Counter-Terrorism and Sentencing Bill (Sixth sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 6th sitting: House of Commons
Thursday 2nd July 2020 Public Bill Committees

[Ruth Cadbury]

What the hon. Gentleman says would be fine if we had that review of the Prevent programme and the programmes in prison. As several of my colleagues have said, the Bill does not provide for a review of those processes, so we have one side without the other, and that is a cause of concern for me and some of the witnesses.

[Alex Cunningham (Stockton North) (Lab)]

Further to the matter that the hon. Member for Aylesbury just raised, do we have a commitment from the Government to undertake a full review of the methods that he described?

[Ruth Cadbury]

That is what I was going to say. I think there needs to be a review of this, as and when it is implemented.

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[Kenny MacAskill]

It is a pleasure to serve under your chairmanship, Mr Robertson. Amendments 48, 49 and 50 were tabled in the name of Scottish National party Members but were put forward by the Law Society of Scotland, trying to achieve the best interests. That is obviously the position of the Government, but there is a distinctive legal jurisdiction. I know that yesterday the Prime Minister referred to the fact that there was no border between Scotland and England, but administratively and legally there most certainly is—the Minister has commented on that both today and yesterday.

Indeed, there is also the issue of polygraphs, which these amendments relate to. They are something that is currently unknown within the Scottish legal jurisdiction. They are something that, to be fair, the Scottish Government are sceptical about, but so are the legal profession and the judiciary. However, it is accepted that this is a reserved issue. It is a Government policy, and they are entitled to bring in that policy and it will have effect. Therefore, I think we are required to ensure that Scotland is able to deal with it adequately and appropriately.

These amendments are put forward on the basis of seeking to improve the legislation or seeking assurances from the Minister that the issues causing concern are being or will be dealt with. To be fair, the amendments are not simply tautological in any way; they are, in fact, a point of principle. We know that legislation is significant, and that the interpretation of words matters. It will produce a significant difference in the outcome, and it is not a matter that we can simply leave to a future court. In bringing the amendments forward, we seek clarification on the matters of concern. “Must”, as I say, is not tautological, in our view, but gives a clear indication that it is mandatory. “May”, while it may very well end up being the likely situation, certainly leaves it much more discretionary, even if it is not entirely absent.

As I say, the amendments were tabled on the basis of seeking clarification that Scotland will be able to act within the separate structures that we have, accepting the requirement and will of the Government, but that we take into account various issues and, in particular, the ability to protect the rights of the accused or, indeed, the released person in future issues that may come before them, to ensure that it is not counterproductive for them, and indeed that the system that we are operating is able to operate as efficiently as possible.

[Alex Cunningham]

We welcome this amendment in the name of the hon. Members of the Scottish National party, and we agree that the results of any polygraph must not be disclosed for use in a criminal matter. Put simply, they are far too unreliable to be used as evidence or an indicator of a person having committed a crime. We do not determine a verdict by the toss of a coin and Members will recollect the oral evidence given by Professor Acheson, who, in answer to a question about our operating regime for polygraph tests from the hon. Member for East Lothian, said:

“I must say I am not a great fan of the polygraph solution. Polygraphs are a very good way to demonstrate a physiological response to nervousness. Most people who take polygraphs are going to be nervous, so it is a very inexact science. I think it is probably slightly better than tossing a coin.”––[Official Report, Counter-terrorism and Sentencing Public Bill Committee, 30 June 2020; c. 80.]

We should not be using a method as unreliable as a polygraph to determine whether a person has committed a crime. So I join the hon. Member for East Lothian in asking the Minister to give assurances here and now that the use of polygraph testing for offenders released on licence will not become a stepping-stone towards the introduction of polygraph testing across the justice system.

As colleagues may have noticed, I have submitted a new clause on the issue of polygraphs so I shall reserve most of my comments for the stand part debate later today, but we do need some clarification and assurance that we are not moving in the direction of an unreliable method of fact-finding like polygraphs.

What knowledge and evidence do the Government have on the reliability of polygraph tests, and why are they intent on their use in this context? As Professor Acheson said in his oral evidence,

“Polygraphs are a very good way to demonstrate a physiological response to nervousness”—

I am aware that I am repeating myself—and I, for one, would certainly be nervous undertaking a polygraph even if I knew I had not committed a crime, which makes me question whether polygraphs provide anywhere near the necessary level of assurance. We need a much more robust system if we are to start making decisions around a person’s future. We are not entirely dismissive of the place of polygraphs or the potential role that they can play, but we would not want to see the burden of proof rely heavily, or even moderately, on a polygraph result.

I plan to go into further detail in later examination of the Bill, once we reach the new clauses, on the impact of polygraph licence conditions on those with protected characteristics. In the meantime, it would help if the Minister were able to clarify the Government’s position on polygraph tests, including plans for future use.

[Miss Sarah Dines (Derbyshire Dales) (Con)]

On a point of order, Mr Robertson. There was an unintentional mistake earlier, about Professor Acheson saying that the polygraph was only “slightly better” than the toss of a coin. Those who were here last week listening to the professor will remember—it is in the Hansard record at column 83—that I called him out on that. He said that I was “quite right” to do so and that it was a “useful” test. It is tricky, I know, when looking back on evidence on a hot afternoon. It was a mistake, I think.

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[The Chair]

With this it will be convenient to discuss new clause 6—Reports on polygraph licence conditions for terrorist offenders—

“(1) Before section 32 comes into force the Secretary of State must lay before Parliament a report in accordance with subsection (4).

(2) Before section 33 comes into force the Scottish Ministers must lay before the Scottish Parliament a report in accordance with subsection (4).

(3) Before section 34 comes into force the Department of Justice must lay before the Northern Ireland Assembly a report in accordance with subsection (4).

(4) The form of the reports is an analysis of the expected impact of the appropriate section of this Act on people with protected characteristics, including but not limited to—

(a) the impact on people from minority faith groups, including the numbers received into prison and the length of the sentence served;

(b) the impact on people from BAME communities, including the numbers received into prison and the length of the sentence served;

(c) the consequences of any disproportionate impact on people with protected characteristics on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences; and

(d) the impact on people with physical and mental disabilities.

(5) No later than the anniversary of the appropriate section coming into force in each subsequent year, the Secretary of State, Scottish Ministers and Department of Justice must each lay a further report updating the analysis under subsection (4).”

[Alex Cunningham]

I want to address new clause 6, and will be brief as I have covered much of what I wanted to say with reference to the SNP amendments. I will do the same on clause 35.

The new clause is simple enough. It would build in safeguards for people with protected characteristics, which includes people from minority faith groups and the BAME community, including on the numbers received into prison and the length of the sentence served, by ensuring that the Government commission reports on the impact of the relevant provisions on the distinct groups. The report would also cover the consequences of any disproportionate impact on people with protected characteristics on prison authorities’ efforts to rehabilitate prisoners convicted of terrorism offences, as well as the impact on people with physical and mental disabilities.

We can all accept—and the evidence given to the Committee bears it out—that polygraph tests are far from being the holy grail in general, never mind when they are applied to the people covered by the amendment. It is worth noting that some of the evidence contained more detail. Professor Silke—I hope I will quote him correctly this time—was clear in his evidence. He said that there could be a role for polygraph tests, but discouraged Ministers from going headlong into a full roll-out:

“There are potential benefits to using polygraphs within an enhanced framework, recognising that they do have their limits. I support the calls that are being made, if polygraphs are being introduced, for running a pilot programme first before implementing them across the estate.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 30 June 2020; c. 86, Q182.]

Rather than going full steam ahead and introducing a regime of polygraph testing for everyone in the category in question, will the Minister launch the pilot that Professor Silke and other witnesses favour? That would help to address some of the issues that I have been concerned about, and that I raise in the new clause.

The Minister will be pleased to hear that I shall not rehearse again the injustices against certain groups that sadly remain very much part of the justice system, but I ask him to be mindful of the reality and to recognise that data is critical if we are to overcome those injustices.

[Chris Philp]

I would say two things about a pilot. First, as I said before, polygraph use has been running for a number of years now for sex offenders in England and Wales, and it has been found to be useful. It is used quite widely around the world, as Professor Grubin mentioned in his evidence.

In particular, the use of polygraphs for monitoring licence conditions is designed first to prompt the disclosure of information and secondly to provide information that might be followed up. Bearing that in mind, I do not think that the biting effect of the polygraph findings is of sufficient severity to require further pilot work, particularly as the technique is used already.

As to BAME communities, that is something we debated at some length a short time ago, as the hon. Gentleman said, but I would observe that the application of the technique applies to everyone equally, regardless of colour and creed.

In relation to the review, there is a standing convention that legislation is reviewed three years after coming into effect. I am sure that the effectiveness of the provision will form part of such a future review.

[Alex Cunningham]

That is very helpful. I will not press the new clause.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Clause 33

Polygraph licence conditions for terrorist offenders: Scotland

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 56, in clause 52, page 43, line 4, after “32” leave out “to” and insert “, 34 and”.

Amendment 57, in clause 52, page 43, line 4, at end insert—

“(3A) Section 33 comes into force on such day as Scottish Ministers may by regulations appoint.”

This would have the effect that provision in the Bill that relate to polygraph testing would only become operational if the Scottish Government asked for those provisions to be implemented.

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[Kenny MacAskill]

I am happy to accept the Minister’s reassurances. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Alex Cunningham]

Again, I will be brief. I am aware that an amendment that I have tabled cannot be selected for debate, so I am content to address clause 35 stand part instead.

We accept that polygraphs have their uses, albeit very limited. Most notably, we recognise that polygraph examinations have been used with some success in the management of sexual offenders since 2013 by the National Probation Service. The Minister spoke about that and convinced us that, for that reason, we do not need a pilot for the Bill.

However, as has been said over and again in the evidence sessions and in debate, they are far from 100% accurate. While they give an indication, when used in the right conditions, that can detect traits associated with lying, they are far from infallible. The Bill allows the Secretary of State to impose mandatory polygraph examinations on high-risk offenders who have been convicted of terrorist offences or offences related to terrorism. Specifically, it allows for mandatory polygraphs to be taken three months post release and every six months thereafter unless the test is failed, after which the offender would have to take them more regularly.

However, the Government seem shy of spelling out the detail of how their proposed regime will work, leaving it to secondary legislation in the shape of regulations, which are mentioned in subsection (9). I, for one, am always a little wary of the Government when they opt for that route.

The Minister needs to provide a robust explanation of why he does not want that detail in the Bill. Is it a case of having insufficient detail at this stage to work out exactly what he wants to achieve with polygraph testing, or does he share everyone else’s reservations about the application of the test? I hope that he will explain why there has to be a delay. I am sure that if the Minister looked at the legislation relating to the application of polygraph tests to sex offenders, he could cut and paste the wording, and tidy it up to suit this legislation, so there is no excuse for it not being in the Bill.

The Ministry of Justice has committed to a review of the value of polygraphing terrorist offenders and those convicted of offences related to terrorism after two years, which we very much welcome. However, as I said earlier, we would welcome that kind of commitment in the Bill, and a clear statement that people with protected characteristics will be covered specifically. It would help the Committee were the Minister to spell out how he expects such a review to be conducted, what he expects out of it, and whether he would adopt the need to achieve the specific things that I have spelled out.

I reiterate that Labour does not object to the use of polygraphs as set out in the Bill, but we should see the detail from the Government on exactly what they want to do. They ought to spell it out in the Bill. I hope that the Minister will reflect on that, and perhaps accept that it would be an easy job to cut and paste from the other legislation and to table an amendment on Report that provides the clarification we seek.

[Chris Philp]

The shadow Minister asks why we do not specify in the Bill the full detail about how the polygraphs will be used, and why that will be done in secondary legislation. Of course, that is extremely common. It is usual for matters of great detail to be done via secondary rather than primary legislation, in order to avoid, in the first instance, filling the Bill with a great deal of operational matters.

There is also the possibility that operational best practice may change in due course. If scientific evidence develops, or as practice evolves, there may be things that we could do differently or better. Clearly, if it was set out in primary legislation, it would take a great deal of time to change the detail. We would have to wait for a Bill to come before Parliament with the matter in scope, which could take some years. There are quite a few things that the Government have been wanting to do for a while, and we have been waiting three or four years for the right Bill to come along, including some in the Ministry of Justice. Of course, such changes can be made more deftly and more quickly by secondary legislation.

If the shadow Minister wants to see the sort of detail that he can expect, the existing regulations made under the 2007 Act to implement polygraph testing for sex offenders will give him a great deal of information. Obviously, we will study those very carefully when making regulations under clause 35. If he wants further detail, he can certainly find it in the existing regulations.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36

Release on licence of terrorist prisoners repatriated to the United Kingdom

Question proposed, That the clause stand part of the Bill.