Counter-Terrorism and Sentencing Bill

Lord Anderson of Ipswich Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

The noble Lord, Lord Parkinson, said that in practice, the residence measure would likely—I stress likely—not exceed 16 hours a day without constituting an unlawful deprivation of liberty. We do not find “not likely” a reassurance, so this is also a part of the package on which we intend to divide the House.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, nostalgia is the theme of the Government’s amendments in this group, because each of them takes us back to the wording of the original TPIM Act 2011. I am nostalgic enough for those days to have put my name to both amendments.

Amendment 14 on the standard of proof, in the name of the Minister, is a tribute to those noble Lords from all parts of the House who spoke so compellingly to the similar amendment that I had the privilege of moving in Committee. They include the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer, each of whom advised—rightly as it turned out—that my amendment did more than was necessary to accommodate the Government’s legitimate concerns. Gift horses should not be looked in the mouth, still less kicked in the teeth. Ministers have listened and have acted decisively. I thank them for that and welcome the retention of a standard of proof, whether expressed as reasonable belief or as balance of probabilities—between which I see no real distinction in practice—that has by the Government’s own account caused no unnecessary difficulties and exposed us to no avoidable danger over the past 10 years.

With a little more hesitation, I put my name also to the Government’s Amendment 22. This reinstates the original requirement in Section 20 of the TPIM Act 2011 for an annual review of the operation of the Act by the independent reviewer, which in turn succeeded a similar requirement in relation to control orders. Section 20 was amended in 2015 to allow the independent reviewer an increased degree of discretion as to the timing of those reviews. That was not unwelcome to the independent reviewer at the time—I declare an interest—who had, as I recall, been given a number of commissions additional to his normal annual duties. However, I understand that the current independent reviewer is content, and on that basis I support Amendment 22 on two conditions. The first is that the independent reviewer should have the necessary resources to perform his various important tasks with the frequency that will now be required and with the promptness that is so desirable. The second condition is an acceptance that, useful as these reports are to those of us concerned with policy in this area, they can be no possible substitute for the scrutiny of individual cases on the evidence that is properly the function of the TPIM review group, to which the Minister alluded, and of the courts.

However, this group is concerned with more than nostalgia. TPIMs have moved on since 2011. These notably harsh measures are harsher than they were then and will soon become harsher still. The toughest measure of all, relocation, with or without one’s family, to a distant town or city—colourfully described by Liberty as “internal exile” and removed by the 2011 Act —was restored on my recommendation in 2015. A range of other new obligations has been added to the list of available measures. Assuming that Clause 37 goes through, notwithstanding Amendment 18, TPIM subjects will for the first time be able to be confined to their houses for substantial parts of the day, while no doubt being tagged, limited in their social contacts and obliged to report to the police station during the periods that they are allowed out. That is rather a different proposition from observing a night-time curfew only in one’s home borough, which is how things were in 2011.

The cumulative effect of numerous measures under a TPIM, even under the existing law, was explained in this way by LF—a TPIM subject, anonymised like the others into a pair of initials—in recent evidence to the High Court. That evidence was summarised by Mrs Justice Farbey in the judgment handed down on 10 February this year:

“He says that he felt as if he was being asked to do something which is not humanly possible: to fulfil multiple and often changing obligations over possibly a two-year period without making one single mistake. He felt as if he was in a trap: if he were to breach any of the TPIM, he would be convicted and imprisoned. The TPIM would then be re-imposed, perhaps with even more requirements, and he would once again be at risk of breaching them.”


For, of course, while the basis for a TPIM can include conduct falling short of the criminal threshold—support, assistance and encouragement more broadly understood than in the criminal law—even the most trivial breach of a curfew or reporting requirement is a criminal offence for which the maximum penalty is five years in prison.

That is the context in which we have to consider the remaining amendments, Amendments 16 and 17. Your Lordships have three options, and I emphasise that none of them is a liberalising option. The Liberal Democrats, with their Amendment 17, offer a continuation of the status quo: a two-year maximum limit in the absence of new intelligence, as initially proposed by my predecessor, the noble Lord, Lord Carlile, save in exceptional cases, and as supported by the current independent reviewer.

The Government, with Clause 35, offer an unlimited extension, which would allow radicalisers in particular—whom the Government told the independent reviewer are

“the likely targets of enduring TPIMs”—

quite simply to endure forever, even if the intensive monitoring of the subject turns up not a single scrap of evidence or intelligence suggestive of re-engagement.

My Amendment 16 takes the middle path. It recognises that, as I reported in 2013, it is tempting to wish for longer than two years in the most serious cases. However, it recognises also that TPIMs must not be allowed to become a more attractive option than prosecution, that the authorities must be incentivised to work on an exit strategy—and not simply to warehouse TPIM subjects—and that in a free country, our fellow citizens, however odious we might consider them, cannot be indefinitely confined by the state in the absence of any attempt to put them on trial.

It is said that TPIMs of indefinite duration will in reality be no such thing because Ministers will volunteer their discontinuance and because the courts can be counted on to intervene if they do not. Yet, with respect, the evidence casts doubt on both propositions. I understand from the independent reviewer, who on his own initiative asked officials about this, that every TPIM imposed since 2015, unless revoked for extraneous reasons, such as imprisonment or a court order, has been extended by the Secretary of State on the one and only occasion that this is normally permitted under the existing law. That is hardly surprising. If a released TPIM subject were subsequently to reoffend, who in active politics would want to be the Home Secretary who had chosen voluntarily to release him from constraint?

As to court proceedings, it is not just that closed material proceedings make them slow and cumbersome, that they do not allow the subject to instruct his special advocate or to call evidence on the full national security case against him, or that the Home Secretary asks for and is generally accorded—as her predecessor was by the Supreme Court last week in the Shamima Begum case—a high degree of judicial deference for her decisions relating to national security. There is also, most regrettably, a funding and hence an access to justice issue. I am again grateful to the independent reviewer for the information that of the handful of current TPIM subjects, no fewer than three—JD, HB and HC—sought funding from the Legal Aid Agency to enable them to be represented in review hearings but were turned down, after which they requested the court to discontinue those review hearings.

It is said that indefinite TPIMs will keep us safer. On that, I first invite noble Lords to reflect on the severity of my own amendment. It would mean that the Secretary of State’s initial belief that a subject has probably been involved in terrorism is enough to justify four years on a TPIM, with every move tagged and every conversation potentially monitored. If further intelligence emerges of involvement in terrorism, at any stage during those four years, under my amendment a fresh TPIM could still be imposed, again extendable up to a further four-year limit—and so on, ad infinitum. That, surely, is draconian enough.

Would we be kept safer by the indefinite warehousing of TPIM subjects beyond the four-year mark, without the need for intelligence derived from what is, after all, not just a terrorism prevention measure but a terrorism investigation measure? Such people could readily become martyrs to a certain audience as, in a small way, one or two control order subjects did. As my noble and learned friend Lord Thomas of Cwmgiedd said in Committee, by reference to the IPP regime, of which he has great experience,

“indefinite detention often makes someone more dangerous because you take away hope.”—[Official Report, 9/2/21; col. 273.]

This country has a long tradition of combining high levels of national security with a vigorous defence of individual liberty. We never imposed indefinite house arrest, relocation and other similar restrictions on those who preached communist revolution, and we have never imposed TPIMs, although we have the power to do it, on radicalisers of the extreme right wing or the Irish republican persuasion. Nor are we where we were in 2005, when it was widely feared that al-Qaeda-directed plots would take tens of thousands of innocent British lives. Existing measures have helped ensure that the total death toll from terrorism this century, in Great Britain, stands at less than 100. To introduce indefinite executive detention in response to this miserable bunch of ideologues would, I suggest, be a signal not of strength but of what the terrorists most want to see from us: fear and overreaction.

National security law must be more than a series of proportionality assessments performed by the Executive and observed by respectful courts. Something more is needed—checks and not just balances—or how else can Parliament offer guidance on where the limits should be? Your Lordships’ House has already this year greatly improved the Covert Human Intelligence Sources (Criminal Conduct) Bill, whose original version suggested that this important truth may have been forgotten. This Bill, on a similar theme, was described by the independent reviewer as

“conspicuous for its lack of safeguards.”

Amendment 16 extends the reach of these always controversial TPIM measures, but it at least retains a tangible check on the executive power to constrain—a power of which the TPIM is the strongest example known to our law. I hope that the good sense of this amendment will commend it to your Lordships. With that in mind, my intention is to test the opinion of the House.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I feel much more educated than I did half an hour ago. Today, I found myself not only supporting but signing a government amendment, which is a first for me—what a pleasure. I was in the prestigious company of two QCs and a privy counsellor. I will support any and all amendments that are moved. I find the four-year limit a little tougher to accept than that of two years, but anything that is not indefinite is an improvement.

In normal times, this issue would get much more coverage, but Brexit, Covid and everything else are taking the public’s attention away from these issues. Anything that would implement unending government surveillance and intrusion on someone’s life is, frankly, terrifying.

The amendments of the noble Lord, Lord Paddick, to remove various clauses, and those of the noble Lord, Lord Anderson, would significantly improve this Bill. I hope that noble Lords who have been involved in this Bill will continue to work with us. They have shown that they are prepared to improve the Bill and I think that further improvements are possible. I hope that they are listening and will accept these amendments.

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Moved by

[Lord Anderson of Ipswich]

16: Clause 35, page 29, line 28, leave out “one or more” and insert “up to three”
Member’s explanatory statement
This amendment would impose a four-year limit for TPIM notices.

[Lord Anderson of Ipswich (CB) [V]]

I beg to move.

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I anticipate withdrawing Amendment 19 at the end of the debate; I will not move Amendment 20, but we will move Amendment 21 when that point in the proceedings is reached. Let us see what the Government have to say.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, the noble Baroness, Lady Hamwee, appears to be right that the legislation in its current form does not place express limits on the use of information obtained from a polygraph for the purpose of extending a TPIM, yet my enthusiasm for Amendment 20 is limited. The reality is that TPIMs can be made and extended on the basis of a wide range of intelligence fragments, some of which may be little more than straws in the wind. It may none the less be important to take such matters into account. I think back to the Manchester Arena bomb and the ambiguous and potentially unreliable intelligence that, as I reported at the time, might, if it had been interpreted in a different way, have resulted in some sort of pre-emptive action.

An intelligence picture is typically a complex mosaic of multiple indications and assessments, of which polygraph material, depending on the circumstances, will not necessarily be the least reliable component. While it seems to me both unlikely and undesirable that a TPIM would ever be extended predominantly on the basis of polygraph material, I am wary of Parliament seeking to dictate the relative weight that is to be given to different sources of intelligence. The Executive and the courts are the bodies with expertise in this area, and I suspect that we should leave it to them.

I look forward to hearing what the Minister has to say about Amendment 19, which seems not without merit.

[Lord Paddick (LD) [V]]

My Lords, my noble friend Lady Hamwee has explained Amendments 19 and 20 to the House, and it would serve little purpose to repeat that as we will not be dividing the House on them.

As my noble friend has said, compulsory polygraph tests for those convicted on licence from prison are one thing, but such tests for those not convicted of any offence, who have a right to silence when being questioned, is quite another. It is a long-established principle that a suspect in criminal proceedings should be protected from any adverse consequences of remaining silent. Clause 38 allows the Secretary of State to impose a requirement for an individual subject to a TPIM to participate in polygraph sessions and to comply with instructions given to the individual by the polygraph operator. Although any statement made by the individual while participating in the polygraph session cannot be used against them in any proceedings for an offence, a failure to answer questions could be taken as contravening a measure specified in a TPIM notice—that is, to comply with the instructions of the polygraph operator, so, in this case, the instruction to answer questions. Remaining silent during a polygraph session could therefore be an offence under Section 23 of the Terrorism Prevention and Investigation Measures Act 2011, for which the individual is liable on conviction to imprisonment for a term not exceeding five years.

If the person is convicted of a terrorism offence and is on licence and subject to a TPIM—unlikely but possible—it would be possible for them to be subjected to polygraph tests under Clause 32 of this Bill, and a failure to answer questions in those circumstances would be a breach of the licence. While we have reservations about that, we do not object to it being part of the Bill. However, if the person is not convicted and is subject to a TPIM, they have the right to silence and to be protected from any adverse consequences of remaining silent. Potentially being imprisoned for five years for failing to answer questions during a polygraph session is an adverse consequence, and we therefore intend to test the opinion of the House on whether Clause 38 should be part of the Bill.

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[Lord Paddick (LD) [V]]

My Lords, I move Amendment 23 in my name and that of my noble friend Lady Hamwee. This House voted for there to be a deadline for the publication of an independent review of the Government’s Prevent strategy in what became Section 20 of the Counter-Terrorism and Border Security Act 2019. In this Bill, the Government seek to remove any deadline for the publication of this review. In Committee, the Minister said that the Government hoped that the report would be published in the autumn of this year and that he hoped to get confirmation of this from the newly appointed independent reviewer of Prevent. On the basis of the estimate given by the Government in Committee, our Amendment 23 seeks to reinstate the deadline but with a generous margin of publication by the end of the calendar year. I beg to move.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, there seems to be a recurring issue with the timeliness of independent reviews in the field of national security. The chief problem as I observe it relates not to the speed with which independent reviewers do their job but to the speed with which those reviews are commissioned on the one hand, and the speed with which reports are published and laid before Parliament on the other.

As to delays in commissioning, in addition to the remarkably long time that it has taken to replace my noble friend Lord Carlile as the independent reviewer of Prevent, I note that it was only on 25 February this year that the long-awaited review was announced of closed material procedures under the Justice and Security Act 2013. That review was required by Section 13 of that Act to be completed as soon as reasonably practicable after June 2018. Yet, despite regular inquiries by the indefatigable Angus McCullough QC and others, and at least one Written Question in my own name, it was commissioned only two and a half years after that point. That seems simply unacceptable.

On the second of those points, there is the pre-election saga of the Russia report of the Intelligence and Security Committee, on which I made my views clear at the time, and an occasionally elastic interpretation of the Secretary of State’s statutory duty to lay reports of the Independent Reviewer of Terrorism Legislation before Parliament “on receiving a report”.

In the Public Bill Committee on the original TPIM Bill in 2011, James Brokenshire, during his first stint as Security Minister, said on this subject:

“There is no desire to sit on reports. It would be foolish and inappropriate for Government to do so, particularly with a report from an independent reviewer … It is not our intention to sit on reports; that is not the practice. If it gives comfort to the Committee and to the public, reports received from the independent reviewer will be published on receipt or promptly—whatever the appropriate phrase is. That is what I expect to happen, and I would expect any successor of mine to take the same approach.”—[Official Report, Commons Terrorism Prevention and Investigation Measures Bill Committee, 30/6/11; col. 253.]


Will the Minister take this opportunity to endorse the principled approach set out by James Brokenshire almost 10 years ago and apply it not only to reports of the Independent Reviewer of Terrorism Legislation but to the report of the independent reviewer of Prevent? If he can, he will go some way to setting my mind at rest not only on the subject matter of this amendment but more generally.