Counter-Terrorism and Sentencing Bill (Seventh sitting)

Joanna Cherry Excerpts

Committee stage & Committee Debate: 7th sitting: House of Commons
Tuesday 7th July 2020 Public Bill Committees

[Conor McGinn]

I accept what the hon. Gentleman says and the evidence given by the assistant chief constable. However, the assistant chief constable acknowledged that all of those circumstances currently exist, and that there has been no case where an application for a TPIM has not been granted. I think he was saying that shifting from the balance of probabilities to reasonable suspicion would inevitably make it easier, but he had not experienced, nor did he envisage, any circumstances where that practically had happened or would happen.

As I said at the outset, we come to this wanting to assist and support the Government, but we need to hear a little more justification for this measure in terms of its effectiveness and the reason for it. We will not seek to divide the Committee on the amendment. I tabled it to raise our concerns and those of groups in society, to give the Minister the opportunity to address some of those concerns, and to explain why we not only in principle but now clearly in practice support much of what the Government are trying to do.

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Robertson, and to follow the hon. Member for St Helens North. Before I speak to the specifics of amendment 58, which I do not intend to press to a vote—it is very much a probing amendment—I will reiterate the position of the Scottish National party on the Bill.

We recognise that it is the duty of any Government to keep their citizens safe and secure, and all who serve in Parliament have an obligation to assist in that endeavour. We have already given the Government our assurance that we will attempt to be as constructive as possible, to ensure that the challenge of terrorism is met and that we keep people in all communities across these islands as safe as is reasonably possible. However, we are also mindful of our duties as parliamentarians to uphold the highest standards of human rights protections.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I thank the hon. and learned Lady for her constructive tone. Before she gets into the detail, will she tell us whether the Government in Holyrood will grant a legislative consent motion for the Bill?

[Joanna Cherry]

As the Minister knows, discussions about that are ongoing. He may take it that the constructive approach that I am indicating on behalf of the Scottish National party applies across the board, including the party in government in Scotland. He is aware from our discussions that there are certain concerns the impact of aspects of the Bill on devolved matters. They were addressed last week by my hon. Friend the Member for East Lothian in respect of the order for life-long restriction and the question of polygraph testing. We wish to be constructive on those matters, and that will be the approach of my colleagues at Holyrood.

Today I am focusing on TPIMs, which are a reserved matter. It is fair to say that my colleagues in Holyrood and Humza Yousaf, Scotland’s Justice Minister, have expressed some of the concerns that I am about to elaborate on. Like the hon. Member for St Helens North, my essential concern is that we have not yet seen the case for change—the case for lowering the standard of proof. We do not believe the Government have made that case, and in so saying we are in good company.

Our amendment 58, like the official Opposition’s amendment 69, seeks to raise the standard of proof, albeit it using a slightly different formulation. It is a probing amendment, but in truth, we believe that the standard of proof should stay as it is, because we do not think a case has been made out to change it. We also believe that that is where the balance of the expert evidence that this Committee has heard lies.

It is important to remember that, as has been alluded to, the changes in the Bill align the TPIMs regime more closely with its predecessor, the control orders regime. It is also important to remember that the concerns about control orders were widely shared across the House by Members from all parties. Those concerns are legitimate, because TPIMs restrict some of our most fundamental freedoms, such as freedom of expression, freedom of association, and freedom to have a private and family life. All these fundamental freedoms are restricted when somebody is sent to prison and convicted, but with a TPIM the person involved does not need to have been convicted of any crime for those freedoms to be restricted.

A TPIM is really just a step away from imprisonment, and depending on the package of restrictions, it can amount to a deprivation of liberty for the purposes of article 5 of the European convention on human rights, which for the time being at least is still a part of our domestic law. As none of the exceptions to the right to liberty in article 5 is applicable to the TPIMs regime, if the package of restrictions around a TPIMs regime amount to a deprivation of liberty, article 5 of the ECHR is breached. It is vital, therefore, that the TPIMs regime remains subject to the strictest of safeguards.

The current safeguard whereby a TPIM can only be imposed on the balance of probabilities is something that the Government are seeking to reduce considerably. We are concerned that the low threshold is disproportionate, and we do not think the Government have made out the case for lowering the threshold. It may well be that lowering the threshold would ease the administrative burden on the Government in terms of the evidence that is required for an application for a TPIM to be granted, but easing administrative burdens is not a sufficient reason to lower the standard of proof so drastically.

As I said, I will not push amendment 58 to a vote today, but if the Government continue to fail to deliver any compelling justification for their action, I anticipate that when the Bill returns to the Floor of the House, similar amendments will be tabled and there may even be a vote on whether this change should be made. The concerns that I am expressing are widely held. The hon. Member for St Helens North has told us that they are shared by the official Opposition and by the respected bodies that he listed. I know that some Conservative Back Benchers also share these concerns. Indeed, the Joint Committee on Human Rights, of which I am a member, is anxious, regarding this change as a lowering of the safeguards in relation to TPIMs. I am indebted to that Joint Committee for assisting me in my understanding of these issues.

Perhaps the most significant evidence this Committee has heard was from the current Independent Reviewer of Terrorism Legislation, Jonathan Hall QC. He has said that

“there is reason to doubt whether there exists an operational case for changing the TPIM regime at this point in time.”

I would submit that, notwithstanding the intervention on the hon. Member for St Helens North, we have heard nothing in evidence that has convinced Mr Hall QC otherwise. I asked him whether the Government had given him a business case or a justification for lowering standards of proof. He replied:

“I have obviously had discussions, but I have not been able to identify a cogent business case.” ––[Official Report, Counter-terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 15, Q31.]

That is what is missing here.

The lack of cogency or reasoned argument for the need for change mirrors the lack of appropriate evidence or justification that was presented to the House on Second Reading. If we look at the impact assessment, we see that certain questions are posed, such as:

“What is the problem under consideration? Why is government intervention necessary?”

However, the answers given to such questions relate solely to convicted offenders, with only a later reference to the policy objective to “better protect the public” and a link to the issue of

“individuals of terrorism concern outside of custody.”

Then, there is a vague explanation that the Bill will allow for more effective intervention when that is required. On the changes to TPIMs, the impact assessment says that they

“will enhance the ability of operational partners, such as counterterrorism policing, to manage the risk posed by individuals subject to TPIMs.”

It says that the change to the standard of proof will simply

“help ensure that operational partners are better able to impose TPIM notices on individuals where there is a requirement to protect national security.”

No further justification is given.

--- Later in debate ---

[Rob Butler]

The hon. and learned Lady seems to be arguing for not reducing the burden of proof at all, but the amendment in her name suggests changing “suspecting” to “believing”. “Believing” would still be a reduction from the current standard of proof, so does she accept that there is potentially a halfway house, or is she arguing for no reduction at all?

[Joanna Cherry]

My primary position is that there should be no reduction at all. That is why I have gone to some lengths to set out the lack of a cogent business case for any reduction. The purpose of the amendment is very much like that of the amendment from the hon. Member for St Helens North: to suggest a halfway house and to probe whether the Government can come up with the business case. I will not push the amendment to a vote.

I end by reiterating what the hon. Member for St Helens North said, which is that it does not seem to be the case that the current standard of proof has been an impediment to the security services. We have had no evidence that it has prevented the security services from seeking a TPIM where they considered it necessary and appropriate to do so. To use the words of Jonathan Hall, until we have that sort of cogent business case, I do not think the Government have made their case for reducing the standard of proof.

I will not press my amendment at this stage, but I expect to see similar amendments when the Bill returns to the Floor of the House. Without such amendments, I would suspect that clause 37 would face a challenge on the Floor of the House.

[Julie Marson (Hertford and Stortford) (Con)]

It is a pleasure to serve under your chairmanship again, Mr Robertson. I have listened very carefully to hon. Members. I appreciate the comments, concerns and the constructive way in which they have made their arguments. I support the Government, and I support the principle of TPIMs and of using every tool that we have in our armoury to protect the public, which I know is a concern for hon. Members.

I would like to try to put this into context, which is important, today of all days. Today is 7 July—7/7—and the 15th anniversary of one of the worst attacks that this country and this city have ever faced. It is an important reminder of why we are here doing this and why the Government want to bring in this legislation to protect the public.

With the indulgence of the Chair and the Committee, I would like to talk about my friend Louise—I will not get emotional. Fifteen years ago today, my friend Louise was on a train from Aldgate to Liverpool Street. The night before, she had had a great night out. She had been in Trafalgar Square, celebrating the fact that London had just won the bid to host the Olympics.

It was a very busy train. She was standing when the train was rocked by an explosion in the next carriage to her. Louise’s carriage filled with smoke. The lights went out and the train screeched to a juddering halt. She says her heart was beating so much she thought it was going to come out of her chest, but she fought to keep calm amid the screams and the panic around her.

Some people managed to control their panic and started helping each other. They were calling up and down the train for doctors and nurses—anyone who could come and help. Some people had fallen. Some had hit their heads. It was chaos. Some people tried to get out. They were trying to get out of the windows between the carriages. They tried to prise the doors apart. None of that would work. Someone cried out that there was a body on the track.

They waited in the dark. Some emergency lights were going on, but it was mainly dark, for over an hour, until Louise says she saw the top of a policeman’s helmet outside the tunnel. From that moment—seeing the policeman—she felt safe. All of a sudden, she felt that she was going to get out and that everything would be all right.

They could not open the doors, so those who were able to moved out of the way to make way for the injured to be carried or to walk past them. They were bloodied, black, bewildered. Many of them were bandaged with commuters’ possessions, like belts and scarves and ties. After what seemed like forever, Louise was able to get off the train, but she had to walk past the bombed carriage. She said it looked like it had just been ripped apart like a can of Coke.

She passed two bodies on the track, covered up by a fluorescent transport worker’s jacket. She saw a man who was badly injured being tended to by paramedics. He was barely clothed and was propped up against the tunnel wall—his entire body blackened by bomb blast.

She said it was very surreal to come from that black, hellish atmosphere into the light, where it was light, there were helicopters above, there were blue lights and sirens, and there was a triage unit on the pavement where people were being treated. Quite surreally, she was told to give her details to the police and she walked off into London, trying to find her husband and blackened by soot.  She said she just wanted a cup of tea, very weirdly.

The “Sliding Doors” moments, and the fear, panic and shock, came later. The overriding feeling she was left with was why did she get into that carriage, why did she not get into the next carriage and why did she survive, when so many others did not. She was determined not to change her way of life, so she got straight back on the tube and went straight back to work. I think she personifies bravery, and what we always say, that in the face of terrorism we just get on with it and we will not let our way of life be changed.

Today, 15 years to the day afterwards, Louise will be leaving flowers at Aldgate, as she does every year. Many of her fellow passengers and other victims who were affected by the incident have never been back on a tube. Some are still suffering from anxiety and depression, some suffered life-changing injuries, some lost a loved one and some will never see the light of day again. Over the weekend, I asked Louise what she would say to the Committee. This is what she said:

“Terrorism is the biggest threat we face to our way of life. I have so much faith in our intelligence and security services. I feel they should be given whatever powers and resources they need to fight it. Whilst there will always be those who slip through thej net, especially the lone wolves, we need to feel safe and learn lessons, and let our police and courts have the authority to act and protect us.”

Today I wanted to talk about Louise and pay tribute to her, and all of those affected, not just in that incident but in others. My belief is that the best tribute we could all pay is to pass this Bill.

--- Later in debate ---

[Chris Philp]

I will elaborate on the questions a little further. Question 50 was specifically about TPIMs and the burden of proof. To clear that up, I will read question 50 in full—it is not very long. “For those three reasons”, which I will go through in a moment,

“you are being categorically clear with this Committee and with Parliament that the proposed lower standard of proof”—

which we are now discussing—

“would be a benefit to the police and the security services, and that it would make the public safer.”

I was expressly referring not just to TPIMs but to the standard of proof. Assistant Chief Constable Jacques replied:

“That is the view of the security services…that is their clear view.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 22, Q50.]

He was answering specifically on TPIMs and on the burden of proof in question 50.

[Joanna Cherry]

If the evidence of the assistant chief constable and the three examples are so central to the Government’s business case, why were they not in the impact assessment and why were they not mentioned on Second Reading, when others and I were probing the Minister? For instance, the hon. Member for Bromley and Chislehurst, who is Chair of the Justice Committee, asked for the justification for the change. It seems to me the Government are seizing on this now as a justification. If it is the justification, flesh it out, put it in a business case but also, answer the question: why was it not there originally as a justification?

[Chris Philp]

I thank the hon. and learned Lady for her intervention. First, some of the details I am about to take the Committee through were mentioned on Second Reading. My right hon. Friend the Member for New Forest East (Dr Lewis) and I expressly mentioned the possibility of people returning from conflict zones such as Syria. In response to repeated interventions from the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), I gave the justification in general terms, which have been borne out subsequently by the detailed evidence.

[Joanna Cherry]

The problem of people returning from Syria, which I accept, is a significant one that has existed for a number of years. Is the Minister saying in terms that the current TPIM regime—the current standard of proof—has prevented the security services from dealing with the problem of people returning from Syria? If that is what he saying, he should say so in bald terms, rather than seizing on something after the fact to justify this significant change.

[Chris Philp]

I will finish dealing with the hon. and learned Lady’s previous intervention and then I will answer her second one. She was asking why the case was not made more fully on Second Reading. I said it was made in general terms and the example of Syria was given. I will come on to that in a moment. The reason we have witnesses appearing before Public Bill Committees is precisely to serve this purpose: to bring out the detail and let them give their testimony to the Committee and the House. The detailed testimony given by Assistant Chief Constable Tim Jacques on the morning of 25 June is precisely why we have witnesses. It is serving the function it should have done, which was to give the Committee and the House the details they asked for on Second Reading and which hon. Members are asking for today.

I turn to the detail of Tim Jacques’s testimony and give the specific and precise reasons why he and the security services believe this is important, one of which is the Syrian example, which I will elaborate on in just a moment. Assistant Chief Constable Jacques’s first reason for why the lower standard of proof is necessary to protect the public is that we may find that there are individuals whose

“risk profile is rapidly increasing”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 20, Q49.]

If someone’s behaviour is quickly changing they may go from posing a potential threat to an actual threat to actually offending very quickly. He says that it is that rapid change of circumstances that necessitates a lower burden of proof. He then goes on to give a second reason, which was mentioned by the hon. and learned Lady a moment ago, which is the threat of somebody returning from overseas. He says that where someone has been overseas—for example, in Syria—it is extremely difficult, as one can readily imagine, to gather evidence that would meet the criminal standard of proof beyond reasonable doubt.

Clearly, if someone has been operating in Syria, there will typically be no signals intelligence or eye-witness testimony, because it is very hard to get witnesses from Syria to come here, and there will be no results of other forms of surveillance: all the evidence that would normally be presented in a criminal prosecution enabling somebody’s guilt to be established beyond reasonable doubt. It is difficult—impossible, I would say—to achieve that when someone is returning. That is why, in those thankfully relatively rare circumstances, we might need to work to a lower standard of proof and reasonable suspicion in order to protect the public.

The hon. and learned Lady essentially said that people have been going to Syria for five years now, and indeed returning for four or five years. We heard in evidence from both Jonathan Hall and Tim Jacques that, historically, there have not been any examples where a TPIM was desired but not obtained owing to the burden of proof. In fact, that observation applies more generally and not only to the Syrian example. Let me directly answer the criticism immediately.

It is true, I accept, that there have been no occasions historically when a TPIM was desired but not granted owing to the burden of proof that currently exists. However, we are not seeking simply to cater for circumstances that occurred historically; we seek in this legislation, and as parliamentarians, to cater for risks that may arise in the future that may not have arisen in the past. The absence of such risks having happened in the last five or six years does not establish definitively that they will not happen in the future—such a risk might arise in the future. Indeed, the assistant chief constable effectively said that he thinks that is possible, which is why he is advocating for the lower burden of proof.

We must cater for risks, not historical certainties. That is why the evidence of the assistant chief constable is so important and why the Syrian example is a good one, even though historically we have not been inhibited. We might be in the future. A few moments ago, we heard a powerfully eloquent description of the devastating consequences that follow when the public are not protected.

Assistant Chief Constable Jacques laid out a third reason in his evidence concerning sensitive material—material that is gathered covertly, or the disclosure of which might prejudice investigations or the security services:

“The disclosure of sensitive material would potentially compromise sensitive techniques and therefore make our job and that of the Security Service harder”.––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 21, Q49.]

He says that, with a lower standard of proof, that disclosure would be required less frequently so there would not be such a requirement to disclose sensitive information.

In answer to a question posed by both Opposition Front-Bench shadow Ministers, Assistant Chief Constable Jacques laid out the business case powerfully in those three examples that I have just taken the Committee through.

[Joanna Cherry]

I have the greatest respect for the assistant chief constable and for the assistance he was able to give the Committee, but in a court of law we would call that hearsay evidence. He is not actually dealing with seeking TPIMs. The Independent Reviewer of Terrorism Legislation, who is charged by the Government with the responsibility of overviewing all this, said that there is no cogent business case.

Can the Minister explain why the independent reviewer is not convinced by the assistant chief constable’s three examples? Mr Hall said that he has had discussions with the Government—presumably the Government have put those examples to him if they are so central to the business case. Can the Minister explain to us why the Independent Reviewer of Terrorism Legislation is not convinced that there is a cogent case?

[Chris Philp]

I was not present at those meetings, so I cannot comment on what was discussed. However, the hon. and learned Lady has herself already observed that Assistant Chief Constable Jacques’s critical testimony was ventilated in such details—publicly at least—for the first time in his evidence; of course, Jonathan Hall gave evidence just before Assistant Chief Constable Jacques. As I say, I was not privy to the conversations that took place between Jonathan Hall and my colleagues in the Home Office, so I do not know what case was presented to him, but I do know that the case presented by Tim Jacques was, at least in my view, compelling.

--- Later in debate ---

[Chris Philp]

The assistant chief constable said:

“That is the view of the security services. We are not the applicant, but that is their clear view.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 21, Q50.]

Although he was not applying for TPIMs, he is a senior police officer involved in counter-terrorism policing, he had been briefed by the security services before giving evidence, and he is responsible for monitoring and managing TPIMs subsequently. To dismiss his evidence as hearsay—the hon. Gentleman did not, but the hon. and learned Member for Edinburgh South West did—is rather unfair, given that he had the briefing from the security services in front of him when he gave evidence and given the close role he and counter-terrorism police play in managing and monitoring TPIMs.

[Joanna Cherry]

There is no insult in saying that someone’s evidence is hearsay; it is simply that they are giving evidence about what someone else has told them. I am not undermining the witness in any way, but he is only giving evidence about what he has been told. Let us look at what he said at question 58, when I said:

“So where there is a rapidly escalating situation or where there is a need to manage sensitive material, we already have available to us the option of a new variant TPIM without changing the standard of proof.”

He responded:

“Well, a TPIM is a TPIM. We have the option of a TPIM to manage that case, yes, as it currently stands. MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 23, Q58.]

As I said to him, that is an important answer, albeit that it is hearsay. He is telling us that MI5 has said, in respect of two of the examples that the Minister is giving us as a justification for this significant change, that in no case so far has the current standard of proof been a blocker. Does that not perhaps explain why we have three distinguished Independent Reviewers of Terrorism Legislation supporting the existing standard of proof, rather than this Government’s variation?

[Chris Philp]

I have already accepted, a few minutes ago, that there have not been any historical examples. That was clear from the evidence. I also said, in response to an earlier intervention on Syria, that just because there have not been any historically—we are talking about very small numbers—does not mean to say that there will not be such a situation in the future. We need to guard against potential future risk. That is what we seek to do.

Let me go on to the second plank of my rationale for why this proposed burden of proof is appropriate. It is because there are significant mitigants to any risks of abuse of process, miscarriages of justice or inappropriate behaviour. I rest my case for those mitigants on two legs or stands.

The first is that we do not need to hypothesise about how a Government—any Government—might behave with access to TPIMs, or control orders, with a lower standard of proof. As the hon. Member for St Helens North pointed out, we had control orders, passed by then Labour Government in 2005, which had the lower standard of proof—the reasonable suspicion. Those persisted for approximately six years, from 2005 to 2011. During that period, 52 control orders were issued. On the morning of 25 June, I also asked Jonathan Hall whether he was aware of any misuse in that six-year period—I said seven then, but it is six—when the lower burden of proof prevailed. He said:

“I am not aware of any misuse”.––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 7, Q9.]

I also asked him whether he was aware of the Government ever having misused the powers or used them without care and circumspection; I actually asked whether, as far as he could see, the Government had used the powers “with care and circumspection”. He said:

“I am quite satisfied that the Government are doing that.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 6, Q5.]

So the control orders, as they were then, operated with a lower standard of proof for six years with no abuse or misuse identified.

The hon. and learned Member for Edinburgh South West raised a question about ECHR article 5 compliance and whether the lower burden of proof would potentially infringe that. I checked that during the debate. During the six years when 52 control orders were used, at no point, despite some challenges, were they found to be not compliant with the ECHR. The Committee can satisfy itself that when they operated previously, they did so without abuse and were not struck down as an instrument as a whole by the court.

The second set of mitigants is to be found in the Terrorism Prevention and Investigation Measures Act 2011, in which the Committee probably knows there are five conditions, labelled A to E, that have to be met for a TPIM to be granted. We are seeking to amend only one of those five conditions, condition A, which pertains to the burden of proof in so far as it touches on terrorism-related activity.

The four other conditions still have to be met and are not being changed by the Bill. For example, condition C requires the Secretary of State to reasonably consider “that it is necessary”—I labour that word “necessary”—

“for purposes connected with protecting members of the public from a risk of terrorism”.

The Secretary of State must be satisfied that there is necessity. It must not be done on a whim or because it might or may be required. It must be necessary. That is in section 3(3) of the 2011 Act, which is not being amended.

In section 3(4), condition D makes a similar point that the Secretary of State must reasonably consider

“that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity”.

Again, it uses the word “necessary”—not “possible”, “maybe” or “might”, but “necessary”. It is a very strong word.

Moreover, in section 3(5), condition E says that the Secretary of State must seek permission from the court, as described further in sections 6 and 9 of the Act. They must go to a court of law and make sure that it feels it is reasonable that a TPIM should be granted. At the outset, there is judicial oversight of the process. The Home Secretary cannot, just by a stroke of a pen, give out a TPIM and thereby restrict someone’s liberty. That is a serious matter, as the hon. and learned Member for Edinburgh South West has already said. There is judicial oversight of the process. I say again that four of the five tests laid down in section 3 of the 2011 Act are not changing. They will stay the same.

Moreover, those subjected to a TPIM have a right of appeal against it. The 2011 Act, which, again, is not being amended, provides that they can go to a court if they feel that a TPIM has been unreasonably imposed, unreasonably varied or unreasonably extended. They can ask a court for relief and the court proceedings can carry on according to the principles used in judicial review. Beyond the simple question of burden of proof around terrorist-related activities, there are those further protections in the Bill and from the courts.

I will conclude, Mr Robertson—always welcome words during one of my speeches—by saying that the powers are used sparingly. There were 52 of the old control orders in total over six years, but at any one time no more than 15 were ever in force. As the shadow Minister has said, as of November last year there were five TPIMs in force, although I think that we heard in evidence that the number might subsequently have gone up to six.

We use such powers very sparingly, for the reason that the hon. and learned Member for Edinburgh South West mentioned: they touch on an individual’s liberty. However, they are occasionally, in the words of the Act, “necessary”—necessary to protect the public, necessary to protect people such as Louise who might otherwise be killed, injured or traumatised and necessary to protect our fellow citizens. It is for those reasons of necessity that I respectfully say that the clause as drafted is an integral and an important part of the Bill.

--- Later in debate ---

[Chris Philp]

Allow me to explain why the current two-year maximum does not work from a security services perspective. As matters stand, if a TPIM comes to the end of two years and thereby automatically lapses, a brand-new application has to be made, requiring completely fresh evidence, without simply reusing the evidence used at the outset. New evidence must be obtained, which takes some time, particularly if during the two-year period of the TPIM, the subject has been careful to behave themselves, which is the purpose of the TPIM in the first place.

We have had examples of a gap caused by the renewal requirement. Jonathan Hall acknowledged that in answer to my question in his evidence on 25 June,. I asked him about gaps when TPIMs had expired and he said that he had found a couple of examples. He added:

“In one case it was a gap of a year, and in the second it was a gap of 16 months.”

In response, I said:

“It is fair to say that the risk would have existed in that 12 to 16-month period.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; Q2, c. 6.]

I was not asking about things that had actually happened; I was asking about risk—what might have happened. In response to that point, Jonathan Hall replied, “Yes.”

I went on similarly to ask Assistant Chief Constable Jacques whether a risk might exist in that gap. He said:

“Because we jointly manage TPIMs once imposed, I can speak on this. Yes, we do see an increase in the threat if that gap occurs, and that gap has occurred, as Jonathan has pointed out previously.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; Q51, c. 21.]

We therefore have clear evidence, from both the independent reviewer, Jonathan Hall, and counter-terrorism expert Assistant Chief Constable Jacques, telling us that the gap that follows the two-year expiration of a TPIM poses a risk to the public. It is right that in the Bill we seek to close that risk by allowing for carefully considered annual extensions.

In terms of protecting the subject and ensuring that the extensions are not used unreasonably, let me make the following comments to reassure the Committee and, I hope, the whole House. First, the old control order regime did not have the two-year limit. In the period when the control orders introduced by the Labour Government in 2005 were enforced, 30 lasted for two years or less, eight lasted for between two and three years, four lasted for between three and four years, and only three lasted for between four and five years. The clear majority lasted for less than two years. Only a small number—15, according to the figures that I have—lasted for more than two years, and the bulk of those lasted for three or four years. Once again, when the powers are available, they are used circumspectly and sparingly.

Further protections are laid out in statutory provisions in the Terrorism Prevention and Investigation Measures Act 2011, which will continue. The first is found in section 11 of the Act, which requires the Secretary of State to keep TPIMs under review, in particular conditions C and D, which I mentioned earlier. That is given practical effect via a quarterly review process, once every three months, in which the security services and counter-terrorism police participate. Secondly, there is an ongoing right of appeal by the subject laid out in section 16 of the 2011 Act. Section 16(1), which will continue in force, says that if

“the Secretary of State extends or revives a TPIM”,

the right of appeal will apply, so every time a TPIM is extended, the subject, if they think the extension is unreasonable, has the right to go to court to seek protection.

Given that the current gap is posing a risk to the public, as Jonathan Hall and Assistant Chief Constable Jacques very clearly said, and given that there are good and strong safeguards in place, I believe that the provisions in clause 38, allowing considered, thoughtful annual extensions, serve the purpose of protecting the public.

[Joanna Cherry]

I am not going to speak to amendment 64, but I will speak in support of Labour’s amendment 61 when we get to it.

[The Chair]

We are on amendment 60 at the moment, so I call Conor McGinn.

[Conor McGinn]

I beg to move amendment 61, in clause 38, page 34, line 31, at end insert—

“(za) for subsection (3)(a), substitute—

‘(a) may be extended under subsection (2) only if—

(i) the Secretary of State believes on the balance of probabilities that the individual is, or has been, involved in terrorism-related activity;

(ii) conditions C and D are met.’”

This amendment requires the standard of proof for renewing a TPIM notice beyond two years to be “on the balance of probabilities”, where no new terrorism-related activity can be demonstrated.

Thank you, Mr Robertson, for your gentle guidance in navigating our way through the numerous amendments. Although they are linked, it is important that we examine them on their own merits. At its core, amendment 61, like the amendment we have just discussed, is about securing strong and robust safeguards, which, as I said, we should use the Bill as an opportunity to promote rather than jettison. We should show confidence in the process and procedures that we are introducing to keep the public safe.

The prospect of a TPIM notice enduring for a prolonged or even indefinite period deserves scrutiny. It is important to remember what a TPIM can involve: overnight residence requirements, relocation to another part of the country, police reporting, an electronic monitoring tag, exclusion from specific places, limits on association, limits on the use of financial services, limits on the use of telephones and computers, and a ban on holding travel documents. Even in the dying part of the Labour party that is the traditional old right, I balk a little at some of that. I accept that it is necessary to monitor very dangerous individuals and keep the public safe, but these are some pretty fundamental liberties that we are talking about denying people. There is a responsibility on all of us to acknowledge that, and to make sure that we give it proper scrutiny. These are, rightly, robust measures, and to reiterate: we do not believe there should be impediments in cases where a longer TPIM notice that would genuinely be in the interests of keeping the public safe and secure, which is of course our first priority, should be extended. It is also important to say that these sanctions, effectively, are imposed on people who have not been convicted of any crime, and that they are being taken in addition to the lowering of the standard of proof and the extension of the period without, it appears, due oversight needs to be properly looked at.

The other point is that TPIMs are resource-intensive instruments. Assistant Chief Constable Jacques clearly said that additional resources would need to be provided. It would be good to hear a commitment from the Minister that that would the case and that, whatever law enforcement would need, and notwithstanding that a spike in TPIMs is not envisaged, the extension thereof and any addition to the current number will be properly and fully resourced.

As the hon. and learned Member for Edinburgh South West said earlier, there is testimony not just from the current reviewer of terrorism legislation, but also from previous ones. Someone as respected as Lord Carlile, for example, said that a differentiated standard of proof, effectively, would be created for extending a TPIM beyond the two-year point. That would add another layer to the complexity of what proof is required at what point, and to what extent. Jonathan Hall also noted on 5 June that that would be the case.

As I said previously, not a single TPIM measure has been rejected to date based on insufficient evidence of the higher standard of proof, so the safeguard would not operationally hinder the TPIM regime, which we agree needs to be strong and flexible. We need to ensure that those TPIMs extended for prolonged periods are subject to an extra level of scrutiny and oversight and that they are applied in reasonable and proportionate terms, fundamentally in keeping with the thrust of what they are designed to do, which is to keep the public safe.

[Joanna Cherry]

I am grateful for the opportunity to speak in support of amendment 61, and to remind hon. Members of what the current Independent Reviewer of Terrorism Legislation said in his evidence to us. I will look in particular at his response to my question 33, when he said that the combination of clause 37 and clause 38 is a “double whammy”,

“not just lowering the standard of proof but also allowing TPIMs to endure forever.”—[Official Report, Counter-terrorism and Sentencing Bill Committee, 25 June 2020; Q33, c.15.]

Indeed, he suggested the very safeguards set out in amendment 60 and 61. I support to amendment 61 for that reason. I take hon. Members back to what he said in response to my question 33. I said:

“What about looking at balancing out the changes made in this Bill to TPIMs by introducing some safeguards to ensure that TPIMs do not breach the human rights of a subject of a TPIM? Have you thought about that? We should always remember that the subject of a TPIM has not been convicted of any crime.”

He answered:

“As far as safeguards are concerned, you will probably have seen from my notes that here you have a double whammy. It is not just reducing the standard of proof but allowing TPIMs to endure forever. Something that was proposed by my predecessor”—

he meant Lord Anderson, as the hon. Member for St Helens North said—is that

“if it were right that a TPIM should continue beyond two years, at least at that stage the authorities should be able to say, on the balance of probabilities, that the person really is a terrorist. That is an example of a safeguard.”

He went on:

“Turning to the question of enduring TPIMs, another safeguard could be to ensure that a judge would have to give permission—in other words, to treat going beyond the two years without any additional proof of new terrorism-related activity as requiring a higher threshold, or some sort of exceptionality or necessity test, as a further safeguard for the subject.”

Again, in fairness, he also said:

“I do not think the authorities will be unwise in the way that they use that, but there is a risk that people will be on TPIMs for a very long time indeed. As you say, they have not been prosecuted, and it seems to be right in principle and fair that there should be some additional safeguards for those individuals.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; Q33, cc. 15-16.]

Counter-Terrorism and Sentencing Bill (First sitting)

Joanna Cherry Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Thursday 25th June 2020 Public Bill Committees

[Alex Cunningham]

The question is probably useless, then. I was going to ask whether they had reassured you that things had changed for the better, but clearly you have not seen them.

Jonathan Hall: No. I am sorry; I have not seen them.

[Joanna Cherry (Edinburgh South West) (SNP)]

Q It is a pleasure to serve under your chairmanship, Mr Robertson. Mr Hall, may I add my thanks to you for your service to all of us as parliamentarians? It is much appreciated, as were the notes that you prepared in advance of the Bill.

I will start by asking you a couple of questions about the effect of the proposed sentencing changes in Scotland. You have produced a “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (3)” that deals with the effect of the proposed sentencing changes in Scotland and Northern Ireland. In particular, in paragraphs 8 and 9, you raise the question of how what is proposed for Scotland under clause 6 of the Bill impacts on the existing sentence in Scotland called an order for lifelong restriction. Can you tell us about that?

Jonathan Hall: Scotland has a unique sentence. It has a very respected body called the Risk Management Authority, and if a risk assessment is made under the auspices of the authority that shows that someone is a real risk, the High Court in Scotland can pass an indeterminate sentence with a punishment part, but with the consequence that someone is liable to be detained until they are safe enough to be released, when they are released but very carefully monitored.

I do not know whether this was intended or an oversight, but it seems paradoxical that, as things currently stand, if a judge in Scotland found that the criteria for a serious terrorism sentence were made out, he or she would have to pass a determinate sentence, if they did not otherwise pass a life sentence, even if ordinarily they might want to pass one of these orders for lifelong restriction. One would have thought that an OLR would provide more protection for the public than a determinate sentence. I do not know whether that has been dealt with in the amendments that have just been referred to.

[Joanna Cherry]

Q What is it about an order for lifelong restriction that, in your view, makes it preferable to what is proposed under clause 6?

Jonathan Hall: It is the fact that risk changes. You want to make a decision about when someone is going to be released in the light of all the information at the point of time at which release becomes an issue. People might become more radical in prison, and it seems to me that allowing a body to make a decision on whether they are safe in the light of all the information is preferable to a decision to impose a determinate sentence taken by a judge, who does not know, actually, whether in the 14 years or 16 years imposed that person will be safe.

[Joanna Cherry]

Q Am I right in understanding that the OLR cannot be imposed until a formal risk assessment has been carried out by Scotland’s Risk Management Authority for the benefit of the judge?

Jonathan Hall: I think it is carried out not by the Risk Management Authority but by assessors who are certified by the authority. I am not a Scottish lawyer, but that is my understanding.

[Joanna Cherry]

Q What about the involvement of the Parole Board? You have already spoken favourably about what the Parole Board can bring to assessing risk of involvement in terrorism. Of course, there is a separate Parole Board for Scotland. Is that board involved in the order for lifelong restriction sentence?

Jonathan Hall: Yes, it is. One of the things that I discovered when I did my MAPPA review is that there is probably work to be done to ensure that where a dangerous offender is considered by a Parole Board, whether in Scotland or in England and Wales, all the information relevant to the question of risk—including, in certain circumstances, sensitive information—is brought to the attention of the Parole Board. There are ways and means of doing that. So there are certainly improvements that can be made about the way in which the Parole Board can operate, but yes, that is right: the Parole Board would have a role.

[Joanna Cherry]

Q In the second part of paragraph 9 of your note, you say:

“It would be preferable if Clause 6 was disapplied where an Order for Lifelong Restriction is passed. This also raises the question of whether a more flexible indeterminate sentence, such as the Order for Lifelong Restriction, is not preferable generally to the inflexibility of a serious terrorism sentence.”

Those are your views. Have you seen anything to change your mind since you wrote the note?

Jonathan Hall: No, those are my views. It is obviously for Parliament. As I say, I do not know whether the position with orders for lifelong restriction was an oversight in the drafting of the Bill. In Northern Ireland, there is something called an indeterminate custodial sentence, and certainly that can be passed in priority to a terrorism sentence. On the question whether a lifelong restriction is better in principle, I have made my views known. The reason, in a nutshell, is that it is a very difficult to judge risk at the point of sentencing.

[Joanna Cherry]

Q Of course, sentencing is a devolved matter, so normally the Scottish Parliament would deal with it. There would have to be a legislative consent motion from the Scottish Parliament for aspects of this Bill that impact upon devolved matters, so there could be some fruitful discussion between the Scottish Government and the UK Government about your suggestion about disapplying clause 6 where an order for lifelong restriction is passed.

Jonathan Hall: I do not think I can comment on that.

[Joanna Cherry]

Q I want to ask a couple more questions about TPIMs. The Minister took you through what is being proposed. As I understand it, you have not been given a justification or a business case for lowering the standard of proof. Is that right?

Jonathan Hall: I have obviously had discussions, but I have not been able to identify a cogent business case. Reference has been made to reducing the administrative burden. I do not fully understand that point because, as I said in my note, there are cases in which what you might call a new variant or a light-touch TPIM has been made. The courts have yet to say that those are not an acceptable way of proceeding, so it seems to me that there are options already on the table.

[Joanna Cherry]

Q Beyond the example that the right hon. Member for New Forest East raised on the Floor of the House on Second Reading about somebody who has been in Syria for a few years—you have dealt with that—have you been given any other example of a case in which the protection of the public has been hampered by the existing standard of proof?

Jonathan Hall: No. What has been communicated to me is that this is something for the future. There is a phrase that counter-terrorism officials like to use: “having a tool in the toolbox”. You could probably summarise this by saying that it will be another tool in the toolbox. They cannot necessarily say when they would use it, but it might be beneficial in the future.

[Joanna Cherry]

Q What about looking at balancing out the changes made in this Bill to TPIMs by introducing some safeguards to ensure that TPIMs do not breach the human rights of a subject of a TPIM? Have you thought about that? We should always remember that the subject of a TPIM has not been convicted of any crime.

Jonathan Hall: I should start by saying that when the control order regime was in force, and the standard was reasonable grounds to suspect, that was not found to be unlawful. I cannot and do not put forward the suggestion that this change would be unlawful; it is a legislative choice.

As far as safeguards are concerned, you will probably have seen from my notes that here you have a double whammy. It is not just reducing the standard of proof but allowing TPIMs to endure forever. Something that was proposed by my predecessor, which would be an option for Parliament, is to say that if it were right that a TPIM should continue beyond two years, at least at that stage the authorities should be able to say, on the balance of probabilities, that the person really is a terrorist. That is an example of a safeguard.

Turning to the question of enduring TPIMs, another safeguard could be to ensure that a judge would have to give permission—in other words, to treat going beyond the two years without any additional proof of new terrorism-related activity as requiring a higher threshold, or some sort of exceptionality or necessity test, as a further safeguard for the subject. Again, I do not think the authorities will be unwise in the way that they use that, but there is a risk that people will be on TPIMs for a very long time indeed. As you say, they have not been prosecuted, and it seems to be right in principle and fair that there should be some additional safeguards for those individuals.

[Joanna Cherry]

Q Would you welcome the retention of the two-year limit on TPIMs?

Jonathan Hall: As things currently stand, yes.

[Joanna Cherry]

I will leave it there.

[Miss Sarah Dines (Derbyshire Dales) (Con)]

Q It is my first time serving under your chairmanship, Mr Robertson, and it is a pleasure.

Mr Hall, thank you for the very thorough online report. It is over 200 pages, and it is obviously a very thorough piece of work. I want to ask a general question from the perspective of one of my constituents. Looking at the overall measures that the Bill would bring in, you must agree that they will make the average citizen safer.

Jonathan Hall: I think some measures certainly will. For some measures, I am less clear in my mind that they will. It would be going too far to say that some of them would have a negative effect, although there is always a question about whether people being in prison for longer will make them safer when they come out.

Something that I was struck by, when I started doing this job, was that most terrorism sentences are quite short. The reason for that is that counter-terrorism police want to go in early and stop attack planning. They may go in when they have intelligence, but before the evidence is really there. They may have secret sources that they cannot use in court. That often results in finding things on phones or computers, which results in lots of convictions for having attack manuals, but not many convictions for attack planning. In practice, that means that most people convicted of terrorism offences will come out after a period of time.

The police and MI5 are always thinking, “How can we make the risk as low as possible when that person eventually comes out?” Obviously, one of the issues that one has to confront is that prisons do not always end up making people more safe. Extending their time in custody for a bit makes someone safer in the sense that they are off the streets for that period of time, but it does not necessarily mean that they are safer when they come out.

All I would say is, yes, there are some bits that are definitely to be welcomed. Anything that allows additional monitoring, that increases licences and that allows the police more monitoring powers is to be welcomed. Some of the things I am less sure about.

--- Later in debate ---

[Alex Cunningham]

Q Do you have any concerns about the fact that this cohort of offenders will be released into the community without the involvement of the Parole Board? They are just taken out and simply released, although I know that other work will go on. How do you feel about the fact that there will not be the expertise of the Parole Board behind any decision for them to be released into the community?

Tim Jacques: I do not want to dodge the question, but these people will come out of prison at some point. My understanding of the measures in the Bill is that they will come out later, rather than sooner. We have to manage and mitigate the risk as and when they come out. We have to manage them when they come out, and they are going to come out at some point. That is the point for us.

[Joanna Cherry]

Q I have just a couple of brief questions. You have mentioned three potential justifications for lowering the current standard of proof. You will be aware that the Independent Reviewer of Terrorism Legislation does not consider that there is any justification, but just let me cover a couple of the points that you raised. Jonathan Hall tells us that at present there is something called a new variant TPIM, which has been used by the security services, and that is a means of using the existing law to reduce the administrative and litigation burden on the authorities, which really means that when fewer measures are imposed on individuals, it is not necessary to establish in evidence every chapter and verse of an individual’s terrorist-related activity before a TPIM can be imposed. Mr Hall seems to envisage that the existence of these new variant TPIMs is sufficient to reduce the sort of administrative and motivation burden on the authorities that you have described in relation to sensitive material and a rapidly increasing risk. Do you see his point?

Tim Jacques: I do see his point, yes. The new variant, as Jonathan describes it, is about using fewer measures and can include, of course, not relocating the subject, which was a matter of discussion earlier. Because each measure has to be justified as necessary and proportionate to the Home Secretary and then approved by the court, of course each one of the measures and the case for each one of the measures can be, and very often is, challenged on behalf of the subject. In simple terms, the fewer measures there are, the less opportunity there is for challenge and the less need for administrative work to deal with that. That is where that comes into play. It is MI5’s view that potentially there is further opportunity for them to get engaged in that if there is a lower standard of proof, and for disclosure of sensitive material potentially.

[Joanna Cherry]

Q So where there is a rapidly escalating situation or where there is a need to manage sensitive material, we already have available to us the option of a new variant TPIM without changing the standard of proof.

Tim Jacques: Well, a TPIM is a TPIM. We have the option of a TPIM to manage that case, yes, as it currently stands. MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.

[Joanna Cherry]

That is quite an important statement: there is no case so far where the current standard of proof has prevented an application for a TPIM. Thank you.

[Rob Butler]

Q Assistant Chief Constable, we have heard, and probably all accept, that young people can be immature and easily led, but would the police view also be that they can be extremely dangerous?

Tim Jacques: Absolutely. Sadly, we have seen—you have mentioned the case that is within my background knowledge—very recent examples of very young people who pose an extreme risk to the public. It is sad, but it is real and it is true.

--- Later in debate ---

[The Chair]

We have about six minutes left. Would anybody like to come in?

[Joanna Cherry]

I would like to add to what Julie Marson said. I do not think we can say often enough how much we and our constituents appreciate the risk that police officers put themselves in. You are there for us. I think all political parties would want to associate themselves with that. Thank you.

Tim Jacques: Thank you.

[Alex Cunningham]

On a point of order, Mr Robertson. Given that the Government have tabled 17 pages of amendments to the Bill, would it be in order for us to invite Mr Jonathan Hall to provide a further note on the Bill?

Counter-Terrorism and Sentencing Bill (Second sitting)

Joanna Cherry Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Thursday 25th June 2020 Public Bill Committees

[The Chair]

Maybe we should move on. I call Joanna Cherry.

[Joanna Cherry (Edinburgh South West) (SNP)]

Q Thank you, Chair. Could I ask, Mr Dawson, about something you said to the Minister at the beginning of your evidence? You said that some aspects of the Bill may undermine public protection. Can you summarise what you meant by that?

Peter Dawson: There are two aspects in particular. One I have spoken about: the absence of a process for some of the people affected. There is probably nothing more to say on that.

The second is probably rather more controversial because it is about the length of sentences. The Government, in explaining the Bill and justifying a 14-year minimum, say that that gives time for work to be done with the offender during the sentence. That is much longer than is needed for that work to be done.  The difficulty with very long sentences, across the board, is that they destroy what is known in the trade as protective factors—they destroy the things that are most likely to help someone out of crime in the future.

Relationships are an obvious example. For somebody who is convicted in their late teens or early 20s and who is not released until their mid to late 30s, the opportunity to build a life that is worth living, in which they can contribute to or play a part in society, has very often been destroyed. All of the things that the rest of us do during that period in our lives have not happened and may not happen once that person is released. It is a disgruntling process. Long sentences are justified for the most serious crime, but the longer we make them, the more harm we do and the more difficult it is for the person to live the rest of their life in the way that we all do.

[Joanna Cherry]

Q How important is rehabilitating terrorist offenders for the ongoing protection of our constituents and the public at large?

Peter Dawson: It is essential. We know that there is no evidence of any deterrent effect with long sentences—they are not protecting in that way; they only have a protective impact by taking that particular person off the street for that length of time—but people are going to be released, and that is when the risk arises, so I would say rehabilitation is absolutely essential for public protection. You cannot trade off one against the other. If you remove incentive—if you destroy all the things that keep somebody interested in a life without crime—then you are just delaying risk for when the moment for release comes.

[Joanna Cherry]

Q To be clear, you have served in the Prison Service as a deputy governor and as a governor. To what extent do you draw on that experience in your evidence today?

Peter Dawson: Well, I draw on it heavily. Once somebody is in prison, you have this enormous acreage of time to fill. People struggle to adjust to prison. People often have a tremendous sense of grievance in the early years of a long sentence, and very often a sense of grief as well, and very often remorse. There is a sort of teachable moment when someone may change their behaviour, but that [Inaudible] if there is nothing after that moment.

People are completely subject to the authority of the system. They are very sensitive to whether the system plays fair by them. If the system invests in their rehabilitation, but then does not follow through, and all they have ahead of them is time that serves no purpose, which is simply time to fill, then grievance grows. Once somebody has a legitimate grievance in prison, the chance of them engaging with anything more constructive reduces dramatically. In terms of managing difficult people in prison who can be very dangerous, this is a dangerous problem.

The other thing I would say, and I say this as someone who governed prisons and had responsibility for the safety of everybody in the prison—staff, prisoners and visitors—is that crime happens in prisons too. Prisoners without hope and prisoners with a sense of grievance are dangerous to the other prisoners and the staff around them as well. We have seen the homicide rate in prisons rise in recent years and at the same time the number of people serving very long sentences or sentences with no release has also risen.

[The Chair]

Order. We are going to move on now, to Mr Butler.

--- Later in debate ---

[Chris Philp]

Q Thank you, Mr Allamby. Let me assure you that we are in extremely close and ongoing dialogue with Naomi Long and others in the Northern Ireland Executive, so those conversations are happening on a very regular basis.

My final question relates to polygraphs. You mentioned the importance of evidence, and later this afternoon we are seeing a professor who is an expert in this area, as far as evidence is concerned. Would you agree that where polygraphs are used just to provide a bit more background information and perhaps prompt further investigation, rather than being used to have a biting and binding consequence, there can be some value in that, as part of a holistic assessment to work out where more work needs to be done? Nobody is suggesting that it would lead to a direct, binding consequence. Does that give you any assurance?

Les Allamby: It gives me, I have to say, a rather limited measure of reassurance. I say that because it seems to me that if that is the case, then frankly that ought to be written into the Bill. It ought to be clear that the outcome of a polygraph test on its own should not have any adverse impact.

If you are going to introduce polygraph tests, you really should pilot them. I will quickly give you an example. It may seem a slightly odd analogy, but I used to sit on the Social Security Advisory Committee, and I remember being told many years ago by the Department for Work and Pensions that it was looking at voice recognition, as a way of starting to tell whether somebody might be telling the truth or not. Great play was made about that approach as a possible way forward in fraud detection, etc. It unravelled as the evidence became clearer that there were significant flaws in using that technology for making assumptions about whether individuals were telling the truth.

I cannot draw any objective scientific comparison between voice recognition and polygraphs, but it is a cautionary tale of rushing into using technology without piloting it and really considering what other safeguards you should have before using it.

[Joanna Cherry]

Q Good afternoon, chief commissioner and Dr Russell. You have said that you will put in a written submission on some of the wider issues around TPIMs. Please summarise your concerns about the new TPIM proposals from a human rights perspective.

Les Allamby: Yes, certainly. One concern is the relative absence of safeguards around extending it beyond two years. I think there ought to be additional judicial safeguards. There ought to be a test, if you are going to extend beyond two years, as to whether there is a compelling basis for doing so.

I have concerns that the loosening of the test from the balance of probabilities to reasonable suspicion. I note that we have slalomed, going back to control orders, as to what the required burden of proof is. I note the issues David Anderson raised. I also noted that the European convention on human rights memorandum issued by the Department suggested that things had changed between 2015 and 2020, but I am unsure whether that change is sufficiently compelling to reduce the test from balance of probabilities to reasonable suspicion.

TPIMs are used in a very small number of cases. They are oppressive. None the less, they are utilised on a sparing basis. But you need additional safeguards, if you will extend them beyond two years. Two years is a significant period of time in someone’s life to restrict their freedom of movement and their liberty, to the extent that TPIMs currently do, bearing in mind some of the additional provisions that will now be contained in TPIMs.

[Joanna Cherry]

Thank you.

[Rob Butler]

Q Briefly, I want to pick up on your concern over polygraphs and what is written into the Bill, by looking at the explanatory notes that were issued. I refer to paragraph 213 of section 34, “Polygraph conditions for terrorist offenders: Northern Ireland”, which states:

“New subsection (5) establishes that statements or physiological reactions of the offender in polygraph sessions cannot be used as evidence in proceedings for an offence against the released person.”

Does that provide you with the comfort you were seeking?

Les Allamby: Yet again, it provides me with a very limited measure of reassurance. It is absolutely right that you should not be able to take someone back to court to suggest a new offence has been committed on the basis of the polygraph, so that provides a measure of reassurance.

But I am mindful that if, for example, you are released on licence and you fail a polygraph test, it can be used to revoke your licence and place you back in prison. That is a pretty severe consequence for technology that has not been piloted. The reassurance is welcome in those terms, but you have to understand where else the ramifications of—

--- Later in debate ---

[Alex Cunningham]

That is helpful. Thank you.

[Joanna Cherry]

Q Good afternoon, Mr Clancy. Can I follow up on your reference to Jonathan Hall’s notes? You will have seen that Jonathan Hall has also prepared a note—his third—on the implications for sentencing in Northern Ireland and Scotland, which I think you referred to in the written evidence you lodged. That is correct, is it not?

Michael Clancy: Yes, I believe so.

[Joanna Cherry]

Q We have heard evidence from Mr Hall today about the concerns he has expressed regarding the interaction between the proposed new sentence and the existing sentence of an order for lifelong restriction, which is available in the Scottish courts for the sentencing of offenders who pose a serious risk to the safety of the public. Do you share Mr Hall’s concerns about the interplay between what is proposed in this Bill, particularly in clause 6, and the existing sentence of an order for lifelong restriction?

Michael Clancy: I found Mr Hall’s analysis of the issue of orders for lifelong restriction very compelling. As he points out, this is a unique type of sentence, imposed

“for serious violent offences if certain risk criteria are met”—

for example,

“where the offender would otherwise seriously endanger the lives, or physical or psychological wellbeing, of members of the public at large.”

Therefore, I think we should view Mr Hall’s evidence carefully. He points out in his note:

“An Order for Lifelong Restriction is an indeterminate sentence comprising a stated period of detention or imprisonment (called a punishment part) during which the offender cannot be considered for release, followed by the continued incarceration of the offender unless and until the Parole Board for Scotland is satisfied that the offender no longer”

carries such a risk. That implies a paradox: the 14-year sentence plus the extended sentence might be a shorter period in prison than one under an order for lifelong restriction, so we have to be careful about weighing Jonathan Hall’s evidence against the provisions in the Bill. I hope that answers your question.

[Joanna Cherry]

Q Yes, it does; thank you very much. You have already talked about the implications of clause 33 of the Bill for Scotland, where polygraphs are not currently in use. You have explained that they are not currently used in Scotland because, as far as you understand, there is still a question mark over their reliability. Is that right?

Michael Clancy: Yes. Well, I do not pretend to know the mind of Scottish Ministers as to why they have not introduced polygraphs in Scotland. I suspect that they think the jury is out on that question, because of the variable opinions about the value of polygraphs.

[Joanna Cherry]

Q They are not used for anything in Scotland. I understand that they are currently used for sex offenders in England, but they are not used for sex offenders in Scotland, are they?

Michael Clancy: That is true: they are not.

[Joanna Cherry]

Q You say in your written evidence that if they were introduced, that would be “a significant step”, and that it would raise various issues regarding

“responsibility, organisation, funding, monitoring and training”.

Can you elaborate on that?

Michael Clancy: It would be a significant step, because there has been no prior consultation to discuss the appropriateness of the use of polygraphs, how that would be implemented and whose responsibility it would be to arrange for polygraphs to be used in Scotland. Those are the kinds of issues that need to be explored quite carefully. It would also be important to know how they will be resourced. We are going to enter into a period of extraordinary public expenditure difficulty in the next few months and years, so introducing something that would be a significant expense in terms of their usage, the training of the operators and such, would be something one would want to look at very carefully.

[Joanna Cherry]

Q Can I move now to TPIMs? What is the Law Society of Scotland’s view on the proposal to change the standard of proof from the balance of probabilities to reasonable grounds for suspecting? What is your view of that, and what are the reasons for that view?

Michael Clancy: Before I answer that, could I add a small coda to the provisions about polygraphs? Under clause 33, a new section is inserted into the Prisoners and Criminal Proceedings (Scotland) Act 1993, which provides that

“Scottish Ministers may…specify a polygraph condition”.

The emphasis of that discretion in the Bill is an acknowledgement that this matter would be within the devolved competence of Scottish Ministers to be talking about and implementing legislation for. It would therefore be a question to ask Scottish Ministers, as to what their views are about the implementation of polygraphs in Scotland.

Going back to the standard of proof—

[Joanna Cherry]

Q Just to interrupt there to pick up on that last point about polygraphs, as a matter of law, a legislative consent motion will be required for this Bill in so far as it impinges on devolved matters. Is that right?

Michael Clancy: Yes, that is correct.

[Joanna Cherry]

Q Okay. Sorry; I asked you for the Law Society of Scotland’s view on lowering the standard of proof in relation to TPIMs.

Michael Clancy: Again, we set out some views in our memorandum. Moving from a position where it was on the balance of probabilities to a reasonable suspicion is a significant drop. It is even a drop from reasonable belief, which was a prior standard used in the old control orders that preceded TPIMs. We take that as being something that is problematic. It certainly indicates a lower standard, but that is about as far as I would put it at the moment. It is within the range of civil contemplation. We have got to be cautious about what we actually mean by reasonable suspicion. The balance of probabilities means satisfaction on the evidence that the occurrence is more likely than not. Reasonable suspicion is simply, “Have I got any basis for thinking that this is the case?”

[The Chair]

Order. I think we are going to move on to Sarah Dines.

--- Later in debate ---

[Chris Philp]

Q Indeed. The current number of TPIMs in force is actually six, and we do not anticipate large growth in the numbers as a result of these provisions.

I have one final point. You mentioned concerns about renewal. Of course, renewal, under these proposals, would take place annually. And you mentioned a few moments ago judicial oversight as a concern. Of course, the subject of the TPIM can at any time bring a legal challenge against the use of the TPIM if they feel that it has become unfair. Does the availability of that mechanism to bring a challenge give you reassurance that the subject of the TPIM does have recourse to the courts, and can be protected by a judge, if he or she feels that that is necessary?

Michael Clancy: Well, of course, yes, it gives me some reassurance. I am glad to hear you make such a clear statement of the interpretation of the Bill. Certainly, the TPIM is reduced for one year, but it is capable of being made indefinite. If one were to take action—as you have suggested someone who is subject to one of these orders might take action—it might be the case that the judge would only be able to quash the TPIM rather than make any variation. That might be a solution that we would mutually accept, but there may be implications from that I suppose.

[Joanna Cherry]

Q The Minister referred to clear evidence of the requirement for a drop in the standard of proof. Are you aware of any clear evidence, as opposed to anecdotal evidence?

Michael Clancy: I have no evidence. As I have said, the important thing would be to see how this change to the legislation works and then, in a shortish period of time—between two to five years—think in terms of having some kind of post-legislative review, which would enable us to see whether this legislation had functioned properly and had met the objectives that the Committee has been discussing this afternoon of making people safer and protecting them. Then we can come to a view as to whether or not that change in the standard of proof was the right one.

[Joanna Cherry]

Q You have already said that if there is such clear evidence, you would be happy to consider it. Is that correct?

Michael Clancy: Yes.

[Joanna Cherry]

Q Is it also fair to say that the concerns expressed by the Law Society of Scotland about dropping the burden of proof are those that are widely held, including by the current independent reviewer of terrorism legislation and his predecessor, David Anderson QC?

Michael Clancy: As far as I know. I have not actually seen a statement by Jonathan Hall about the burden of proof, but I am sure that you are leading me to the conclusion that there is one.

[Joanna Cherry]

Yes. He has given us evidence this morning and provided a note to that effect, but, as always, you are being scrupulously fair.

[The Chair]

Absolutely. Are there any further questions? In that case, Mr Clancy, thank you very much for giving your evidence today.

Michael Clancy: Thank you, Mr Chairman. It has been a pleasure, a rather disembodied pleasure, but a pleasure none the less.

Examination of Witness

Professor Donald Grubin gave evidence.

--- Later in debate ---

[Alex Cunningham]

That is helpful. Thank you.

[Joanna Cherry]

Q Professor Grubin, your evidence is fascinating. I think the reference to the pilot project earlier might have been in relation to jurisdictions where polygraph testing is not currently used. You will gather from my accent that my jurisdiction is Scotland—I have a legal background—and we do not use it there. You say it is part of a suite of risk management measures, so it is not pivotal but part of a suite. The previous witness pointed out that Jonathan Hall has written about Scotland’s very highly respected Risk Management Authority, and at present it does not use polygraph testing. If it were to be introduced in Scotland, it would require a pilot and various steps to be taken before it could be rolled out. I think that that is what he was referring to.

Professor Grubin: I was a member of a risk management authority for a number of years, so I know how they work and what they look at. When you talk about piloting, are you looking to get disclosures that will have the same levels of accuracy? There is no reason why a Scottish offender should be any different from an English or American one. The polygraph should work in the same way. There is a lot of experience now on how to implement. From my point of view, this is one of the few things where we have been able to scale up from pilot studies to actual implementation and to continue to keep its integrity and keep it working. I do not see why any of that would be any different in Scotland. I appreciate there are resource and training issues, but that would not be a reason not to pilot it. That would be a reason to get the training and implementation issues in place.

[Joanna Cherry]

Q While we have you here, can I ask a couple of other questions to aid my own understanding? Sometimes people call polygraph tests “lie detectors”, in common parlance, but, as I understand it, that is not entirely correct. It does not measure lies; it measures the physiological changes in the central nervous system when somebody is asked a question. Is that right?

Professor Grubin: Yes.

[Joanna Cherry]

Q And you have to ask a very closed question such as, “Have you accessed the internet?”

Professor Grubin: No wiggle room.

[Joanna Cherry]

Q Or, in an Irish context, if someone asks me, “Have you been to Dublin recently?” I have to confess that I have, so perhaps I would fail a lie detector test. Joking apart, it is not a lie detector test. It measures physiological changes. There is some scientific dubiety as to whether those central nervous systems are under the conscious control of the subject. What is your view on that?

Professor Grubin: They are not under the conscious control of the subject. We know that. Also, you get those responses not just from being deceptive; there is a range of things that can cause that response. In a polygraph test, somebody does not just walk into the room, get hooked up to a polygraph and then get asked questions. It is a fairly lengthy process. It takes at least an hour: typically two or three hours for a polygraph test. Most of that is spent in a pre-test interview where you go through information with the examinee with the aim of making sure that, if he is responding, he is responding because he is being deceptive and not for some other reason. That is where are lot of the training comes from and that is what differentiates a good polygraph examiner from a bad one: the way they have approached the interview and the test means that those responses are seen because of deception. It doesn’t always happen, which is why we get the one in five, one in 10 error rate. What you are looking for is physiological responses associated with deception. They can be associated with other things as well, but the aim of the polygraph test is to try to make sure it is because somebody is being deceptive.

[Joanna Cherry]

Thank you.

[Miss Dines]

Q Thank you for your evidence, Professor Grubin. I am interested in your view of how valuable the polygraph test is in assessing an offender’s intention in the long term, in comparison with the other tools available by way of standard psychological testing.

Professor Grubin: It is not valuable at all. You cannot use polygraph testing as a means of testing intentions. The polygraph is looking specifically at behaviours. Your colleague referred to concrete, very narrow questions of the type, “Have you done this?” They can be screening-type questions, or they can be very specific, such as, “Did you rob the bank?”, “Did you shoot the gun?” or whatever. It is not a tool for eliciting intentions or validating responses to those sorts of question.

Windrush Compensation Scheme

Joanna Cherry Excerpts

Tuesday 23rd June 2020 Commons Chamber

[Priti Patel]

My hon. Friend is absolutely right. That commission is absolutely complementary to the work that we are doing with the Windrush lessons learned review. We must look at all these issues in the round, in a consistent way, to develop the right approaches so that we can work together and solve the root causes of many of these issues and social injustices. I am here, with the Home Office, to work across Government, and that is our aim and objective.

[Joanna Cherry (Edinburgh South West) (SNP)]

The Windrush scandal brought shame on the United Kingdom and shame on the Conservative Government, who caused it to happen. Make no mistake about it, Mr Deputy Speaker, what happened was a direct result of the hostile environment policy. The Government must know that and yet, before dealing with Wendy Williams’ recommendations, they have pressed ahead with plans to extend the reach of the hostile environment policy to European Union citizens in the immigration Bill.

I am concerned that, in today’s statement, the Home Secretary does not unequivocally commit to the sort of root and branch review of the hostile environment policy recommended by the lessons learned review. It is all very well to agree that black lives matter, but actions speak louder than words, and the reality is that many of this Government’s immigration policies continue to have disproportionate impacts on black, Asian and minority ethnic communities. If the Home Secretary does not carry out a root and branch review of the hostile environment policy, this will continue.

The Joint Council for the Welfare of Immigrants has correctly identified that policies such as the right-to-rent scheme, which outsource the enforcement of immigration control to untrained members of the public, cannot be adequately reformed in such a way as to avoid the sort of discrimination that we have seen result. It is these policies that have resulted in real suffering for people from the Windrush generation and beyond, with people losing their jobs, unable to rent their homes and denied hospital treatment, including for serious diseases such as cancer.

Can the Home Secretary tell us, in direct terms, that she will be carrying out the review of the hostile environment that was recommended by Wendy Williams? Wendy Williams said that the review should approach the measures of the hostile environment individually and cumulatively and demonstrate a plan to mitigate any particular cohorts impacted. She said that the review must be carried out with reference to equality law and the public sector equality duty. There have been calls for the right-to-rent scheme to be paused in the meantime and for the Government to consider pausing all other hostile environment measures until their effectiveness and impact can be evidenced. Will the Home Secretary state unequivocally for the record that this review of the hostile environment policy will happen, and will she give us a timescale today? Will she tell us whether the measures, such as the right-to-rent scheme, will be paused pending the outcome of the hostile environment policy? Finally, if assisting victims of the Windrush scandal is so complicated, why not extend legal aid to the lawyers who are trying to help them? That would be far more effective than inviting Members of Parliament into the Home Office.

[Priti Patel]

I am sorry that the hon. and learned Lady takes that tone. We have resourced third-party organisations, stakeholder groups and citizens advice bureaux to provide outreach and help and support. She may have constituents who have suffered from Windrush injustices, but I appreciate that she does not want to take up the offer to work in a constructive manner to find justice for her constituents.

The point that I make to the hon. and learned Lady is that Wendy Williams was clear in her report that lessons must be learned at all levels by all political parties. She described very clearly—I appreciate that the hon. and learned Lady is selectively quoting and reading from Wendy’s report—a set of measures that evolved under Labour Governments and the coalition and under Governments covering decades.

The reasons the scandal occurred are more complex and can be traced back not just to the Department. The root causes can be traced back to legislation from the 1960s and 1980s, much of which is complex. I appreciate that the hon. and learned Lady has not fully read the report and is quoting selectively. As I said, I will come back to the House before the summer recess to discuss the specifics as to how we will be implementing—

[Joanna Cherry]

Answer my questions.

[Priti Patel]

As I have said, I will return to the House to outline how we will be implementing the recommendations from the lessons learned review.

--- Later in debate ---

[Priti Patel]

I dispute and disagree with the hon. Gentleman’s tone and his comments. I am not sure whether he has read Wendy Williams’s review; I do not think so.

[Joanna Cherry]

Cut the constant ad hominem comments.

[Priti Patel]

Would the hon. and learned Lady let me respond to the question from the hon. Member for Slough (Mr Dhesi),without intervening?

There are plenty of examples in the report, as stated by Wendy Williams, showing that lessons should be learned by all political parties. In fact, the report contains quotes attributed as far back as 2009—to a previous Labour Government—on the hostile environment. There are many quotes with regard to members of the then Labour Government who expressed a desire to make the UK a hostile environment, including wanting to make those living here illegally ever “more uncomfortable” and the need to flush out illegal immigrants. That is the type of language that, right now, we should not be using. I hope that the hon. Gentleman, having listened to my statement, understands the complexities around individual cases, and how we are working to get justice and provide compensation to individuals. That approach is the right one. It has been based on stakeholder engagement with victims from the Windrush generation. I am very sorry that he has chosen to politicise the issue in such an unhelpful and unconstructive way.

Public Order

Joanna Cherry Excerpts

Monday 15th June 2020 Commons Chamber

[Priti Patel]

My hon. Friend is absolutely right and I thank her for her question, as the Member of Parliament for the constituency that was affected by the shocking scenes already touched on in my statement and in opening remarks. There are a number of points to make. The police have been absolutely incredible, and I pay tribute to the Metropolitan police—all the officers and their operational command over the weekend. I was in constant contact with the Metropolitan Police Commissioner throughout the weekend, and I have seen many of the teams myself and was in touch with the commissioner again this morning. My hon. Friend is absolutely right to pay tribute to all the officers who served to keep her constituents safe at the weekend, and also to man the protests and arrest the individuals perpetrating violence and crime. In answer to her final point about ensuring that the perpetrators of the violence, the thuggery and the hooliganism face justice, we will absolutely support the police in all their efforts to bring forward the investigations, using police bodycam and CCTV footage, and make sure those individuals face justice.

[Joanna Cherry (Edinburgh South West) (SNP) [V]]

I thank the Home Secretary for advance sight of her statement.

I am on record as a vigorous defender of free speech and the right to peaceful assembly, but the violence and racist behaviour we saw at the weekend was totally unacceptable, and the desecration of PC Palmer’s memorial was appalling. I commend the police on their bravery and restraint.

We are still in the middle of a public health crisis and people should not be taking part in mass gatherings, because it is not safe: it puts health at risk and potentially puts lives at risk, given the threat we are all still facing from the virus. That said, it is very important that we do not let this reprehensible public disorder and the debate about statues distract us from the most important issue: the inequalities suffered by black and minority ethnic people in modern Britain.

We were starkly reminded of these inequalities at the weekend when the third anniversary of the Grenfell fire passed, still with no justice for the victims, and when “Channel 4 News” revealed the Government’s suppression of reporting about the true extent of the disproportionate impact of covid-19 on black and minority ethnic communities. The Prime Minister has announced yet another review, but what we need is not another review but action on the recommendations of the many other reviews that have already reported.

I would have thought that a review such as that announced by the Prime Minister is the Home Secretary’s remit, so why is the Prime Minister announcing public policy from behind a paywall in The Daily Telegraph rather than doing so on the Floor of the House? When will this House get to debate the terms of the review and the way in which it is to be conducted? What is stopping the Government implementing the recommendations of the “Windrush lessons learned” review without further delay? When will the full findings of the Public Health England report be put into the public domain, and will the Government implement the recommendations of Professor Kevin Fenton? Finally, what is stopping the Home Secretary getting rid of policies such as no recourse to public funds, which we know impact adversely and disproportionately on black and minority ethnic children?

[Priti Patel]

As I have already stated, the Prime Minister has rightly announced that he is establishing a new cross-Government commission, and that will, again rightly, build upon many of the recommendations of the work that has taken place, in addition to the previous work of the race disparity unit. Everybody in the House should welcome that; this is a constructive and positive move forward, and it will be led, along with the review into the public health measures around covid-19 that the hon. and learned Lady referred to, by the Equalities Minister in the Women and Equalities Department.

The hon. and learned Lady mentioned the Windrush recommendations delay. There is no delay at all. I spelt out when I gave the report here on the Floor of the House the timeframe on which I would be reporting back to the House of Commons. I am sticking to that timetable and will be here on the Floor of the House before we break for the summer recess not just to outline the recommendations of the “Windrush lessons learned” review, but to expand upon some of the potential policy changes and our review of many practices within the Home Office itself.

Public Order

Joanna Cherry Excerpts

Monday 8th June 2020 Commons Chamber

[Priti Patel]

My hon. Friend is absolutely right. When it comes to inequalities and the injustice that has been shown and felt throughout the black community in particular, there is no doubt that racism and discrimination in any shape or form have no place at all in our country and society. That is why it is important that we work collectively to address injustice, secure social justice for the communities in question and combat inequalities across all of society, and also, importantly, improve people’s life chances, opportunity and hope, which we should all be united on.

[Joanna Cherry (Edinburgh South West) (SNP)]

May I thank the Home Secretary for advance sight of her statement? I extend my best wishes for a full recovery to all the police officers who suffered injury during the trouble in London and pay tribute to their brave service. I also unreservedly condemn the violence and disorder that took place. However, it is important that we do not let a minority distract us from the legitimate concerns of the Black Lives Matter movement.

The desire to take to the streets to protest is understandable, and one thing that I hope we share across the House is a cherishing of our freedom of speech, freedom of expression and freedom of assembly. The right to protest peacefully is a fundamental part of those rights. However, we are in the midst of a public health crisis. Having regard to that, the Justice Secretary in Scotland, Humza Yousaf, joined prominent anti-racism activists to urge people in Scotland to plan protests against racial injustice in a way that safeguards them and the wider public from the ongoing threat from covid-19. Protests went ahead in Glasgow and Edinburgh, but I am pleased to say that they were peaceful, and I know that the organisers and participants tried hard to maintain social distancing.

Does the Home Secretary agree that it is important that we do not let the minority who engaged in violent disorder detract from the legitimacy of the concerns of the protesters and the Black Lives Matter movement?

Does she also agree it is important that all those in public life are careful not to do or say anything that might polarise the situation, as Trump has done in America? Finally, will she use this opportunity to make a clear commitment to review all Government policies where there is evidence that they impact adversely on BAME communities? For instance, evidence shows that the no recourse to public funds policy, to which I referred earlier, clearly discriminates against black, Asian and minority ethnic communities. Will she commit not just to bringing back the Windrush report to this House, but to implementing the recommendations in that lessons learned review?

[Priti Patel]

I thank the hon. and learned Lady for her remarks and her support for police officers, while also respecting the right to protest in a safe, sensible, and proportionate way, as we are in this public health emergency. It is important to labour the point that these protests are about injustice. It is right that we come together to find the right way, collectively, to tackle those injustices, fight for social justice, and deliver social justice for black, Asian and minority ethnic communities. As we have seen on our streets, however, by attacking our courageous police a small minority of individuals have acted in a wholly unjust way. The hon. and learned Lady mentioned the events in America, and it is dreadful, utterly heart-wrenching, and sad to see the level of protests there as well. As we saw over the weekend, a small minority of people are subverting the cause that people are protesting about.

We will continue to fight to solve inequalities and injustices. Earlier the hon. and learned Lady mentioned the policy of no recourse to public funds, as well as the Wendy Williams review and report. She also mentioned health inequalities, particularly for black and minority ethnic communities, and it was right for the Government to address that issue in the House last week. We must collectively come together. The Minister for Equalities is looking at this issue right now, and we must find an integral, overall approach across Government, with combined policies, not just one, to look at how we can serve those communities better, and address many of the inequalities that have been brought to light over recent weeks.

Oral Answers to Questions

Joanna Cherry Excerpts

Monday 8th June 2020 Commons Chamber

[Priti Patel]

It is important to put on the record that this is not just about the Home Office; we work across Government and MHCLG—the Department responsible for local government and communities—is obviously central to this issue. In terms of the resources that have been provided, practical support, such as rent protections and the coronavirus job retention scheme, apply to those under the “no recourse to public funds” conditions. The hon. Lady specifically mentioned MHCLG and local authorities; £3.2 billion has been provided. I have been working directly with the Secretary of State for Housing, Communities and Local Government, and I have also been part of discussions with the devolved Administrations, throughout the past 10 weeks, looking at the protective measures and the support that can be provided through the resources provided from central Government.

[Joanna Cherry (Edinburgh South West) (SNP)]

The Black Lives Matter movement and Public Health England’s review of the disparities in risks and outcomes in the covid-19 outbreak have highlighted the inequalities suffered by black and minority ethnic people in our society. Does the Home Secretary accept that the “no recourse to public funds” policy disproportionately affects people from black, Asian and minority ethnic communities? If she does, why will she not push for it to be suspended, as a concrete step towards tackling the inequalities that so appal many of our constituents?

[Priti Patel]

I have a number of points to make to the hon. and learned Lady. First, the Government published the report last week on the impact of coronavirus on black, Asian and minority ethnic communities. The findings are indeed shocking and it is right that the Government invest their time and resources, particularly through the Minister for Equalities, to look at the measures that can be put in place. The “no recourse to public funds” policy is one of many policies, and it is right that as a Government we look at all policies that affect all communities in the round, without singling out one particular policy.

[Joanna Cherry]

I am glad to hear that the Home Secretary is looking at the policy, but I urge her to read a report that came out this time last year by Agnes Woolley called, “The Cost of the No Recourse to Public Funds Policy”. It found that most families with “no recourse to public funds” in the United Kingdom have at least one child who is British by birth, and nearly all those families are black and minority ethnic. Accordingly, “no recourse to public funds” is inherently more likely to affect BAME British children than white British children. Therefore, given this evidence that “no recourse to public funds” is a policy with racially discriminatory impacts, why will she not accept that it needs to go?

[Priti Patel]

If I may say, it is wrong to characterise the policy as racially discriminatory. It is a fact, however, that, for all communities and people of all backgrounds, there are many financial protections in place through the safety net of the welfare state. In addition, when it comes to children, funds have been made available through the Department for Education in the pupil premium. There are a plethora of support packages, which, combined collectively, are based on individual needs and individual circumstances. It is right that we treat people as individuals and not just categorise them. It is important to recognise that a plethora of issues affect people from black, Asian and minority ethnic communities, but we cannot assume that there is a one-size-fits-all approach, or a single-policy solution, to address those issues. It is right, as I have already indicated, that my right hon. Friend the Minister for Women and Equalities looks at the report that was published last week and that the Government provide a collective response to the many challenges facing the community.

Covid-19: UK Border Health Measures

Joanna Cherry Excerpts

Wednesday 3rd June 2020 Commons Chamber

[Priti Patel]

My hon. Friend is absolutely right about the fantastic ceramics industry in Stoke-on-Trent, and he is a great advocate for it. There are some important points to make about this, and I reiterate that these are public health measures designed to protect the British public against imported cases of coronavirus. Of course, we are global Britain, and our borders are not shut—let me emphasise that to the House—and we are global Britain when it comes to goods and exports; goods coming in and goods going out of the country. All of that will continue, and businesses continue to be at the forefront of global Britain, and that will continue for the ceramics industry.

[Joanna Cherry (Edinburgh South West) (SNP)]

I thank the Home Secretary of advance sight of her statement. Like her, I pay tribute to our Border Force and other key workers.

The Scottish National party has been calling on the UK Government to introduce public health measures at UK borders for some months. The Centre for Evidence-Based Medicine at the University of Oxford has said that the effectiveness of quarantine during a viral outbreak relies on the timing and accuracy of the quarantine period, as well as the ability of individuals and healthcare providers to follow quarantine procedures. I fear that the Home Secretary’s statement does not fully address these matters. There is widespread concern that the UK is out of step with most other countries, which introduced public health measures at their borders far earlier in the pandemic. The best way for her to address the failure to introduce any measures to date, as well as the effectiveness of the measures that she proposes, is to publish the evidence and advice on which she has relied.

The matter was discussed at the meeting of the Scientific Advisory Group for Emergencies on 7 May, but its advice has yet to published. Will the Home Secretary undertake to publish that advice today, and can she tell us what advice SAGE has given about the widely reported suggestions that the Government intend to water down the quarantine proposals? Does SAGE think that the quarantine measures will be effective if the watered-down proposals are introduced? The Home Secretary said that the measures would be considered regularly, commencing the week beginning 28 June, but can she tell us how long overall she envisages that the measures will be in place?

Finally, the measures at the border are her responsibility as Home Secretary, but part of their delivery and enforcement will be in Scotland, and will be the responsibility of the Scottish Government. Will she undertake to engage meaningfully with my colleagues in the Scottish Government on their requirements before any changes are made in the weeks and months ahead?

[Priti Patel]

I thank the hon. and learned Lady for her questions and comments. I shall allude to a number of points. I reiterate and restate the points that I made about the measures that have been taken from the beginning of the year, including public health measures in the aviation sector and enhancing measures at the borders to identify symptomatic travellers from high-risk areas. That happened early and safely, and people were triaged to health systems. It is really important for everyone to remember that, and to be mindful of the fact that these are public health measures.

The hon. and learned Lady—and this is in response to the hon. Member for Torfaen (Nick Thomas-Symonds) as well—made a point about publishing advice from SAGE. SAGE publishes its advice accordingly, and that is ongoing. She referred to the potential downgrading of the measures. These are public health measures, and this is not something for the Home Office or for me as Home Secretary to consider in isolation or independently. This is part of a wide package of public measures, in line with public health regulations that have been introduced in Parliament to reduce the R value and protect the British public.

It is important for the British public, and for all right hon. and hon. Members, to put this into perspective. We are in a national health emergency right now. This is not about the convenience or inconvenience of certain regulations and measures, and their application. We are here to ensure that we protect public health first and foremost. These measures will be reconsidered in due course. They will be aligned with other regulations, which will also be reviewed, and it is important that we consider this issue within the totality of how we can protect the public and their health.

Oral Answers to Questions

Joanna Cherry Excerpts

Monday 10th February 2020 Commons Chamber

[Kevin Foster]

We have asked the independent Migration Advisory Committee on several occasions to look at the case for applying different immigration arrangements to different areas of the UK. It has consistently recommended against this, and I think Members in this House will realise why it would make no sense, for example, for a plumber from Gretna to be unable to take on jobs in Carlisle.

[Joanna Cherry (Edinburgh South West) (SNP)]

New Zealand, Switzerland and Canada are just some of the other countries that, like Australia, operate a tailored regional immigration system without any need for internal borders, so what possible rationale is there for claiming, as the Prime Minister did last week, that to operate a Scottish visa would require a hard border between Scotland and England?

[Kevin Foster]

Again, we have made it very clear: the independent Migration Advisory Committee has set out in its report why it does not recommend this type of approach. Ultimately, we do not want to see borders at Berwick just to satisfy a separatist obsession. Our goal would be to have a system that works and drives success in Scotland, and that means being part of a wider, stronger United Kingdom.

[Joanna Cherry]

I think the only people satisfying a separatist obsession at the moment are those on the Conservative Benches with their hard Brexit.

Let us try again on this mythical hard border, shall we? The United Kingdom has an open land border and shares a common travel area with the Republic of Ireland, which operates an entirely distinct and independent system. That does not necessitate a hard border, so why should a modest Scottish visa mean a hard border between England and Scotland? Let us have an answer to the question for a change.

[Kevin Foster]

Let us be very clear: the Migration Advisory Committee has advised against such a system. It would create complexity, with businesses having to work out which staff were on one visa and which were on another. Ultimately, we will be guided by independent advice, but I will be absolutely clear: this Government will create a migration system that works for Scotland and drives success in Scotland, but will not drive separation for Scotland.

--- Later in debate ---

[Priti Patel]

I thank the right hon. Lady for presenting to the House the horrors of what she has endured, and for making the case, very strongly and robustly, that there is no place for threats and intimidation in society or in public life. Let me say now, on the Floor of the House, that that is categorically unacceptable and wrong. There is no place at all for intimidation in public life. As for the national party’s response, the right hon. Lady can take it from me, right now, that I am hugely apologetic for what she has had to put up with. It is simply unacceptable, and that is also something of which we should all be mindful, as representatives of major political parties. None of this should be tolerated.

The right hon. Lady referred to my colleague in the neighbouring constituency. My understanding is that her comments were in support of securing the help that that individual needed in terms of access to mental health. However—[Interruption.] I see that the hon. and learned Member for Edinburgh South West (Joanna Cherry) is chuckling away. This is a very serious matter. It is not a laughing matter.

[Joanna Cherry (Edinburgh South West) (SNP)]

We are laughing because you are being insincere. [Interruption.]

[Priti Patel]

I think it is fair to say, given that remark, that the insincerity sits with the hon. and learned Lady. The fact of the matter is that it is right that we come together. [Interruption.] Yes, we will see. It is a fact that it is this Government who are trying to deal with this type of issue. Members have already heard me speak about dealing with online harms and trolling, and have heard me call this unacceptable. I am absolutely sincere in my remarks, and I am so sorry—actually, I think it is shameful—that the hon. and learned Lady is herself being quite insincere in respect of the case that I am putting to her.

Policing and Crime

Joanna Cherry Excerpts

Wednesday 29th January 2020 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I should like to start by congratulating Her Majesty’s Opposition on securing this Opposition day debate on such an important topic. I am particularly pleased about it, as it gives me an opportunity to talk about the good news story for policing and tackling crime in Scotland. We often hear the allegation from the Government Benches that there are major problems with domestic policy in Scotland, but when we examine the evidence, we see that that is not the case. I am happy to say that, on policing and fighting violent crime, Scotland under a Scottish National party Government has a good news story to tell. The glib and misleading comments that we hear from the new Prime Minister about failures in domestic policy cannot be brought home in relation to issues of policing and violent crime. I am particularly pleased to have this opportunity to talk about how we have increased police numbers in Scotland under an SNP Government and successfully tackled the terrible scourge of knife crime, which I know from my previous role as a prosecutor in Scotland’s highest courts was a terrible scourge in Scottish society. While it has not by any means gone from the streets of Glasgow and the rest of Scotland, knife crime is being successfully tackled there in a way that could never previously have been imagined.

[Liz Saville Roberts]

I hope that my hon. and learned Friend will join me in welcoming the report of the Commission on Justice in Wales, which was commissioned by the Welsh Labour Government. It draws attention to the fact that there is a jagged edge in relation to devolution in Wales, where criminal justice is reserved despite the fact that many of the services that underpin it are devolved. We do not get policing funded per head of population as we would under the Barnett formula. I tried to intervene on the right hon. Member for Hackney North and Stoke Newington (Ms Abbott) earlier, because I was sure that she would agree with the Welsh Labour Government on this. Does my hon. and learned Friend believe that criminal justice and policing per se need to be devolved to Wales as a matter of urgency, just as they have been so effectively in Scotland?

[Joanna Cherry]

I wholly agree with that. Matters such as criminal justice, policing and tackling violent crime are best fought as close to home as possible by people who understand the communities in which these issues occur. As I have said, Scotland has a good news story to tell about fighting violent crime and about policing numbers, and I am sure that if the wishes of Plaid Cymru and the Labour party, who I believe considerably outnumber Conservative MPs in Wales, were listened to, Wales could benefit in a similar way.

I stress that there is no room for complacency in Scotland, and my colleagues at Holyrood continually strive to improve matters, but I think that Scotland’s successes are something from which the UK Government could learn. I therefore hope that Ministers will listen to this carefully, because what I am going to say is based on evidence, rather than flung-about allegations about policy failures. In Scotland, crime is down to historically low levels. Recorded crime has fallen by 41% since 2006-07 and non-sexual violent crime is down by 43% since 2006-07. Cases of homicide have fallen by 25% in the past 10 years, and the Scottish crime and justice survey shows a 46% fall between 2008-09 and 2017-18 in violent incidents experienced by adults in Scotland.

It is well known that Scotland moved in recent years from having eight regional police forces to a single police force, and it is worth bearing in mind that that was a bit of a no-brainer. Scotland’s population is only 5.5 million, which seems a sensible number to be policed by one force. In the days when I was prosecuting, having multiple different practices across the regions of Scotland caused problems. The benefit of a unified police force in Scotland is that we have been able to improve best practice across the force, but do not just take my word for that. Let us hear what Rape Crisis Scotland has to say about the single police force in Scotland:

“The move to a single police force has transformed the way rape and other sexual crimes are investigated in Scotland. It has allowed far greater consistency of approach, including to the training of police officers and to the use of specialist officers.”

[Wendy Chamberlain (North East Fife) (LD)]

I acknowledge what the hon. and learned Member says in relation to Rape Crisis and serious crime and in relation to Police Scotland, but does she acknowledge that moving to a single police force in Scotland has taken away the third leg of the stool in terms of local accountability, meaning that the police force is now a much more politicised institution than it was prior to unification?

[Joanna Cherry]

With all due respect to the hon. Lady, whom I congratulate on her recent election victory, I cannot agree with that. It is a political point that the Liberal Democrats repeatedly try to make in the Scottish Parliament, but it is not borne out by experience.

Police officer numbers are up by 1,000 in Scotland despite significant cuts to Scotland’s budget from Westminster. As of 30 September 2019, the total police officers were up 1,022 on 2007 figures. Scotland has more officers per head of population than in England and Wales. The ratio in Scotland is 32 officers per 10,000 members of the population versus 21 officers per 10,000 members of the population in England and Wales. I suggest that the sort of ratio we have in Scotland is something that England and Wales should be aiming for. The present Government’s proposal to increase police numbers simply reverses a position that they enforced at an earlier stage, so it is a bit rich for them to expect to be congratulated on reversing their own policy failures.

[Kit Malthouse]

The hon. and learned Lady would not want to mislead the House—I will not put as it as strongly as that—but while she refers to the 2007 figures, the numbers that I have suggest that the number at quarter 4 2019 was actually below that in 2009, so she is neatly avoiding the high point in her maths, illustrating the fact that police officer numbers in Scotland have been broadly flat for a decade.

[Joanna Cherry]

I do not accept that, and I return to the statistic I quoted: police officers stood at 17,256 in Scotland at 30 September 2019, which is up by 1,022 on the total inherited by the SNP Government when Alex Salmond first brought the SNP to power in Scotland in 2007. That is a fact. Of course, there have been fluctuations in the meantime, but there is a significant—[Hon. Members: “Aha!”] No, that is a fact. If the Minister thinks that I am misleading the House on the stats, I challenge him to make a point of order and to bring stats that contradict mine. I can tell the Minister that this is not just about the Scottish National party, because people across Scotland working in the health service, the police and in other areas of Scottish public services are sick to death of glib comments from this misinformed Conservative Government —misinformed by the six Tory MPs that they are left with in Scotland.

[Kit Malthouse]

rose—

[Joanna Cherry]

I will not give way. The Minister has had time, and I saw Mr Speaker urging him to bring his speech to a close, so I will use my time to look at the facts. As we say in Scotland, facts are chiels that winna ding which, translated into English, basically means that evidence-based policy making is best.

Despite successive Tory Governments reducing the Scottish Government’s resource budget by £1.5 billion— 5% in real terms—since 2010, police budgets in Scotland are protected, and police officers in Scotland are getting the biggest pay rise in the United Kingdom. The police budget in Scotland is up by more than £80 million since 2016-17, and that includes a £42.3 million increase in funding for this year alone. Police officers in Scotland are receiving a pay rise of 6.5% over 31 months, compared with just 2% for 2018-19 for officers in England and Wales. As a result—[Interruption.] I am going to continue my speech despite the heckling from those on the Government Front Bench. I know it is deeply uncomfortable for the Tories to hear the facts as opposed to— [Interruption.] These are the facts.

One of the main issues facing Scotland was that, unlike other police forces in the United Kingdom, Police Scotland was being charged VAT. As a result of increased pressure from me and my learned friends, we won back VAT worth around £25 million a year. However, the United Kingdom has yet to refund the £125 million of VAT paid by Police Scotland between 2013 and 2018. I hope that the Government will look at that carefully—[Interruption.] If I may make some progress over the heckling, I point out—[Interruption.] Well, I realise that it is deeply uncomfortable to hear the facts as opposed to the misinformation that this Government like to put forth.

The Prime Minister was asked a series of questions at PMQs about the reality on the ground in Scotland as a result of the impending withdrawal of freedom of movement, but it was interesting that he was unable to deal with them in any meaningful way because he is not across the detail. I assure the Government that I and my colleagues up the road in Edinburgh are across the detail, and they do not have to take just my word for it.

As I said earlier, Scotland had a woeful problem with knife crime. To our shame, Glasgow was for a while the murder capital of the world, but that is no longer the case. We introduced a public health approach to tackling knife crime—an approach advocated by the World Health Organisation—and it has worked well in Scotland to reduce the incidence of knife crime. I am absolutely delighted that so many representatives from this great city of London—the Metropolitan Police, the Mayor and, indeed, members of the Government—have visited Scotland to look at the public health approach to tackling violence. It really has brought amazing results in Scotland, and it is clearly effective when we see that violent crime in Scotland has decreased by 49% over the past decade, and that crimes of handling an offensive weapon have decreased by 64% over the past 10 years.

There is still a long way to go in fighting violent crime in Scotland, but the importance of the public health approach has been that it has recognised that the issue is complex. Were there to be any doubt about Scotland’s success in fighting crime, let me quote what the Conservative and Unionist party’s crime spokesperson said in Holyrood recently:

“It is important to acknowledge that Scotland has turned its record on violence around.”—[Scottish Parliament Official Report, 20 September 2018; c. 61.]

That turning around of Scotland’s record on violence has happened under the much-maligned SNP Government, who have a great success story to tell in this area.

Let us have credit where credit is due—not for the sake of it, but because facts matter. In the area of policing and knife crime, we must take an evidence-based approach. The success of the Scottish National party’s Government offers lessons from which this Government could learn, and that could benefit the people of England and Wales if the Government were big enough to acknowledge Scotland’s success story and follow our example.

[Several hon. Members rose—]