Domestic Abuse Bill

Lord Anderson of Ipswich Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 5th January 2021 Lords Chamber

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

My Lords, when I reviewed the terrorism laws I often used to reflect on domestic violence and abuse. They bear no national security label, but they seem to me to be threats on at least a comparable scale. Domestic violence takes far more innocent lives in this country than the 100 or so who have been killed by terrorism since the turn of the century. I suspect that fear of domestic abuse, just as much as fear of terrorism, conditions the behaviour of huge numbers of people. I therefore welcome this important Bill, while bearing in mind another important lesson from the world of counterterrorism: the further reaching the powers we enact and the more universally welcome they are, the more important it is to examine the attendant safeguards.

I am grateful to the Magistrates’ Association for its briefing on domestic abuse protection orders. Among the practical issues it highlights are whether there should be a statutory maximum time limit on DAPOs, subject to renewal; whether the family courts should be able to impose a domestic abuse perpetrator programme on an alleged offender without any conviction or prior finding of fact; whether it is right to impose positive requirements, such as drug rehabilitation, when there has been no opportunity to find out if the subject will engage with them; and whether there need to be processes to deal with the overlap in jurisdictions of criminal, civil and family courts. Some of these issues will, I am sure, be ironed out in the pilot or in guidance, but we may need to consider whether others should be reflected in the Bill.

Finally, a word about the proposed new offence of non-fatal strangulation. I have studied in detail the March 2016 report of the New Zealand Law Commission, which stated a preference for generic crimes and warned against what it called a slide into a chaotic plethora of specific offences. That was also a strong theme of our own Law Commission report of 2015, Reform of Offences Against the Person. However, the New Zealand Law Commission did accept the case for a new offence of non-fatal strangulation. The case for such an offence is a strong one, for the reasons which the noble Lord, Lord Marks, the noble Baroness, Lady Bull, and others have so ably explained.

However, counterterrorism also teaches us that hurried law can be bad law, and we need to be sure that all the necessary thinking has been done. Would a more generic offence, such as aggravated assault or recklessly endangering life, meet the case? If not, how are strangulation and suffocation to be defined, and should personal connection in the language of the Bill be a condition of the offence or not? What is to be the mens rea, and should there be a statutory defence of consent? What are the sentencing implications? These are issues which the report of the New Zealand Law Commission helps us to address but on which it cannot be the last word in the circumstances prevailing here.

I hate to miss a bus as much as the next person, and this Bill is an inviting, indeed overdue, vehicle. If the Government see merit, as so many of us do, in the amendment in the name of the noble Baroness, Lady Newlove, I hope they will start working constructively on it at the earliest opportunity. Perhaps, if necessary, they will do this with the urgent involvement of the Law Commission so that we can be sure that it will be as effective as it needs to be.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this might be a sensible point in proceedings to take a short break. I beg to move that the House do now adjourn until 7.15 pm.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Baroness D'Souza (CB)]

My Lords, Amendment 55 in my name is in this group. The amendment seeks to place on the face of the Bill a clear prohibition on three grave criminal acts, namely murder, torture and sexual violations. It is narrower in its application than other amendments in this group, to avoid any confusion about the scope of these prohibitions. Therefore, references to “too broad” and “too open to interpretation”, such as threats to economic well-being and damage to property, are omitted. An added clause, referring to the discretion of the state not to prosecute the commission of even these major crimes, provides a further lack of restriction in exceptional cases.

Of course, there is no doubt of the need for the Bill to protect informants in their often dangerous but vital work. But the Bill as it stands puts the executive authorities and their agents above the law, a concern widely expressed at Second Reading. No state should authorise serious crime without limits. The Government’s justifications for allowing these grave crimes have still not been fully dealt with—for example, why the Human Rights Act, according to previous statements on the part of the Government, would not apply to informants’ criminal actions, or why listing prohibitions would somehow expose informants to additional danger. These are among the remaining ambiguities in the Bill.

We might learn from the original RIPA legislation, which necessitated later additional amendments to prevent its scope inexorably increasing over the years. The law must be accessible and clear. There is an opportunity here and now to make this Bill fit for purpose by incorporating the three main prohibitions limiting the sanctioning of grave crimes which are themselves contrary to the terms of the ECHR, to which the UK is party. To omit these limits, the Bill damages the integrity of criminal law and suggests that the state may tolerate, or even encourage, the most serious offences in the UK law.

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

My Lords, these amendments have at their heart the question of whether there should be a list of offences which can never be authorised. The Government say not, claiming that countries which have such lists do not experience the same type of criminality that we do, especially in Northern Ireland; that to have such a list would mean that CHIS were tested against it; and that the Human Rights Act provides sufficient protection in any event. Despite the briefings which the Minister and the Security Minister have kindly arranged for me, I am afraid that I am yet to be fully convinced.

First, I wonder whether the nature of serious crime in this country is really so different from that in Canada, Australia or the US, each of which has some sort of list. Northern Ireland is mentioned, but given historical experience, it might be thought that the public reassurance given by a list would be of particular value in Northern Ireland. The principled objection to a list is rather diminished by the fact that the new Section 29B(10)(a) will empower the Secretary of State to create just such a list in secondary legislation. This, however, is no merely technical or topical concern, such as might justify the Government in reacting on the hoof to some future scandal. The content of the list is surely something that Parliament should consider coolly in advance, and not just to debate but to amend.

As for the Human Rights Act, it is unfortunate that there seems to be no easy way for the police or anyone else to translate what the Government characterise as its protections into clear and comprehensible operational advice. I have a good deal of sympathy with each of the various points made by the Joint Committee on Human Rights in chapter 4 of its report, some of which have already been echoed in this debate. Though I do not repeat them here, I very much hope that, before Report, we will see a detailed and convincing response to all of them. Included in that, I suggest, should be a fuller explanation of paragraphs 14 to 16 of the ECHR memorandum, which has, perhaps understandably, generated a degree of concern.

What of the argument based on the testing of CHIS? The more I think about this, the less I understand it. Suppose that we amend the Bill to say, “CHIS cannot be authorised to rape.” Suppose then that the gang asks an individual to rape and that the individual refuses. What does that tell the gang? One possibility is that the individual simply has scruples that he is unwilling to set aside. Another is that he may be a CHIS whose authorisation does not stretch as far as rape or who has been advised by his handler not to rape. Whether or not the crime of rape features on a prohibited list has no bearing on the issue, unless one assumes, absurdly, that every CHIS will be authorised to commit all types of crime not on the prohibited list and will make full use of that authorisation whenever the opportunity presents itself. The reality surely is that CHIS will continue to be authorised in only limited respects, no doubt falling far short of sexual crime, and that a refusal to rape, murder and torture cannot, therefore, be a meaningful indicator of CHIS status.

It is hard to understand why a short list, bearing no relation to the types of crime that will routinely be authorised, should increase the risk to a CHIS or make it more likely that he will be successfully outed as a CHIS by the criminal group in which he is embedded. If public reassurance requires it to be known that undercover police may not form intimate relationships, as it evidently does, then why should it not be known that CHIS cannot be authorised to commit—at least—the trio of torture, murder or rape mentioned in the amendment of the noble Lord, Lord Cormack? I look forward to any guidance that the Minister can give on this point. This is important stuff, and if the Government are right, we really need to understand why.

I venture to suggest that the extensive powers in the Investigatory Powers Act 2016 were endorsed by Parliament because they were accompanied by equally strong safeguards, and also because the agencies and others were prepared to go to unprecedented lengths to explain why they were needed. They explained their case fully and frankly, at a detailed operational level, to trusted interlocutors such as the team that produced the bulk powers review in 2016 under my leadership. They also explained it as fully as they properly could to Parliament and the public as a whole. I hope that that lesson has been fully learned, because, as the noble and learned Lord, Lord Thomas of Cwmgiedd, has already indicated, it may be needed on this Bill too.

[Baroness Massey of Darwen (Lab) [V]]

My Lords, I shall speak to Amendment 56 on behalf of the Joint Committee on Human Rights, of which I am a member. This report was derived from consultations with many knowledgeable and concerned participants. My noble friend Lord Dubs, also a member of that committee, has already contributed significantly to these debates. Unfortunately, he is otherwise engaged this afternoon in unavoidable commitments, but I hope that he will be here to present Amendments 39 and 63.

Amendment 56 establishes a prohibition on the authorisation of serious criminal offences in similar terms to those appearing in the Canadian Security Intelligence Service Act 1985. The Joint Committee on Human Rights expressed concern that even the most serious offences, such as rape, murder, sexual abuse of children and torture, which necessarily violated basic human rights, were not excluded on the face of this Bill. Noble Lords today and previously have expressed grave concerns about this issue. The Home Office considered this necessary because it feared it created a checklist for suspected CHIS to be tested against. The Government’s position is that the Human Rights Act provides a guarantee against certain criminal conduct. However, it is noted in paragraph 40 of our report that, if a criminal gang or terrorist group were familiar enough with the relevant legislation to test a CHIS against it, they would presumably be equally able to test them against the guarantees of protections set out in the Human Rights Act. The committee did not consider it appropriate to legislate by providing open-ended powers while relying on the Human Rights Act as a safety net.

The report noted that the Human Rights Act has not prevented previous human rights violations by undercover investigators, or CHIS. For example, the Human Rights Act was in force for much of the period when undercover police officers from the National Public Order Intelligence Unit were engaging in intimate relations with women involved in the group that they had infiltrated. The committee also noted that other countries with similar legislation, including Canada, the US and Australia, had expressly ruled out CCAs ever enabling the most serious offences. I realise that this has been referred to before today. The report therefore concluded:

“There appears to be no good reason why the Bill cannot state clearly that certain offences or categories of offences are incapable of authorisation.”

--- Later in debate ---

[Baroness Chakrabarti (Lab) [V]]

I can be brief. My noble friends pose two very important questions that become even more unnerving when run together. I look forward to what the Minister says about, first, the exact detail of this conduct in relation to CCAs—it is vague language; can it be sharpened?—and, secondly, the ability under the legislation as drafted for corporations, rather than individuals, to be licensed to commit criminal conduct or to run CHIS and criminal conduct themselves. If she thinks that the Bill is too broad compared to government policy, will she consider ruling out on the face of the legislation that kind of sub-delegation or outsourcing to corporations?

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

[Inaudible]—the noble Baroness, Lady Chakrabarti. I am less concerned than I think she is by the prospect of immunity being accorded to CHIS—at least, human CHIS. I incline more to the view expressed by the noble Baroness, Lady Manningham-Buller, on our first day in Committee that CHIS

“should not risk prosecution for work they are asked to do on behalf of the state, in most cases at considerable personal risk.”—[Official Report, 24/11/20; col. 211.]

Of greater potential concern is the prospect of a general criminal and civil immunity for the authorising officer or body. We look forward to hearing whether, as debated on the first day in Committee, the Criminal Injuries Compensation Authority will be able to compensate the victim of a crime covered by an authorisation, which would at least be a start on the civil side. We will, I am sure, return to these difficult issues.

Hardest of all is to see what justification there could be for according immunity, in any circumstances, to persons who are neither a CHIS nor employed by the authorising authority.

I welcome the clarification that these amendments would provide and will be interested to hear whether the Minister has anything to say against them. I anticipate that she may not because, as the Advocate-General for Scotland said on the first day in Committee:

“The Bill is intended to cover the CHIS themselves and those involved in the office authorisation process within the relevant authority”.—[Official Report, 24/11/20; col. 151.]


If, as I hope and believe, nothing more is intended, let us ensure that the Bill makes this clear.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, my noble friend Lord Paddick and I have Amendments 16, 18, 20, 32 and 33 in this group, which is concerned with the test—the standard or threshold, if noble Lords prefer—for granting a criminal conduct authorisation.

The JCHR made the very good point in the conclusion of its report that

“it would be more effective for a test of objective reasonableness to be applied in the course of an independent judicial approval process”.

It also made the important point:

“If a test of ‘reasonable belief’ were applied to the making of an authorisation, a CCA made without objective justification would be invalid. However, the CHIS acting under the CCA would not know this. This could result in the CHIS being exposed to criminal prosecution or a civil claim, despite the fault being with the individual making the authorisation.”


The Minister has just reminded us of the duty of care to a CHIS.

New Section 29B(4) requires belief as to three matters listed on the part of the person granting the CCA. I am always keen to follow the noble Lord, Lord Anderson, and we go a long way together on this group and then part company a little towards the end. Is a simple belief that something is necessary and proportionate an adequate test, or is a simple belief—to read from new Section 29B(4)(c)—that “arrangements exist that satisfy” the Secretary of State’s requirements? We will come later to what those arrangements might be, but it is the same issue. I acknowledge that subsection (4)(c) is probably more procedural than substantive.

A person might honestly believe in all these things but be mistaken. But he could still assert that belief, hence the need for objectivity—at least, an objectively reasonable belief. As the JCHR said, that is a

“standard requirement for the exercise of police powers—from stop and search, to arrest, to applying for a search warrant. This prevents these powers being lawfully exercised without reasonable justification. It is a vital protection against overzealous or misguided officers.”

That is what is in the guidance. Although I of course welcome that, it is worrying that the term is not included in the Bill. I am not clear whether that is a deliberate omission. Certainly, the legislation and the guidance should be consistent.

The amendment in the name of the noble Lord, Lord Anderson, which was moved by my right honourable friend Alistair Carmichael in the Commons, imports objectivity. We are going further by asking whether the Government should justify why something is not actually necessary or proportionate, or satisfying the Secretary of State’s requirements.

New Section 29B(6) is a gloss on Section 29B(4) and tells us what is to be taken into account in authorising the conduct—

“whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.”

We would take out “reasonably”.

The Government might say that its inclusion is a safeguard for what the noble Lord, Lord Anderson, and I are seeking in our respective amendments. What concerns us, however, is that anything that spells out how you reach a belief or conclusion is in danger of weakening what is central to authorising a CCA: the necessity and proportionality of it. Both of those contain an element of judgment and we do not want to weaken subsections (4)(a) and (b), hence our Amendment 32.

Amendment 33 is in the same family. It would remove “reasonably” from subsection (6) of proposed new Clause 29B, which I just quoted. That subsection lends itself more to being tested, so I am less concerned about it than other amendments. Perhaps, however, I should make it clear that we are not in the business of trading one “reasonably” for another. Our other amendments are consequential.

On the amendment from the noble Lord, Lord Rosser —I think that it will be spoken to by the noble Lord, Lord Kennedy—we think it preferable not to go down the route of listing matters to be taken into account, as that amendment does. I am sure that the noble Lord, Lord Anderson, could tell us about the case law. Simply, I would not be surprised if the Minister says this too, since she and I have had this discussion on many occasions: a list is bound not to be complete, and the more you list, the less scope there is to take into account something that is not spelled out. With that, I beg to move Amendment 16.

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

My Lords, it is a pleasure to follow the noble Baroness for at least part of her journey, as she says. I will speak to Amendment 17 and its Scottish equivalent, Amendment 72. They would require that the authorising officer’s

“belief in the necessity and proportionality of a criminal conduct authorisation, and in the existence of satisfactory arrangements, be reasonably held.”

In paragraph 67 of its report, the Joint Committee on Human Rights rightly said:

“It cannot be acceptable for CCAs to be made on the basis of an unreasonable belief in their necessity and proportionality.”


Despite the wording of the Bill, which makes no reference to reasonableness, the Government appear to agree with the Joint Committee. We know this from Second Reading in the House of Commons, when the Solicitor-General stated, in answer to Jeremy Wright MP, that

“the code of practice sets out that there does need to be a reasonable belief that an authorisation is necessary and proportionate.”—[Official Report, Commons, 5/10/20; col. 707].

Is that a sufficient answer? I am afraid not—for two reasons. First, the draft code of practice, as I read it, does not plainly provide that belief be reasonable. Section 6.1 of the draft code, issued alongside the Bill, provides that a criminal conduct authorisation

“may be granted by the authorising officer where they believe that the authorisation is necessary”.

Section 6.3 states:

“The authorising officer must also believe that the authorised criminal conduct is proportionate”.


The requirement that belief be reasonable is not clear, even in the code of practice. Those sections of the code appear quite consistent with the requirement of a merely subjective belief. Secondly, and more fundamentally, the notion of reasonableness is—as I think the Government acknowledge—completely absent from the Bill itself, which the courts will of course treat as the authoritative source.

My point is very simple: why is the position rightly endorsed by the Solicitor-General—that belief should be reasonable—not reflected in the Bill?

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have received two requests to speak after the Minister, from the noble Lord, Lord Anderson of Ipswich, who I will call first, and the noble Lord, Lord Kennedy of Southwark. I call the noble Lord, Lord Anderson.

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

My Lords, I am grateful to the Minister for his courteous and measured response, but can I press him for clarity on the Government’s position on my Amendments 17 and 72, so that I can work out where to go next?

First of all, as I understood it, the Minister asserted the importance of making the new Section 29B consistent with the existing Section 29 of RIPA, which he said did not require belief to be reasonable. But he then relied on section 3.10 of the code of practice, which in contrast to sections 6.1 and 6.3, which I cited earlier, does, as the Minister put it, imply a requirement of reasonableness. The Minister first pleads for consistency and then identifies an inconsistency between part of the code and the Bill, without undertaking to amend either. I may, of course, be missing something. Could the Minister please explain whether the Government support a requirement of reasonableness, as the Solicitor-General appeared to do in the Commons, in which case will he undertake to amend both the Bill and section 6.1 and 6.3 of the code of practice to bring them into line with section 3.10 of the code of practice, to which he referred? Or are the Government against a requirement of reasonableness, in which case could he explain why?

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Anderson of Ipswich Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord Anderson of Ipswich (CB)]

I join other noble Lords in welcoming the Minister and the noble Lord, Lord McLoughlin, to their place. I do so with open arms, if the Minister will forgive a reference to that delightful Dirleton hostelry.

The Bill, like the litigation which forced it into being, is welcome. I have a wish list, but time requires me to come straight to the nub: the linked questions of immunity, authorisation and oversight. The Bill would give power to police superintendents to confer immunity on members of the public, and of their own organisations, for the commission of crimes. That proposition is startling, and the potential for abuse obvious. There are three central ways in which that potential might be mitigated. The first way is to remove the immunity and retain the existing discretion of the CPS to prosecute for a criminal offence within the scope of the authorisation. I have two questions for those who promote this option. Is it fair for a CHIS who does no more than he is asked by the police to be at risk of prosecution? With that in mind, how often has the CPS considered it to be in the public interest to prosecute a CHIS who has not exceeded his authority? The noble Lord, Lord Paddick, with all his experience, suggested seldom or never. I keep an open mind but wonder whether removing immunity would be a safeguard more apparent than real.

The second way is to provide for prior approval of authorisations by the judicial commissioners of IPCO. I recommended this approach for some other covert powers in my report A Question of Trust, and was glad to see it followed in the Investigatory Powers Act 2016. However, context is everything and I will make three comments. Deciding how to task a CHIS, against a nuanced and rapidly changing background of personal relationships and group dynamics, is less obviously within the competence of a judge, or indeed any external person, than a decision to intercept a line or hack a device. Internal, not external, authorisation is provided for by Section 20.1(12) of Canada’s CSIS Act, of which the House has heard mention today, although it is fair to say that some form of external approval for CHIS criminality, whether by judges or lawyers, is required in some circumstances in Australia and the US. Finally, and without being defeatist, it is right to acknowledge that an amendment to require prior judicial approval was heavily defeated in the other place.

That leaves the third way: beefing up oversight by requiring a judicial commissioner to be informed every time a CCA is issued. That solution was adopted in SI 2013/2788, when the spycops revelations first surfaced, to deal with undercover police deployments of less than 12 months.

Having worked intensively with IPCO’s chief inspector for CHIS in the Channel Islands, where I was Investigatory Powers Commissioner until this summer, I have the highest praise for IPCO’s inspection work. Much of it is below the waterline in the form of inspections, oral feedback, classified detailed reports, observations and recommendations requiring speedy action. A sense of it is given publicly at paragraph 5.19 and onwards of IPCO’s March 2020 annual report.

The real-time notification of CCAs to a judicial commissioner would have three further advantages. First, the knowledge that their decision would go straight to the desk of a High Court judge or equivalent would concentrate the minds of authorising officers. Secondly, it would eliminate the gap of up to a year between authorisation and annual inspection, potentially assisting in the termination of any ill-advised authorisations, difficult though that will always be. Thirdly, it would help to promote a culture in which informal advice is sought before an authorisation was issued—something that happens a good deal in practice and is particularly valuable for authorities that do not make much use of CHIS. This third approach is no panacea and will not be strong enough for some, but it deserves at least to be debated and I will table an amendment for that purpose.

Extradition (Provisional Arrest) Bill [HL]

Lord Anderson of Ipswich Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 14th October 2020 Lords Chamber

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

My Lord, I welcome Commons Amendment 2, designating the NCA in statute for essentially the reasons that the Minister has just given. On Commons Amendments 1 and 5, as a practitioner with a particular interest in terrorism, I know how slow and imperfect the old extradition arrangements were within Europe and how much better things became with the advent of the European arrest warrant, not least by taking the sting out of our sometimes politically fraught extradition relationship with Ireland. That ship has sailed, so it seems that the best we can hope for now is an arrangement modelled on the Norway/Iceland relationship with the EU. These amendments acknowledge that even this modest goal may not be achievable. Their purpose, as I understand it from the Minister, is to offer a marginal improvement to the third-best solution with which we would then be left. So it is depressing that these amendments have been thought necessary, but prudent in the circumstances that they have been put forward. For that reason, not without sadness, I support them.

--- Later in debate ---

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

I supported both the amendments to which the response of the Commons is considered in this grouping. Indeed, along with the noble and learned Lord, Lord Judge, and the noble Lord, Lord Kennedy of Southwark, I put my name to the “one at a time” amendment in the name of the noble Baroness, Lady Hamwee, which Commons Amendment 4 would remove.

I described that amendment at Report as a sensible and practical safety valve. Given the unamendable nature of statutory instruments, it would have made it possible, at least in theory, for your Lordships to vote down the proposed addition to Schedule A1 of an unacceptable country without jeopardising the desirable inclusion of other countries proposed at the same time. As such, it would have been a contribution—a tiny contribution, I acknowledge—to the solution of a much larger and increasingly pressing problem: the need for some sort of practical and meaningful parliamentary control over the content of statutory instruments laid before us.

The Minister is right to say that the issue raised by the amendment has been properly debated in the Commons; the noble Baroness, Lady Hamwee, has, I am sure, borne that in mind, together with whatever prospect her amendment may have of succeeding today, in deciding to put it to the vote. If she persists in that course I shall, because I still support the principle of her amendment, vote for it.

Counter-Terrorism and Sentencing Bill

Lord Anderson of Ipswich Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, this is an important and well-prepared Bill, but not a perfect one. On Part 1, I respectfully adopt the points of sentencing so authoritatively made by the noble and learned Lord, Lord Thomas of Cwmgiedd. On Part 2, I associate myself with the remarks of my noble friends Lord Ramsbotham and Lady Prashar, and the concerns expressed by my successor-but-one as Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, regarding the removal of Parole Board discretion. If the possibility of early release can encourage good behaviour and reform, we should think carefully indeed before discarding it.

I will focus on the changes to TPIMs, the successors to Labour’s control order regime of 2005 to 2011, proposed in Part 3 of the Bill. For six years, I closely monitored the operation of TPIMs. Like the Government, I believe they are unfortunate necessities for a small number of dangerous terrorists who cannot be detained for long periods under criminal investigation, as in some continental legal systems, and who cannot be placed on trial or convicted, because the intelligence that identified their plotting is insufficient to meet the criminal standard or cannot be publicly disclosed without endangering a human source or vital investigation technique.

TPIMs are severe measures and are designed to be so. They are imposed by the Home Secretary, who, in contrast to a criminal court, is not constrained as to the nature of the intelligence material she may take into account. Measures may include, among many, compulsory relocation to towns or cities far distant from the subject’s home. Relocation is harsh but effective. Removed by the coalition in 2011, it was reintroduced, on my recommendation, in 2015.

Any breach of any restriction, which would include, under Clauses 41 and 43, polygraph measures and drug-testing measures, can result in imprisonment for up to five years. Judicial review of TPIMs takes many months to come on, and since the intelligence relied on can often not be disclosed, it requires the subject to defend himself, without knowledge of the detailed case against him, through a special advocate who cannot take instructions from him.

That severity has, until now, been mitigated by two factors introduced by the coalition Government in 2011. First, TPIMs have a maximum duration of two years, save in exceptional cases—a limitation originally recommended by the noble Lord, Lord Carlile, in a report of February 2008. Secondly, the Home Secretary is required to have not just a “reasonable suspicion” of involvement in terrorism but “reasonable belief”, on the balance of probability, as it is now expressed.

The two-year limit is a reminder that executive constraints of this kind can be no substitute for the criminal process and no long-term solution, even if, as I said in 2013, echoing the noble Lord, Lord Carlile, five years earlier, it is tempting to wish for longer in the most serious cases. Each of those mitigating factors, as has been said, would be reversed by this Bill.

Let me offer a comparator, which, while not exact, may be illuminating: the reasonable suspicion required of the Home Secretary by Clause 37, is the same standard that must be reached by a police officer to justify an arrest. Yet arrest without charge, even in a terrorist case, is tolerated in this country for only four days, extendable to a maximum of 14 days by repeated permission of the court. Noble Lords will remember unsuccessful attempts to increase that maximum to 90 and then 42 days. Yet under this Bill, the reasonable suspicions of the Home Secretary would be sufficient if she judged it necessary for the protection of the public—a judgment unlikely to be effectively reviewable in any court— to justify a form of house arrest that can persist for many years.

The Government now have huge experience with these orders, including their possible imposition on more than 400 people having returned from Syria to this country. So, it is significant that the Minister Chris Philp candidly accepted on Report in the other place, consistent with evidence given by Assistant Chief Constable Tim Jacques in Committee, that

“there has not been an occasion on which the security services wanted to give a TPIM but could not do so because of the burden of proof.”—[Official Report, Commons, 21/7/20; col. 2093.]

We should investigate whether there is a better balance to be struck consistent with the enhanced public protection that the Bill aims to provide. Options, as the independent reviewer has suggested, include an upper limit in excess of two years and the retention of the current standard of proof, if not in all cases then at least beyond the initial period, which would take care of any valid concerns there may be about urgent cases.

I hope that the collective wisdom of the House will be brought to bear on the Bill in this respect.

Extradition (Provisional Arrest) Bill [HL]

Lord Anderson of Ipswich Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 15th June 2020 Lords Chamber

[Lord Paddick [V]]

My Lords, I speak in support of the amendment in the name of my noble friend Lady Hamwee, and I agree completely with the comments of the noble and learned Lord, Lord Judge. The trouble with an amendment of this simplicity is that all one can do is repeat the arguments in a slightly different way.

It makes complete sense that Parliament should have the ability to consider each country on its merits in this case, as it is so obviously open to abuse, and the regulations that allow additions are not amendable. Echoing the views of my noble friend Lady Ludford, I think that, our having left the European Union, future Governments will be keener than ever to secure trade deals with other countries, for example. It may be that those other countries demand, quid pro quo, that we accede to their extradition requests, even though there may be reservations about a country’s criminal justice process. This amendment is necessary, and I support it.

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

My Lords, in Committee, my noble and learned friend Lord Hope of Craighead said of this amendment that it meets the problem of the non-amendable instrument, without at the same time creating an insuperable difficulty for the Government, and that it enables a debate to take place that would have a real point to it. The fact that there may be precedents in other Acts of Parliament for lumping countries together in statutory instruments seems to be neither here nor there.

This amendment ought really to be welcomed by the Government. It removes the possibility that acceptable countries will be excluded because they have been yoked together with a country that Parliament finds unacceptable. The amendment is a sensible and practical safety valve, which is why I put my name to a previous edition. If the noble Baroness, Lady Hamwee, decides to test the opinion of the House, I shall vote for the amendment.

[Lord Blunkett (Lab) [V]]

My Lords, as the noble Lord, Lord Paddick, said, the simpler the amendment, the more repetitious we become. But I want to go back to 2003, which was mentioned by the noble Baroness, Lady Hamwee, in the debate on the previous amendment, and to the Act that I piloted through, with the support of an excellent Home Office team. The noble Baroness called it a “mighty beast”, which it was; it was extremely difficult, as were other mighty beasts of that year, including the Criminal Justice Act, the Proceeds of Crime Act, the Sexual Offences Act, and the Domestic Violence, Crime and Victims Act. When I look back on those days, I wonder when any of us slept. We were, quite rightly, taken to task: we leaned on legislation too quickly.

However, in a simple amendment such as this one, we have clarity of thinking, as the noble and learned Lord, Lord Judge, indicated, and as the noble Lord, Lord Anderson, reinforced. There is a simple, clear reason why, 17 years on from the original Extradition Act, we should take this sensible step, which avoids the Government not being able to carry an order for countries with which we would be extremely pleased to have extradition arrangements because another country listed is unacceptable to us. Turning it on its head, on the danger of agreeing a country that we do not wish to have an extradition agreement with, and being unable to get Parliament to agree to an order that it would otherwise want to go along with, it makes absolute sense for the Government simply to concede.

I repeat what I said last week: I have a great deal of respect for the Minister. I hope that, even at this late stage, texts might be going from her staff to the Home Secretary to say, “Please give permission to concede on this, because we oppose it for no good reason whatever”.

Metropolitan Police: Live Facial Recognition

Lord Anderson of Ipswich Excerpts

Monday 16th March 2020 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, in her annual report of 25 February, the Forensic Science Regulator described the biometric oversight board, relied on in the High Court judgment that the Minister mentioned, as having made

“no substantive progress towards establishing an effective governance and oversight framework for police use of facial recognition or other biometrics.”

The role of the Surveillance Camera Commissioner is coming to an end in June, with no future plans announced. There is, to coin a phrase, a question of trust. Does the Minister agree that overt surveillance and biometric uses such as live facial recognition need to be properly regulated by statute, or at least until then by a revised code, and that the office of the Investigatory Powers Commissioner would be the appropriate body to take this on?

[Baroness Williams of Trafford]

As the noble Lord will know, we engage with both the ICO and the Surveillance Camera Commissioner. I totally get his point about the term of office being up in June and I know that we will have further discussions about how best to deploy the governance of this very exciting but potentially risky technology.