Counter-Terrorism and Sentencing Bill

Baroness Hamwee Excerpts

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

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will speak to the whole group but I have co-signed Amendments 24 and 25 in the names of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Ponsonby, respectively. I signed those agreements because they seemed so sensible. It is all very well making up rules and imposing limitations on people’s liberty but, if you do not have the facts and you do not actually know what the statistics are, it all seems a bit academic. Post-legislative scrutiny is incredibly important, especially for Bills such as this which implement contentious and possibly damaging and complex arrangements. They can either work very well or be disastrous.

The Government are taking a very worrying approach to counterterrorism with this sort of “tough on crime” mentality where we just lock people up and throw away the key. We need an evidence-based, multidisciplinary approach to deradicalisation. We need to rescue people from these deeply destructive ideologies, recognising that they are pretty much groomed and brainwashed until their thinking becomes so warped that violence seems like a legitimate tool.

I agreed with every word that the noble Lord, Lord Marks, said earlier about prisons. I have visited prisons and have spoken to a lot of people who have been in them and, quite honestly, there is a huge risk that issues and behaviours like this can spread in prison and in fact the prisons become a recruiting ground. That is pretty much how ISIS started, in the prison camps in Iraq, so we have a precedent for some quite damaging events coming out of locking people up. We have to be very careful that the Government’s attempts to imprison people indefinitely do not just make the problem much worse. Could we please have independent reviews and get the evidence base, and compare the Government’s approach with the other options, which could be much better?

[Baroness Hamwee (LD) [V]]

My Lords, Amendments 24 and 25 struck me as setting out a number of concerns that we would like to have seen in the Bill now. I agree very much with what the noble Baroness, Lady Jones, had to say, except that I do not think that they amount to post-legislative scrutiny. Both highlight concerns that we expressed at an earlier stage, although not all those concerns. My noble friend’s Amendment 12 is rather different in that after a year’s experience of the Bill—an Act, as it will then have been—it would assess its impact. Like him, I have had a similar impression: a kind of inconsistency between the words that we see on paper in the Bill—the impression that is given about responding with even tougher sentences, which is supported by some of the debate that we have had—while privately we have had much more nuanced conversations which have encouraged me, even though I am somewhat depressed by this legislation.

I want to say a word—well, several words—about Amendment 13, which would provide for a review of the use of polygraphs. The amendment came out of amendments in Committee, not our own but those proposed by the noble and learned Lord, Lord Falconer, when he called for a pilot and a report to Parliament, including on specified matters. I understand that, with a relatively small number of terrorist offenders to whom the polygraph condition will apply, it is quite hard to undertake a useful pilot, but that does not negate the importance of an assessment of the polygraph condition which is published in the public domain.

Crucially, the review that we propose in Amendment 13 would be an independent review. Its report would include data, as set out in the amendment’s subsection (3), on the number of terrorist offenders subject to the polygraph condition and on the number of terrorist offenders recalled to custody following a test. I should mark those sentences as copyright of the noble and learned Lord, Lord Falconer—I think I lifted them wholesale. It would also cover regulations, rules and codes of practice, and make recommendations regarding those, and the report would be made to Parliament. We have included the caveat that any material that the Secretary of State considered might prejudice public safety should be omitted.

The review would be within three years of the Section 32 polygraph condition coming into force. I understand, though I could not quite pin it down, that the Government are intending a review after a couple of years, which would essentially be the same; after two years is more or less the same as within three years.

I take this opportunity not only to argue for a review but to ask the Minister to confirm what is planned by the Government. not only as to the timing but as to the four elements that I have listed.

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

My Lords, I have one amendment in this group, Amendment 25, and my noble and learned friend Lord Falconer of Thoroton put his name to Amendment 24. I was very pleased that the noble Baroness, Lady Jones of Moulsecoomb, said that she had read our amendments and that they seemed sensible; I think that is a good start. The general point made on this whole group is that there is an appetite for reviewing different aspects of this legislation, and the amendments referred to go into particular aspects of that.

I want to make a slightly more general point. It is important that the general case for this sort of legislation is made regularly. I have had the opportunity in recent days of talking to young people who are becoming more politically active and engaged. They are very interested in terrorism legislation as a whole, particularly in how Parliament seeks to review it, change it and make it more effective. Particularly in our House, we have a duty to make sure that those arguments are remade and heard by the general public.

The specific amendment that I have put my name to concerns looking at particular impacts on prison capacity, the National Probation Service and offenders convicted of terrorist offences, as well as levels of bad behaviour in prisons—a point that I made on an earlier group. Also within my amendment are financial matters, because there is a very significant financial impact of the review of extended sentences and licence periods.

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[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

I have received a request from the noble Baroness, Lady Hamwee, to ask a short question of the Minister.

[Baroness Hamwee (LD) [V]]

My Lords, on that last point, I take it that the post-legislative scrutiny referred to is separate from the review of polygraph testing after three years, to which the Minister referred. On that, while I take his point about parliamentary scrutiny of regulations, codes of practice may not be statutory and therefore not subject to that sort of scrutiny. Might the Minister take back the suggestion that, following the very helpful sessions that the MoJ arranged during the course of the Bill on a number of matters, for which we were very grateful, Ministers might consider communicating with—and possibly even consulting—noble Lords in framing the review in three or so years’ time? I do not expect him to make a commitment now, but I would like to put that idea in his and his colleagues’ heads.

[Lord Stewart of Dirleton (Con)]

My Lords, I assure the noble Baroness that that suggestion has lodged in my skull and will have been noted by others, and we will come back to it in due course. On her specific question on whether the post-legislative scrutiny of the Bill is distinct from the review of polygraph testing, I am happy to confirm that that is the case.

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We are pleased that the current independent reviewer, Jonathan Hall QC, has confirmed his support for this change and for government Amendment 14 on the standard of proof, and that the noble Lord, Lord Anderson of Ipswich, has put his name to the amendment, as well the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Jones of Moulsecoomb. I hope that both amendments will be welcomed. I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, Part 3 of the Bill raises for these Benches some considerable points of principle regarding terrorism prevention and investigation measures. I know some noble Lords may hear that as not appreciating threats posed by some and the devastation caused by actions that are more than threats. They may hear that we do not appreciate what is achieved by the agencies protecting us from harm—harm that we, the public, did not even understand we were in the way of.

None of that should be read into what we say on these amendments. What should be understood is our concern for principles regarding detention without trial and the presumption of innocence. These are principles of which our country is proud. There are principles and interests to be balanced here.

We asked to group together all the amendments regarding TPIMs, other than those regarding polygraphs, because we thought that that would be more convenient for the House and because Part 3 appears to be a package. The noble Lord, Lord Parkinson, has spoken to government Amendments 14 and 22. I will start with Amendment 22, which proposes an additional clause. We are certainly not opposing it. I wanted to understand what this proposed new clause will provide for that cannot be done now by the Independent Reviewer of Terrorism Legislation. On the last group the noble and learned Lord, Lord Stewart, stressed the importance of the independent reviewer being able to set priorities, so imposing the obligation on him is interesting. Yesterday I had the opportunity, for which I thank him, to ask the noble Lord, Lord Wolfson, about this. He confirmed that the reviewer can carry out an annual review and that this addition is due to the Government wanting to be certain about how all this is going; I hope I have that right. I welcome that the Government want to be clear, but I would not have thought that they needed the amendment.

We have had a series of energetic, diligent and what in current jargon is often called “curious” reviewers, all of whom have juggled the work of the reviewer with other professional commitments. Their time, resources and capacity are necessarily limited, so we do not regard this government amendment as some sort of concession. I should express the concern that this specific, quite narrow, statutory commitment could well limit the ability of the independent reviewer to undertake work on the very many other aspects of terrorism legislation.

As regards government Amendment 14 and our amendments to leave out certain clauses, our starting point is that there is no need to extend TPIMs, such that, taken together as they are intended to be, they amount to the possibility of house arrest for individuals who have not been found guilty of anything. The House heard in Committee, as did the House of Commons, that neither the current independent reviewer nor the police see the need for this change. No one could argue that the measures currently permitted—those imposed on individuals—are not stringent, and no one should argue that the measures should be more stringent so that they are more of a sanction or punishment, because investigation and prevention measures are not intended to be punishment. They were introduced as temporary measures. This is not a tool in the toolbox for which we see a justification for extending.

Amendment 14 changes suspicion to belief—a judgment which still must be made by the Secretary of State. Belief is a higher threshold than suspicion, and to that extent it is welcome. But it is not as high as satisfaction on the balance of probabilities that an individual is, or has been, involved in terrorism-related activity. I appreciate that there are other safeguards but, as the noble Lord, Lord Anderson, put it at the last stage, it would be a brave court that would second-guess evaluation by an elected Minister who has full access to intelligence.

The noble Lord, Lord Parkinson, may say, as he said in Committee, that the Government are given flexibility by this reduction in the threshold. I think that saying flexibility is a soft way of saying wider powers. That is why we are registering our opposition to the change in the requirement under Section 3 of the 2011 Act by our amendment to leave it out.

I cannot detach Clause 34 from Clause 35, which would effectively make a TPIM and its various measures, including “residence”—or detention—indefinite. The point was made pithily by the noble and learned Lord, Lord Thomas of Cwmgiedd, in Committee. My noble friend Lord Strasburger talked about the double whammy, reminding us of the extension of the requirement as to where an individual is to live. In Committee, the noble Lord, Lord Parkinson, referred to “an enduring TPIM.” Enduring? Indefinite? That is what Clause 35 would allow. Having no hope is a terrible thing. My noble friend Lord Marks referred to “no-hope sentences” in the context of explaining to your Lordships' House the panel’s views on rehabilitation that we had heard. No hope can have an outcome completely opposite to what is intended. It can lead to an attitude of “What have I got to lose?” It could lead to not having anything to lose and managing to get involved in terrorism, with catastrophic effect.

The noble Lord, Lord Parkinson, said yesterday, in a discussion, that the current limit gives the subject an endpoint at which he can aim, so he can spend his experience of the measures planning what to do when he is released from them. We are not persuaded by that view.

If the noble Lord, Lord Anderson, presses the amendment of up to three extensions—six years, that is—we will support it, as that is clearly an improvement on indefinite detention. If the House agrees it, we will recognise that that is what the House wishes and not divide to leave out the clause. But if it is not agreed nor put to a Division, we will seek the opinion of the House on the clause, and this is my giving notice of that.

Clause 37, on the residence measure, changes Schedule 1 to the Act to allow for the imposition of a requirement to remain at a specified residence, which is

“applicable overnight between such hours as are specified.”

Taking away the word “overnight,” as is proposed, will mean that the requirement will be “applicable … between such hours” with no specified limit. In Committee, we heard two examples of what the Government want to address with this. The first is that if a subject is thought to be a radicalising threat to children, he should be confined during hours at which young people arrive at and leave school. Frankly, I would have thought that an individual with that in mind would be rather more subtle, but that is not the point. The second example is that if an individual is a suspected attack planner, he should be curfewed for weekends during local football games—as well as, presumably, any other big local gatherings, but football games were the example. Again, in parenthesis, given that very few major matches seem to still kick off at 3 pm on a Saturday, I wonder about this. But I acknowledge that the Minister referred to the weekend, and anyway, again, that is not really the point.

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[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

I have received a request from the noble Baroness, Lady Hamwee, to ask a short question.

[Baroness Hamwee (LD) [V]]

The Minister just referred to the number of hours in the day for which the restriction may apply. Why have the Government decided, assuming that the decision is positive, not to include in the Bill a total limit per day? He referred to Article 5 but would it have been more convenient for the Government, let alone TPIM subjects—the noble Lord, Lord Anderson, had a good deal to say about the problems of pursuing applications to the court—not to allow the prospect of getting caught up in proceedings challenging the total number of hours?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the simple answer for not including that in the Bill is that we do not think that it is necessary to do so. The case law exists and has established that in practice the residence measure placed on a TPIM subject could not likely exceed 16 hours a day without constituting an unlawful deprivation of their liberty. However, measures are imposed and tested in the courts on a case-by-case basis, and that is the appropriate way to proceed.

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Moved by

[Baroness Hamwee]

19: Clause 38, page 32, line 15, at end insert—
“(2A) The Secretary of State must publish a code of practice relating to—(a) the conduct of, and(b) the use of reports on the results of,polygraph sessions.(2B) Before publication of the code of practice under section (2A), the Secretary of State must consult appropriate persons.”Member’s explanatory statement
This amendment would require the Secretary of State to publish a code of practice relating to the conduct and use of polygraph sessions.

[Baroness Hamwee (LD) [V]]

My Lords, in moving Amendment 19, I will speak also to Amendments 20 and 21. Clause 38 raises a rather different issue from the other clauses in Part 3, which deals with TPIMs. The clause introduces the use of polygraphs—so we are not affected here by nostalgia for 2011.

Amendment 19 requires the Secretary of State, after consultation, to publish a code of practice about polygraph sessions, both how they are conducted and how reports on them are used. New Section 10ZA, introduced by Clause 38, provides for regulations on limited matters, as set out in that clause. The requirement imposed is

“to participate … with a view to … monitoring … compliance with other … measures”

and

“assessing whether any variation of … measures is necessary”.

TPIM subjects are a different cohort from terrorism offenders, not having been convicted. Not everything, I would think, can be a direct read-across from the processes applied to terrorism offenders. In the case of an offender on licence, the tests are to assess compliance; in the event of a breach, the offender can be returned to custody. For a TPIM subject—of course there is no Parole Board here—it is not just about monitoring compliance but assessing necessity. This is a much less tight objective; in fact, if one were to use “objective” as an adjective, I am not sure that it would really meet that test. What if the subject’s reaction is ambiguous?

From the helpful briefings that we have had, as polygraph sessions are used currently and will be used in the case of terrorist offenders, the questions that are asked are closed questions: “Did you do such-and-such?”, or “Have you contacted so-and-so?” I had some difficulty thinking of the questions that might be asked, because so much of potential interest is likely to have been prohibited. I suppose that if there is a measure saying that a person will not visit whatever the nearest urban centre is, that is capable of a yes or no answer.

I wondered whether it is thought that polygraphs are an alternative to electronic monitoring, or a supplement. If there are to be polygraphs applied to TPIM subjects, it seems necessary that there should be a relevant code of practice—tailor-made, if you like—including a reminder that the subject is not an offender.

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[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Lord, Lord Paddick, is not available, so I call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

Our views are very close, but we have not actually changed personalities yet. The noble and learned Lord, Lord Falconer, asked some extremely pertinent questions as the basis for an assessment of whether it was appropriate for the clause to remain in the Bill. It is a great shame that we have not had the answers to that list of questions; I do not think any could have come as a surprise.

May I pursue one point? Because there is a regulation-making power in new paragraph 10ZA, it is not necessary to have a reference to a code of practice. I have sat through many debates when we have been told that codes of practice are so useful because they are flexible; they can be tweaked without having to go through the legislative process. I have to say that I am quite surprised by that answer. I do not know whether we are being told that the rules that apply under the Offender Management Act in other situations when polygraph sessions are used are the rules that will apply. It is my fault; I got slightly lost during that part of the debate. It may be my perception only but, as I heard the answers, there seemed to be a lot of repetition of what is in the Bill, not answers to concerns which underlie the amendments.

When we get to it, depending on who the broadcasters go to, one of us will move Amendment 21. For now, I beg leave to withdraw Amendment 19.

Amendment 19 withdrawn.