Counter-Terrorism and Sentencing Bill

Chris Philp Excerpts

2nd reading & 2nd reading: House of Commons
Tuesday 9th June 2020 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

We in the Scottish National party take our duty to protect the public from all serious crime, including terrorism, very seriously, as our record in government in Scotland shows. We have a number of reservations about the Bill, which I shall outline, but like the official Opposition we do not intend to divide the House. We intend to take a constructive but critical approach. To that end, we will play a full part in the Bill Committee.

I thank the Lord Chancellor and his colleagues for the engagement that we have had to date on the Bill. I look forward to further discussions about the Scottish National party’s and the Scottish Government’s concerns. I also thank the right hon. Member for Tottenham (Mr Lammy) and the hon. Member for Torfaen (Nick Thomas-Symonds) for the constructive discussions that we have had prior to Second Reading. It is fair to say that the Scottish National party shares many of the official Opposition’s concerns about the Bill. We note that those concerns relate to matters about which the Independent Reviewer of Terrorism Legislation has also expressed reservations. That is to say, they are responsible concerns.

No discussion about terrorist legislation in this House should take place without parliamentarians taking the opportunity to extend their deepest sympathies to all those who have suffered bereavement or injury as a result of terrorist acts. I look back to the past, particularly in Northern Ireland and indeed the whole island of Ireland in that respect. On behalf of the SNP, I also pay tribute to the brave members of our police and security services, first responders, those in the Prison Service, probation officers and those who work in rehabilitation. All those people have to deal with the consequences of terrorism. We have heard some moving tributes to them. I also pay tribute to the brave bystanders who have intervened to help others in the immediate aftermath of terrorist attacks.

Many of the provisions in the Bill relate to sentencing, which is of course a devolved matter. Discussions are ongoing between my colleague Humza Yousaf, Scotland’s Justice Secretary, and the Lord Chancellor. Of course, there will need to be a legislative consent motion. I will outline the concerns that I share with the Scottish Government and my colleagues in the Scottish Government about the sentencing aspects of the Bill, as well as the use of polygraphs, the changes to TPIMs and the provisions regarding the review of the Prevent strategy. I want to make it clear that I do so from this viewpoint: it is the Scottish National party’s aim that our communities in Scotland are inclusive, empowered and resilient, so they can resist those sowing the seeds of division that can lead to radicalisation and terrorism.

The Bill has some far-reaching changes in it, with implications for human rights as well as policy, and the Scottish Government have already expressed their concerns directly with the Lord Chancellor, as I have done with his junior colleagues. I know that the UK Government, in relation to this Bill at least, realise that they need to work closely with Members of all parties and with the devolved Administrations, because that is what is necessary to ensure effective counter-terrorism measures across the United Kingdom and in Northern Ireland. I hope that this consideration will be at the forefront of the Minister’s mind as the Bill pilots its way through the House.

On the issue of sentencing, I am pleased that the UK Government are following the Scottish Government’s lead in ending automatic early release for the most serious offenders. Some time has now passed since the Scottish Government introduced a change to the effect that no long-term prisoner—four years or over—would be eligible for automatic early release after two thirds of their sentence. However, I am far from convinced—as I know others are far from convinced—that simply locking up terrorists for longer and then providing longer supervision on release is going to do much to deradicalise terrorist offenders.

The Bill will require the courts to ensure that certain terrorist offenders receive a custodial sentence of a certain minimum length and that a minimum length of supervision applies on release. In that respect it is a form of minimum mandatory sentencing, which is against the general approach in Scotland. However, it is not completely new to the justice system in Scotland, and that is why discussions are ongoing with my colleague, the Scottish Justice Secretary.

Sentencing is only a small part of the answer to terrorism, however. What happens during the sentence also matters, and, to date, deradicalisation and disengagement programmes have been largely underfunded and poorly executed. That is not my view; that is the view of Nazir Afzal, the former chief Crown prosecutor for the north-west of England. He is an experienced lawyer and a prosecutor worth listening to. He says that this has happened as a direct consequence of the decision by successive Conservative Governments to cut funding to probation and other rehabilitation programmes. The costs of extensive post-release surveillance far outweigh the costs of adequate funding for preventive measures and deradicalisation. I wonder whether the Lord Chancellor agrees with me and Mr Afzal on that point, and whether he is in a position to assure the House that sufficient funds and resources will be made available to deal with preventive and deradicalisation programmes in prison.

Can the Lord Chancellor also assure me that the Bill will not turn out to be counterproductive by leading to less parole, less offender management and less incentive to behave well during a sentence and to attempt deradicalisation? In this respect it will be interesting to hear what the professionals who work in the area of offender management and parole have to say about the Bill, and I look forward to the Bill Committee’s evidence sessions. I am pleased that will there be more than one of those—

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

Three.

[Joanna Cherry]

Three? Excellent.

The hon. Member for Bromley and Chislehurst (Sir Robert Neill) raised the issue of polygraphs. He will be aware that in Scotland’s justice system, polygraph testing is not used as a mechanism to monitor compliance with licence conditions or any kind of orders. Indeed, it is not used at all. The reason we have chosen not to use it is the lack of evidence of its effectiveness. If the provisions of the Bill were to apply in Scotland, that would require a significant shift in policy and practice and could also have significant implications for investment in infrastructure. In Scotland, we already have mechanisms in place to monitor compliance with licence conditions and conditions associated with statutory justice orders. These include supervision by justice social workers and the use of electronic monitoring for high-risk offenders. There is a multi-agency public protection arrangement—MAPPA. Under that procedure, those assessed as high or very high risk and who require multi-agency management are subject to a regular review. In Scotland, individuals convicted of terrorism-related offences can be managed under that MAPPA approach, and there are indeed a small number of cases that have been managed in this

More generally on the issue of polygraph testing, I note, as has already been said, that the independent reviewer of terrorism legislation expressed some concerns about the lack of pilots and emphasised that there would therefore be a very strong case for very thorough post-legislative scrutiny of the measures. I look forward to hearing what the Minister summing up has to say in response to that point.

On TPIMs, much of what I have to say has already been canvassed. Clearly, the amendments would: reverse the changes to the burden of proof, lowering the burden of proof; reverse changes to the curfew provisions to allow for what is effectively home detention; and allow us to make the orders potentially indefinite. I am not convinced that the changes are necessary and nor are my colleagues in the Scottish Government. We are fortified in that view by the views of the independent reviewer of terrorism legislation, who is also unconvinced of the necessity of the changes. To be frank, I have heard nothing so far this afternoon to convince me that our reservations are wrong. Those reservations are really important because of the human rights implications, the lack of safeguards built into the Bill, and the lack of any review mechanism.

I am not going to go through what Jonathan Hall, QC said in his two very detailed notes, but he has tackled, in some detail, both the reduction of the standard of proof and making the orders potentially indefinite. He has been very clear that he is not convinced of the case for change, so my questions for the Minister are these. Can we hear more clearly why? Can we see an example of what justifies both the reduction in the burden of proof and the need for the orders to be without time limit? Can we hear why, in the face of such potentially draconian powers, there are no safeguards in the Bill? Would the Government be prepared to consider an oversight mechanism or a review mechanism?

Finally, on Prevent, it is important to remember that the delivery of the Prevent strategy in Scotland is devolved and that while national security is referred to the UK Government, the way the Scottish Government deliver the Prevent strategy in Scotland reflects Scottish differences and is unique to the challenge faced by Scottish communities. I think it is fair to say that the delivery of the Prevent strategy in Scotland has not encountered the same community resistance and community impacts as it has south of the border. Because of the problems encountered in England, the Scottish National party supported the call for a review of the Prevent strategy, but we also shared the very widespread concerns about the Government’s initial choice of reviewer. We believe now that it is very important that a new reviewer is found quickly, and that lessons about impartiality and the important appearance of impartiality are learned from the debacle over the previous putative appointments, so that the review can be seen as genuine and robust. We are a little concerned that the time limit for the review has been removed. I heard what the Lord Chancellor had to say about that, but it is very important that the removal of the time limit does not simply become an excuse to kick this into the long grass. That is the final point on which I seek reassurance from the Minister in his summing up.

--- Later in debate ---

[Yvette Cooper]

I do recognise that these are always difficult judgments, and I say this in a cross-party spirit. These are always difficult judgments and difficult cases to deal with. It is because I have spoken consistently about the importance of having strong powers that I say to Ministers now that it is hugely important to have strong safeguards and strong checks and balances. That is where I think Ministers are getting some of the provisions wrong in the Bill. They will know, with my record of arguing for those powers, that I say with the greatest sincerity to the Secretary of State that he is getting the judgments wrong on the kinds of safeguards that might be needed, because the flipside of those strong powers is having the checks and balances to make sure that they cannot be abused or misused. That is why I asked him specifically what the evidence was for changing the burden of proof and for not having safeguards in place at the two-year point as well. The Bill does not include any safeguards requiring judicial scrutiny after two years. That was a weakness in the original control orders as well: those sorts of independent safeguards were not in place, where they could be continued.

[Chris Philp]

The right hon. Lady raised the issue of safeguards, which I had intended to address in my wind-up. Section 6 of the Terrorism Prevention and Investigation Measures Act 2011 contains a provision whereby when the Home Secretary makes a TPIM order she has to go to the High Court to seek permission and the High Court must find that it is not “obviously flawed”. In addition, the subject has the ability to judicially review the decision, so there is that automatic safeguard in the form of High Court permission under section 6 of the 2011 Act.

[Yvette Cooper]

There is when the TPIMs are first set out—the hon. Gentleman is right about that. My argument about the control orders at the beginning, where I thought they should have been amended back in 2011, was for introducing stronger safeguards. I have always believed that we need stronger safeguards in place, but the Bill does not include any safeguards for judicial scrutiny after two years if these measures are going to be extended—if they are going to be for longer. The independent reviewer, Jonathan Hall, has suggested a solution would be to require the Secretary of State to seek the court’s permission for any extension beyond two years, in the same way that she currently does when a TPIM is first made. That would seem to be a sensible additional safeguard to put in if those TPIMs are to be extended.

In addition, no explanation has been given about the burden of proof. I asked the Minister to tell me, hand on heart, whether he knew of cases—I do not ask for the detail—where he believes the wrong decision has been made not to put somebody on a TPIM because of the burden of proof, and he was not able to do so. I am therefore really concerned that there is not the evidence to justify lowering the burden of proof in this way. He referred to the idea that we somehow need greater “flexibility”. I hope he will reconsider his use of that word, because the powers are flexible; they can be used to apply to all sorts of different circumstances and different kinds of threats that an individual might pose. He should not use the word “flexibility” to apply to the burden of proof. We do not apply flexibility to proof, just as we do not apply it to truth.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

It is a pleasure to speak on Second Reading of this Bill. As Members have said, at the heart of the Bill is a desire to protect the public, which is our first duty as Members of Parliament and as a Government. There is no duty more important than protecting our fellow citizens.

It is right that, as we debate the Bill, we remember and pay tribute to the members of the emergency services who have put themselves in harm’s way defending the public, in particular, of course, PC Keith Palmer, who gave his life just a few yards from where we now stand. We remember and pay tribute to those people who have sadly and tragically lost their lives to terrorism of many different kinds over the past few years. As I look across the Chamber, I see the shield of Jo Cox, one of our own Members who was brutally, savagely and disgustingly murdered a few years ago.

In the spirit of the duty of public protection that binds us all together, the spirit in which the debate has been conducted is heartening. Of course, as the hon. Member for St Helens North (Conor McGinn) said, I am sure that there will be points that we will debate forensically in Committee in the coming weeks, but the broad principles that we are debating command cross-party support and are an example of the House at its best. For people who think that British politics is broken, the debate this afternoon proves them categorically wrong.

The speech given by the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy), was statesmanlike in its quality and I greatly enjoyed listening to and learning from it. The speeches from the Chairs of the Home Affairs Committee and the Justice Committee, and from long-standing and experienced Members such as my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes), gave us all great pause for thought, as did the speech from the SNP Front-Bench spokesperson, the hon. and learned Member for Edinburgh South West (Joanna Cherry).

Like the hon. Member for St Helens North, I was struck by the enthusiasm, force and thoughtfulness of Members of the 2019 intake, all of whom made tremendous contributions and, more importantly, will continue to do so in the years ahead. The House is richer for their presence.

Of course, I welcome the hon. Member for St Helens North to his place. I am delighted to see him on the Front Bench. We worked together on Helen’s law which, without his work, would not be on the statute book. I know that Marie McCourt and many victims are grateful to him for that work, which will now continue from his deserved and rightful place at the Dispatch Box.

I will turn to some of the specific points that have arisen in this afternoon’s debate, starting with TPIMs, which were the most extensively debated of the measures. I thank the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) for the consistency with which she has advocated on that point. I note that the consistency from 2005 does not quite extend to the burden of proof, but it seems to extend to most other elements.

Let me start with the burden of proof. Many hon. Members have asked why we are returning to the burden of proof of “reasonable grounds for suspecting” that was contained in the Labour Government’s original 2005 legislation. It is a delicate question, as Members have said. As we consider the burden of proof that is appropriate, we have to balance and weigh the rights of the subject, whose liberty is being curtailed to some extent, with our duties to protect the public. We have spoken this afternoon about the victims of these terrible terrorist offences. We in public office—Members of Parliament and those in government—have a duty to think very carefully about our duties to protect people who might become victims of these terrible offences.

In answer to the question about why we are proposing this burden of proof, it is because it gives the Government the maximum reasonable ability to introduce TPIMs where they are necessary to protect the public. Setting the burden where we have suggested—a reasonable suspicion, rather than a reasonable belief or on the balance of probabilities—gives the Home Secretary the ability to act more widely than would otherwise be the case when public safety is at stake.

[Yvette Cooper]

Can the Minister tell us how many cases in the last two years have not met the current threshold but would meet his lower threshold?

[Chris Philp]

As the Lord Chancellor said, we will not comment on individual cases. As the right hon. Lady knows, the number of TPIMs in force is very low—it is only five currently. We are not just talking about what may have happened historically; we are looking prospectively at what measures we may need to take to protect our fellow citizens.

Members have asked what the safeguards are. The first safeguard is that the Home Secretary—who I see is now in the Chamber, and who is a doughty defender of public safety and public protection—does not act without fetter, because when a TPIM order is made by the Home Secretary, it is reviewed by the High Court under section 6 of the Terrorism Prevention and Investigation Measures Act 2011. The High Court has to give permission before that TPIM can come into force, and if the High Court finds that it is “obviously flawed”, permission is not granted, so there is a judicial safeguard inherent in the structure of TPIMs. If the subject of the TPIM feels that they have been unfairly treated, they may go to the Court for a judicial review. There are significant safeguards inherent in the structure of TPIMs.

As I said a moment ago, the Government use these measures extremely sparingly. Our preference, of course, is prosecution, as it should be. We only use TPIMs where absolutely necessary to protect the public, and we make no apology for doing so. Only five are in force at the moment, which is evidence of how carefully the Government apply these measures. Since 2011, despite the judicial mechanisms I have described, not a single TPIM has been overturned. I hope that that gives Members confidence that there are safeguards and that these measures are being used in a thoughtful way.

Reference has been made to the opinion of the Independent Reviewer of Terrorism Legislation. Of course, we listen carefully to what Jonathan Hall QC has to say. We study his advice carefully, and we often follow his advice. It is for this House and for us as Members of Parliament to reach our own decision, which may in many cases accord with the independent reviewer, but in some cases it may not. Where our judgment differs, we should exercise our independent judgment, as we are doing in this case.

[Dr Lewis]

In the Minister’s references to TPIMs, he may have answered a question that I was hoping to ask him a little later: what do we do about that category of people who have gone abroad to fight for terrorist-backing organisations and return to this country, where there is not enough evidence to prosecute? I think that the Bill does not say a lot about that. If I am wrong, will he correct me? If I am right, surely that is an area where TPIMs might be relevant.

[Chris Philp]

Indeed. In relation to people who go overseas to assist terrorist organisations, we deprive them of their citizenship where we can, if it is lawful— if they are, for example, dual nationals—to prevent their return here in the first place. It is right that we do that. Secondly, on their return, it is our strong preference, if there is sufficient evidence, to prosecute them under the criminal law, as we very often do. However, if there are evidential difficulties and we cannot meet the burden of proof required by a criminal court—beyond reasonable doubt—but we do have a reasonable suspicion, we can use TPIMs to protect the public, should the Bill be passed in this form. The excellent example from my right hon. Friend the Member for New Forest East (Dr Lewis) illustrates exactly why TPIMs could help us in those cases where we cannot achieve prosecution. Evidence from Syria, for example, is very hard to gather, but in cases where we have a reasonable suspicion, we must act to protect the public.

[Yvette Cooper]

Let me stress this point again: the Minister has still not given us any reason why the current system is no good and why it does not work. He has mentioned independent judgment, but he is giving us no evidence on which to make our independent judgment that is different from the reviewer.

[Chris Philp]

We are returning to a situation that was enshrined originally in 2005, which Members opposite strongly supported at the time. I have made the case already that the Bill gives the Home Secretary an ability to take a rounder judgment with the proof threshold set at reasonable suspicion, rather than reasonable belief or the balance of probabilities. I have made the case that we need to be mindful of protecting potential victims. We need to think about this not just retrospectively, as a historical review of case studies, but prospectively and how we may need the power in the future. I have explained the safeguards in place and I have proved that the Government use the powers sparingly. I think I have made the case for the legislation as currently drafted.

Let me turn now to the question of de-radicalisation and reducing reoffending, which the shadow Lord Chancellor, the right hon. Member for Tottenham, referred to very powerfully in his speech. Let me be clear that we are not giving up hope on any people who are convicted as terrorist offenders—especially young people, but frankly, we are not giving up hope on anyone. Although these cases are hard and rehabilitation is very difficult, we will never give up hope. There are cases such as that of Maajid Nawaz, the founder of the Quilliam Foundation, who harboured extremist ideologies, but is now fully reformed and is a powerful and moving advocate for tolerance and moderation. I look to examples like that for hope—and they give me hope.

It is in that spirit that the Government have been investing in this area. It is fair to say that there is more we need to do to meet our aspirations, but in January we announced an additional £90 million for counter-terrorism policing. We have doubled the number of counter-terrorism probation staff serving and we have introduced new national standards for monitoring terrorist offenders on licence, which includes work with psychologists to try to address any mental health issues that may relate to this sort of offending. We are also involving imams to try to explain in the case of Islamist offending that Islam is a peaceful religion and that the interpretation that some offenders have is a perversion of the true meaning of that great and peaceful religion. We are involving them in our work.

Things such as the theological and ideological interventions programme, the healthy identities programme and the desistance and disengagement programme are all designed to do the same thing. I do not pretend that those systems are working as fully effectively as we would like. I acknowledge there is more work to do, but that work is happening and being invested in. As I said a moment ago, I have hope that people can be turned on to a different path, and that ultimately must be our objective.

I turn now to the question of the removal of the Parole Board’s function in relation to people who will now serve their full custodial term in prison—those most serious offenders. It is right that we do that for the reasons that have been laid out. The most dangerous offenders should serve their full prison sentence, and the public expects that. We have acknowledged that rehabilitation needs to be taking place subsequently in the extended licence period provided after their release.

Although there will be no Parole Board intervention, as the shadow Secretary of State pointed out in his speech at the beginning, plenty of other intervention will take place. For example, very extensive mapper work will take place throughout the custodial sentence. The Prison Service and prison governors, including excellent governors, such as the governor at Belmarsh, will do enormous amounts of work with prisoners during their custodial sentence. The probation service, in the way that I described a moment ago, will work with the offender in their extended licence period afterwards.

Although the Parole Board will not make the release decision—that is effectively made by the judge at the point of sentence in handing down a sentence of this nature —a huge amount of work will none the less be done to manage, help, monitor and, where appropriate, intervene during the prison sentence and during the licence period subsequently. I am therefore satisfied, as is the Lord Chancellor, that these arrangements are comprehensive and will be effective.

Let me say a word about polygraphs, which the hon. and learned Member for Edinburgh South West and the hon. Member for Belfast East (Gavin Robinson) referred to. It is important to stress that the use of polygraphs that we are proposing here is the same as the use currently deployed in relation to sex offenders on licence. These polygraph results, because they are not entirely accurate—they are quite accurate, but not entirely accurate—do not create any binding consequence. If somebody fails one of these polygraph tests on licence, further investigatory work is done by the police or the probation service. It triggers further work, which will then produce a conclusion one way or the other. It does not produce a binding result, but it serves as a trigger.

If we look at the way polygraphs have been used in relation to sex offences, we find that the level of disclosure of relevant information by those sex offenders to whom polygraph tests are applied has increased, since the introduction of the tests, from a 51% disclosure rate to 76%, so they have been helpful. They are not a panacea—they do not tell us everything and we cannot wholly rely on them—but they do yield some information, as a result of which further investigation can be conducted.

Some questions were asked about the Prevent review. We are very close to appointing a new chairman of that review, which is overdue, as Members rightly said. Members asked, again quite rightly and fairly, what our revised target date is for that review to report. Our target date is August 2021. That is a year later than originally anticipated, but Members will understand that the resignation of the initially appointed chairman and then the coronavirus outbreak have, unfortunately, caused that one-year delay. That is the timetable we are now working to.

Finally, the hon. Member for Belfast East and his colleague the hon. Member for North Down (Stephen Farry) made reference to the application to Northern Ireland of the ending of the automatic early release of terrorist offenders. I am delighted that the hon. Member for Belfast East welcomes that application. We thought very carefully about the legal implications, because the structure of sentences in Northern Ireland differs from that in the rest of the United Kingdom. That is why we did not act in February. We have now thought about it very carefully, we have taken extensive legal advice, and we are now wholly satisfied that it can properly be applied to Northern Ireland without any article 7 or, indeed, common law retrospectivity infringement. That is why we now include Northern Ireland in these provisions—and of course, because we want the United Kingdom to act as one in these terrorist-related matters, it is proper that we do so.

Terrorists seek to divide our country, they seek to divide our community and they seek to create hatred among us, but I think that in the conduct of our debate this afternoon we have demonstrated that, no matter what our differences may be in day-to-day political matters, we will stand together in solidarity and in unity, as a House of Commons and as leaders of our various communities, against all those from all different wings of the terrorist fraternity. We will unite against hate, and we will keep in mind Jo Cox’s words in her maiden speech, which I remember listening to five years ago from the Back Benches. She said that there is more that unites us than divides us. Let us keep those words in mind and let us fight terrorism of all kinds wherever we find it.

Question put and agreed to.

Bill accordingly read a Second time.

Counter-Terrorism and Sentencing Bill (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Counter-Terrorism and Sentencing Bill:

Committal

(1) The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 14 July 2020.

(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Proceedings on Consideration and up to and including Third Reading

(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.

(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.

Other proceedings

(7) Any other proceedings on the Bill may be programmed.—(Eddie Hughes.)

Question agreed to.