Counter-Terrorism and Sentencing Bill

Lord Strasburger Excerpts

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

[The Lord Bishop of Manchester [V]]

My Lords, I draw the Committee’s attention to my interest in criminal justice matters, specifically as chair of the Greater Manchester Police independent ethics committee, as set out in the register.

I am grateful to the noble and learned Lord, Lord Falconer, for tabling Amendment 28. I also note with interest Amendment 27 in the name of the noble Lord, Lord Anderson. His arguments are powerful, not least in distinguishing clearly between belief and a mere suspicion, a distinction which for me as a bishop lies at the heart of my day job.

As I indicated to your Lordships’ House in my maiden speech at Second Reading, this is a Bill that I welcome and support. My city of Manchester has all too recently suffered a terrorist attack that killed 22 innocent people and maimed and traumatised hundreds more. We remain deeply grateful for the support we received from members of this House, government Ministers and many others at that time and since.

What I seek from the Bill are provisions that will most effectively reduce terrorism across our nation. My concern, particularly with regard to this clause, is that sanctions that are deemed by particular sections of the British public as either too severe or to be based on insufficient evidence will prove counterproductive. Measures that are overly harsh or that can plausibly be presented as such breed a sense of injustice and resentment, and if those sanctions appear to be directed against particular sections of the community, that may deepen into alienation, and alienation remains one of the most effective recruiting sergeants for incipient terrorists.

We rightly demand a high level of proof for a criminal conviction and a lesser but still significant standard on the balance of probabilities for civil cases. What we are presented with in Clause 37 as it stands is far weaker. All we are offered as an evidential base for a TPIM is “reasonable grounds for suspecting” an individual. That turn of phrase, suspicion, has a somewhat troubled history. Large sections of our community have, I would argue “reasonable grounds for suspecting” that policing interventions justified by reference to that phrase have been used disproportionately against people of their colour, religion or lifestyle. To apply this suspect standard to something as significant as a TPIM, which may be extended for some years, will increase the very risks to our society that it is intended to address.

In his Amendment 28, the noble and learned Lord, Lord Falconer, offers us a modest strengthening of the wording to include a test of probability alongside that of reasonableness. I hope that the Minister will be able indicate to this House that some form of strengthening the clause, either through Amendment 28 or otherwise, will be supported by Her Majesty’s Government as we continue to debate the Bill.

[Lord Strasburger (LD) [V]]

My Lords, it is a pleasure to follow the right reverend Prelate, particularly because he and I are cuckoos in this nest of lawyers. I speak in opposition to the Question that Clause 37 stand part of the Bill.

The TPIM system is seriously problematic because it bypasses the criminal justice system to avoid the usual safeguards that protect liberty and fairness. The system allows a Government to rely on secret, undisclosed evidence while bypassing fair-trial rights and impose measures that severely interfere with the right to liberty, privacy, association and movement, and makes a breach of those measures a criminal offence. I do not expect to win the argument today about TPIMs per se but must object in the strongest terms to Clauses 37, 38 and 40. Between them, they make this troubling TPIM system far more constrictive while removing the main current safeguards.

The Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, called the combined effect of Clauses 37 and 40 a “double whammy”. Taken together, they significantly lower the burden of proof at the same time as allowing TPIMs to endure forever for a person who has not been formally charged or prosecuted. The independent reviewer made it clear that he supports not changing the burden of proof and advises that it be left as it is. To my knowledge, the Government have yet to come forward with any convincing evidence for hardening the TPIM regime in any of the three ways that these clauses, Clauses 37, 38 and 40, would bring about. Indeed, the Independent Reviewer of Terrorism Legislation said in his note on the proposed reforms that it is,

“not clear why there is any need to change the law in the manner proposed.”

Even a third-ranking police officer, an assistant chief constable, who was wheeled out to support the Bill in oral evidence to the Bill Committee, conceded that,

“there have not been occasions thus far when the current burden of proof has prevented the application of a TPIM”.—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 20.]

Therefore, my two questions to the Minister are: why have the Government ignored the independent reviewer’s advice and where is the evidence to justify that decision? I look forward to his answers. I hope that he can do better than the “another tool in the box” mantra.

Clause 37 will reduce the burden of proof to such a low level as to make it almost no barrier at all. “Reasonable grounds for suspecting” covers a host of situations where an innocent person could unjustly lose their liberty and other rights, perhaps on the basis of a single, flimsy and uncorroborated piece of evidence. The courts have interpreted the standard of suspicion as a belief not that the person is a terrorist, only that they may be a terrorist. If a Minister merely believes that a person may be a terrorist, that is sufficient justification under this clause to impose a TPIM on them. With the best will in the world, this is such a low burden of proof that it makes the ministerial decision to impose a TPIM into a rubber-stamping exercise, more or less, with no constraints on the action whatever. The implications of such a severe and unfettered executive power should worry every Member of this House.

Combined with Clause 38, Clause 37 would mean that a Minister would have the authority to severely constrain the liberty of a possibly innocent person for ever, on the flimsiest justification, possibly cooked up by a rogue policeman, intelligence agent or government official, or it might just be that someone in the chain of command made an innocent mistake. We cannot allow this proposed new power to deprive someone of their liberty and other rights indefinitely—possibly longer than if they were convicted of a terrorist offence in a criminal court—when the process that put them there is so wide open to errors and abuse. There must be a meaningful burden of proof, but Clause 37 removes that. It therefore must not stand part of this Bill.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I am delighted to follow the noble Lord, Lord Strasburger. Like him, I have some difficulty with Clauses 37, 38 and 40. I am a non-practising member of the Faculty of Advocates, so I have no direct experience of these issues, but in preparing for today I have been grateful for the excellent briefing that the Law Society of England shared with me. I am grateful to the noble Lord, Lord Anderson, for setting out so clearly the thinking behind his Amendment 27. We will hear in a moment the thinking behind Amendment 28 from the noble and learned Lord, Lord Falconer of Thoroton.

It says something when the past Independent Reviewer of Terrorism Legislation and the present one both have enormous difficulties with Clauses 37, 38 and 40 as they stand. Like my noble friend Lord Faulks, I would like to understand the thinking behind why, in the context of this Bill on counterterrorism and sentencing, the Government feel moved to introduce these provisions against the weight of opinion of the current Independent Reviewer of Terrorism Legislation and, so it would appear, legal practitioners on the front line as solicitors dealing with these issues.

I am entirely in agreement with noble Lords who have explained the reasons behind their concerns about Clause 37 as it stands. It will deprive people of their liberty, as it contains measures that would relax the evidential threshold on imposing a TPIM, allowing the Home Secretary to impose one on the basis of having “reasonable grounds for suspecting” rather than being

“satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity”.

I understand that TPIMs are not currently widely used and that only five were in force as of November 2019, so I struggle to understand why we are seeking to change the law in this way. As the right reverend Prelate the Bishop of Manchester said in his excellent contribution, we want to have confidence in the legislation. He expressed that his aim is to reduce terrorism and not give any cause to query the legislation before us.

I end my short contribution with a question directly to the Minister. Considering the issues that we have heard about in a number of contributions in this little debate, would he agree with the noble Lord, Lord Anderson, and share the misgivings of legal practitioners that this clause is not required? What guarantees can my noble friend give me today that the measures in Clauses 37 and 38 will not lead to an increased use of TPIMs in situations where they are not appropriate? With those few remarks, I look forward to the reply from my noble friend.

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[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.

[Lord Strasburger (LD) [V]]

My Lords, I wish to argue that Clause 38 should not stand part of the Bill. In my contribution on Clause 37, I mentioned my general worries about the TPIM regime and how it circumvents all the safeguards in the criminal justice system. Those safeguards are there for a very good reason: to ensure that our trials are fair and that we do not punish people without a high degree of certainty that they deserve it. However, for the purposes of this debate, I will focus on the process that the imposition of TPIMs follows in place of a proper criminal trial and how unsatisfactory that process is by comparison with the real thing.

For TPIMs, a criminal trial is replaced by civil proceedings before a High Court judge. The Government present evidence to support their case for the target person to have their liberty and their other rights curtailed. I have called them “the target person” rather than “the defendant” because they have not been charged with anything and they are completely unable to defend themselves. That is because the evidence against them is presented in private to the judge without the target person’s knowledge. They are unable to see, challenge or contradict the so-called evidence because neither they nor their lawyer is aware of it. This process, known as closed material proceedings, is a very poor substitute for a proper trial, where evidence is presented in open court and the defendant’s lawyer can challenge it, present other evidence that contradicts it and cross-examine the person who provided it.

I mention all this because Clause 38, if enacted, would mean that a person made the subject of a TPIM in such an unfair and unsafe manner and confined to their home and subjected to other losses of their rights could find themselves in this position indefinitely, for ever, even for the rest of their lives. That is extremely harsh treatment for someone who may be innocent and has not been convicted of any crime. This treatment is far harsher than if they had been convicted in a criminal court and been sentenced to a few years in prison. In the worlds of the noble Lord, Lord Anderson, when he was the Independent Reviewer of Terrorist Legislation:

“TPIMs … are as stringent as anything available in a western democracy.”


He considered the case for lifting the two-year cap, as Clause 38 would do, in his report on TPIMs in 2012. He concluded that the two-year limit was an acceptable compromise because two years was a serious length of time in the life of an individual and TPIMs should not be allowed to become a shadow alternative to criminal prosecution. Indeed, the Government themselves endorsed the two-year limit and in 2015 cited the observation of the noble Lord, Lord Anderson, that there was no need to “put the clock back”. The Government went further and said:

“The two-year limit is a reminder that executive constraints of this kind are no substitute for the criminal process, and no long-term solution”.


What has changed the Government’s mind such that they wish to turn it into a long-term process? I am hoping the Minister will enlighten the House when he responds, and I hope that this time he can come up with something better than a meaningless reference to flexibility or that there is no need for it now but who knows what we might need in the future. To abolish the two-year time limit and replace it with an indefinite period of successive extensions, without even troubling the court, there would need to be a compelling operational case, would there not? However, no such compelling case has been made. In fact, no case at all has been offered by the Government, so far as I am aware. Given that fact, and given, as I mentioned earlier, the flimsy and unsatisfactory nature of the TPIM process as an alternative to our proper and fair criminal justice system, we cannot countenance allowing TPIMs to be made indefinite by means of Clause 38. It must go.

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My noble friend was right to point out that police and crime commissioners can add significant value in this process. It is exactly the sort of role that Parliament and the Government intended police and crime commissioners to play when the 2011 Act was before us. It is a role that they play in other sensitive areas. Why should they not play a role here when community reassurance is so crucial to the success, or otherwise, of this policy?

[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.