Counter-Terrorism and Sentencing Bill

Lord Hunt of Kings Heath Excerpts

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

[Baroness Hamwee (LD) [V]]

My Lords, Clause 40 stand part is grouped with Amendment 31 in the names of the noble Lords, Lord Hunt and Lord Bach, which is very different. I shall confine my remarks to the clause. A curfew can be more than overnight. All the points about amendments we have debated this evening are relevant to the time—the hours of the day and night—during which a subject may be required to remain wherever he is living—plus, of course, in particular, engaging Article 5 of the European Convention on Human Rights, on the deprivation of liberty.

The ECHR memorandum published with the Bill is explicit that this provision is so that an individual can be required to observe longer curfew hours. That is not a justification, however. We have some case law, as I am sure other noble Lords may mention. In JJ, Lord Bingham said that account should be taken of

“a range of factors such as the nature, duration, effects and manner of execution or implementation”

of a measure—very much as noble Lords said on a previous group. The noble and learned Lord, Lord Brown, took the view that the absolute limit was 16 hours, and I understand that no curfew has been for a period longer than 16 hours since.

The ECHR memorandum makes the point that the principle of curfew does not breach Article 5, and I take that point, but the particular issue I want to raise in this connection is that the clause—that is, the change—makes it that much easier for the limits to be pushed longer and longer and throws on the individual the need to challenge them, rather than having clear limits set on the Secretary of State through legislation.

I am sure that noble Lords will understand, when it comes to the appetite, and indeed the ability, of an individual to challenge each measure, or extended measure, it is not an easy task. The balance—I think it is called “equality of arms”—moves completely out of balance through this clause. I beg to move.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, rather like the noble Baroness, Lady Hamwee, I am not sure that our two amendments have any connection whatever. None the less, it is a pleasure to be able to make this short intervention on the Bill and to probe just a little more than I did at Second Reading the role of police and crime commissioners.

I do support the strengthening of the TPIM provisions. That the Government would have to do so was entirely foreseeable in 2011, when the coalition Government insisted on the abolition of control orders, despite the warnings that I and other noble Lords gave at the time.

My amendment was drafted after discussions with the West Midlands police and crime commissioner, David Jamieson. Clearly, the provisions are potentially extremely resource-intensive and need to be used proportionately and only when absolutely necessary. I would like to make two specific comments.

As the thresholds for a TPIM are lowered and the range of measures extended, it is important that greater scrutiny and oversight are implemented to give reassurance to individuals and communities that the legislation is being used fairly. These are of course issues of grave national security concern. The oversight offered by a police and crime commissioner could help to give the Home Secretary reassurance that full consideration had been given ahead of any decision regarding a TPIM. Local oversight could also enhance the ability of the Home Secretary to make an informed decision when considering a TPIM application, variation or extension. It would enable PCCs to submit any additional information or make recommendations to the Home Secretary in respect of the community impact and the impact on local police force resources—which, as has already been discussed, can be intensive for a TPIM.

It is not entirely clear how police and crime commissioners are currently made aware of TPIMs within their local area. Certainly, the chief constable should advise the police and crime commissioner when a TPIM is being considered, but there are no clear guidelines on how this should take place. My amendment would formalise this process. We know that the number of TPIMs in place nationally is small, and therefore it should not be envisaged that this additional step in the process would present a burden for police and crime commissioners or forces. As part of this process, the information would of course have to be shared within the most appropriate, secure environment.

At Second Reading, the noble Baroness, Lady Williams, responded to that point by saying that the Home Office already works very closely with the police before a TPIM is imposed and during its lifetime. She went on to say:

“The process ensures that TPIMs are imposed only following engagement with the relevant local police force and that community impact assessments are kept up to date.”


She then said:

“The Bill already contains a clause that will allow a TPIM subject’s relocation measure to be varied where necessary on operational resource grounds.”


On those grounds, she considered that my

“proposed amendment for an additional role for PCCs … in TPIM processes is … not necessary.”—[Official Report, 21/9/20; col. 1653.]

That was disappointing. The key issue here is that TPIMs are an intervention that places significant restrictions on a person’s life, based on the balance of probabilities. Given that, PCCs could add value in the process by seeking reassurance that due process had been followed. I remind the Minister that they do this for other policing powers that might be regarded as controversial, including stop and search and the use of covert services, and it would be appropriate if it were extended to TPIMs. I commend the amendment and hope that the Minister will be sympathetic.

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

My Lords, I have just a little to add to what has already been said about Clause 40.

The current requirement that a residence condition be “overnight” has acted as a limitation on the maximum length of the nightly period of house arrest that may be imposed under a TPIM; the noble Baroness, Lady Hamwee, referred to some of the case law on this subject. Confinement to the home during substantial parts of the day may sound almost familiar in times of Covid but it would represent a major reversal of past practice. I see that my own 2012 report, to which the Minister was kind enough to refer, confirms that even control orders featured curfews of only up to 16 hours.

In that context, I have three questions. First, if Clause 40 is passed into law, for how many hours a day will it be permissible to confine TPIM subjects to their designated residences if that is considered, in the Minister’s words, “necessary and proportionate”? Is there any reason why it should not be for 23 or, indeed, 24 hours?

Secondly, what are the specific circumstances that make it necessary for public safety to extend these already formidable powers in this way? If they are to be credible after 15 years of real-world experience, please may we have actual examples, even if they must be anonymised, rather than hypothetical ones?

Thirdly, and more generally, my sense from the last few debates is that the Government will have to work quite hard if they are to persuade noble Lords of the operational case for some of these changes—particularly as they appear not to have persuaded their own independent reviewer, with all his privileged access to classified material. What proposals does the Minister have in that regard?