Counter-Terrorism and Sentencing Bill

Lord Paddick Excerpts

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

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I make a short intervention to support the amendment so ably moved by the noble Lord, Lord Marks; it is carefully put and more than adequate. I support it because it is important that a close look is had into the workings of these important sections. One year should be sufficient, with the emphasis on consultation, which is vital to get an independent reviewer to take the temperature of how the Act is working.

In my many visits to prisons in my professional career, I was deeply aware of how prisoners live cheek by jowl. Particularly in the absence of other subjects of conversation, I would have thought, as a lay man, that prisons were fertile ground for radicalisation. It goes without saying that expert advice is needed. We are considering longer sentences, reform and rehabilitation, radicalisation and segregation—all vital subjects—and we should look at how the Act is working. With those few words, it is a pleasure to commend the amendment.

[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lord Marks of Henley-on-Thames has outlined, our Amendment 16 in this group calls for a review of the impacts of Part 1of the Bill. Why is such a review needed? The Explanatory Notes to the Bill describe its purpose as being to better protect the public from terrorism, effectively by two main means: ensuring that serious and dangerous terrorist offenders spend longer in custody, and supporting their disengagement from extremism and their rehabilitation.

I am pleased to note there is no longer any pretence that longer sentences act as a deterrent to terrorist offenders. There was no such claim from the noble Lord, Lord Parkinson of Whitley Bay, either, when he introduced the Bill to this House on Second Reading. That will save some time.

The two premises on which the Bill is based appear to be these: that the public are better protected from terrorists if terrorist offenders are in prison longer; and that a range of tailored interventions while they are in prison will lead to their disengagement from extremism and their rehabilitation. In short, the longer they are in prison, the less likely they are to pose a threat to the public and the more time is available to deradicalise and rehabilitate them.

The first and most obvious problem with the first premise is that you cannot detain every suspected terrorist for the rest of their lives, despite the Government’s attempts in this Bill to achieve exactly that for some terrorist offenders. With an increasing number of exceptions were this Bill to be passed unamended, you cannot normally lock up suspected terrorists indefinitely or so curtail their freedoms as to effectively deprive them of their liberty indefinitely. We will come to the indefinite deprivation of liberty without charge or trial when we come to the changes to the terrorism prevention and investigation measures.

The Government’s current Prevent strategy, at paragraph 3.5, says that

“radicalisation is driven by an ideology which sanctions the use of violence; by propagandists for that ideology here and overseas; and by personal vulnerabilities and specific local factors which, for a range of reasons, make that ideology seem both attractive and compelling.”

Such propagandists exist in our prisons. The Government’s argument that the longer someone is in prison, the more time there is to support their disengagement and rehabilitation can also work against their deradicalisation and rehabilitation.

First, it provides more time for them to be radicalised, or further radicalised, by propagandists in prison. There is clear evidence that this is happening. On 25 January, the Times reports the current Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, as saying that there was an increasing “drumbeat” of links between prison and terror attacks, with offenders not being properly punished for owning radical material, preaching extremism and inciting violence. The Times notes that the man given a whole life sentence last month for murdering three men in a park in Reading in a terror attack last year was befriended by a radical preacher while serving an earlier prison sentence. Secondly, if these vulnerable people believe that the sanctions imposed on them are disproportionate, or that the system that led to their imprisonment was unfair, the ideology promulgated by these propagandists is made to appear even more attractive and compelling.

No one would argue against a proportionate sentence of imprisonment for someone convicted in a court of law of a terrorist offence, as my noble friend Lord Marks has just said, or that, for a limited time, a suspected terrorist who is believed to present a real and immediate threat should not have their liberty to carry out a terrorist attack prevented while evidence is gathered upon which to base a trial in a court of law. However, paragraph 3.6 of the same Prevent strategy says:

“There is evidence to indicate that support for terrorism is associated with rejection of a cohesive, integrated, multi-faith society and of parliamentary democracy. Work to deal with radicalisation will depend on developing a sense of belonging to this country and support for our core values.”


Disproportionately long sentences of imprisonment and indefinite deprivation of liberty without charge or trial would reinforce this rejection of our cohesive, integrated, multifaith society and parliamentary democracy. They would undermine any sense of belonging to this country and any support for our core values. Indeed, they begin to call into question some of our core values.

What evidence is there that it is easier to develop a sense of belonging to this country and support for our core values while someone is in prison, compared with when they are on licence in the community? The Times article I quoted previously reports the Independent Reviewer of Terrorism Legislation as saying that encouraging and inciting terrorism were being

“successfully combated in the community”,

unlike the failure to address these issues in prison. Although he is to conduct a review of what is happening in prisons, it appears to be limited to examining how terrorism is detected, disrupted and prosecuted behind bars and whether improvements can be made, rather than the comprehensive review called for in our amendment.

For all these reasons, there is serious doubt whether Part 1 of the Bill will achieve what the Government intend by it; therefore, our Amendment 16 is necessary. Other amendments in this group call for a review of the financial impact of the Bill and the impact on the prison population, both of which could hamper the effectiveness of any deradicalisation or rehabilitation strategy and any attempt to prevent radicalisation or further radicalisation in prison. Reviews are called for on the specific impact of the Bill in Northern Ireland and on the National Probation Service, and we support these amendments as well.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, we have had a wide-ranging introduction to this group from both the noble Lords, Lord Marks and Lord Paddick. As the noble Lord, Lord Marks, said in his introduction, the amendments in this group call for a series of reviews of different aspects of the system. He expressed his misgivings and uncertainty that the system as it currently operates is succeeding and concluded his remarks by saying that a more sophisticated approach is needed.

Amendment 16 is the first amendment regarding the independent review of provisions, to which the noble Lord, Lord Marks, has spoken. The second in the group, Amendment 34 in the name of my noble and learned friend Lord Falconer, is concerned with the financial impact of the changes. The amendment would require the Secretary of State to publish a financial impact assessment of the Act within three years of it coming into force, and this would include the financial impact of extended sentences, extended licence periods, and any additional staffing resources needed as a result of the Act.

Amendment 36 in my name calls for a capacity impact assessment. This amendment would require the Secretary of State to publish an assessment of the capacity of the system as a whole. In their 2016 White Paper, Prison Safety and Reform, the then Government committed to £1.3 billion to create 10,000 new prison places by 2020 and to renovate the existing estate. The 2020 target was later changed to 2022; so far, only 206 new prison places have been built, with 3,360 under construction. The main reasons for those failures and delays were the delays in agreeing and receiving funding to build new prisons. This meant that the construction work began later than planned. In addition, HMPPS was not able to close all prisons and replace them with new ones, due to high demand, which meant it received less money from the sales of old prisons.

Amendment 38, also in my name, proposes a review of the legislation as it affects Northern Ireland. All measures in the Bill as they pertain to Northern Ireland would be reviewed annually with the Northern Ireland Minister for Justice and the Northern Ireland Executive; a report would also have to be published and laid before both Houses of Parliament. This would ensure that the Government worked constructively with the Ministry of Justice and Northern Ireland Executive, and that all the Bill’s implications were subject to regular review through the prism of Northern Ireland.

Amendment 39 proposes a review of the National Probation Service. This would require the Government to commission and publish a review of the impact of the Bill on the National Probation Service within 18 months of it coming into force. The review would have to consider, among other things, the level of probation support offered to offenders, as well as the number of specialist staff employed by the National Probation Service, and their skills.

I have received some briefing material from Napo—formerly the National Association of Probation Officers —which makes the point that the probation service is in crisis and that many of the offender management teams are struggling to maintain a balance between experienced staff and newly qualified staff. It is not uncommon to find teams in the community where the most experienced officer has only two to three years of post-qualification experience. As recruitment increases, as it is projected to increase, the pressure on the frontline staff will grow, with more probation officers being moved into management and training roles to support the trainees. The point made by Napo is that a properly remunerated and supported expansion of the probation service is needed to face the challenges ahead.

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[Lord Morris of Aberavon (Lab) [V]]

My Lords, I support this amendment in the name of my noble and learned friend Lord Falconer, who has asked some very important questions. I say immediately that I valued very much the teach-in that I attended on Microsoft Teams on the working of the polygraph, and I thank the Minister for arranging it.

We are in a new field in this context, and an issue of this kind, when it is embedded on the face of the Bill, demands very close attention. I raised the issue briefly in my speech at Second Reading, and I support the noble and learned Lord, Lord Woolf, when he states that we are on a learning curve. Having assisted my Minister, Barbara Castle, many years ago, in piloting through the House of Commons the breathalyser legislation to tackle drink driving, which was a very controversial issue at the time, I would be the last to oppose innovation per se, and I do not oppose this proposal. All I am anxious to know, in the fullness of time, is how it is working.

I learned at the teach-in that the polygraph is a useful tool in the management of offenders. It only gives an indication of past conduct, but it could be used to pick up warning signs on what might be done in the future, and is a significant tool for the management of offenders. The important point above all else was that an offender could not be recalled for failing a polygraph test. I believe that the Minister confirmed this in his reply to an earlier amendment. It is not a magic bullet and it is not 100% accurate. The examples given of its use, in the course of the teach-in, involved such questions as, “Have you had contact with other terrorist offenders?” or “Have you used the internet for any purposes contrary to your licence conditions?”. The polygraph cannot predict future conduct, only past conduct.

At the teach-in, the noble Lord, Lord Carlile, asked whether the polygraph was used in other jurisdictions such as Canada, Israel and the USA. The reply was that it tended to be used for vetting purposes. It was not clear to me whether it could be used for other purposes. If I am wrong in my understanding of the observations that we have heard on this very helpful tool from a panel of experts, the Minister will correct me. However, the limited use of the polygraph is made clear in subsections (1) and (2) of the proposed new clause. It is important to put on the face of a Bill, as my noble and learned friend Lord Falconer of Thoroton has put in the amendment, the need for a pilot to be in use within six months, with a report to Parliament, in the terms of the amendment, within 12 months,

I will not take up the House’s valuable time in repeating the details that are set out in the amendment itself. All I will say is that, given the kind of problem that we face in the management of offenders, we should not shut our eyes to the possibilities of the actions now proposed. How important it will turn out to be will be a question of degree. Therefore, I support this amendment.

[Lord Paddick (LD) [V]]

My Lords, I wish either that this group had been grouped with the previous group or that I had spoken in the previous group, as we seem to be going over the same ground. Can I also push my luck, at the invitation of the noble and learned Lord, as an out and proud non-lawyer and wonder out loud whether lawyers feel somewhat threatened that there might be a machine more able to tease out whether someone is telling the truth or not, or even to tease out a disclosure, than a lawyer? I do not believe lawyers need to worry. I feel this group and the previous one turned into an extension of the teach-in. But I shall press on.

Amendment 20, moved by the noble and learned Lord, Lord Falconer of Thoroton, to which my noble friend has added her name, calls for a review of polygraph testing on terrorist offenders based on a pilot scheme. I take a slightly different view to my noble friends Lady Hamwee and Lord Marks, probably because they are pure Liberal Democrats, unlike me, who am contaminated by 30 years’ experience as a police officer.

Yesterday, in discussion on the use of polygraph testing in the Domestic Abuse Bill, the Minister talked about how polygraph tests were used. I join other noble Lords in saying how helpful the teach-in on polygraph testing provided by the Ministry of Justice was, and I thank the ministry for it. In that presentation, if I recall correctly, we were told that the tests are 80% to 90% accurate, on the basis of tests carried out on sex offenders. The tests measure physiological changes that occur if someone is trying to think of a wrong answer about an experience they have had in the past. People usually instinctively think of the truthful answer before they offer a dishonest alternative, and this produces physiological changes that the tests pick up. The evidence suggests a dishonest response cannot be used in court, and it is not used to recall someone to prison, but it might prompt further investigation by the police. Failing the test is not a replacement for any other form of risk assessment.

From the notes I made at the time, which take me back to giving evidence in court as a police officer, polygraph tests also prompt disclosures that might not otherwise occur. If such a disclosure indicates the subject has breached their licence conditions or is a threat to the public, this can result in prison recall. In short, disclosures can result in immediate sanction, but failing the test can only lead to further investigation.

Although polygraph tests have been used on a large number of sex offenders and have, therefore, been thoroughly evaluated, it will be more difficult, even with a pilot, to evaluate use with terrorists, as there are far fewer of them. My noble friend Lord Thomas of Gresford mentioned the right to silence, recalling what we were told in the teach-in. The difference here is that these are convicted offenders on licence, who have no right to silence. However, the science is the same whether we are dealing with sex offenders or terrorists, and polygraph tests are useful where there is a pattern of behaviour rather than a single act. It is, therefore, anticipated that their use in terrorism cases will be similarly effective. There has already been considerable experience of using polygraph tests and evaluating the results, somewhat at odds with the comments of the noble and learned Lord, Lord Woolf. But in agreeing with the noble and learned Lord, I think that it is true to say there has been very limited, if any, experience of using polygraph tests in connection with terrorism offences.

I feel sure that the Government will use polygraph testing with terrorists and, as we will hear in a later group, those subject to TPIMs, on a trial basis, as they intend to do in relation to domestic abuse. But the opportunities to evaluate their effectiveness with terrorists will be more limited, because, as I said, the numbers are considerably smaller. I am sure the Minister will say whether I got that right.

[Lord Wolfson of Tredegar (Con)]

My Lords, on the face of it the purpose of this amendment, tabled by the noble and learned Lord, Lord Falconer of Thoroton, is to provide for a pilot of polygraph testing for terrorist offenders in the UK and for a report to be prepared and laid with a recommendation on commencement before the provisions are commenced. I appreciate, however, that the debate has gone a little broader than that, and I will try to respond in my remarks to all the points put to me. I should say at the outset that I am impressed by the note-taking ability of the noble Lord, Lord Paddick, which has obviously not diminished with time. I hope that the notes which he took are consistent with not only what he was told at the meeting, as I am sure they are, but with what I said on the previous group and what I am going to say on this group as well.

Polygraph examinations have been used successfully in the management of sexual offenders by the National Probation Service since 2013, following an initial pilot. Offenders involved in the pilot stated that, although they did not like being tested, for many it helped them modify their behaviour and comply with other licence conditions. While I therefore respectfully agree with the comments of the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon, that we are on a learning curve, we are in fact someway up the curve, if I may put it in those terms. The noble and learned Lord, Lord Woolf, was right to remind us of Clause 35(1), which provides for regulations in this context. The breathalyser is a good example, as put before the Committee by the noble and learned Lord, Lord Morris of Aberavon, of how we must always in the criminal justice field avoid being shy of using technology where it is available. The question is how it is to be used; it is in that context that I come to the questions put to me by the Members of the Committee.

Having put that provision in place for sexual offenders, the independent evaluation of mandatory testing on sexual offenders carried out by the University of Kent produced extremely positive results. As the Committee is aware, we have since rolled out polygraph testing in that context. We must therefore be wary of two things. First, we must be wary of the trap of saying that because something might or might not be used in “The Jeremy Kyle Show”, it should form no part of the criminal justice system. “The Jeremy Kyle Show”, which I think has now stopped, can look out for itself. My concern is to ensure that we have proper provisions for polygraph testing in the criminal justice system.

The second thing we must be careful of, if I may respectfully say so, is not to fall into the trap of thinking that anything which comes from the United States of America is inherently suspect in the criminal justice field. I would gently point out to the noble Baroness, Lady Hamwee, that the American Polygraph Association’s standards are those of an international professional association for polygraph examiners. That association carries out research and provides accredited training for examiners. It also provides mandatory professional development training, which all examiners must complete every two years to maintain their accreditation. Its standards are used by examiners across the world, and the Government want to ensure that those standards are maintained for examinations conducted on terrorist offenders.

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[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lady Hamwee has explained, we wish to see the current arrangements for terrorism prevention and investigation measures remain as they are, despite having concerns about them existing at all. As the name implies, these measures were designed to prevent terrorism while an investigation takes place. As the noble Lord, Lord Anderson of Ipswich, has explained, intelligence is often received in relation to suspected terrorists that cannot be used in a criminal trial, either because it is not legally admissible or because it would reveal the source and potentially put the source’s life in danger. That needs to be balanced against Article 6 of the European Convention on Human Rights, enshrined in British law by the Human Rights Act 1998. It requires that, in the determination of a person’s civil rights and obligations or for any criminal charge against an individual, everyone is entitled to a fair public hearing within a reasonable time by an independent and impartial tribunal established by law—this despite what the noble Lord, Lord Faulks, has said about control orders withstanding such challenges in the past.

The answer to these potentially conflicting obligations is TPIMs, which are supposed to be a means of protecting the public while an investigation secures the evidence necessary to convict a person of a criminal offence. They were not intended to be indefinite house arrest without trial. As we will see in the groups that follow, the Government seek to overturn this principle of a time-limited safeguarding tool during an investigation into effectively indefinite deprivation of human rights without trial.

The conditions imposed by a TPIM can be draconian, as the noble Lord, Lord Anderson of Ipswich, said. The subject can be told where to live and have to tell the authorities about anyone else who lives with them. They may need to get permission to stay somewhere else, they may not be allowed to travel outside a specified area without permission, they may have to surrender their passports and they may be prohibited from going to a particular place or area without permission or without being accompanied by a police officer. The authorities can have complete control over the subject’s bank and credit card accounts and they can be told that they cannot possess cash over a certain amount. The authorities can have complete control over the sale or transfer of any property that the subject has and complete control over transferring money to anyone, as well as complete control over use of phones, computers and any other electronic communication device owned or used by the subject or by anyone else who lives with the subject—these measures affect not only the subject but their innocent loved ones as well.

Authorities can have complete control over who the subject meets or communicates with and over where the subject works or studies. The subject may be required to report to a specified police station at specified times and to have their photograph taken at whatever time and location the Secretary of State requires and they can be electronically tagged. On the one hand, noble Lords will understand why the authorities might want to impose such conditions if the person is believed to be a terrorist threat, but they will also understand that TPIMs amount to interference with some of the most fundamental human rights of the subject.

These restrictions on someone’s freedoms and human rights have echoes of the sort of restrictions imposed by ISIS when it declared territory it once held a caliphate. As the noble and learned Lord, Lord Goldsmith, said in a Guardian article written when this House was considering the Counter-Terrorism Bill on 13 October 2008,

“we should fight to protect the liberties the terrorists would take from us, not destroy them ourselves.”

The first element the Government want to change through the Bill, which is covered by this group of amendments, is the standard of proof required before someone can be subjected to a TPIM. Originally, as we have heard, in the Terrorism Prevention and Investigation Measures Act 2011 the Secretary of State had to “reasonably believe” that the subject is or has been involved in terrorism-related activity. This was changed by the Counter-Terrorism and Security Act 2015 to the Secretary of State having to be satisfied

“on the balance of probabilities”

—the standard required for a court to be satisfied in a civil case. The Government want to change this standard of proof to

“has reasonable grounds for suspecting”.

A police constable may arrest someone when he has reasonable cause to suspect, and I can tell the Committee from my own personal and professional experience that this is a very low bar indeed. Of course, we are not talking about a police officer detaining someone for a few minutes or a few hours but about restricting someone’s human rights for up to two years, or indefinitely, if the Bill passes unamended. That is a shocking and frightening prospect.

If noble Lords’ common sense and sense of justice are not engaged by my arguments, perhaps they will be convinced by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whom other noble Lords have mentioned. He has said:

“I am not aware of cases where the authorities would like to have imposed a TPIM if the standard of proof had been lower … If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; cols. 6-7.]


That is actually seven words, but I think we understand what he meant. To which, no doubt, the Government will deploy the same argument successive Labour Governments used in trying unsuccessfully to extend the period that a terror suspect could be detained by the police without charge, initially under Tony Blair’s premiership to 90 days, and subsequently under Gordon Brown to 42 days. Operational partners argued that, although limits on the period a subject could be detained without charge had not been a problem up until then, they could envisage a situation where it might be an issue in the future. I suspect that is similar to the arguments the Government will deploy here. Both times, Parliament resoundingly defeated the proposals.

It is important that we consider the reputation of this country throughout the world for the effective protection of human rights. We should not allow such draconian limits on people’s civil liberties to be imposed on the basis of such a low standard of proof—lower than any court employs, even in civil cases.

The noble Lord, Lord Anderson of Ipswich, in his Amendment 27, offers a compromise, which he is developing a reputation for, trying to steer between what is arguably necessary and reasonable and what he, not without precedent, thinks the Government might accept. He suggests in his amendment that, for the first year, while intelligence-gathering is in its infancy, a TPIM might be imposed on the Government’s standard of “reasonable grounds for suspecting”. After a year, the authorities should have been able to gather sufficient evidence for the Secretary of State to be convinced on the existing balance of probabilities. I see where the noble Lord is coming from but, with the greatest of respect to him, I am with the current Independent Reviewer of Terrorism Legislation on this one rather than with the former.

The noble and learned Lord, Lord Falconer of Thoroton, was not only a member of the Labour Governments to which I have just referred but, from memory, was fairly central to the attempts to extend detention without trial. His Amendment 28 would substitute the standard of proof required with

“on the basis of reasonable and probable grounds”.

I look forward to hearing his explanation of how this differs from the existing and government-proposed standards of proof, as, I must confess and with the greatest respect to the noble and learned Lord, when I wrote this speech on Sunday morning I had neither the energy nor the required determination to work it out for myself. Having finished at midnight last night, I have even less energy this evening.

The current Independent Reviewer of Terrorism Legislation thinks that we should leave the standard of proof where it is. We agree, which is why we believe that Clause 37 should not stand part of the Bill.

[Lord Falconer of Thoroton (Lab) [V]]

I am delighted to follow the noble Lord, Lord Paddick, as ever. I am sorry that he did not have the energy to get to my amendment, but I completely understand why that would be. The difference between my amendment and that of the noble Lord, Lord Anderson, is that mine seeks to unpack what the standard of proof would be; it requires an objective standard of “probable grounds”: in effect, balance of probabilities, but more spelled out. The difference between the amendments is that, in effect, the noble Lord’s amendment would give a year when the lower standard—namely, reasonable suspicion—could apply and thereafter insist on the balance of probabilities. The real difference is that first year of grace which the noble Lord, Lord Anderson, would give to the Government or the Secretary of State to have a lower standard of proof.

Our position on this side of the House is that the TPIM powers have utility to the Government for fighting terrorism. The noble Lord, Lord Paddick, indicated clearly the intrusive effect of TPIMs on those subject to them; for example, having to move to a different location, not being entitled to go to particular places, or not being able to associate or communicate with particular people. These are powers of utility for the Government. They are, however, intrusive and infringe against what would otherwise be people’s rights. Before those rights are taken away, it is for this House to decide what the right balance should be between those individuals’ rights and the protection of the public.

All those who have looked at it in any detail, in particular the noble Lord, Lord Anderson, and his successor as the terrorism reviewer, take the view that the higher standard of proof from that which the Government currently propose—namely, the balance of probabilities—has not caused them any difficulty in imposing TPIMs where they want to. As the noble Lord, Lord Anderson, put it, there is no need to lower the standard to keep the public safe.

In addition to the point that no change is required, a significant change is being made to the ability to roll over TPIMs indefinitely, so the consequence of the proposed amendments to the existing law being suggested by the Government in this Bill is to lower the standard of proof for no purpose and to do so on the basis of indefinite restrictions on individuals’ liberty.

The right reverend Prelate the Bishop of Manchester was, in my view, correct to say that the right approach is to ensure that the Government have the right powers but also to ensure that people are confident that they are being properly imposed. If people do not have that confidence, it will cause difficulties down the line.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received one request to speak after the Minister and I call the noble Lord, Lord Paddick.

[Lord Paddick (LD) [V]]

I am grateful to the Minister for his explanation but I am somewhat confused. He cites the evidence given by assistant chief constable Tim Jacques and the three examples that he gave. I will carefully read his evidence in Hansard and what the Minister has said the assistant chief constable said.

From what the Minister was saying, the assistant chief constable was saying why TPIMs were necessary. It was because—I think I am quoting the Minister accurately—there was not sufficient evidence to reach the criminal standard of proof, but the criminal standard of proof is “beyond reasonable doubt”. From the examples that the assistant chief constable gave—as I say, I shall go back and read them carefully—I thought there was definitely evidence that the person may be involved in terrorism on the balance of probabilities. There would therefore be no reason in the three scenarios that the assistant chief constable gave for issuing a TPIM against those three people, on the current evidence.

The Minister has apparently ignored the history of this Parliament and its views on so-called future proofing, when it comes to the deprivation of people’s liberties and the severe imposition of restrictions on people’s human rights, as evidenced by the former Labour Government’s attempts to extend the period that terrorist suspects could be detained by the police without charge. Parliament does not take kindly to, “Well, okay, we accept that there is no evidence that a change in the standard of proof is necessary in this case, but it might be in the future, so we’re doing it just in case”. We cannot deprive people of their liberty to the extent that TPIMs do on the basis of “Well, it might be required in future”.

[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.

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[Lord Paddick (LD) [V]]

My Lords, as I said on the previous group, we wish the current arrangements for terrorism prevention and investigation measures to remain as they are. I also said on the previous group that TPIMs were designed to be a temporary measure to protect the public from terrorism while an investigation gathered evidence to put before a criminal court. Currently TPIMs are in force for one year and can be extended by another year only once, although the Home Secretary can impose a new TPIM if necessary. Clause 28 allows a TPIM to be extended indefinitely. We do not believe that Clause 28 should stand part of the Bill, and Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation agrees.

As I described in the previous group, the restrictions that can be imposed under a TPIM can in some respects be similar to imprisonment, and in other ways more draconian than imprisonment. The Government do not normally seek to restrict those who can visit you in prison, or take control of your bank account. In important respects, it can be akin to detention without charge.

On the subject of detention without charge, my friend, the late Lord Lester of Herne Hill, also a former member of the Labour Party, said in a debate on a previous Counter-Terrorism Bill on 13 October 2008:

“To those noble Lords who say that the threat of terrorism is so appalling that we must do anything to counter it, logically their position is—or should be—in favour of internment”—


something that the noble Lord, Lord Anderson of Ipswich, has just mentioned—

“without any time limits, until the evidence has been forthcoming. That is what, at the height of the Second World War, Winston Churchill described as,

‘in the highest degree odious’,

and I think he was right … That is why this Committee has a peculiar responsibility today to strike a fair balance, as has been said, between the need to protect the lives of our people against a serious threat of terrorism and the need to uphold our tradition as a country which respects the rule of law”.—[Official Report, 13/10/08; col. 519.]

I think that they were both right. Were all the possible conditions available under TPIMs to be imposed, they would amount to internment. If they were imposed without time limit, it would amount to a breach of Article 6 of the European Convention on Human Rights. Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, has said:

“The Bill is conspicuous for its lack of safeguards. Safeguards are appropriate however carefully the Home Secretary and her officials consider TPIMs, and however much resource constraints inevitably limit the appetite for more and longer TPIMs.”


He suggests that the Home Secretary should be required to seek the court’s permission for any extension beyond two years, in the same way as she currently does when a TPIM is first made. Our Amendment 29 seeks to impose such a requirement on the Secretary of State.

The current Independent Reviewer of Terrorism Legislation goes on to suggest that, at the very least, an upper limit be placed on a TPIM. The master of compromise, the noble Lord, Lord Anderson of Ipswich, suggests in his Amendment 30 that there should be a four-year limit, double the current limit but short of indefinite, as the Government seek. I have to say that the noble Lord’s speech this evening was authoritative and convincing.

We believe that this is not a question for compromise but a question of principle. TPIMs are and should remain a temporary means of safeguarding the public during an investigation, and not a form of indefinite detention without trial.

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[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, I have received a request to speak after the Minister from the noble Lord, Lord Paddick.

[Lord Paddick (LD) [V]]

My Lords, I am grateful to the Minister. I have two questions. First, he spoke about Section 9 hearings and the appeal route under Section 16 making our amendment unnecessary. Can he tell the Committee how many times TPIMs have been revoked or restrictions eased as a result of each of these types of hearing?

Secondly, terrorism prevention and investigation measures are, as their title describes, temporary means of preventing terrorism taking place while an investigation tries to establish evidence to convict the person in a criminal court. Control orders, on the other hand, have been used in the past for public protection. If the Government are changing the nature of TPIMs and abandoning them as a temporary measure to enable an investigation to take place in safety, why do they continue to call them TPIMs? Why not now call them control orders, which are in fact what the Government are trying to use here?

[Lord Parkinson of Whitley Bay (Con)]

I will take the questions in reverse order. Prosecution is always the preferred method of disrupting those involved in terrorism-related activity. That will continue to be the case even under this Bill. Under the TPIM Act 2011, the Home Secretary is required to keep prosecution under review. That will not change with the amendments we propose to the Bill. If it becomes clear that there is an avenue for prosecution, the Home Office will support the police and the Crown Prosecution Service in bringing that prosecution against the individual and seek to remove the TPIM notice if it is no longer necessary and proportionate.

On the noble Lord’s first question about the number of times that appeals have been raised, if he is happy it would be better if I write and provide that information to him and the rest of the Committee so that I can be certain that it is up to date and accurate.

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[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lady Hamwee said, requiring a TPIM subject to relocate can have significant consequences, particularly, for example, if he or she has school-age children. It is a well-established fact in the rehabilitation of offenders that social ties are powerful in preventing reoffending. Relocating to another part of the country, presumably, would have the opposite effect.

Clearly, if there is a national security issue that requires the TPIM subject to be relocated somewhere they are not easily in contact with people they should not be in contact with, relocation should be considered. But to allow relocation simply to save police resources seems neither necessary nor proportionate.

[Lord Falconer of Thoroton (Lab) [V]]

This amendment does not address head-on the power under a TPIM to require somebody to relocate. This amendment is only touching on whether the Secretary of State should by notice have power to vary a relocation measure, in part, because

“the variation is necessary for reasons connected with the efficient and effective use of resources.”

While I recognise the intrusive effect that relocation can have, I accept that there may be cases where national security demands it. I am interested to hear from the Minister what test is to be applied where a variation of a relocation order occurs when it

“is necessary for reasons connected with efficient and effective use of resources.”

I do not know, but I suspect that this concerns the perception that someone should relocate for national security reasons. Where they relocate to might be affected by the circumstances in which such an order might be enforced; the amount of resources that would be required if it was to be enforced where they normally live becoming disproportionate; or the amount of resources that would be required where they had been located becoming disproportionate. If that is right, I would have expected the measure in new subsection (1A) in Clause 39(2) to reflect something about proportionality. But there is nothing in it, and I would be interested to hear what the Minister has to say. I hope he will indicate that resource relocations will occur only when it is effectively necessary to provide for national security.

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[Lord Strasburger (LD) [V]]

My Lords, as we have heard, Clause 40 will allow the Secretary of State to extend the overnight curfew on a person subject to a TPIM to the maximum: every hour of every day. If the clause passes into law, it will mean that a person who has not been convicted of any offence can be condemned to full-time house arrest indefinitely, possibly until their death.

It so happens that we are all experiencing a very mild form of this regime right now during the Covid pandemic lockdown. I say a mild form because we are allowed to go to work. We can get out for exercise, to buy food, to seek medical advice or for a host of other exceptions. We know that this confinement, with all its exceptions, will last for only a few weeks, or at most months. Even so, cabin fever is rife and the increase in mental illness in the community is very real and alarming.

Imagine, if you will, how it would be if this serious constraint on our way of life and infringement of our liberties was permanent and without any of the opportunities to get out of the house that we have under lockdown. It would be unbearable. In some ways, it would be worse than a long prison sentence. In a maximum security prison, you still get some exercise outside your cell every day. But this is what the Government intend to be able to do to people who may well be innocent, whose incarceration has occurred without the Government even having to prove their guilt beyond reasonable doubt or on the balance of probabilities.

Under Clause 37, a Minister would merely need to suspect that they may be a terrorist—a truly flimsy threshold of proof, which is so insignificant as to be pointless and non-existent. Nevertheless, on this flimsy basis, Clause 40 allows a Minister to condemn a quite possibly innocent person to indefinite full-time detention in their home. Can the Minister please give a meaningful explanation or operational case for this change? In doing so, if he is going to deploy the flexibility argument again, could he explain who needs the flexibility, to do what and why? It is seriously unconvincing to me.

This change to the TPIM regime is cruel, inhumane and unfair. It must be seriously damaging to the subject’s mental health and that of those around him or her. This House must expunge this clause from the Bill.

[Lord Paddick (LD) [V]]

My Lords, at the risk of sounding like a broken record, we believe that the existing TPIMs are sufficient and are at the limits of what a country that has a reputation for upholding human rights should tolerate. The extension proposed in Clause 40 would extend the requirement to remain at or within a specified residence from “overnight” to what could amount to total house arrest. As the noble Lord, Lord Anderson of Ipswich, said, that is a requirement to remain at or within the specified residence between any hours. “As are specified” is yet another step too far, as my noble friend Lord Strasburger said.

On Amendment 31, I commend the noble Lords, Lord Hunt of Kings Heath and Lord Bach, for their relentless attempts to get police and crime commissioners more involved in operational policing decisions, including operations that may have national security implications. I accept that stop and search may be considered controversial, but it does not involve issues of national security of this nature, and I am not convinced that their amendment is necessary or desirable in this case.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, we have had two different debates in this group. The noble Baroness, Lady Hamwee, moved that Clause 40 should not stand part of the Bill, and I can do no better than the noble Lord, Lord Anderson, and his three questions, which I thought were very apposite and to the point. I will listen with interest to the Minister’s answers to those three questions.

My noble friends Lord Hunt and Lord Bach then spoke to their Amendment 31. As we have heard, the gist of the amendment is to formalise a relationship between the Secretary of State, PCCs and local chief constables to give more direct input by PCCs. In the words of my noble friend Lord Bach, PCCs are responsible for the “totality of policing” in their area. As we have heard, they are already involved in controversial matters such as stop and search and covert activities. Of course, I support my noble friends in trying to give the PCCs more formal involvement in TPIMs in their own areas.

I look forward to my noble friend Lord Bach playing a greater part in the proceedings of our House. He has for many years brought great insight into his many roles on the Front Bench, and occasionally on the Back Benches, but he will improve that even further when he comes back as a PCC. He may, of course, have to do extra time; we wait to see. I will listen with interest to what the Minister has to say, and I will support my noble friends.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received one request to speak after the Minister, so I call the noble Lord, Lord Paddick.

[Lord Paddick (LD) [V]]

My Lords, unfortunately, the imperfection of the current system of remote participation means that one has to put in one’s request to speak “after the Minister” before the Minister has finished speaking. If the Minister in his last few sentences answers the question that you were going to ask, your question becomes obsolete, as is the case here.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I now call the noble Baroness, Lady Hamwee, to respond to the debate.

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[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

The noble Baroness, Lady McIntosh of Pickering, has withdrawn from this group, so I call the next speaker, the noble Lord, Lord Paddick.

[Lord Paddick (LD) [V]]

My Lords, I do not have anything to add on the substance of the amendments which my noble friend Lady Hamwee has outlined. However, I would like to go back to something that my noble friend Lord Thomas of Gresford raised in relation to the use of polygraph tests on convicted terrorists who were subject to licence: the right to silence. Quite rightly, the noble and learned Lord who was the Minister at the time said that, because these people would be convicted offenders under licence, they had no right to silence. But TPIM subjects are not convicted offenders on licence; they are unconvicted. That is the whole idea of a TPIM, and so they do have a right to silence. The question for the Minister is: would it be a breach of TPIM conditions, which is a criminal offence for which the person could be sent to prison, if they refuse to participate in a polygraph test or if, in a polygraph test, they refuse to say anything?

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[Baroness Hamwee (LD) [V]]

My Lords, I think that, on the last grouping, the question which lay behind this amendment was answered—but let me just check. Clause 42 covers the drug testing measure. My first thought was whether a subject could be caught up in being tested and fail the test because someone else in the house was using drugs which were detected, perhaps under his fingernail. The amendment raises the issue of reasonable suspicion, but I think the noble Lord has confirmed condition D—that the Secretary of State reasonably considers, in this case, drug testing necessary for the purposes we have talked about. It is the “reasonableness” of that consideration; I think he has confirmed that that will apply. So that he can confirm it again, I beg to move.

[Lord Paddick (LD) [V]]

My Lords, our Amendment 30E relates to subjecting the subject of a TPIM to drug testing for class A and class B drugs only, at a police station by a constable only. I have rather different questions from those of my noble friend Lady Hamwee. The question I cannot find an answer to—and I cannot think of one myself—is, “Why?” One might cynically argue that a suspected terrorist high on cannabis might be too chilled out to conduct a terrorist attack; conversely, if the Government fear a suspected terrorist might do something stupid, for example being emboldened under the influence of a class A or class B drug, why not test for alcohol?

Bearing in mind the restrictions on the subject’s movements and communications and on who they can associate with, where do the Government think the subject of a TPIM will get his supply of class A or class B drugs? Indeed, if the subject is taking class A or class B drugs, under the noses of the police or security services, does this not raise questions about what else he might be getting his hands on, such as explosives? In short, what is the point, other than placing further restrictions, being even more intrusive and making the subject’s life even more difficult?

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I have nothing to add to the points made by the previous two speakers.

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[Lord Paddick (LD) [V]]

My Lords, the only thing that I will add to what my noble friend Lady Hamwee has said about this amendment is an assumption that, even if the subject of the TPIM provides the authorities with all the details of his or her communications equipment—computers, mobile phone and so forth—it would be possible that they could end up borrowing a device from somebody else in his or her household. That is what the authorities are seeking disclosure of, to ensure that they keep track of all the communications the subject of the TPIM is engaged in. As my noble friend Lady Hamwee said, the provisions contained within Section 43(2)(a) reinforce the fact that TPIMs can impact to a highly intrusive extent on innocent people living with the subject of the TPIM.

[Lord Falconer of Thoroton (Lab) [V]]

This amendment is probing the additional power given by Clause 43 of the Bill to allow the Secretary of State to seek disclosure of

“such details as may be specified of any electronic communication device possessed or used by the individual or any other person in the individual’s residence.”

Its purpose is readily understandable: namely, if the purpose of TPIMs is in part to prevent the subject of the TPIM communicating with anybody or receiving communications from anybody, the authorities should have the ability to look at all the electronic devices to which he or she has access.

However, as the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have both pointed out, that means, for example, that the wife, husband or children of a subject become subject themselves to an intrusive order. I would be very interested to know whether the authorities are going to take a different approach to the question of the subject of a TPIM’s own electronic devices, as opposed to those of his family or those belonging to those with whom he lives. What is the standard going to be? Necessary and proportionate? Strong case? I would be very interested to hear what it is. Just before I depart, I will pay tribute to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Although I have not agreed with every one of their amendments, they have shown indefatigable probing of this Bill and incredible good nature throughout.

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This leaves the completion of the review wholly in the air—a statutory kicking of the can down the road. It follows that both the amendments in the group fill a gap. The amendment in the name of my noble friends would again insert a time limit that ought to be met in the public interest. My noble friend Lord Paddick, speaking on an earlier group, posed the question of why. On this group, I pose the question: when?

[Lord Paddick (LD) [V]]

My Lords, I completely agree with my noble friend Lord Thomas of Gresford’s comments on the suspicions that many communities have about the Prevent programme, which is why, in the Counter-Terrorism and Border Security Act 2019, this House required the Government to undertake an independent review and report on the Government’s strategy for supporting people who are vulnerable to being drawn into terrorism. A timetable was set in the 2019 Act for the Government to make arrangements within six months of that Act being passed and to report within 18 months. As my noble friend said, Clause 47 attempts to remove any timetable for starting, let alone completing, the independent review of Prevent.

As my noble friend said, and as I said at Second Reading, the most important and effective way to keep people safe from terrorist attacks is to prevent those at risk of becoming involved in terrorism-related activity doing so in the first place. It is vital that we know how effective Prevent is at identifying those at risk of being radicalised and diverting them away from potential terrorist activity, and that this is done as quickly as is reasonably practicable. Unless problems are identified and addressed, lives could be put at risk.

The noble Lord, Lord Ponsonby of Shulbrede, suggests what might be described as a challenging and optimistic target of completing the review by 1 July 2021 in his Amendment 32. With the difficulties the Government have experienced over who should lead the review and the potential challenges ahead, there is a danger that a review within this timetable might not be thorough enough.

On 26 January, less than two weeks ago, the Government appointed a replacement independent reviewer of Prevent, William Shawcross. Mr Shawcross’s previous comments on Islam and the Iraq war have raised concerns in some quarters but, assuming he remains in post, the alternative timetable in our Amendment 33 should be achievable. This would give the Secretary of State six months to make arrangements for the review and for Mr Shawcross to lay before Parliament the report and any recommendations within a period of 18 months, beginning with the day this Bill is passed. I might be biased, but we prefer our Amendment 33.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, both amendments in this group would add a new statutory deadline for the completion of the independent review of Prevent. I certainly share the Committee’s firm commitment to the success of that independent review. It was clear in this short but important debate that our common objective is for a thorough and effective review to take place—one that will help us to learn how best to safeguard those who are vulnerable to being drawn into terrorism.

However, we must allow the new reviewer sufficient time to conduct such a thorough and effective review. These amendments would limit his options for reasonable flexibility, shorten the timeframe that he is given and put at risk his ability to do his job properly.

As the noble Lord, Lord Paddick, outlined, the review restarted two weeks ago, on 26 January, with the appointment of William Shawcross as the new independent reviewer. Our aim has been for the review to be completed by no later than August this year, but we will agree the precise timetable with Mr Shawcross shortly. We want to enable him to complete the review as swiftly as possible while affording him the consideration that his important task requires.

Of course, the uncertainties posed by the ongoing pandemic, such as the prospect of further ongoing restrictions on travel and face-to-face meetings, could, self-evidently, have implications for the reviewer, as well as for his team and all those who wish to provide input into the review. I am afraid that we therefore have to consider the potential impact of that on his ability to take evidence, including the vital work of engaging with different parts of the community. As the noble Lords, Lord Thomas of Gresford and Lord Paddick, highlighted, that work is vital, as is, for example, the reviewer witnessing for himself Prevent delivery in action so that he can deliver the thorough and evidence-based review, with practical recommendations for improvement, that we would like.

The Government believe that August this year is achievable, but this is of course dependent on the views of the new reviewer. He is independent, so I cannot speak for him at the Dispatch Box. We therefore recommend that the legislation affords the reviewer flexibility, should he feel that he needs it, to ensure that the valuable work of this review is not undermined. But we certainly hear what all noble Lords have said about the urgency, and I hope that they can hear that we share that. For those reasons, I urge the noble Lord to withdraw his amendment.

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[Lord Paddick (LD) [V]]

My Lords, the imperfections of remote working have again unfortunately intervened. I did ask to speak after the Minister on the last group, and I hope the Committee will indulge me if I ask one question of the Minister about the former group. The Government are saying that they hope the new independent reviewer of Prevent will produce his report by August this year. In our amendment, by my calculation, we are setting a deadline of August next year. Perhaps when the Minister responds to this group, he could also answer the question of why a 12-month deadline beyond what the Government are proposing themselves is not considered a reasonable time for that review to be undertaken.

Turning to this group of amendments, Amendment 37 requires a review and report on the effectiveness of current strategies to deal with lone terrorists. Amendment 40 calls for a report on which agencies are included within Multi Agency Public Protection Arrangements—or MAPPA—for the purpose of managing terrorist offenders. Both amendments are in the name of the noble Lord, Lord Ponsonby of Shulbrede.

In December 2017, the noble Lord, Lord Anderson of Ipswich, published his independent assessment of police and MI5 reviews into the Manchester Arena attack and three other incidents in London—all of which involved lone terrorists—which killed a total of 36 people. The report made 126 recommendations, later consolidated into 104 things that could have been done better by counterterrorism officials.

In 2019, the noble Lord, Lord Anderson of Ipswich, published a stocktake of progress on the recommendations in his 2017 report, including multiagency centres for managing the risk posed by those suspected of being engaged in terrorist activity, which presumably includes lone terrorists. I am not sure to what extent the review and reports the noble Lord, Lord Ponsonby, is calling for overlap with the work of the noble Lord, Lord Anderson of Ipswich. Perhaps the Minister can advise the Committee.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

I apologise to the noble Lord. The delay in getting messages to the iPad on the Woolsack meant that I did not get the message that he wished to speak on the last group. But I now call the Minister, the noble Lord, Lord Parkinson of Whitley Bay.

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[Lord Paddick (LD) [V]]

I am very grateful to my noble friend Lord Thomas of Gresford for doing the heavy lifting in looking at these amendments and reassuring me that there is nothing ugly lurking in the pile. I am grateful for the undertaking from the Minister to write to us with further details.

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[Lord Thomas of Gresford (LD) [V]]

My Lords, I am most grateful to the noble and learned Lord, Lord Stewart, for moving these amendments and for pronouncing “Tredegar” correctly. I am sure that the noble Lord who hails from, or has a connection with, Tredegar, will be happy with his pronunciation as well. I have looked at these Scottish provisions. I agree that they are technical, and I really have nothing to add.

[Lord Paddick (LD) [V]]

My Lords, I am minded to say, “Like the last lot”—but I am very grateful to my noble friend Lord Thomas of Gresford, and to the noble and learned Lord, Lord Stewart, for his offer to write with details. I would just say that I think it is rather cruel and inhumane to expect three government Ministers to be forced to remain to the end of the evening; perhaps they can come to some better arrangement on a future occasion.

[Lord Falconer of Thoroton (Lab) [V]]

Like the noble Lord, Lord Paddick, I too am grateful to the four Ministers for the care and good humour with which they have dealt with it all. Of the three amendments, Amendment 66 looks entirely technical. As the noble and learned Lord, Lord Stewart of Dirleton, says, Amendment 67 deals with a situation where you have a non-terrorist sentence and then, consecutively, before or after, a terrorist sentence. I cannot work out how you deal with that situation for the purposes of licences as a result of this amendment. Hopefully, that will be explained to us—for reasons that may be entirely my fault, it is not entirely clear to me from the wording of the amendment. As I understand it, Amendment 70 again deals with the position of consecutive sentences; and again, the effect of that is not entirely clear to me. It might be significant, because what we are dealing with are very long sentences. So I hope that the noble and learned Lord will explain this when he comes to write his letter to us. I am very much obliged.