Counter-Terrorism and Sentencing Bill

Lord Russell of Liverpool Excerpts

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

A number of other questions were raised, particularly by the noble Lord, Lord Paddick, which I am conscious we will come to in later groups. We have many groups which we need to cover today, so I hope noble Lords will forgive me if I return to those points in later debates. The Government’s first priority is, as I say, the protection of the public. That is why we have proposed lowering the standard of proof, and why we urge the noble Lord to withdraw his amendment.

[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”.

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Clause 37 agreed.

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

We now come to the group beginning with Amendment 29. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.

Clause 38: TPIMs: extension of time limit

Amendment 29

Moved by

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

My Lords, I will speak in this group to Amendment 30, which I have signed, together with my noble and learned friend Lord Thomas of Cwmgiedd. Clause 38, to which all these amendments relate, seeks to return in another respect to the days of control orders by removing the maximum time limit on TPIMs. Though I oppose Clause 38, as I did Clause 37 in the previous group, I would accept that the issues in this group are less clear-cut and the right solution less obvious.

In a report on the control order regime published in March 2012, shortly after that regime came to an end, I described control orders as an effective means of protecting the public from a small number of suspected terrorists who presented a substantial risk to national security but whom it was not feasible to prosecute. I observed a conscientious administrative procedure, coupled with close judicial scrutiny, which ensured a substantial degree of fairness to the subject. However, I added that those individuals were placed under extraordinary and intrusive restrictions; that this could go on indefinitely; that legal review was far from immediate; and that when the hearing did come around, controlled persons spent crucial parts of it excluded from the court, oblivious both of the detailed accusations made against them and of the submissions made by special advocates, who were able neither to communicate fully with them nor to call evidence on their behalf. I concluded that only in the face of strong necessity could it ever be justifiable for the individual to be placed in such a position by the state.

As will be the case if Clause 38 is enacted, there was no limit on the number of times a 12-month control order could be extended, so long as the statutory test continued to be met. During the currency of the control order regime, from 2005 to 2011, 15 persons were subject to control orders for more than two years—three of them for periods exceeding four years. Each of the four who had been subject to control orders for more than two years at the end of 2011 were transferred to TPIMs, where, as I recall, they served an additional two years, which was the maximum under that regime unless fresh evidence came to light—it rarely does.

Experience shows, therefore, that where the law has permitted it, Home Secretaries have considered it appropriate to keep British citizens who have never been convicted of a terrorist offence under these kinds of extreme constraints for periods in excess of five years. Indeed, had it not been for the introduction of the two-year limit, as originally recommended for all save exceptional cases by my noble friend Lord Carlile —my predecessor as Independent Reviewer of Terrorism Legislation—it is fair to assume that some subjects could have been detained in this way for far longer periods. That has been the experience with other, less all-encompassing executive orders, such as terrorist asset freezes. After all, who wants to be the civil servant or the special adviser to recommend the discharge of a control order, and who wants to be the Secretary of State to agree to it?

At the monthly TPIM review group meetings, at which all subjects were discussed, it became evident to me that the new two-year maximum limit was bringing some benefits. Since it was no longer possible for a TPIM to be used to warehouse a subject indefinitely, more serious and connected thought started to be given to an exit strategy: a suitable job, a suitable course of study, and the forging of new relationships away from the subject’s previous associates. However, as will be equally obvious, there could still be subjects who use their two years to lie low and who might still be adjudged to pose a threat when their TPIM comes to an end. That was the reasoning of those who had requested, agreed to and endorsed control orders for much longer periods than two years. I reported myself in 2013, echoing my noble friend Lord Carlile, that it was tempting to wish for longer than two years in the most serious cases.

If the goal is to minimise the potential threat regardless of the cost to civil liberties, the Government are justified in imposing indefinite executive detention. Yet that goal could also be used to justify warrantless searches of the home and general, suspicionless stop and search. All of us, surely, would instinctively recoil at such measures. I also note that, although they are notionally available in Northern Ireland, no control order or TPIM has, for whatever reason, ever been imposed there. I accept that TPIMs, although so far imposed predominantly, if not exclusively, on Muslims, have so far been only a minor rallying point for grievance: the numbers of TPIMs have been small, and the vast majority of British Muslims are only too glad to see dangerous extremists firmly dealt with. But the echo of internment can still be heard in Northern Ireland, nearly half a century on—a reminder that excess of zeal in this sensitive area can quickly become counterproductive.

There is wisdom in the words of the noble and learned Lord, Lord Clarke of Nottingham, who wrote, when Justice Secretary, in 2011:

“The primary role of any government is to keep its citizens safe and free. That means both protecting them from harm and protecting their hard-won liberties.”


Where is the correct balance to be struck? We no longer live in times when a Conservative Government could come into power promising in relation to counterterrorism law, as they did in 2010,

“a correction in favour of liberty”.

So my amendment does not seek a perpetuation of the status quo. Indeed, it would double the current maximum limit, in the absence of additional evidence, to four years, allowing plenty of time to work on TPIM subjects, while still requiring the authorities to focus on an exit strategy. Coupled with the amendment that I have already moved on standard of proof, or one of the other amendments in the previous group, it would represent a toughening of the present regime, while still at least attempting to combine the two imperatives that the noble and learned Lord, Lord Clarke, identified.

Terrorism in this country has cost us almost 100 lives since 9/11, and the threat level, although reduced only yesterday, is still “substantial”. However, as this pandemic reminds us, the existence of a threat cannot by itself dictate where the balance should be struck. The balance is for Parliament, and I suggest that a maximum of four years for these unpalatable measures—tough as it undoubtedly is—gets it about right.

[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 on the list, the noble and learned Lord, Lord Thomas of Cwmgiedd.

[Lord Thomas of Cwmgiedd (CB) [V]]

I want to add only one point to what the noble Lord, Lord Anderson of Ipswich, has just said, because I agree with the entirety of it. That one point is derived from my own experience of dealing with people who were imprisoned indefinitely under the IPP regime. During the hearing of several appeals, it became apparent that indefinite detention often makes someone more dangerous because you take away hope. I very much anticipate that we would never get to the stage where we made TPIMs that lasted for a person’s entire lifetime. The TPIM would have to come to an end at some stage, and, to my mind, giving someone a clear expectation of when the period of restriction is to end helps in dealing with the individual and prevents making him more dangerous by depriving him of any hope.

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I hope that that provides reassurances to noble Lords who have taken part in this debate and I invite them not to oppose the clause.

[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.

[Baroness Hamwee (LD) [V]]

I am in much the same position as I was with an earlier amendment: I do not see what is not already provided for in current legislation. I would be interested to know whether the examples used by the noble Lord, Lord Parkinson—the radicalising threats to children and the case of someone who is suspected of being a not-yet-fulfilled attack planner—are examples of where the police have had a real problem.

I am not reassured that a measure is “likely” not to be over 16 hours. In response to various questions, we seem to be getting the answer, “It’s necessary because it’s necessary”. We will, of course, think about this particular aspect after today; tonight, I will not seek to oppose this clause standing part of the Bill.

Clause 40 agreed.

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

We now come to the group beginning with Amendment 30C. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment, or anything else in this group, to a Division must make that clear in debate.

Clause 41: TPIMs: polygraph measure

Amendment 30C

Moved by

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[Baroness Hamwee (LD) [V]]

My Lords, we have Amendments 30C and 30D in this group, as well as the clause stand part debate. These take us to polygraph measures, where we were not so many hours ago in connection with terrorist offenders—those were, of course, “offenders”, while the individuals subject to TPIMs are not.

If a polygraph measure is imposed as a requirement of a TPIM and the subject refuses to comply, then one asks: so what? That becomes an offence, as I understand it, and the subject would be liable to imprisonment for up to five years and/or an unlimited fine. In an attempt to think about the “so what?” question, Amendment 30C refers to Section 12 of the 2011 Act. That section deals with the variation of measures, with some safeguards. I will not hold it against the noble Lord if he says that the drafting leaves a lot to be desired; I dare say it does. The point is to seek to be sure that what is learned from a polygraph, and so points the examiner and therefore the police in a particular direction, cannot override the safeguards in legislation.

On Amendment 30D, we know that polygraphs cannot be used as evidence in proceedings. Can they be used to point to where there may be evidence? I assume that they can, so will the Minister therefore confirm whether this can be used as evidence of a breach of a TPIM, or to extend or impose a further TPIM? I think the Law Society has made the point—I hope I am not misquoting it—that polygraphs should not be used as a route to impose a TPIM. I beg to move.

[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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Clause 41 agreed.

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

We now come to the group consisting of Amendment 30E. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in debate.

Clause 42: TPIMs: drug testing measure

Amendment 30E

Moved by

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Clause 42 agreed.

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

We now come to the group consisting of Amendment 30F. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in debate.

Clause 43: TPIMs: provision of information

Amendment 30F

Moved by

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Clause 46 agreed.

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

We now come to the group beginning with Amendment 32. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Clause 47: Persons vulnerable to being drawn into terrorism: timing of independent review

Amendment 32

Moved by