the lateness in the stage of proceedings at which this amendment has been tabled. I acknowledge the complexity of the statutes involved and the alertness of those in my office, the Advocate General’s office, and in the Scottish Government who are monitoring the position. There has been useful and effective collaboration between them. I will look into the matter raised by the noble and learned Lord and see whether I can provide any further detail as to why these points were identified only at this stage. If I can identify anything specific, beyond my general answer relating to the complexity of the relevant provisions, I will provide it to the noble and learned Lord in writing.
Lord Stewart of Dirleton
Member’s explanatory statement
This amendment excludes sections 1AB, 1A and 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 from the scope of new section 26ZA(3) of that Act.
Member’s explanatory statement
This amendment makes new section 26ZA(7) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 subject to section 1B(11) of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
Member’s explanatory statement
This amendment is consequential on the amendment at page 26, line 11.
(a) ”Member’s explanatory statement
This amendment is consequential on the amendment at page 26, line 11.
(b) the term determined as the custodial term by the court that imposes the extended sentence on the prisoner under section 210A of that Act;”Member’s explanatory statement
This amendment provides for the purposes of new section 26ZA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 a definition of “appropriate custodial term” in relation to an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 imposed in respect of a terrorism offence.
Member’s explanatory statement
This amendment clarifies that the reference to section 205ZA is a reference to section 205ZA of the Criminal Procedure (Scotland) Act 1995 (defined as “the 1995 Act” for the purposes of Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993).
Member’s explanatory statement
This amendment clarifies that the reference to section 205ZC is a reference to section 205ZC of the Criminal Procedure (Scotland) Act 1995 (defined as “the 1995 Act” for the purposes of Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993).
“(c) in relation to an extended sentence imposed on a terrorist prisoner under section 210A of that Act in respect of a terrorism offence, the period specified as such under that section by the court that imposes the sentence on the prisoner.”Member’s explanatory statement
This amendment provides for the purposes of new section 26ZA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 a definition of “extension period” in relation to an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 imposed in respect of a terrorism offence.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We now come to the group beginning with Amendment 12. Anyone wishing to press this amendment to a Division must make that clear in the debate.
Amendment 12
“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, Amendment 12 echoes the amendment calling for a review which we proposed in Committee. The purpose of the amendment is to enable the noble and learned Lord—or another Minister—to update the House on the Government’s proposals for reviewing the impact of the first 31 sections of this Act, as it will then be. During my speech in Committee, I spent some time setting out in detail why we contend that the review called for by our amendment is necessary. I will not trespass for long on the House’s time this afternoon.
My noble friend Lady Hamwee will speak to Amendment 13, in the name of my noble friend Lord Paddick, about polygraphs. We broadly support Amendment 24 in the name of the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Jones of Moulsecoomb and Amendment 25 in the name of the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Jones of Moulsecoomb.
We are concerned, first, to ensure that the Government keep under review and report on the impact on prisoners of longer terms of imprisonment and consequently proportionately shorter periods on licence. To answer a point made in Committee on behalf of the Government, in our view it is not premature to ask for such a review at an early stage. It is not necessary to await the release of such prisoners in many years to come before reviewing the working of this part of the Bill. The impact of very long sentences on, for example, prisoners’ behaviour in prison—a point raised by the noble Lord, Lord Ponsonby of Shulbrede—their prospects of rehabilitation and their continued contact with their families and friends outside prison can be assessed from an early stage.
Lord Bhatia (Non-Afl) [V]
My Lords, I fully agree that the different treatment is justified because of the consequences of the early release of the offender. The offender must remain for the maximum sentence of 25 years as stated in the Bill.
Baroness Jones of Moulsecoomb (GP)
My Lords, I will speak to the whole group but I have co-signed Amendments 24 and 25 in the names of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Ponsonby, respectively. I signed those agreements because they seemed so sensible. It is all very well making up rules and imposing limitations on people’s liberty but, if you do not have the facts and you do not actually know what the statistics are, it all seems a bit academic. Post-legislative scrutiny is incredibly important, especially for Bills such as this which implement contentious and possibly damaging and complex arrangements. They can either work very well or be disastrous.
The Government are taking a very worrying approach to counterterrorism with this sort of “tough on crime” mentality where we just lock people up and throw away the key. We need an evidence-based, multidisciplinary approach to deradicalisation. We need to rescue people from these deeply destructive ideologies, recognising that they are pretty much groomed and brainwashed until their thinking becomes so warped that violence seems like a legitimate tool.
I agreed with every word that the noble Lord, Lord Marks, said earlier about prisons. I have visited prisons and have spoken to a lot of people who have been in them and, quite honestly, there is a huge risk that issues and behaviours like this can spread in prison and in fact the prisons become a recruiting ground. That is pretty much how ISIS started, in the prison camps in Iraq, so we have a precedent for some quite damaging events coming out of locking people up. We have to be very careful that the Government’s attempts to imprison people indefinitely do not just make the problem much worse. Could we please have independent reviews and get the evidence base, and compare the Government’s approach with the other options, which could be much better?
Baroness Hamwee (LD) [V]
My Lords, Amendments 24 and 25 struck me as setting out a number of concerns that we would like to have seen in the Bill now. I agree very much with what the noble Baroness, Lady Jones, had to say, except that I do not think that they amount to post-legislative scrutiny. Both highlight concerns that we expressed at an earlier stage, although not all those concerns. My noble friend’s Amendment 12 is rather different in that after a year’s experience of the Bill—an Act, as it will then have been—it would assess its impact. Like him, I have had a similar impression: a kind of inconsistency between the words that we see on paper in the Bill—the impression that is given about responding with even tougher sentences, which is supported by some of the debate that we have had—while privately we have had much more nuanced conversations which have encouraged me, even though I am somewhat depressed by this legislation.
I want to say a word—well, several words—about Amendment 13, which would provide for a review of the use of polygraphs. The amendment came out of amendments in Committee, not our own but those proposed by the noble and learned Lord, Lord Falconer, when he called for a pilot and a report to Parliament, including on specified matters. I understand that, with a relatively small number of terrorist offenders to whom the polygraph condition will apply, it is quite hard to undertake a useful pilot, but that does not negate the importance of an assessment of the polygraph condition which is published in the public domain.
Crucially, the review that we propose in Amendment 13 would be an independent review. Its report would include data, as set out in the amendment’s subsection (3), on the number of terrorist offenders subject to the polygraph condition and on the number of terrorist offenders recalled to custody following a test. I should mark those sentences as copyright of the noble and learned Lord, Lord Falconer—I think I lifted them wholesale. It would also cover regulations, rules and codes of practice, and make recommendations regarding those, and the report would be made to Parliament. We have included the caveat that any material that the Secretary of State considered might prejudice public safety should be omitted.
The review would be within three years of the Section 32 polygraph condition coming into force. I understand, though I could not quite pin it down, that the Government are intending a review after a couple of years, which would essentially be the same; after two years is more or less the same as within three years.
I take this opportunity not only to argue for a review but to ask the Minister to confirm what is planned by the Government. not only as to the timing but as to the four elements that I have listed.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I have one amendment in this group, Amendment 25, and my noble and learned friend Lord Falconer of Thoroton put his name to Amendment 24. I was very pleased that the noble Baroness, Lady Jones of Moulsecoomb, said that she had read our amendments and that they seemed sensible; I think that is a good start. The general point made on this whole group is that there is an appetite for reviewing different aspects of this legislation, and the amendments referred to go into particular aspects of that.
I want to make a slightly more general point. It is important that the general case for this sort of legislation is made regularly. I have had the opportunity in recent days of talking to young people who are becoming more politically active and engaged. They are very interested in terrorism legislation as a whole, particularly in how Parliament seeks to review it, change it and make it more effective. Particularly in our House, we have a duty to make sure that those arguments are remade and heard by the general public.
The specific amendment that I have put my name to concerns looking at particular impacts on prison capacity, the National Probation Service and offenders convicted of terrorist offences, as well as levels of bad behaviour in prisons—a point that I made on an earlier group. Also within my amendment are financial matters, because there is a very significant financial impact of the review of extended sentences and licence periods.
Lord Stewart of Dirleton (Con)
My Lords, the amendments in this group would all require the Secretary of State to commission independent reviews into various aspects of the operation of the Bill and to lay the resulting reports before both Houses of Parliament. I welcome the considerable appetite for scrutiny of these measures and for the accumulation of data—the facts and statistics that the noble Baroness, Lady Jones of Moulsecoomb, sought. I acknowledge the appetite for review, to which the noble Lord, Lord Ponsonby of Shulbrede, referred. However, while I welcome these things, I must respectfully disagree that the amendments are necessary.
First, as acknowledged within the amendment of the noble Lord, Lord Marks of Henley-on-Thames, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whose remit covers this Bill. Indeed, he has announced his intention to conduct a review of matters within prisons, which we welcome. The benefit of an independent reviewer is that he will not be constrained by the specifications of government and can decide what is most appropriate for his consideration. We have every confidence that he will continue to provide valuable and independent scrutiny following the Bill’s enactment and through the prisons review that he will be undertaking. I remain of the view that there is no need to appoint another reviewer to focus on just some of the provisions of the Bill.
The amendments indicate some areas of particular concern, which I shall seek to address with greater specification. On Amendment 12, the noble Lord, Lord Marks of Henley-on-Thames, has noted a particular interest in the rehabilitation of terrorist offenders while in custody. As he told your Lordships’ House in relation to an earlier group of amendments, he and others, including the noble Lords, Lord Ponsonby of Shulbrede and Lord Carlile, attended the briefing held by officials in the Joint Extremism Unit. I have heard that at least some noble Lords found that a helpful exercise, and I hope others did as well. I understand from engagement, and from the contributions made from the Floor today, albeit electronically, that there was a healthy discussion and a recognition that there is no simple cure or metric for this matter; indeed, that was acknowledged in a contribution by the noble Lord, Lord Carlile of Berriew, on an earlier group of amendments.
It is very difficult to measure the effectiveness of intervention programmes in changing behaviour for any offenders but especially within such a small cohort. Efforts in our prison system to deradicalise and rehabilitate offenders in custody are ongoing, and techniques are developing constantly. However, while rehabilitation will remain central to the work undertaken with terrorist offenders in custody, that goes hand in hand with risk management.
The noble Lord, Lord Marks of Henley-on-Thames, has again raised the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate, and the use of separation centres to this end. The risk was identified that such persons might otherwise become kingpins, looked up to by other persons in the prison estate. We have a set of specialist operational controls for managing counterterrorism risk in custody, as well as a number of population-management controls available for use across the entire prison estate.
I assure the noble Lord and the House that most extremist prisoners can, and should, be managed in the mainstream prison population with appropriate conditions and controls. That having been said, we take the risk of radicalisation within the prison estate seriously and, where deemed necessary, we have used, and will use, the separation centres available to us to prevent persons spreading malicious ideology to other prisoners.
In bringing to a close my submissions on this amendment, I acknowledge on behalf of the Government the anxious and thoughtful concern expressed by the noble Lord and others, following a very constructive series of engagements.
Amendment 13 would require the Government to commission an independent review and publish a report into the use and operation of polygraph testing in the licence conditions of terrorist offenders. Today and, more importantly, in Committee, we discussed in some detail the matter of polygraph testing. As I am sure noble Lords now understand, it is not intended to be used as a stand-alone measure but as part of a package to provide a further source of information to test offenders’ compliance with their conditions of licence. It is not to be used as something to catch an offender out in breach.
That said, I recognise that the use of polygraph testing as a licence condition is a novel matter for the House, which is why the Government have committed to conducting and publishing a review of polygraph testing on terrorist offenders after a two-year period, which will provide more meaningful results and report on most of the criteria outlined by the terms of the amendment. I hope that that will satisfy the noble Baroness, Lady Hamwee, who dwelt specifically on this material in the course of her submission.
I will make one further point on this amendment. The terms have specified that the review may make recommendations on
“regulations, rules and codes of practice”.
Clear rules governing the use of polygraph examinations in a licence condition will be laid by statutory instrument. We currently anticipate that these will be those already in place for the use of polygraph testing in licence conditions for sex offenders, as set out in the Polygraph Rules 2009, which specify the qualifications expected for polygraph examiners, how a polygraph examination should be recorded and how those examinations will be reviewed.
Our review will of course inform whether these require amendment or tailoring in light of factors presented by the specific cohort, so I assure the noble Lord, Lord Paddick, who moved the amendment, and those noble Lords who spoke on it that our plans for the introduction of polygraph testing already account for this concern.
Amendment 24, in the name of the noble and learned Lord, Lord Falconer of Thoroton, would introduce a new clause requiring the Secretary of State to
“commission a review and publish a report”
into a number of measures, most of which are not directly addressed by provisions in the Bill, in the first year of it coming into force. While I recognise the desire to test for unintended consequences of the Bill, I politely disagree that a review on these terms and within this timeframe would be either necessary or add to what is already under way.
I want to set out briefly why, taking each part in turn. Proposed subsection (1)(a) would require a review into
“the effectiveness of current strategies to deal with lone terrorists”.
There is a great deal of work under way to target the terrorist threat, including that of lone terrorists. I point the noble and learned Lord to the Security Minister’s speech at the Royal United Services Institute in November 2020.
The Government’s response to the recent terrorist attacks has been comprehensive and informed by the Independent Reviewer of Terrorism Legislation’s analysis. The Government will shortly bring forward policing and crime legislation to implement a number of recommendations from Jonathan Hall QC’s independent review of the effectiveness of the Multi Agency Public Protection Arrangements—MAPPA—when it comes to the management of terrorism, matters connected with terrorism and offenders of terrorism concern within the community.
The Government recognise that independent analysis can be useful in terms of challenging existing practices and processes. That is why the noble Lord, Lord Anderson, QC, was asked to oversee the operational improvement reviews following the attacks in 2017. I submit that now is not the time for another review.
As part of the constant, ongoing review and improvement of our counterterrorism systems and processes, the CONTEST unit, based in the Home Office, undertook an internal review of lone-actor terrorism last summer, working with operational partners and departments from across government. The review’s findings are sensitive and will not be published, but they have been shared with Parliament’s Intelligence and Security Committee.
Proposed subsection (1)(b) refers to
“the effectiveness and availability of deradicalisation programmes in prisons”.
As I have said, it is difficult to measure their effectiveness, but the primary intervention, the Healthy Identity Intervention—HII—has been accredited by a panel of experts and is informed by the best available evidence. We have also conducted an evaluation of the HII pilot study to assess implementation and delivery. This is publicly available on GOV.UK, and a short-term outcome evaluation of the HII is under way. Although this has been delayed due to the impact of Covid-19, we are committed to publishing it once it has concluded.
We remain committed to keeping our interventions under review and developing the evidence base, which is what so many of your Lordships who have spoken on this matter have sought. As I have said, we will establish a new counterterrorism assessment and rehabilitation centre, which will not only help us to develop knowledge and evidence but will bolster our capacity to deliver interventions by recruiting more specialist psychologists and trained chaplains.
The Government plan to make an oral Statement that will explain more fully the important work to rehabilitate terrorist offenders in prison, including an overview of the new centre’s strategy and programme of work. I hope that noble Lords will agree that these demonstrate this Government’s commitment to transparency and sharing as much as we can.
On proposed new subsection (1)(c) in the amendment, in relation to the polygraph, as I mentioned earlier in this group, we will be conducting an evaluation of its use after two years. This will add to our evidence of its effectiveness and value, which has already been established through independent evaluation, and I submit that a further review is not needed.
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
I have received a request from the noble Baroness, Lady Hamwee, to ask a short question of the Minister.
Baroness Hamwee (LD) [V]
My Lords, on that last point, I take it that the post-legislative scrutiny referred to is separate from the review of polygraph testing after three years, to which the Minister referred. On that, while I take his point about parliamentary scrutiny of regulations, codes of practice may not be statutory and therefore not subject to that sort of scrutiny. Might the Minister take back the suggestion that, following the very helpful sessions that the MoJ arranged during the course of the Bill on a number of matters, for which we were very grateful, Ministers might consider communicating with—and possibly even consulting—noble Lords in framing the review in three or so years’ time? I do not expect him to make a commitment now, but I would like to put that idea in his and his colleagues’ heads.
Lord Stewart of Dirleton (Con)
My Lords, I assure the noble Baroness that that suggestion has lodged in my skull and will have been noted by others, and we will come back to it in due course. On her specific question on whether the post-legislative scrutiny of the Bill is distinct from the review of polygraph testing, I am happy to confirm that that is the case.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, this has been a helpful debate as it has moved forward the process of keeping these new provisions under parliamentary scrutiny. I am very grateful, as I expect all noble Lords are, to the noble and learned Lord, Lord Stewart, for the comprehensive and careful way in which he set out the work of evaluation and research into the evidence concerning the treatment and punishment of terrorist offenders, and the arrangements for them within the prison estate.
The noble Baroness, Lady Jones of Moulsecoomb, expressed the need for constant review. She warned us of the possible dangers of long-term imprisonment and the risk of radicalisation. As well as making a number of points and raising questions about polygraphs, my noble friend Lady Hamwee stressed the distinction between the “talk tough” language of the Government and the more considered, balanced and careful language of officials and Ministers that we hear in private. My noble friend called it “nuanced”. I add that the careful and cautious language she spoke of is also the language of nearly all the professionals in the system to whom we speak, be they in the Prison Service, probation service, inspectorates or elsewhere.
The important point is that longer sentences, while they may be necessary, are neither the only answer nor a complete answer. The “talk tougher” approach, leapt upon with enthusiasm by the press, has struck many of us as having had too little consideration. In his response, the Minister demonstrated that he certainly is determined to take an evidence-based and cautious approach to the issues raised by the Bill, including polygraph testing.
I accept the Minister’s point that the inclusion of these amendments in the Bill is not essential to provide that the work, which he described to us in some detail, is consistently explained to parliamentarians in both Houses. The important point about reviews, which I invite him and others to bear in mind—though not to lodge in their skulls—is that reviews which report to Parliament enable noble Lords here and MPs in the other place to consider and weigh up the evidence as it becomes available.
The Minister was completely right that there is no simple cure, but it is an important part of the role of Parliament to consider the evidence as it develops. The Bill puts before us a set of new and radical measures of particular severity. They need to be kept under constant attention. On the basis that they will get that attention because of work done by the Government and promulgated to Parliament, I beg leave to withdraw my amendment.
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
My Lords, we now come to the group beginning with Amendment 14. Anyone wishing to press this or any other amendment in the group to a Division should make that clear in debate.
Clause 34: TPIMs: condition as to involvement in terrorism-related activity
Amendment 14
Member’s explanatory statement
This amendment would change the proposed new test for the imposition of a terrorism prevention and investigation measure from one of reasonable suspicion of involvement in terrorism-related activity to one of reasonable belief of such involvement.
Lord Parkinson of Whitley Bay (Con)
My Lords, in moving Amendment 14, I will speak also to Amendment 22; both stand in the name of my noble friend Lord Wolfson of Tredegar. I will respond to the other amendments in this group at the end if the noble Lords in whose names they stand speak to them.
The Government have listened to the mood of your Lordships’ House as expressed in Committee, specifically the concerns of a number of noble Lords about lowering the standard of proof for imposing a TPIM to “reasonable grounds for suspecting” involvement in terrorism-related activity. The Government have reflected on those concerns and tabled these amendments. On behalf of my noble friends and myself, I thank all noble Lords who engaged with us since Committee as we did so.
Amendment 14 will lower the existing standard of proof for imposing a TPIM of “balance of probabilities” to “reasonable belief”. However, this is a higher standard of proof than originally proposed by the Bill, and a higher standard than was applied under the previous control order regime.
As a result of this amendment, the Home Secretary will need to “reasonably believe”, rather than hold “reasonable grounds for suspecting”, that an individual is, or has been, involved in terrorism-related activity before she can impose a TPIM. In practice, and as noted by the noble Lord, Lord Anderson of Ipswich, in Committee, “reasonable belief” is closer to the current “balance of probabilities” standard than it is to “reasonable suspicion”. It is the standard that applied when TPIMs were first introduced in 2011 and the standard that is in place for other key tools used to counter terrorism, including proscription and asset-freezing orders.
Baroness Hamwee (LD) [V]
My Lords, Part 3 of the Bill raises for these Benches some considerable points of principle regarding terrorism prevention and investigation measures. I know some noble Lords may hear that as not appreciating threats posed by some and the devastation caused by actions that are more than threats. They may hear that we do not appreciate what is achieved by the agencies protecting us from harm—harm that we, the public, did not even understand we were in the way of.
None of that should be read into what we say on these amendments. What should be understood is our concern for principles regarding detention without trial and the presumption of innocence. These are principles of which our country is proud. There are principles and interests to be balanced here.
We asked to group together all the amendments regarding TPIMs, other than those regarding polygraphs, because we thought that that would be more convenient for the House and because Part 3 appears to be a package. The noble Lord, Lord Parkinson, has spoken to government Amendments 14 and 22. I will start with Amendment 22, which proposes an additional clause. We are certainly not opposing it. I wanted to understand what this proposed new clause will provide for that cannot be done now by the Independent Reviewer of Terrorism Legislation. On the last group the noble and learned Lord, Lord Stewart, stressed the importance of the independent reviewer being able to set priorities, so imposing the obligation on him is interesting. Yesterday I had the opportunity, for which I thank him, to ask the noble Lord, Lord Wolfson, about this. He confirmed that the reviewer can carry out an annual review and that this addition is due to the Government wanting to be certain about how all this is going; I hope I have that right. I welcome that the Government want to be clear, but I would not have thought that they needed the amendment.
We have had a series of energetic, diligent and what in current jargon is often called “curious” reviewers, all of whom have juggled the work of the reviewer with other professional commitments. Their time, resources and capacity are necessarily limited, so we do not regard this government amendment as some sort of concession. I should express the concern that this specific, quite narrow, statutory commitment could well limit the ability of the independent reviewer to undertake work on the very many other aspects of terrorism legislation.
As regards government Amendment 14 and our amendments to leave out certain clauses, our starting point is that there is no need to extend TPIMs, such that, taken together as they are intended to be, they amount to the possibility of house arrest for individuals who have not been found guilty of anything. The House heard in Committee, as did the House of Commons, that neither the current independent reviewer nor the police see the need for this change. No one could argue that the measures currently permitted—those imposed on individuals—are not stringent, and no one should argue that the measures should be more stringent so that they are more of a sanction or punishment, because investigation and prevention measures are not intended to be punishment. They were introduced as temporary measures. This is not a tool in the toolbox for which we see a justification for extending.
Amendment 14 changes suspicion to belief—a judgment which still must be made by the Secretary of State. Belief is a higher threshold than suspicion, and to that extent it is welcome. But it is not as high as satisfaction on the balance of probabilities that an individual is, or has been, involved in terrorism-related activity. I appreciate that there are other safeguards but, as the noble Lord, Lord Anderson, put it at the last stage, it would be a brave court that would second-guess evaluation by an elected Minister who has full access to intelligence.
The noble Lord, Lord Parkinson, may say, as he said in Committee, that the Government are given flexibility by this reduction in the threshold. I think that saying flexibility is a soft way of saying wider powers. That is why we are registering our opposition to the change in the requirement under Section 3 of the 2011 Act by our amendment to leave it out.
I cannot detach Clause 34 from Clause 35, which would effectively make a TPIM and its various measures, including “residence”—or detention—indefinite. The point was made pithily by the noble and learned Lord, Lord Thomas of Cwmgiedd, in Committee. My noble friend Lord Strasburger talked about the double whammy, reminding us of the extension of the requirement as to where an individual is to live. In Committee, the noble Lord, Lord Parkinson, referred to “an enduring TPIM.” Enduring? Indefinite? That is what Clause 35 would allow. Having no hope is a terrible thing. My noble friend Lord Marks referred to “no-hope sentences” in the context of explaining to your Lordships' House the panel’s views on rehabilitation that we had heard. No hope can have an outcome completely opposite to what is intended. It can lead to an attitude of “What have I got to lose?” It could lead to not having anything to lose and managing to get involved in terrorism, with catastrophic effect.
The noble Lord, Lord Parkinson, said yesterday, in a discussion, that the current limit gives the subject an endpoint at which he can aim, so he can spend his experience of the measures planning what to do when he is released from them. We are not persuaded by that view.
If the noble Lord, Lord Anderson, presses the amendment of up to three extensions—six years, that is—we will support it, as that is clearly an improvement on indefinite detention. If the House agrees it, we will recognise that that is what the House wishes and not divide to leave out the clause. But if it is not agreed nor put to a Division, we will seek the opinion of the House on the clause, and this is my giving notice of that.
Clause 37, on the residence measure, changes Schedule 1 to the Act to allow for the imposition of a requirement to remain at a specified residence, which is
“applicable overnight between such hours as are specified.”
Taking away the word “overnight,” as is proposed, will mean that the requirement will be “applicable … between such hours” with no specified limit. In Committee, we heard two examples of what the Government want to address with this. The first is that if a subject is thought to be a radicalising threat to children, he should be confined during hours at which young people arrive at and leave school. Frankly, I would have thought that an individual with that in mind would be rather more subtle, but that is not the point. The second example is that if an individual is a suspected attack planner, he should be curfewed for weekends during local football games—as well as, presumably, any other big local gatherings, but football games were the example. Again, in parenthesis, given that very few major matches seem to still kick off at 3 pm on a Saturday, I wonder about this. But I acknowledge that the Minister referred to the weekend, and anyway, again, that is not really the point.
Lord Anderson of Ipswich (CB) [V]
My Lords, nostalgia is the theme of the Government’s amendments in this group, because each of them takes us back to the wording of the original TPIM Act 2011. I am nostalgic enough for those days to have put my name to both amendments.
Amendment 14 on the standard of proof, in the name of the Minister, is a tribute to those noble Lords from all parts of the House who spoke so compellingly to the similar amendment that I had the privilege of moving in Committee. They include the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer, each of whom advised—rightly as it turned out—that my amendment did more than was necessary to accommodate the Government’s legitimate concerns. Gift horses should not be looked in the mouth, still less kicked in the teeth. Ministers have listened and have acted decisively. I thank them for that and welcome the retention of a standard of proof, whether expressed as reasonable belief or as balance of probabilities—between which I see no real distinction in practice—that has by the Government’s own account caused no unnecessary difficulties and exposed us to no avoidable danger over the past 10 years.
With a little more hesitation, I put my name also to the Government’s Amendment 22. This reinstates the original requirement in Section 20 of the TPIM Act 2011 for an annual review of the operation of the Act by the independent reviewer, which in turn succeeded a similar requirement in relation to control orders. Section 20 was amended in 2015 to allow the independent reviewer an increased degree of discretion as to the timing of those reviews. That was not unwelcome to the independent reviewer at the time—I declare an interest—who had, as I recall, been given a number of commissions additional to his normal annual duties. However, I understand that the current independent reviewer is content, and on that basis I support Amendment 22 on two conditions. The first is that the independent reviewer should have the necessary resources to perform his various important tasks with the frequency that will now be required and with the promptness that is so desirable. The second condition is an acceptance that, useful as these reports are to those of us concerned with policy in this area, they can be no possible substitute for the scrutiny of individual cases on the evidence that is properly the function of the TPIM review group, to which the Minister alluded, and of the courts.
However, this group is concerned with more than nostalgia. TPIMs have moved on since 2011. These notably harsh measures are harsher than they were then and will soon become harsher still. The toughest measure of all, relocation, with or without one’s family, to a distant town or city—colourfully described by Liberty as “internal exile” and removed by the 2011 Act —was restored on my recommendation in 2015. A range of other new obligations has been added to the list of available measures. Assuming that Clause 37 goes through, notwithstanding Amendment 18, TPIM subjects will for the first time be able to be confined to their houses for substantial parts of the day, while no doubt being tagged, limited in their social contacts and obliged to report to the police station during the periods that they are allowed out. That is rather a different proposition from observing a night-time curfew only in one’s home borough, which is how things were in 2011.
The cumulative effect of numerous measures under a TPIM, even under the existing law, was explained in this way by LF—a TPIM subject, anonymised like the others into a pair of initials—in recent evidence to the High Court. That evidence was summarised by Mrs Justice Farbey in the judgment handed down on 10 February this year:
“He says that he felt as if he was being asked to do something which is not humanly possible: to fulfil multiple and often changing obligations over possibly a two-year period without making one single mistake. He felt as if he was in a trap: if he were to breach any of the TPIM, he would be convicted and imprisoned. The TPIM would then be re-imposed, perhaps with even more requirements, and he would once again be at risk of breaching them.”
For, of course, while the basis for a TPIM can include conduct falling short of the criminal threshold—support, assistance and encouragement more broadly understood than in the criminal law—even the most trivial breach of a curfew or reporting requirement is a criminal offence for which the maximum penalty is five years in prison.
That is the context in which we have to consider the remaining amendments, Amendments 16 and 17. Your Lordships have three options, and I emphasise that none of them is a liberalising option. The Liberal Democrats, with their Amendment 17, offer a continuation of the status quo: a two-year maximum limit in the absence of new intelligence, as initially proposed by my predecessor, the noble Lord, Lord Carlile, save in exceptional cases, and as supported by the current independent reviewer.
The Government, with Clause 35, offer an unlimited extension, which would allow radicalisers in particular—whom the Government told the independent reviewer are
“the likely targets of enduring TPIMs”—
quite simply to endure forever, even if the intensive monitoring of the subject turns up not a single scrap of evidence or intelligence suggestive of re-engagement.
My Amendment 16 takes the middle path. It recognises that, as I reported in 2013, it is tempting to wish for longer than two years in the most serious cases. However, it recognises also that TPIMs must not be allowed to become a more attractive option than prosecution, that the authorities must be incentivised to work on an exit strategy—and not simply to warehouse TPIM subjects—and that in a free country, our fellow citizens, however odious we might consider them, cannot be indefinitely confined by the state in the absence of any attempt to put them on trial.
It is said that TPIMs of indefinite duration will in reality be no such thing because Ministers will volunteer their discontinuance and because the courts can be counted on to intervene if they do not. Yet, with respect, the evidence casts doubt on both propositions. I understand from the independent reviewer, who on his own initiative asked officials about this, that every TPIM imposed since 2015, unless revoked for extraneous reasons, such as imprisonment or a court order, has been extended by the Secretary of State on the one and only occasion that this is normally permitted under the existing law. That is hardly surprising. If a released TPIM subject were subsequently to reoffend, who in active politics would want to be the Home Secretary who had chosen voluntarily to release him from constraint?
As to court proceedings, it is not just that closed material proceedings make them slow and cumbersome, that they do not allow the subject to instruct his special advocate or to call evidence on the full national security case against him, or that the Home Secretary asks for and is generally accorded—as her predecessor was by the Supreme Court last week in the Shamima Begum case—a high degree of judicial deference for her decisions relating to national security. There is also, most regrettably, a funding and hence an access to justice issue. I am again grateful to the independent reviewer for the information that of the handful of current TPIM subjects, no fewer than three—JD, HB and HC—sought funding from the Legal Aid Agency to enable them to be represented in review hearings but were turned down, after which they requested the court to discontinue those review hearings.
It is said that indefinite TPIMs will keep us safer. On that, I first invite noble Lords to reflect on the severity of my own amendment. It would mean that the Secretary of State’s initial belief that a subject has probably been involved in terrorism is enough to justify four years on a TPIM, with every move tagged and every conversation potentially monitored. If further intelligence emerges of involvement in terrorism, at any stage during those four years, under my amendment a fresh TPIM could still be imposed, again extendable up to a further four-year limit—and so on, ad infinitum. That, surely, is draconian enough.
Would we be kept safer by the indefinite warehousing of TPIM subjects beyond the four-year mark, without the need for intelligence derived from what is, after all, not just a terrorism prevention measure but a terrorism investigation measure? Such people could readily become martyrs to a certain audience as, in a small way, one or two control order subjects did. As my noble and learned friend Lord Thomas of Cwmgiedd said in Committee, by reference to the IPP regime, of which he has great experience,
“indefinite detention often makes someone more dangerous because you take away hope.”—[Official Report, 9/2/21; col. 273.]
This country has a long tradition of combining high levels of national security with a vigorous defence of individual liberty. We never imposed indefinite house arrest, relocation and other similar restrictions on those who preached communist revolution, and we have never imposed TPIMs, although we have the power to do it, on radicalisers of the extreme right wing or the Irish republican persuasion. Nor are we where we were in 2005, when it was widely feared that al-Qaeda-directed plots would take tens of thousands of innocent British lives. Existing measures have helped ensure that the total death toll from terrorism this century, in Great Britain, stands at less than 100. To introduce indefinite executive detention in response to this miserable bunch of ideologues would, I suggest, be a signal not of strength but of what the terrorists most want to see from us: fear and overreaction.
National security law must be more than a series of proportionality assessments performed by the Executive and observed by respectful courts. Something more is needed—checks and not just balances—or how else can Parliament offer guidance on where the limits should be? Your Lordships’ House has already this year greatly improved the Covert Human Intelligence Sources (Criminal Conduct) Bill, whose original version suggested that this important truth may have been forgotten. This Bill, on a similar theme, was described by the independent reviewer as
“conspicuous for its lack of safeguards.”
Amendment 16 extends the reach of these always controversial TPIM measures, but it at least retains a tangible check on the executive power to constrain—a power of which the TPIM is the strongest example known to our law. I hope that the good sense of this amendment will commend it to your Lordships. With that in mind, my intention is to test the opinion of the House.
Baroness Jones of Moulsecoomb (GP)
My Lords, I feel much more educated than I did half an hour ago. Today, I found myself not only supporting but signing a government amendment, which is a first for me—what a pleasure. I was in the prestigious company of two QCs and a privy counsellor. I will support any and all amendments that are moved. I find the four-year limit a little tougher to accept than that of two years, but anything that is not indefinite is an improvement.
In normal times, this issue would get much more coverage, but Brexit, Covid and everything else are taking the public’s attention away from these issues. Anything that would implement unending government surveillance and intrusion on someone’s life is, frankly, terrifying.
The amendments of the noble Lord, Lord Paddick, to remove various clauses, and those of the noble Lord, Lord Anderson, would significantly improve this Bill. I hope that noble Lords who have been involved in this Bill will continue to work with us. They have shown that they are prepared to improve the Bill and I think that further improvements are possible. I hope that they are listening and will accept these amendments.
Lord Strasburger (LD) [V]
I speak in support of Amendments 15, 17 and 18, which would remove Clauses 34, 35 and 37 from the Bill. Each of those clauses would, if retained, significantly increase the severity of the TPIM regime or reduce the safeguards against the misuse of TPIMs and miscarriages of justice. Their combined effect would result in a dramatic increase in the powers of the Secretary of State, all to the detriment of fairness, justice and the freedom of those subjected to TPIMs.
The existing TPIM regime gives the Home Secretary the power to confine an individual to a property, perhaps located a long distance from their home, with a plethora of restrictions on how they live their lives and communicate. These clauses would give the Secretary of State new powers to impose a total 24/7 curfew, which is effectively house arrest, and to make this non-stop detention unending, permanent or until the person dies.
The subjects of TPIMs, who may never have been convicted of anything, could be condemned to a far longer period of incarceration than violent criminals and terrorists who have been convicted and sentenced by a court. That could happen without them knowing the allegations against them and without them having had any chance to see the evidence on which those assertions are based, let alone to challenge and refute them. Clause 34, even after being amended by the Government, makes it even easier for the Secretary of State to decide, at the stroke of a pen, to put an individual under this tough house arrest regime.
As the law now stands, she needs to believe, on the balance of probabilities, that the person is or has been involved in terrorism. I am no lawyer, but I can still do arithmetic and I take “on the balance of probabilities” to mean that there is a greater than 50% chance that she is right and the person is a terrorist. The clause changes the threshold from “on the balance of probabilities” to “reasonable belief”. Since the Government accept that this change lowers the burden of proof, I calculate that that means that the probability of them being a terrorist could be less than 50%, but they could still be locked away indefinitely. That means that the probability of them not being a terrorist threat could be greater than the probability that they are.
How could that come about? It could just be an honest mistake, based on flimsy evidence. We had a very strong hint that this does happen, when the current Independent Reviewer of Terrorism Legislation, who has access to classified material, gave evidence to the Public Bill Committee. He said:
“There is a risk that mistakes can be made about assessing intelligence. I have reason to believe that. My concern is that you are opening up a greater margin of error if the standard of proof is lowered. It is a fairness issue based on the authorities having all the cards.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 6.]
Answering another question, he said that he knew of instances where the intelligence had been misunderstood. There you have it: a highly reputable and well-informed person is warning us that innocent people are being punished under the current standard of proof, let alone the lower standard to which the Government would have us agree, under Clause 34, as amended.
What sort of country are we becoming if we are prepared to lock somebody away, all day and all night, indefinitely, even if the chance of them not being a threat is greater than the chance that they are, and having given them no chance to defend themselves? Why, you might ask, are the Government seeking to tilt the scales, not once but three times, towards even more draconian powers, with less justice and fewer safeguards against mistakes or abuse? You would think that there must be strong and compelling reasons for this triple assault on the fairness of our justice system, but the sad truth is that the explanations that have been offered during the passage of the Bill are utterly threadbare and unconvincing. They have the appearance of having been retrofitted, long after these clauses were added to the Bill, in a forlorn attempt to justify the unjustifiable.
The Independent Reviewer of Terrorism Legislation, with all his inside knowledge, searched for a good reason to lower the burden of proof and failed to find one. He said that
“it is not clear why there is any need to change the law in the manner proposed …where harsher measures are to be imposed, safeguards should be encouraged, not jettisoned.”
He also said that
“there is reason to doubt whether there exists an operational case for changing the TPIM regime at this … time.”
That is as forthright a condemnation of these three clauses as we are ever likely to hear from someone in his position.
What reasons have the Government come up with to justify lowering the burden of proof and therefore diminishing the safeguards against mistakes and misuse? We have been told that it will be easier to impose a TPIM, which frankly is a transparently circular argument. We have been told how hard it is to gather evidence to satisfy the current burden of proof. We have been told about pro-ISIS fighters returning from Syria being difficult to investigate. We have been told that it would simplify administration, although that is hardly a good reason for increasing the probability that innocent people are incarcerated by mistake.
All of these supposed justifications and all the others that have turned up and disappeared along the way were comprehensively holed below the water line by the Government’s star witness giving evidence to the Bill Committee. Assistant Chief Constable Tim Jacques gave evidence of behalf of the police and the intelligence services on 25 June last year. In answer to a question from Joanna Cherry MP, he made it clear that the current standard of proof is not an impediment to authorities getting a TPIM when they want it. His exact words were:
“MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.”
We have been told by the police and the agencies that there is currently no problem to be solved. The Government’s last resort in devising an excuse for these clauses is to tell us that we do not know what problems are coming down the track, and that it would be nice to have another tool in the toolbox. Well, on that basis we can justify just about anything—we could use the prospect of impending but unknown doom to excuse all manner of assaults on our liberty and our lives. This “just in case” style of legislation is fraught with dangers. Powers that we were told would never be used can quickly become heavily used and set the new standard. We cannot, in all conscience, allow the Government to get away with such slapdash explanations for making their powers even more draconian while reducing the safeguards against injustice.
Clauses 34, 35 and 37 are not needed. The Government have not come close to finding a cogent and convincing justification for them. They have no place in the Bill and must go. As Jonathan Hall QC, the independent reviewer put it so eloquently in his evidence to the Bill Committee:
“If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 7.]
I invite noble Lords to support Amendments 15, 17 and 18 should the House divide on them.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, I thank the Minister for the time he has given to speak about this Bill and for government amendment 14 on the burden of proof. I welcome the change of heart in that respect.
As to the other area on the potential length of TPIMs, I very much hope that the Minister will accept what is essentially the compromise in Amendment 16 between indefinite periods for TPIMs and the current period. It seems to me that the gap that divides us is not that great. TPIMs can be imposed not merely because criminal conduct is suspected, but also because of activities that may not be criminal. It is imposed by the Executive. Although, of course, there is a right of review to the court, a right of review is very different from the decision of a court or independent tribunal in deciding whether the grounds exist.
It is therefore important to appreciate that the very significant restrictions on liberty are imposed by the Executive, something generally alien to our tradition. It would be even more alien to our tradition to go to the extent of enabling the Executive to impose such a restriction for an indefinite period of time. Such restrictions should only be available on people’s liberty where people are convicted of serious criminal offences. Quite apart from the humanitarian and liberty and traditional aspects of that argument, there is the further argument which I raised, and will not repeat, on Second Reading: namely, indefinite orders can, as experience has shown, give people a loss of hope, and in effect make them more dangerous and less susceptible to being reformed.
The compromise that we have put forward in this amendment is further emphasised by the fact that of course if there is new evidence of activity during the period, the four years is not an absolute cut off.
Finally, there is a great deal of sense in having a cut-off period. It is very easy for any decision-maker, particularly one who is worried about the consequences of not extending the TPIM, to go on extending and extending it. It is very wasteful of resources, because enforcing a TPIM is very expensive. It is also fundamentally unfair that someone should be subject to a decision that can go on being rolled over indefinitely rather than someone—to put it in the vernacular—having to put up and charge with an offence or to shut up.
I very much hope that the Minister will think again about the compromise offered in this amendment and accept it.
Lord Paddick (LD) [V]
My Lords, this group deals with changes to TPIMs. The current Independent Reviewer of Terrorism Legislation, someone who has unique access to secret intelligence, operational partners and government officials, has previously stated that the changes proposed in the Bill to the TPIM regime were not necessary. We agree, as my noble friend Lord Strasburger so powerfully set out in his speech.
In relation to Clause 34, the current independent reviewer says that he is not aware of any case where operational partners had wanted to impose a TPIM but were unable to do so because the burden of proof was too high, as confirmed by the representative of operational partners in the Bill Committee in the other place.
Lord Falconer of Thoroton (Lab) [V]
This is an incredibly important debate, because it goes very much to the heart of the views we take on what the Executive can do. It is anathema to our system that the Executive can impose restrictions on individual citizens on the basis of either the balance of probabilities or, worse, reasonable suspicion. Any restrictions placed must be justified, normally in a criminal court or, in the context of the current pandemic, by an exceptional event such as the pandemic.
All those who have engaged in this debate have accepted the need for some form of TPIM. On behalf of my party, I accept that too, but all our instincts should say that it should be on the most limited ground necessary at any point. I strongly opposed, as my party did, the idea that one can impose a TPIM on the grounds of suspicion alone and welcome Amendment 14, in which the Government reject that approach and go for a situation where the Minister “reasonably believes” that the person has been engaged in terrorist activity. The difference between “reasonably believes” and “balance of probabilities” seems in practice quite difficult to define; the Minister has to believe that the person has been engaged in terrorist activity and he or she must have reasonable grounds for believing so. What is the difference between having reasonable grounds on one hand and believing it on the balance of probabilities on the other, when the person who will test that is the courts? I think it is quite fine, but we will support government Amendment 14. I am grateful that they have listened; it is a very significant shift. The difference between honestly and reasonably believing something and suspicion is significant.
I am very disappointed that the Government persist in the idea that, once you have the basis for a TPIM, you can roll it over indefinitely. As various noble Lords have pointed out, the inclination of the Executive will be to roll these things over without further evidence. Therefore, we on this side of the House will also support Amendment 16.
Four years is a long time, longer than allowed at present and, what is more, the four years can be extended if new evidence emerges during that four-year period. We think there should be a limit on when a TPIM can be granted, where there is evidence for it. We would need new evidence to extend it beyond the four years. We think that four years is a long time, but we recognise that if the House backs this four years, that is the basis for a compromise we very much hope the Government will accept.
Amendment 22 would compel the Independent Reviewer of Terrorism Legislation to conduct an annual review in relation to TPIMs. I think that is right. I agree with everybody who has said that the independent reviewer has to be properly resourced to do it. This is such an exceptional power that I think it is right that the independent reviewer should look at it every year.
On the proposition that there needs to be a limit on the period of restriction that is required in a particular home, because the power is going to be amended to remove the reference to “overnight”, the Government have given assurances that there will be such a limit, because of the courts’ imposition of limits to ensure that nobody is imprisoned in their house for 24 hours a day, which is what the noble Lord, Lord Strasburger, said the consequences of the section would be. That is not my understanding, legally, of the consequence of the removal of “overnight”, but I would like the Minister to repeat that assurance and also to say that if the court protection went, the Government would come back to ensure that it could not involve 24-hour imprisonment, in effect, in a particular house.
These are exceptional powers. Our role in this House is to ensure that they are subject to specific limits. I think the combination of government Amendment 14, Amendment 16, in the name of the noble Lord, Lord Anderson, and government Amendment 22, which would compel an annual review, is a workable compromise. I am very disappointed that the Government are not accepting it at the moment.
Lord Parkinson of Whitley Bay (Con)
My Lords, before I turn to the amendments to which I have not yet spoken, I will address a question from the noble Baroness, Lady Hamwee, on government Amendment 22, about the requirement for the independent reviewer to produce an annual report every year for the next five years. She is right to say that the independence of the independent reviewer means that he could, if he so wished, provide such a review, but we want to ensure that he does so, because of the changes that are being made by the Bill. We, like a number of noble Lords who cited his work and that of his predecessors, find them useful and would find it useful to receive them over the next five years. We do not think that is unduly burdensome, as the noble Baroness suggested it might be. Indeed, that is evidenced by the support of the current independent reviewer, Jonathan Hall, for the amendment. I hope that that reassures her on that point.
I turn to the amendments. Amendment 15, in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would remove Clause 34 in its entirety, and in doing so prevent the Government lowering the standard of proof for imposing a TPIM to “reasonable belief” of involvement in terrorism-related activity. As I set out earlier, the Government have listened to the concerns raised in Committee and brought forward a compromise, by lowering the standard of proof to a lesser extent than originally envisaged; namely, “reasonable belief” instead of “reasonable grounds for suspecting”. We are confident that this approach represents an appropriate middle ground, one that ensures we are taking action to protect the public from an evolving and more diverse terrorist threat, while addressing the concerns that were expressed in Committee. Of course, “reasonable belief” is a standard which has been used in the past, having first been introduced in 2011 by the coalition Government, which included the Liberal Democrats as well as my own party.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
I have received a request from the noble Baroness, Lady Hamwee, to ask a short question.
Baroness Hamwee (LD) [V]
The Minister just referred to the number of hours in the day for which the restriction may apply. Why have the Government decided, assuming that the decision is positive, not to include in the Bill a total limit per day? He referred to Article 5 but would it have been more convenient for the Government, let alone TPIM subjects—the noble Lord, Lord Anderson, had a good deal to say about the problems of pursuing applications to the court—not to allow the prospect of getting caught up in proceedings challenging the total number of hours?
Lord Parkinson of Whitley Bay (Con)
My Lords, the simple answer for not including that in the Bill is that we do not think that it is necessary to do so. The case law exists and has established that in practice the residence measure placed on a TPIM subject could not likely exceed 16 hours a day without constituting an unlawful deprivation of their liberty. However, measures are imposed and tested in the courts on a case-by-case basis, and that is the appropriate way to proceed.
Lord Anderson of Ipswich
Member’s explanatory statement
This amendment would impose a four-year limit for TPIM notices.
Lord Paddick
Member’s explanatory statement
This would remove Clause 37 (TPIMs: extension of residence measure) from the bill.
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
My Lords, we come now to the group beginning with Amendment 19. Anyone wishing to press this or any other amendment in this group to a Division should make that clear in debate.
Clause 38: TPIMs: polygraph measure
Amendment 19
Baroness Hamwee
“(2A) The Secretary of State must publish a code of practice relating to—(a) the conduct of, and(b) the use of reports on the results of,polygraph sessions.(2B) Before publication of the code of practice under section (2A), the Secretary of State must consult appropriate persons.”Member’s explanatory statement
This amendment would require the Secretary of State to publish a code of practice relating to the conduct and use of polygraph sessions.
Baroness Hamwee (LD) [V]
My Lords, in moving Amendment 19, I will speak also to Amendments 20 and 21. Clause 38 raises a rather different issue from the other clauses in Part 3, which deals with TPIMs. The clause introduces the use of polygraphs—so we are not affected here by nostalgia for 2011.
Amendment 19 requires the Secretary of State, after consultation, to publish a code of practice about polygraph sessions, both how they are conducted and how reports on them are used. New Section 10ZA, introduced by Clause 38, provides for regulations on limited matters, as set out in that clause. The requirement imposed is
“to participate … with a view to … monitoring … compliance with other … measures”
and
“assessing whether any variation of … measures is necessary”.
TPIM subjects are a different cohort from terrorism offenders, not having been convicted. Not everything, I would think, can be a direct read-across from the processes applied to terrorism offenders. In the case of an offender on licence, the tests are to assess compliance; in the event of a breach, the offender can be returned to custody. For a TPIM subject—of course there is no Parole Board here—it is not just about monitoring compliance but assessing necessity. This is a much less tight objective; in fact, if one were to use “objective” as an adjective, I am not sure that it would really meet that test. What if the subject’s reaction is ambiguous?
From the helpful briefings that we have had, as polygraph sessions are used currently and will be used in the case of terrorist offenders, the questions that are asked are closed questions: “Did you do such-and-such?”, or “Have you contacted so-and-so?” I had some difficulty thinking of the questions that might be asked, because so much of potential interest is likely to have been prohibited. I suppose that if there is a measure saying that a person will not visit whatever the nearest urban centre is, that is capable of a yes or no answer.
I wondered whether it is thought that polygraphs are an alternative to electronic monitoring, or a supplement. If there are to be polygraphs applied to TPIM subjects, it seems necessary that there should be a relevant code of practice—tailor-made, if you like—including a reminder that the subject is not an offender.
Lord Anderson of Ipswich (CB) [V]
My Lords, the noble Baroness, Lady Hamwee, appears to be right that the legislation in its current form does not place express limits on the use of information obtained from a polygraph for the purpose of extending a TPIM, yet my enthusiasm for Amendment 20 is limited. The reality is that TPIMs can be made and extended on the basis of a wide range of intelligence fragments, some of which may be little more than straws in the wind. It may none the less be important to take such matters into account. I think back to the Manchester Arena bomb and the ambiguous and potentially unreliable intelligence that, as I reported at the time, might, if it had been interpreted in a different way, have resulted in some sort of pre-emptive action.
An intelligence picture is typically a complex mosaic of multiple indications and assessments, of which polygraph material, depending on the circumstances, will not necessarily be the least reliable component. While it seems to me both unlikely and undesirable that a TPIM would ever be extended predominantly on the basis of polygraph material, I am wary of Parliament seeking to dictate the relative weight that is to be given to different sources of intelligence. The Executive and the courts are the bodies with expertise in this area, and I suspect that we should leave it to them.
I look forward to hearing what the Minister has to say about Amendment 19, which seems not without merit.
Lord Paddick (LD) [V]
My Lords, my noble friend Lady Hamwee has explained Amendments 19 and 20 to the House, and it would serve little purpose to repeat that as we will not be dividing the House on them.
As my noble friend has said, compulsory polygraph tests for those convicted on licence from prison are one thing, but such tests for those not convicted of any offence, who have a right to silence when being questioned, is quite another. It is a long-established principle that a suspect in criminal proceedings should be protected from any adverse consequences of remaining silent. Clause 38 allows the Secretary of State to impose a requirement for an individual subject to a TPIM to participate in polygraph sessions and to comply with instructions given to the individual by the polygraph operator. Although any statement made by the individual while participating in the polygraph session cannot be used against them in any proceedings for an offence, a failure to answer questions could be taken as contravening a measure specified in a TPIM notice—that is, to comply with the instructions of the polygraph operator, so, in this case, the instruction to answer questions. Remaining silent during a polygraph session could therefore be an offence under Section 23 of the Terrorism Prevention and Investigation Measures Act 2011, for which the individual is liable on conviction to imprisonment for a term not exceeding five years.
If the person is convicted of a terrorism offence and is on licence and subject to a TPIM—unlikely but possible—it would be possible for them to be subjected to polygraph tests under Clause 32 of this Bill, and a failure to answer questions in those circumstances would be a breach of the licence. While we have reservations about that, we do not object to it being part of the Bill. However, if the person is not convicted and is subject to a TPIM, they have the right to silence and to be protected from any adverse consequences of remaining silent. Potentially being imprisoned for five years for failing to answer questions during a polygraph session is an adverse consequence, and we therefore intend to test the opinion of the House on whether Clause 38 should be part of the Bill.
Lord Falconer of Thoroton (Lab) [V]
My Lords, the effect of the Bill at the moment is that a condition of a TPIM can be that the subject takes a polygraph test, and that a failure to do that could be a breach of the TPIM’s provisions. Amendment 21 raises the question of whether that should be part of a potential TPIM. In answering that question, it is important to try to find out what the Government have in mind regarding the use of that provision. First, to what extent do they regard polygraph answers as reliable? There is a general view that they cannot be taken on their own. What is the Government’s view on that?
Secondly, will the Government introduce a code of practice, as envisaged by Amendment 19? If so, could they give some indication of what that would contain? In particular, would it be based on the American Polygraph Association’s code of practice?
Thirdly, in December 2020 Her Majesty’s Prison and Probation Service announced that it would be seeking a long-term commercial partner to deliver polygraph equipment, training and support services for the sum of £2 million. When this was announced by the Government, it was noted that any partners must provide training to the standard approved by the American Polygraph Association, which is a trade body. Can the Minister give an indication of how that is going?
Will the Minister confirm that the Government will not act solely on the basis of any physiological reaction of the individual while being questioned in the course of a polygraph examination, and that the effect of a “significant reaction” in a polygraph examination will simply lead to further inquiries being made?
There has been, over quite a long time, a legitimate—in the sense of authorised by legislation—use by the Home Office of polygraph tests in relation to sexual offenders. According to Home Office figures, over the last five years 5,228 mandatory polygraph examinations have been carried out on 2,249 sexual offenders. Will the Minister describe to the House what benefit has been obtained from this and the basis of any assertions of that benefit?
Lord Parkinson of Whitley Bay (Con)
My Lords, the three amendments in this group stand in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. Amendment 19 would oblige the Secretary of State to publish a code of practice on the conduct of, and use of results from, polygraph examinations, with a requirement to consult appropriate parties on the code before its publication.
We think that such an amendment is not necessary, since equivalent provision is already made by new paragraph 10ZA, which Clause 38 of the Bill will insert into Schedule 1 of the TPIM Act 2011. As the noble Baroness, Lady Hamwee, noted, Clause 38 includes a regulation-making provision for the conduct of TPIM polygraph examinations. The new polygraph measure will not be used within the TPIM regime unless and until such regulations have been made.
These regulations are expected to include detail on, for example, the qualifications and experience needed by polygraph operators; how records of the polygraph examinations should be kept; and how reports on the results of the examinations should be prepared. This will ensure transparency in how the polygraph measure in the TPIM regime will be applied in practice.
This approach follows the practice already established by the Ministry of Justice, which has set out its use of the polygraph in licence conditions of sex offenders in the Polygraph Rules 2009. Parliament will have the opportunity to scrutinise these future regulations and they will, of course, be subject to annulment by your Lordships’ House or the other place. As such, we believe that Amendment 19 is unnecessary, and I urge the noble Baroness to withdraw it, as she indicated she might.
Amendment 20 seeks to prohibit the extension of a TPIM notice on the basis of information derived from a polygraph test. Again, we do not think this is necessary. Clause 38 specifies the purposes for which the Home Secretary may impose a requirement on an individual subject to a TPIM notice to participate in polygraph examinations. These are, first,
“monitoring the individual’s compliance with other specified measures”
and secondly,
“assessing whether any variation of the specified measures is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity”.
The reference in new heading (ii) to
“variation of the specified measures”
means variation of the measures set out in Schedule 1 to the TPIM Act 2011, and the duration of the TPIM is not one of those measures. Extension of the TPIM for a further year can be done only by relying on the power in Section 5 of that Act, not by way of varying measures. Therefore, any attempt to use information derived from a polygraph examination to extend the duration of a TPIM notice would be unlawful. I hope that provides some assurance to the noble Lords and that they will therefore be willing not to press Amendment 20.
Finally, Amendment 21 would remove the addition of a polygraph measure to Schedule 1 to the TPIM Act 2011 entirely. The Government cannot accept that. Adding a polygraph measure to Schedule 1, where the measure is assessed to be necessary and proportionate, will help our operational partners to assess an individual’s compliance with his or her TPIM notice. This might include being asked whether engagement with rehabilitation programmes is genuine or whether someone is, for instance, meeting prohibited associates. The insights gained from a polygraph examination will support decision-making on whether the TPIM notice should be varied, including the relaxation of measures or further restrictions.
The polygraph measure will not be mandatory for all TPIM subjects. It will be used sparingly and only where necessary and proportionate to restrict a subject’s involvement in terrorism-related activity. Whether it is judged necessary will be determined by the Security Service on a case-by-case basis and a recommendation will be made to the Home Secretary.
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
My Lords, the noble Lord, Lord Paddick, is not available, so I call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
Our views are very close, but we have not actually changed personalities yet. The noble and learned Lord, Lord Falconer, asked some extremely pertinent questions as the basis for an assessment of whether it was appropriate for the clause to remain in the Bill. It is a great shame that we have not had the answers to that list of questions; I do not think any could have come as a surprise.
May I pursue one point? Because there is a regulation-making power in new paragraph 10ZA, it is not necessary to have a reference to a code of practice. I have sat through many debates when we have been told that codes of practice are so useful because they are flexible; they can be tweaked without having to go through the legislative process. I have to say that I am quite surprised by that answer. I do not know whether we are being told that the rules that apply under the Offender Management Act in other situations when polygraph sessions are used are the rules that will apply. It is my fault; I got slightly lost during that part of the debate. It may be my perception only but, as I heard the answers, there seemed to be a lot of repetition of what is in the Bill, not answers to concerns which underlie the amendments.
When we get to it, depending on who the broadcasters go to, one of us will move Amendment 21. For now, I beg leave to withdraw Amendment 19.
Lord Paddick
Member’s explanatory statement
This would remove Clause 38 (TPIMs: polygraph measure) from the bill.
Lord Paddick (LD) [V]
I beg to move Amendment 21, which has already been debated, and I wish to test the opinion of the House.
“TPIMs: annual review
(1) In section 20 of the Terrorism Prevention and Investigation Measures Act 2011 (reviews of the operation of that Act)—(a) after subsection (1) insert—“(1A) The independent reviewer must carry out a review under this section in respect of each calendar year starting with 2022 and ending with 2026.Each review must be completed as soon as reasonably practicable after the year to which it relates.”;(b) in subsection (2), after “calendar year” insert “after 2026”;(c) in subsection (4), for “subsection (2)” substitute “this section”;(d) after subsection (6) insert—“(7) Subsection (1A) does not require a review to be carried out in respect of any calendar year during the whole of which the Secretary of State’s TPIM powers (within the meaning given by section 21(8)) do not exist because of their expiry or repeal under section 21.”(2) Subsection (1) does not affect any duty to carry out a review further to a notification given under section 20(2) of the Terrorism Prevention and Investigation Measures Act 2011 before the coming into force of this section.”Member’s explanatory statement
This amendment would reinstate the requirement for an annual review of the Terrorism Prevention and Investigation Measures Act 2011 by an independent reviewer for a period of five years beginning with 2022 (with reviews at the discretion of the reviewer after that period).
The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)
We come to the group consisting of Amendment 23. Anyone wishing to press this amendment to a Division should make that clear in the debate.
Clause 44: Persons vulnerable to being drawn into terrorism: timing of independent review
Amendment 23
Lord Paddick
“(1) In section 20(9) of the Counter-Terrorism and Border Security Act 2019 (persons vulnerable to being drawn into terrorism) omit the words from “within the period” to the end and substitute “by 31 December 2021”.”Member’s explanatory statement
This amendment would reinstate the deadline for the independent review of the Prevent strategy.
Lord Paddick (LD) [V]
My Lords, I move Amendment 23 in my name and that of my noble friend Lady Hamwee. This House voted for there to be a deadline for the publication of an independent review of the Government’s Prevent strategy in what became Section 20 of the Counter-Terrorism and Border Security Act 2019. In this Bill, the Government seek to remove any deadline for the publication of this review. In Committee, the Minister said that the Government hoped that the report would be published in the autumn of this year and that he hoped to get confirmation of this from the newly appointed independent reviewer of Prevent. On the basis of the estimate given by the Government in Committee, our Amendment 23 seeks to reinstate the deadline but with a generous margin of publication by the end of the calendar year. I beg to move.
Lord Anderson of Ipswich (CB) [V]
My Lords, there seems to be a recurring issue with the timeliness of independent reviews in the field of national security. The chief problem as I observe it relates not to the speed with which independent reviewers do their job but to the speed with which those reviews are commissioned on the one hand, and the speed with which reports are published and laid before Parliament on the other.
As to delays in commissioning, in addition to the remarkably long time that it has taken to replace my noble friend Lord Carlile as the independent reviewer of Prevent, I note that it was only on 25 February this year that the long-awaited review was announced of closed material procedures under the Justice and Security Act 2013. That review was required by Section 13 of that Act to be completed as soon as reasonably practicable after June 2018. Yet, despite regular inquiries by the indefatigable Angus McCullough QC and others, and at least one Written Question in my own name, it was commissioned only two and a half years after that point. That seems simply unacceptable.
On the second of those points, there is the pre-election saga of the Russia report of the Intelligence and Security Committee, on which I made my views clear at the time, and an occasionally elastic interpretation of the Secretary of State’s statutory duty to lay reports of the Independent Reviewer of Terrorism Legislation before Parliament “on receiving a report”.
In the Public Bill Committee on the original TPIM Bill in 2011, James Brokenshire, during his first stint as Security Minister, said on this subject:
“There is no desire to sit on reports. It would be foolish and inappropriate for Government to do so, particularly with a report from an independent reviewer … It is not our intention to sit on reports; that is not the practice. If it gives comfort to the Committee and to the public, reports received from the independent reviewer will be published on receipt or promptly—whatever the appropriate phrase is. That is what I expect to happen, and I would expect any successor of mine to take the same approach.”—[Official Report, Commons Terrorism Prevention and Investigation Measures Bill Committee, 30/6/11; col. 253.]
Will the Minister take this opportunity to endorse the principled approach set out by James Brokenshire almost 10 years ago and apply it not only to reports of the Independent Reviewer of Terrorism Legislation but to the report of the independent reviewer of Prevent? If he can, he will go some way to setting my mind at rest not only on the subject matter of this amendment but more generally.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, this has been an extremely brief debate and quite a blunt one. The noble Lord, Lord Paddick, was very clear: during the passage of a previous Counter-Terrorism Act this House voted for a deadline and this current legislation is seeking to remove it. The Government commissioned an independent review back in January 2019, which has been repeatedly delayed and postponed, and the initial statutory deadline of 12 August 2020 will now be missed. The Government have said that they intend to have a report ready by summer 2021. Indeed, as the noble Lord, Lord Paddick, said, he has been very generous by putting in his amendments a deadline of the end of this current calendar year.
In the contribution of the noble Lord, Lord Anderson, to this short debate I noted a tone of exasperation, and I do not blame him or the noble Lord, Lord Paddick, for using such a tone. I really do not see why the Government cannot reaffirm their commitment to a deadline and I will be very interested to hear the Minister’s response to both noble Lords.
Lord Parkinson of Whitley Bay (Con)
My Lords, this amendment, in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would add a new statutory deadline of 31 December this year for the completion of the independent review of Prevent. I am happy to say once again that we share the noble Lord’s and noble Baroness’s commitment to a successful independent review and the opportunity that it provides to learn lessons from what is and is not working—as well as to listen to a wide range of voices about how best to safeguard those who may be vulnerable to being drawn into terrorism.
The review restarted on 26 January, with the appointment of William Shawcross as the new independent reviewer. As I undertook to do in Committee, I am pleased to say that my noble friend Lady Williams of Trafford has had a conversation with Mr Shawcross about the timescale for his review. He certainly agrees with the need to complete it as swiftly as possible, while affording it the consideration that it requires. He hopes to complete his work well before the end of 2021, and of course there will then need to be time for a government response to be prepared and laid before Parliament. However, it is out intention to set out the date of his report and, indeed, the Government’s response in the revised terms of reference, when they are published shortly.
The noble Lord, Lord Anderson of Ipswich, referred to the remarks of my right honourable friend James Brokenshire, made in his first stint as Security Minister, about government responses being swift and timely. I hope the greatest reassurance to the noble Lord is the fact that my right honourable friend is back in that important post, albeit currently recuperating from his operation, from which we all wish him a speedy recovery. I am sure his remarks then stand now, as they do for my noble friend Lady Williams of Trafford, who is covering while he recuperates.
We all agree that it is necessary to have a thorough, evidence-based review that engages communities and sees Prevent delivery in action and that has practical recommendations for improvement at the end of it. We fear that, at a time when fleetness of foot is vital, a statutory deadline could limit this. We referred in Committee to the ongoing pandemic; alas, it continues now we are on Report, and I hope noble Lords will all be mindful of the need for flexibility in light of it.
Mr Shawcross is keen to proceed at pace, as I say, but reintroducing a statutory deadline for the completion of his independent review would mean that, if he encountered a challenge to his timeline because of the pandemic, we would have to revisit the legislation or he might be forced to compromise in how he meets his objectives. Of course, we hope that there will not be any difficulties, but there remains a risk of further or ongoing restrictions, with all the unpredictabilities of the pandemic and the implications that that could have for Mr Shawcross, his team and those who wish to provide their input into the review. As such, we think that that remains sensible.
We believe that it is achievable for Mr Shawcross to complete his work quickly, while undertaking a thorough and robust piece of work—but it is important for the legislation to retain the flexibility for the reviewer, should he need it, to ensure that the valuable work of his review is not undermined. I hope that the noble Lord, Lord Paddick, will agree and, therefore, withdraw his amendment.
Lord Paddick (LD) [V]
My Lords, I thank the noble Lords, Lord Anderson of Ipswich and Lord Ponsonby of Shulbrede, for their support for this amendment. The frustration that I and the noble Lord, Lord Anderson, expressed about the Government’s tardiness in reporting to Parliament on these issues has been reinforced by what the Minister has just said.
Not only has the Minister now turned away from what he said in Committee—that the Government anticipated that the report would be complete by the autumn—but he is now saying, “Of course, but then the Government will need time to respond to it.” This is absolutely the reason why we wanted this amendment in the Bill, and the Minister is showing complete contempt for what the noble Lords, Lord Anderson and Lord Ponsonby, and I have been saying.
I am sorely tempted to divide the House on this, simply to make the point. However, bearing in mind the time, I will reluctantly beg leave to withdraw the amendment.
The Deputy Speaker (Baroness Watkins of Tavistock) (CB)
We now come to Amendment 26. Anyone wishing to press this amendment to a Division must make that clear in debate.
Clause 48: Extent
Amendment 26
Lord Wolfson of Tredegar
“(4A) Nothing in subsections (1) to (4) limits the extent within the United Kingdom of any provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006. (4B) Subsections (1) and (2) of section 384 of the Armed Forces Act 2006 (extent outside the United Kingdom) apply to the armed forces provisions as those subsections apply to the provisions of that Act.(4C) The following are “armed forces provisions”—(a) a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006;(b) an amendment, modification or repeal made by or under this Act of—(i) a provision of or made under the Armed Forces Act 2006,(ii) a provision that amends, modifies or repeals a provision of, or made under, that Act, or(iii) any other provision, so far as the provision is applied (by whatever words) by or under that Act.”Member’s explanatory statement
This amendment clarifies that provisions of the Bill which have a limited extent within the United Kingdom (such as amendments of the Sentencing Code) have UK-wide extent so far as they are applied by the Armed Forces Act 2006. It also provides for the provisions of the Bill that relate to the armed forces to extend, or be extended, outside the United Kingdom in the same way as the Armed Forces Act 2006.
Lord Wolfson of Tredegar
My Lords, I apologise for the short break in proceedings while I came back to my place. I am afraid that the convention of not moving while the Chair is standing, and social distancing, do not go too well together.
This rather technical amendment to Clause 48 clarifies that the provisions of the Bill have UK-wide extent in so far as they are applied by the Armed Forces Act 2006. That is the burden of proposed new subsection (4A). The amendment also rectifies an oversight in the original drafting of the Bill, to make Section 384 of the Armed Forces Act 2006 apply to provisions in the Bill if they amend or modify the Act, and when they are applied by that Act. This means that they will extend to the Isle of Man and the British Overseas Territories, except Gibraltar, and can be extended to the Crown dependencies. That is the burden of proposed new subsection (4B). That ensures that the same version of the Armed Forces Act 2006 will be in force in all the jurisdictions to which that Act extends.
I apologise for the fact that this amendment has not been brought forward until now. That was an oversight, but I hope that noble Lords will accept that it was an understandable one, given the number of issues that the Bill deals with, and their frequent complexity. The interrelationship between sentencing provisions and armed services issues adds a further element of complexity. The amendment itself, as I have said, does those two things, in proposed new subsections (4A) and (4B). I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, Clause 48 deals with the extent of the Bill. It provides that
“A provision of this Act which amends, repeals or revokes an enactment has the same extent within the United Kingdom as the enactment amended, repealed or revoked.”
Under subsection (2), provisions that do not amend, repeal or revoke an existing enactment extend to all four nations—England, Wales, Scotland and Northern Ireland—save for two limited exceptions, in that Clauses 21(2) and 44(2) are of a limited nature, referring to retrospectivity.
It is not easy to extract the purpose of Amendment 26. Someone in the Ministry of Justice has concluded that there are problems under the Armed Forces Act 2006. Proposed new subsection (4A) suggests that, in the context of jurisdiction under the Armed Forces Act 2006, all the provisions of the Bill extend to all four countries. This is so even if an amendment repeals or revokes a provision of an existing Act that does not have that extent.
Under proposed new subsection (4B), the provisions of the Act extend outside the United Kingdom to the extent set out in Section 384(1) and (2) of the Armed Forces Act. That section applies to the Channel Islands, the Isle of Man and overseas territories excluding Gibraltar. British Overseas Territories do not include Cyprus, Belize or Gibraltar itself, which is specifically excluded. Those are all venues where I, as chairman of the Association of Military Court Advocates, know that courts martial take place.
Those are three places, and I am sure there are more, where courts martial take place—not to mention Germany, where the facilities have ceased. Courts martial can, of course, take place anywhere in the world, if properly constituted, and if charges for service offences are brought against anyone who is subject to the Armed Forces Act.
Terrorism exists outside the overseas territories. I would very much welcome clarification as to what happens if a court martial is held outside the United Kingdom, but not within those overseas territories to which the Armed Forces Act applies. I cannot help feeling that I am missing something, but the statement attached to the amendment is not at all clear—even though it states that the purpose of the amendment is to clarify the position. I look forward to the Minister doing so.
Lord Falconer of Thoroton (Lab) [V]
I endorse the question so clearly put by the noble Lord, Lord Thomas of Gresford. Despite the clear explanation given by the noble Lord, Lord Wolfson of Tredegar, I am still struggling with this amendment. Can he tell us the sort of problem that proposed new subsection (4A), which Amendment 26 seeks to insert into the Bill, tries to deal with? What is the lack of clarity with which he was concerned? Can he also indicate whether there are any implied provisions put into the Armed Forces Act by this Bill?
Proposed new subsection (4C)(a) specifies:
“a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006”.
Can he indicate what sort of provision that is aimed at? I would find it really helpful, in relation to proposed new subsections (4A) and (4B), to have an example of a problem that these two provisions would solve.
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Falconer of Thoroton, for their contributions and questions. The position, so far as I can assist the House now, is that the amendment ensures that the provisions of the Bill which amend, modify or are applied by the Armed Forces Act 2006 have the same extent as that Act. That Act extends to the UK, Isle of Man, and British Overseas Territories, excluding Gibraltar, and can be extended to the Crown dependencies.
The Armed Forces Act 2006 is the main piece of primary legislation that establishes a service justice system. It uses a modified form of sentencing law of England and Wales for sentences imposed by the court martial, as the noble Lord, Lord Thomas, stated. The burden of the amendment is to ensure that the Armed Forces provisions in the Bill have the same extent as the Armed Forces Act 2006. This would ensure, therefore, that there is a correlation of the area over which the provisions apply.
On the specific question from the noble Lord, Lord Thomas, on what would happen outside the territories covered by the Armed Forces Act, I am conscious that I would probably be straying into MoD territory rather than MoJ territory. I hope that the noble Lord, Lord Thomas, will allow me to write to him on that so he gets an accurate and complete answer.
As to the point raised by the noble and learned Lord, Lord Falconer of Thoroton, on whether there is an implication in the Bill that is caught by proposed new subsection (4C), perhaps I can send him a letter on that, rather than risk getting the answer wrong, I am tempted to say that these are standard words used in Acts of Parliament about what is implied, but I understand the burden of his question and, if he will permit me, will send him a written response. I hope that I have responded to the points put to me and I commend this amendment to the House.
Lord Wolfson of Tredegar
(a) in subsection (3A),”Member’s explanatory statement
This is consequential on the amendment at page 121, line 5.
“(b) in subsection (9), after “applies” insert “to the extent that the person is serving a sentence of imprisonment imposed in respect of an offence within section 1AB(2)”.”Member’s explanatory statement
This amendment amends section 1(9) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in light of new section 1B of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
“(2A) In section 1AA (release of certain sexual offenders), for subsection (9) substitute—“(9) This section is subject to section 1B.””Member’s explanatory statement
This amendment amends section 1AA(9) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in light of new section 1B of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
“(5B) Subsection (4) is subject to sections 1A and 1B.”Member’s explanatory statement
This amendment amends section 1AB of the Prisoners and Criminal Proceedings (Scotland) Act 1993 so as to make subsection (4) of that section subject to sections 1A and 1B of that Act (section 1B being inserted by paragraph 52(4) of Schedule 13 to the Bill).
“(14) This section applies to a prisoner on whom sentence was imposed before the day on which paragraph 52(4) of Schedule 13 to the Counter-Terrorism and Sentencing Act 2021 came into force as it applies to a prisoner on whom sentence was imposed on or after that day.”Member’s explanatory statement
This amendment amends section 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 so that it will apply in relation to sentences imposed before the date on which the provision of the Bill inserting section 1B into that Act comes into force.
“(a) in the case of a prisoner to whom section 1AB(3) applies,”Member’s explanatory statement
This amendment is consequential on the amendment at page 124, line 4.
(b) in the case of a prisoner to whom section 1AB(3) does not apply by virtue of section 1AB(2A), before the day on which the Scottish Ministers are required to release the prisoner under section 26ZA(5).”Member’s explanatory statement
This amendment prevents a life prisoner who is also serving a terrorism sentence to which section 1AB(2A) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 applies from making a requirement under section 2(6) of that Act before the day on which the prisoner would otherwise be eligible for release on licence under section 26ZA(5) of that Act.
Member’s explanatory statement
This amendment amends section 5 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in light of new section 1B of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
“(c) in subsection (4), after “1A” insert “, 1B”.”Member’s explanatory statement
This amendment amends section 5 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in light of new section 1B of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
“(za) in subsection (3)—(i) after “(2) above” insert “or, as the case may be, section 1AB(4) or 26ZA(5)(a)”;(ii) after “sentence)” insert “or, as the case may be, before the date on which the sentence under section 205ZC(5) as originally imposed by the court expires”;(iii) after “so elapses” insert “or, as the case may be, the sentence under section 205ZC(5) expires;””Member’s explanatory statement
This amendment makes consequential amendments of section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.
“(ba) in subsection (5)(b), after “(1A)” insert “, 1B”;” Member’s explanatory statement
This amendment amends section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in light of new section 1B of that Act (inserted by paragraph 52(4) of Schedule 13 to the Bill).
Member’s explanatory statement
This amendment makes consequential amendments of section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.
(e) after subsection (8) insert—“(9) This section is subject to section 1B.””Member’s explanatory statement
This amendment makes consequential amendments of section 7 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.
“(12A) In section 26A (extended sentences: application of section)—(a) in subsection (1), after “sentences)” insert “other than an extended sentence imposed in respect of a terrorism offence.”;(b) in subsection (2), for “section 1A” substitute “sections 1A and 1B”;(c) in subsection (6), for “section 1A(c)” substitute “sections 1A(1)(c) and 1B(11)”.”Member’s explanatory statement
This amendment excludes a prisoner subject to an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 in respect of a terrorism offence from the scope of section 26A of the Prisoners and Criminal Proceedings (Scotland) Act 1993. It also amends that section 26A in consequence of new section 1B of that Act.
“(5B) In determining, for the purposes of subsection (5), whether a sentence passed on a person in respect of an offence (other than an offence within section 1AB(2)) is to be treated as part of a single term, any sentence passed on the person in respect of an offence within section 1AB(2) is to be ignored.”Member’s explanatory statement
This amendment inserts new subsection (5B) into section 27 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 clarifying that, in determining whether non-terrorism sentences are to be treated as a single term, sentences imposed in respect of terrorism offences within section 1AB of that Act are to be ignored.
“(b) in each of paragraphs 10(2)(a) and (5)(a) and 11(2)(a) and (4)(a)—(i) after “1A,” insert “1B,”;(ii) after “21,” insert “26ZA,”.”Member’s explanatory statement
This amendment makes minor amendments of paragraphs 10 and 11 of Schedule 1 to the Crime (Sentences) Act 1997 in consequence of the insertion of sections 1B and 26ZA into the Prisoners and Criminal Proceedings (Scotland) Act 1993.
“(b) after “1A,” insert “1B,”;(c) after “10” insert “, 26ZA”.”Member’s explanatory statement
This amendment makes minor amendments of section 24(c) of the International Criminal Court (Scotland) Act 2001 in consequence of the insertion of sections 1B and 26ZA into the Prisoners and Criminal Proceedings (Scotland) Act 1993.