Counter-Terrorism and Sentencing Bill

Debate between Lord Anderson of Ipswich and Lord Parkinson of Whitley Bay

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, there were a number of questions in the noble Lord’s intervention there. I certainly encourage him to reread the evidence given by ACC Jacques on 25 June 2020. Asked specifically about the proposal to change the burden of proof, he said:

“The Security Service points to three instances where it thinks this would have utility from an operational perspective.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Public Bill Committee, 25/6/20; col. 20]


He then outlined the three scenarios that I have just repeated—but it is certainly worth looking at his evidence in full.

We are not ignoring the views of Parliament; that is why we are here in Committee, rightly scrutinising this Bill. But I repeat that we are talking about a burden of proof that has previously existed and been enacted by your Lordships’ House and the other place; it was repeatedly tested in the courts and found to be compatible with the ECHR, so I am not sure that I agree with the characterisation that the noble Lord gives.

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

I am grateful to the Minister for his courteous response. I do not think I ever had the pleasure of meeting him in Marsham Street, although I had a good deal of respect for his boss. I am also grateful to noble Lords from all three main parties, the Cross Benches and the Bench of Bishops, who made such interesting and supportive contributions to this debate.

Those speeches will repay careful study and, after my long opening speech, noble Lords would not thank me for revisiting their many highlights. I will say simply that it was striking to hear the observation of a former Lord Chief Justice that the change now proposed, described by the Minister as “marginal”, is “completely unacceptable in a civilised society”. I defer to the right reverend Prelate on the theological distinction between belief and suspicion, while making a mental note to ask him some time where faith fits into the spectrum.

The central question, to which, with respect to the Minister, I received no satisfactory answer, is this: if, as Chris Philp said in the Commons, the current standard of proof has, in almost 10 years, not stopped a desired TPIM from being granted, why do we need to change it? The Minister spoke of “hypothetical” cases of, for example, a returning Syrian fighter. Well, we have had 15 years-worth of real cases under control orders and TPIMS, including several hundred returned Syrian fighters who were screened and considered for these measures, and it remains the case that this issue has not posed any problem in practice.

The Minister spoke of “flexibility”. Well, most of us are flexible enough to countenance some compromise, even of basic freedoms, if there is a pressing reason for it, whether that be public health or public safety. However, until I have seen that pressing reason—or at least fully understood what it is supposed to be—I cannot support Clause 37.

The point was well made by the noble Lord, Lord Paddick, that the hypothetical cases put forward in support of 90-day police detention were without foundation. We have managed perfectly well in practice for 10 years with the 14-day limit introduced by the Conservative-Liberal Democrat coalition.

No doubt we will come back to these issues at a later stage. Before that, I shall reflect on the fair challenge from both the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer, that, in formulating Amendment 27, I may, in the absence of evidence for its position from the Government, have been too ready to compromise in respect of the first year. As to that first year, the Minister said nothing very specific—unless I missed it. However, for now, as is usual at this stage of the proceedings, I beg leave to withdraw my amendment.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Lord Anderson of Ipswich and Lord Parkinson of Whitley Bay

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

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

My Lords, I shall speak to my Amendments 21 and 22, which are intended to elucidate and, if necessary, reinforce the provision for criminal responsibility and civil recourse that already exists under the scheme in the Bill. I will start with criminal responsibility, which is the subject of sub-paragraphs (a) and (b) of Amendment 21.

Sub-paragraph (a) seeks confirmation that if a public officer who authorises a criminal conduct authorisation wilfully neglects to perform his duty, or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust, he should be open to prosecution for misconduct in public office. The Bill team has kindly confirmed to me in correspondence that nothing in the statute rules out the prosecution of an authorising officer for, for example, misconduct in public office if the authorisation was corruptly granted. I hope the Minister can confirm this when she responds. The concept of corruption is not as narrow as it may sound. It was elucidated last month by the Law Commission, in its report on misconduct in public office, as applying to the circumstances

“where a public office holder knowingly uses or fails to use their public position or power for the purpose of achieving a benefit or detriment, where that behaviour would be considered seriously improper by a ‘reasonable person.’”

There is another purpose to sub-paragraph (a): to clarify that a prosecution for misconduct in public office can be brought without the considerable inconvenience of first needing the CCA that was authorised to be declared a nullity. I believe that this follows from the existing text of RIPA and from the Bill. Section 27 of RIPA states that conduct will be lawful if it is authorised and if it is in accordance with the authorisation, but it does not create an immunity for the authorisation of such conduct. Nor is such an immunity created by the new Section 29B(8), which by its own terms is limited to conduct

“authorised by a criminal conduct authorisation”,

not conduct authorising a criminal conduct authorisation. I hope very much that the Minister will be able to offer me this second assurance as well.

Moving on to sub-paragraph (b), I accept that it may be more problematic to prosecute an authorising officer for the inchoate offences of encouragement, assistance or conspiracy. If the conduct of the CHIS is rendered lawful by Section 27, it is certainly arguable that there is no crime capable of being incited or being the object of a conspiracy. I believe, however, that the Government agree with me that the immunity falls away altogether, with the result that the CHIS can be prosecuted for the authorised crime and the authorising officer prosecuted for the associated inchoate offences if the CCA has first been declared to be a nullity by a competent court. Depending on the circumstances, that court may be the Investigatory Powers Tribunal, the High Court or indeed a criminal court. The Minister and the Bill team have been extremely helpful in explaining—[Inaudible]— and I believe there is nothing between us on this. I should be grateful if the Minister could confirm, thirdly, that this is the Government’s understanding.

Of course, the paper possibility of a prosecution means little if the CPS, Crown Office or PPS are not made aware of the circumstances that may make a prosecution appropriate. Important in this respect, it seems to me, are the powers vested in judicial commissioners under the Investigatory Powers Act. [Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt the noble Lord, but there is a little bit of interference.

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

[Inaudible]—in relation to matters for which a judicial commissioner is responsible. Could the Minister confirm, fourthly, that this is the Government’s understanding also?

I move on now, more briefly, as noble Lords may be relieved to hear, to civil recourse for the innocent victim of an authorised crime—[Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I do not know if the noble Lord, Lord Anderson, can hear me in the Chamber. I am afraid that we have some interference on the line, so we might need a short adjournment for five minutes while we sort it out.

Domestic Abuse Bill

Debate between Lord Anderson of Ipswich and Lord Parkinson of Whitley Bay

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.