Counter-Terrorism and Sentencing Bill

Lord Strasburger Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

[Lord Strasburger (LD) [V]]

I speak in support of Amendments 15, 17 and 18, which would remove Clauses 34, 35 and 37 from the Bill. Each of those clauses would, if retained, significantly increase the severity of the TPIM regime or reduce the safeguards against the misuse of TPIMs and miscarriages of justice. Their combined effect would result in a dramatic increase in the powers of the Secretary of State, all to the detriment of fairness, justice and the freedom of those subjected to TPIMs.

The existing TPIM regime gives the Home Secretary the power to confine an individual to a property, perhaps located a long distance from their home, with a plethora of restrictions on how they live their lives and communicate. These clauses would give the Secretary of State new powers to impose a total 24/7 curfew, which is effectively house arrest, and to make this non-stop detention unending, permanent or until the person dies.

The subjects of TPIMs, who may never have been convicted of anything, could be condemned to a far longer period of incarceration than violent criminals and terrorists who have been convicted and sentenced by a court. That could happen without them knowing the allegations against them and without them having had any chance to see the evidence on which those assertions are based, let alone to challenge and refute them. Clause 34, even after being amended by the Government, makes it even easier for the Secretary of State to decide, at the stroke of a pen, to put an individual under this tough house arrest regime.

As the law now stands, she needs to believe, on the balance of probabilities, that the person is or has been involved in terrorism. I am no lawyer, but I can still do arithmetic and I take “on the balance of probabilities” to mean that there is a greater than 50% chance that she is right and the person is a terrorist. The clause changes the threshold from “on the balance of probabilities” to “reasonable belief”. Since the Government accept that this change lowers the burden of proof, I calculate that that means that the probability of them being a terrorist could be less than 50%, but they could still be locked away indefinitely. That means that the probability of them not being a terrorist threat could be greater than the probability that they are.

How could that come about? It could just be an honest mistake, based on flimsy evidence. We had a very strong hint that this does happen, when the current Independent Reviewer of Terrorism Legislation, who has access to classified material, gave evidence to the Public Bill Committee. He said:

“There is a risk that mistakes can be made about assessing intelligence. I have reason to believe that. My concern is that you are opening up a greater margin of error if the standard of proof is lowered. It is a fairness issue based on the authorities having all the cards.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 6.]


Answering another question, he said that he knew of instances where the intelligence had been misunderstood. There you have it: a highly reputable and well-informed person is warning us that innocent people are being punished under the current standard of proof, let alone the lower standard to which the Government would have us agree, under Clause 34, as amended.

What sort of country are we becoming if we are prepared to lock somebody away, all day and all night, indefinitely, even if the chance of them not being a threat is greater than the chance that they are, and having given them no chance to defend themselves? Why, you might ask, are the Government seeking to tilt the scales, not once but three times, towards even more draconian powers, with less justice and fewer safeguards against mistakes or abuse? You would think that there must be strong and compelling reasons for this triple assault on the fairness of our justice system, but the sad truth is that the explanations that have been offered during the passage of the Bill are utterly threadbare and unconvincing. They have the appearance of having been retrofitted, long after these clauses were added to the Bill, in a forlorn attempt to justify the unjustifiable.

The Independent Reviewer of Terrorism Legislation, with all his inside knowledge, searched for a good reason to lower the burden of proof and failed to find one. He said that

“it is not clear why there is any need to change the law in the manner proposed …where harsher measures are to be imposed, safeguards should be encouraged, not jettisoned.”

He also said that

“there is reason to doubt whether there exists an operational case for changing the TPIM regime at this … time.”

That is as forthright a condemnation of these three clauses as we are ever likely to hear from someone in his position.

What reasons have the Government come up with to justify lowering the burden of proof and therefore diminishing the safeguards against mistakes and misuse? We have been told that it will be easier to impose a TPIM, which frankly is a transparently circular argument. We have been told how hard it is to gather evidence to satisfy the current burden of proof. We have been told about pro-ISIS fighters returning from Syria being difficult to investigate. We have been told that it would simplify administration, although that is hardly a good reason for increasing the probability that innocent people are incarcerated by mistake.

All of these supposed justifications and all the others that have turned up and disappeared along the way were comprehensively holed below the water line by the Government’s star witness giving evidence to the Bill Committee. Assistant Chief Constable Tim Jacques gave evidence of behalf of the police and the intelligence services on 25 June last year. In answer to a question from Joanna Cherry MP, he made it clear that the current standard of proof is not an impediment to authorities getting a TPIM when they want it. His exact words were:

“MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.”


We have been told by the police and the agencies that there is currently no problem to be solved. The Government’s last resort in devising an excuse for these clauses is to tell us that we do not know what problems are coming down the track, and that it would be nice to have another tool in the toolbox. Well, on that basis we can justify just about anything—we could use the prospect of impending but unknown doom to excuse all manner of assaults on our liberty and our lives. This “just in case” style of legislation is fraught with dangers. Powers that we were told would never be used can quickly become heavily used and set the new standard. We cannot, in all conscience, allow the Government to get away with such slapdash explanations for making their powers even more draconian while reducing the safeguards against injustice.

Clauses 34, 35 and 37 are not needed. The Government have not come close to finding a cogent and convincing justification for them. They have no place in the Bill and must go. As Jonathan Hall QC, the independent reviewer put it so eloquently in his evidence to the Bill Committee:

“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; col. 7.]


I invite noble Lords to support Amendments 15, 17 and 18 should the House divide on them.

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

My Lords, I thank the Minister for the time he has given to speak about this Bill and for government amendment 14 on the burden of proof. I welcome the change of heart in that respect.

As to the other area on the potential length of TPIMs, I very much hope that the Minister will accept what is essentially the compromise in Amendment 16 between indefinite periods for TPIMs and the current period. It seems to me that the gap that divides us is not that great. TPIMs can be imposed not merely because criminal conduct is suspected, but also because of activities that may not be criminal. It is imposed by the Executive. Although, of course, there is a right of review to the court, a right of review is very different from the decision of a court or independent tribunal in deciding whether the grounds exist.

It is therefore important to appreciate that the very significant restrictions on liberty are imposed by the Executive, something generally alien to our tradition. It would be even more alien to our tradition to go to the extent of enabling the Executive to impose such a restriction for an indefinite period of time. Such restrictions should only be available on people’s liberty where people are convicted of serious criminal offences. Quite apart from the humanitarian and liberty and traditional aspects of that argument, there is the further argument which I raised, and will not repeat, on Second Reading: namely, indefinite orders can, as experience has shown, give people a loss of hope, and in effect make them more dangerous and less susceptible to being reformed.

The compromise that we have put forward in this amendment is further emphasised by the fact that of course if there is new evidence of activity during the period, the four years is not an absolute cut off.

Finally, there is a great deal of sense in having a cut-off period. It is very easy for any decision-maker, particularly one who is worried about the consequences of not extending the TPIM, to go on extending and extending it. It is very wasteful of resources, because enforcing a TPIM is very expensive. It is also fundamentally unfair that someone should be subject to a decision that can go on being rolled over indefinitely rather than someone—to put it in the vernacular—having to put up and charge with an offence or to shut up.

I very much hope that the Minister will think again about the compromise offered in this amendment and accept it.

Press Regulation (Communications Committee Report)

Lord Strasburger Excerpts

Tuesday 20th December 2016 Lords Chamber

[Lord Strasburger (LD)]

My Lords, I too thank the noble Lord, Lord Best, for his excellent speech and for the report of his committee. I start by making it absolutely clear that I am an ardent supporter of our free press—our free and disruptive press, which relentlessly holds to account those in power, whoever and wherever they are. I should also declare that I have a small interest in a company that helps whistleblowers to be heard, without risk to their careers and their personal safety. Furthermore, I have spoken in this House on several occasions about the behaviour of many police forces in evading the protection provided by the Police and Criminal Evidence Act for the vital anonymity of journalists’ sources. So what follows in the rest of my contribution comes from a friend of a free press, albeit a critical friend so far as press regulation is concerned.

Let me begin by correcting an error that I made in a speech in this House on 2 November, the last time that I spoke on the subject of press regulation. I quoted an acquaintance who alleged that Paul Dacre, the editor of the Daily Mail, had concocted the Government’s current consultation on the implementation of Leveson. Of course it is impossible to know what Paul Dacre discusses with the Prime Minister or Cabinet Ministers during their private meetings, because although Leveson recommended that Cabinet-level politicians should publish a note of what was discussed in meetings with newspaper editors, and the detail of anything relating to press regulation policy, the Government have failed to implement those recommendations. They are numbered 82 to 84 in the executive summary of the report of the Leveson inquiry. Perhaps the Minister will explain why those recommendations have not been implemented. The former Culture Secretary John Whittingdale divulged, albeit under Select Committee questioning, that he met Paul Dacre two weeks before his decision not to commence Section 40. He said that the issue of Section 40 “may have come up”, but he would not give any further detail on what threats—I am sorry, what representations—Mr Dacre made. In any event, Mr Dacre has assured me that this curious consultation was not his idea. Of course I am happy to accept Mr Dacre’s word and put on the record his denial that he had any involvement in steering government policy, at least on this occasion.

The House will note that I have given my correction equal, if not greater, prominence to my original publication. That is a remedy I am happy to provide, but which Mr Dacre denies his readers, his victims and the public generally on a daily basis. It is a matter of record that when his paper, and other members of the sham regulator IPSO, publishes a correction of a grossly inaccurate article that was splashed on the front page, it is never given anything like the same prominence as the original attack. It is tucked away inside the paper where only those equipped with a magnifying glass will be able to read it.

About a year ago I tackled the chair of IPSO, Sir Alan Moses, on this subject. He replied that editors do not like front page corrections or giving them the same prominence as the offending article, but is that not exactly the point? If editors were forced by an independent self-regulator to do something they do not like every time they carelessly or maliciously malign an innocent victim, would they not take more care to avoid the defamation in the first place?

The same squeamishness about corrections applies to online publications. In the early hours of Monday this week, MailOnline published an apology to an entire family one of its columnists had grotesquely libelled a year ago. The columnist herself grudgingly tweeted a link to the apology at 2 am on Monday when few people would have seen it, but fortunately more than 12,000 Twitter users helped her overcome her shyness by retweeting her tweet to the world.

The Government consultation is clearly designed to undermine the Leveson settlement. It is designed to get one response, and one response only. Not once does the consultation document ask about the impact of failing to implement Section 40, or Leveson 2, on the victims of press abuse or on the public interest—not once. The very people whom the Leveson inquiry was established to get justice for have been totally sidelined in this consultation. It is a sham exercise to give the Government cover for a future decision not to implement Section 40 fully and to cancel Leveson 2.

An excellent report was produced by the Communications Committee under the chairmanship of the noble Lord, Lord Best. Given that it was written two years ago and much water has since gone under the bridge, perhaps its title should be changed from Press Regulation: Where Are We Now? to “Where were we then?”, although in truth not much progress has been made in the intervening period. It was written against the backdrop of an impasse in press regulation, with the press unwilling to grasp its last chance to adopt an independent self-regulator, and with Section 40 then expected to come into force shortly. So one would have hoped that the Government would have taken the report and the situation it describes, which is deeply unsatisfactory and essentially no different from pre-Leveson, as a reason to begin work on how to break the impasse and move Leveson forward. In fact, it has done the opposite, by failing to implement the reasonable measure that Leveson relied on to bring newspapers into the Leveson system. The Government have read the Communications Committee’s report and, instead of moving forward, have moved backward, undoing the will of Parliament and breaking the cross-party agreement in doing so.

Section 40, the Leveson incentive, is endorsed by the victims of press abuse, by the public in polls, by the National Union of Journalists, and by leading free speech organisations such as the Campaign for Press and Broadcasting Freedom and Article 19. It is opposed by press executives and—it seems—the Government, who appear desperate to preserve the networks of power and unaccountability of the status quo.

That status quo is IPSO, a body established as a ploy to reject Leveson, which increasingly reveals itself as a lobbying exercise rather than a genuine regulator. Peter Wright, who has the grand title of editor emeritus at the Daily Mail’s publisher, Associated Newspapers, sits on IPSO’s complaints committee. Extraordinarily, he has taken it upon himself to write to all staff at the Mail calling on them to respond individually to the Government’s consultation and to oppose Section 40.

Meanwhile, IPSO has said it will respond to the Government’s consultation as well, and the chairman, Sir Alan Moses, has written to national newspapers in opposition to the Leveson system. With all the lobbying IPSO has done, it is perhaps no wonder that in two years it has not had time to issue a single fine or to begin a single standards investigation. It is a million miles away from the laughable description the press lobby give IPSO, which is billed as “the toughest regulator in the western world”. It has done no regulation at all—none.

As this report rightly notes, this appalling state of affairs is an injustice to the victims of press abuse who gave evidence to Leveson and to whom promises were made by the Government. It is an injustice to the public, who deserve a free and accountable press. It is also an injustice to this House, as the Government made commitment after commitment to us that Section 40 would happen and Leveson would be implemented. They averted a defeat in both Houses by signing a deal on which—through non-commencement—they are reneging. This is a serious matter for all noble Lords, regardless of where they stand on this issue. I commend the report and call on the Government to urgently commence Section 40 without further delay and to begin Leveson 2.

--- Later in debate ---

[Lord Keen of Elie]

I am certainly prepared to arrange to write a short letter explaining the Government’s view that it does comply and why we consider that it complies without going into a detailed legal analysis, if the noble Lord would regard that as sufficient at this time. As I said earlier, I would welcome his contribution to the consultation process and he might wish to reciprocate by responding not to me directly but in the consultation with his own expanded views as to why he does not consider that Section 40 complies. As the noble Baroness, Lady Jones, observed, Sir Brian Leveson himself, a most distinguished judge, appeared to be of the view at a very general level that such a provision would comply with the convention.

I turn to one or two of the additional observations made by noble Lords. The noble Lord, Lord Best, in a clear statement outlining the background to his committee’s report, himself observed that matters were far from resolved—a view with which the noble Baroness, Lady Hollins, concurred. He used the term “stalemate” with regard to the present position, which is why we have sought to bring about this consultation period. It is the one way to resolve such a stalemate.

My noble friend Lord Inglewood came up with a novel suggestion of tying in the complaints procedure to the operation of VAT. I have to confess that that does not strike me immediately as a use of Occam’s razor. The idea that we should merge our regulatory system of value added tax with press regulation appears at first to be a recipe for further potential confusion and difficulty—but I note his point about the various ways in which a cat can be skinned and of course we will give that further consideration.

I cannot accept the way in which the noble Lord, Lord Lipsey, suggested that the Government had spat in Parliament’s face with regard to Section 40. I simply do not accept that characterisation. He asked whether there was a better way or a compromise. There may be a better way; that is the purpose of the consultation. It is something that we must seek to bottom out. The noble Baroness, Lady Hollins, observed that there had so far been a failure to produce resolution—which is why, again, we consider it important that there should be this consultation period.

The noble Baroness suggested that the Government had intervened to suspend commencement of Section 40. That is not factually correct. There was never a commencement provision in respect of Section 40, unlike in respect of the provisions of the Act with regard to exemplary damages. The right reverend Prelate the Bishop of Chelmsford also referred to compromise. Again, that is why we are proceeding down the route of consultation at this stage.

I have already referred to the observations of my noble friend Lord Lexden, but they are worthy of repetition. He said that we have a “diverse, irreverent, bold” press that is woven into our freedoms and our liberty. That must never be forgotten.

The noble Lord, Lord Strasburger, raised the question of the recommendations in Leveson at paragraphs 83 and 84. I just remind him that paragraph 29 of the consultation document states:

“The Report”—

meaning Leveson—

“made recommendations on the relationship between the press and politicians. The Ministerial Code was amended and, as a result, all Ministers (as well as Special Advisers and Permanent Secretaries) must now disclose details of all meetings with media proprietors, editors and senior executives wherever they take place. This information is published on a quarterly basis”.

I add only that I take issue with the suggestion from the noble Lord, Lord Strasburger, that IPSO is to be regarded as some form of ploy. With the greatest respect, that does not acknowledge the work of Sir Joseph Pilling in reviewing independently the setting up and operation of IPSO. Albeit it has not gone as far as we may have wished, or as many would have wished, and it may not go as far as the regulatory regime would at present require, nevertheless it has moved and at least in the correct direction.

Finally, I simply note that as we go forward I acknowledge the observation of the noble Baroness, Lady D’Souza: you cannot take democracy for granted. You cannot take the freedom of the press for granted, either. When we speak of “truth”, we must again pose the question of whose truth we refer to. This Government are determined that a balance be struck between press freedom and the freedom of the individual. Those treated improperly must of course have redress. Likewise, politicians must not seek to stifle the press or prevent it doing legitimate work such as holding us to account when required. The conclusion of the Communications Committee report makes clear the importance of finding an adequate balance between the right to privacy and freedom of expression. I thank the committee for its ongoing work in this important area.

[Lord Strasburger]

I need to correct an error that the Minister made in his speech. He described my speech as being critical of the Pilling review and calling it a sham. Hansard will show I made no reference to the Pilling review so it is rather unlikely that I called it a sham.

[Lord Keen of Elie]

With respect to the noble Lord, he said that IPSO was a ploy and that the Government’s consultation was designed for only one response and was a sham, and he referred to the sham regulator IPSO—as Hansard will show.

[Lord Strasburger]

My Lords, I did not make any reference to the Pilling review.