Counter-Terrorism and Sentencing Bill

Debate between Chris Philp and Conor McGinn

Consideration of Lords amendments
Monday 22nd March 2021 Commons Chamber

[Chris Philp]

We had a very constructive debate on the Bill when it passed through the House last year, and I am delighted to speak to it again this evening.

Lords amendment 18, in the name of Lord Anderson of Ipswich, proposes a new upper time limit of four years for the duration of a terrorism prevention and investigation measure. The Bill as originally drafted sought to remove the current two-year limit and instead enable a TPIM to be renewed annually for as long as necessary. Having carefully considered the amendment tabled by Lord Anderson and consulted with him, the Government, in disagreeing with the amendment, have tabled amendments (a) to (e) in lieu, which set a five-year limit instead of a four-year limit.

I am given to understand that the noble Lord Anderson is content with that, and we believe that it represents a reasonable compromise between a desire to set a reasonable limit on the maximum duration of TPIMs and protecting our fellow citizens. We heard evidence from Assistant Chief Constable Tim Jacques during the passage of the Bill that occasions have arisen when there has been a cliff edge and people have posed a risk to the public after the expiry of a TPIM. The Government believe that a five-year hard time limit is, ultimately, a reasonable compromise.

Of course, TPIMs are reviewable on an ongoing basis. They are reviewed and renewed, and if somebody ceases to be a threat, the TPIM will be discontinued. Under the Terrorism Prevention and Investigation Measures Act 2011, there is not only an ability to have regular review hearings under section 9 but a right to appeal to the courts under section 16 for people wishing to challenge a decision for their TPIM notice to be extended. Given Lord Anderson’s agreement that five years rather than four is reasonable, I hope that the House will consent to our proposed amendments (a) to (e) in lieu.

Lords amendment 17 was a concession made in the Lords, and the Government will therefore support it. It elevates the burden of proof required before imposing a TPIM from reasonable suspicion, as originally proposed in the Bill, up to reasonable belief, which is a slightly higher standard of proof. Again, I hope the House will agree that this represents a reasonable compromise between this House and the upper House. The Government believe that with that slightly higher standard of proof, we can still keep our fellow citizens safe, and we feel that Lords amendment 17 strikes the right balance. We will therefore be supporting it, and it is backed up by Lords amendment 19, which creates an ongoing annual review by the independent reviewer of terrorism legislation of the use of TPIMs, commencing for the first time next year.

I do not want to detain the House long with the other amendments, because there are a total of 77 and I do not wish to go through all of them one by one. [Hon. Members: “Go on!”] I can hear that there is enthusiasm for that, but I am going to disappoint the audience by not going through each one individually. I will just say that a number of them relate to the devolved Administrations. In particular, we have removed the polygraph clauses from Scotland and Northern Ireland, because the legislative power already exists there, should those Administrations wish to use it. We have also made some technical changes concerned with single terming in Scottish law, and some technical amendments that are consequent on the passage of the Police, Crime, Sentencing and Courts Bill.

In summary and conclusion—always a popular phrase—I think we have now arrived at a good set of measures, which will protect the public while also respecting and protecting fundamental rights. I therefore commend these amendments to the House.

[Conor McGinn (St Helens North) (Lab)]

It is a pleasure to follow the Minister, and I will not detain the House long or speak to each of the 77 amendments. However, there are some issues that I want to raise. I will start by thanking the Minister; I know we had a robust exchange today across the Dispatch Box, and I am sure we will have many more, but his conduct in speaking to and informing me over the course of not just this weekend, but the passage of the Bill, has been exemplary. I want to acknowledge that.

Clearly, we also want to thank those across counter-terrorism, policing and the security services and all their partners who selflessly put themselves in harm’s way to advance the effort to keep people safe. Following the horrific events of Fishmongers’ Hall, Streatham, Reading, and the Manchester Arena attack and others like it, I think that everyone across this Chamber acknowledged that there was a clear need for a change, both in legislation and approach. These Lords amendments, and particularly those that the Government have accepted, speak to the heart of that, and it is why we welcomed and supported this Bill in principle all along. It has returned to us from the other place in better shape, and I am pleased to see that some of the proposals that we made in Committee have influenced it.

However, even as amended, it is arguable whether any of what the Government have brought forward in the Bill would have had a significant role in preventing any of those attacks. I do not think there are many new tools here, if any, that the Government did not already have at their disposal. Since the passage of the Bill began, we learned that the perpetrator of the Fishmongers’ Hall attack was deemed a high-risk, category A prisoner before his release, and that there was intelligence suggesting he might be planning an attack. We know that the perpetrator of the Reading attack had been released from prison only two weeks previously, following a 17-month sentence for affray and assault, raising concerns about the influence and consequences of radicalisation in prisons, and that the ongoing inquiry into the Manchester Arena attack has already identified some serious questions about how terrorist suspects are monitored, as well as aspects of security around major events. We know that the number of offenders on licence for terrorism-related convictions recalled to prisons is steadily rising for 2020; up to just June of that year, it had doubled from what it was a decade before. That is why it was surprising for me to find out that the Government do not have any idea how many terrorist suspects are rearrested following their release after previously being arrested or charged.

On the specifics of the amendments, particularly Lords amendment 17, Lords amendment 18 and amendments (a) to (e) in lieu, the Government initially rejected our call for a review of so-called lone wolf terrorists last summer. We have since learned that they have, in fact, conducted one, but they are not willing to share the results or make clear the impact or actions that have come out of it. I have asked for a briefing on it and have not heard back. I do not think that is in keeping with my experience of my relationship with the Minister and his colleagues, and I hope that we can find a way to resolve that. [Interruption.] The Minister says from a sedentary position that it is a different Minister. He is right, but it is the same Department, and I trust that now and again they cross each other’s paths and liaise on matters relating to the Home Department.

We note the announcement in last week’s integrated review that the Government intend to set up a new counter-terrorism operations centre, but there is nothing in this Bill about that, and we have little detail about how it fits into current structures, where it will be based, who it will be accountable to and what it will do. Of course we then have the ongoing review of Prevent. Things move quickly in the sphere of counter-terrorism, and it is important that the police, the security services, their operational colleagues, this House and, above all, the British public have confidence that the Government are adapting to emerging threats and, indeed, pre-empting them. Tough talk is fine, but we need to see it matched with tough action.

In Committee, we tabled amendments that would, for example, have led to additional judicial oversight and an even higher burden of proof, and compelled the publication of an exit strategy for TPIMs. I think I argued rightly that it is not in the interests of anyone to allow individuals to remain on TPIMs indefinitely, not least in terms of bringing them to justice.

On the issue of the burden of proof, we want TPIMs to be robust but flexible. That is why we struggle to see the logic in lowering the standard of proof, whether from a procedural, administrative or operational perspective, because no prior TPIM request had been rejected at that threshold, proving that it was no impediment. That is why we tabled an amendment that would have raised the standard of proof, like the Government are proposing now some nine months later, to try to find a middle way on “reasonable and probable grounds”. The provisions before us now effectively retain that higher standard, and of course we welcome that.

We acknowledge the work of colleagues in the other place on Lords amendment 18 and the amendments in lieu in the Minister’s name. We welcome the fact that the Government have responded to our concerns and those raised by hon. Members across this House and, indeed, those in the other place, accepting the general principle of Lord Anderson’s amendment but making the limit of a TPIM notice five years rather than four. We accept that; it is a good concession. As I said before, however, we will endeavour to monitor its workings and impact as we move forward.

Again, we acknowledge the Government’s response to issues raised about the use of the polygraph. That is welcome too, and I appreciate the Minister’s engagement on that with the official Opposition and colleagues from other parts of the UK.

Finally, we welcome Lords amendment 19. We believe that the framework around TPIMs will undoubtedly be improved and enhanced by the input of the independent reviewer of terrorism legislation.

We will always be uncompromising in tackling terrorism and, in that spirit, willing to compromise and work constructively with the Government. That has been our approach throughout the Bill’s passage, and it is good to see that, in large part, the Government have listened to our concerns. However, I raise those questions, particularly because, as the Minister will be aware, this is a fast-changing environment and we need to be responsive. Getting that right is of the gravest importance for us all. Alongside scrutinising and, as appropriate and without apology, criticising the Government, I will always commit to working together where we can in this endeavour.

Oral Answers to Questions

Debate between Chris Philp and Conor McGinn

Monday 22nd March 2021 Commons Chamber

[Chris Philp]

My hon. Friend is right: dangerous criminals, including murderers and rapists, should be deported once their sentence is over. I am afraid he is also right that we face legal challenges, often very late in the day and despite the fact that there have been many previous opportunities to make such claims, the vast majority of which—well over 80%—subsequently turn out to be totally without merit. It is for that reason that the Home Secretary and I will bring forward proposals in the very near future to address exactly that issue.

[Conor McGinn (St Helens North) (Lab)]

We learned this month that under this Government the number of foreign criminals living freely in the UK has exceeded 10,000 for the first time ever, while last year the number deported fell to its lowest level on record. However bad those numbers are, at least they exist, unlike—astonishingly, as I found out today—any figures on the rearrest of previously charged and potentially dangerous terrorist suspects. Does that not show how, for all their tough talk, this Government’s record is weak and their competence lacking? It is a totally unacceptable state of affairs when it comes to the safety and security of the British people.

[Chris Philp]

Given the shadow Minister’s new-found concern about deporting foreign national offenders, we will find out whether his actions in the Division Lobbies match his rhetoric when we come to vote on legislation in the relatively near future. Why was it that when we brought forward a charter flight in December to deport dangerous foreign national offenders, Labour MP after Labour MP stood up to oppose that? That is completely wrong.

Counter-Terrorism and Sentencing Bill

Debate between Chris Philp and Conor McGinn

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Tuesday 21st July 2020 Commons Chamber

[Chris Philp]

As I said, I accept that. There have not been any historical cases where the standard of proof has been a blocker, but we have been categorically advised by the security services, speaking through Assistant Chief Constable Jacques, that it might occur, and that these proposals will make the public safer. He said that categorically, and I do not think that the House could, or should, disregard such clear advice. In relation to Jonathan Hall’s comments, I suspect that he may not have heard the evidence that I read out. He gave evidence to the Committee immediately before Assistant Chief Constable Jacques. His evidence was new to the House and to Parliament, and we did not have it on Second Reading. We do have it now, however, and we should have careful regard to it.

A number of Members raised questions about civil liberties, and not wishing to intrude on an individual’s freedom, and I will directly address those points. I will do so with reference to the original Terrorism Prevention and Investigation Measures Act 2011. By lowering the burden of proof, we are changing only one of five limbs. The other four limbs remain exactly as they are, and one of those, laid out in section 3 of that Act, states that the Secretary of State must reasonably consider whether the TPIM is “necessary”—I use that word carefully—for purposes connected with protecting members of the public. Subsection (4), condition D, states that the Secretary of State must consider whether a TPIM is

“necessary, for purposes connected with preventing or restricting the individual's involvement in terrorism-related activity,”

That test of necessity goes far beyond the reasonable suspicion referred to in the first limb. The requirement for necessity is unchanged.

The hon. Member for St Albans said that this measure could be introduced on a Minister’s whim, and that a Minister could impose a TPIM with the sweep of a pen. I say to her gently, however, that that is not the case and there are judicial safeguards in the 2011 Act. For example, section 6 of that Act states that when a TPIM notice is given, the Secretary of State must go to the court and make an application, and the court has to verify or validate that the TPIM is reasonable, and certify that it is not “obviously flawed”. There is judicial certification.

Section 16 of the 2011 Act provides for a right to appeal. If the subject of a TPIM feels that they have been unfairly treated, or that the TPIM is unjustified, they can apply to the court in a process akin to a judicial review, and apply to have it overturned. There are judicial safeguards to protect individuals from unreasonable actions by the Government.

In the many years that TPIMs have been in operation since 2011, and in the six years when control orders were in place from 2005, the numbers used have been small. There were never more than about 15 to 20 control orders in force at any one time, and we heard evidence that as of today only six TPIMs are in force. That is a very small number, as they are used only in exceptional circumstances. When I asked Jonathan Hall whether he believed that any Government, including the previous Labour Government or the more recent Conservative Government, had ever abused the power provided by TPIMs or control orders, he answered that no, he was not aware of any such abuse. I would add that a former independent reviewer of terrorism legislation, Lord Carlile, has expressed support for the measures in this Bill.

Let me turn to the issue of time and how extendable TPIMs are. They currently expire after two years. We propose to make them extendable in one-year increments, as were the old control orders passed by the then Labour Government and indeed supported by some Members in this House this afternoon. We heard evidence from Jonathan Hall that there was risk where a TPIM ended after two years, as there could be a gap. He knew of two real cases where that occurred, with a gap of one year in one case and a gap of 16 months in the other before a new TPIM could be obtained. That is because we have to get fresh evidence; we cannot rely on the old evidence and we have to wait for somebody to do something wrong again to give us the grounds to renew the TPIM. Max Hill, when he was independent reviewer of terrorism legislation in 2017, said that some terrorists were “biding time” waiting for the TPIM to simply time out.

In fairness to the last Labour Government, even though the previous control orders could be extended year by year, in practice most of them were not: 30 of them were for less than two years; eight were for between two and three years; four were for between three and four years; and only three extended for between four and five years. Again, the subject can apply for judicial review if they think the TPIM extension is unfair, so a judicial protection is in place.

I have two quick final points to make. In terms of prosecution, which my hon. Friend the Member for Bromley and Chislehurst asked about, there is a duty under section 10 of the 2011 Act that requires the Secretary of State to seek prosecution where appropriate. On Prevent, let me say that the statutory obligation to carry out the Prevent review remains. There have been some delays, because the independent reviewer had to be replaced and then we had the coronavirus pandemic. Our commitment to do it remains in statute. Obviously, specifying a date caused a problem before, and we do not want to repeat that mistake. We hope and expect that this will be done by August of next year, but we feel that, given the experience of the recent past, putting that date in the Bill would simply be setting a bear trap. So I hope that I have laid out the case for resisting these amendments.

[Conor McGinn]

In the brief time available, I wish, first, to thank the Minister for addressing some of the concerns we have raised, not just today on Report, but through a thorough examination of the Bill in Committee. Although Labour Members wholeheartedly support robust action to keep our country and our citizens safe, and to tackle terrorism and its causes, it is the duty of any responsible Opposition to examine fully the Government’s proposals. I feel that we have done that, with the assistance of Scottish National party and Liberal Democrat Members, those from other parties in the House, and colleagues on the Back Benches.

The Minister and the Government should listen carefully to the very personal testimony given by my hon. Friends the Members for Coventry South (Zarah Sultana) and for Poplar and Limehouse (Apsana Begum), and indeed by my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott). Although I might not have agreed with her on every crossed t or dotted i, or even on whole words or sentences on occasion, she does speak with the voice of years of experience in this House and a commitment to these issues. She also, like Members who spoke from these Benches, speaks authoritatively and with great passion on behalf of the constituencies and communities she represents. The Government should listen to them, which was why I made the points I did about the importance of not only getting this Prevent review right but getting on with it, to give the clarity and confidence needed, and to address some of the challenges and controversies associated with it.

I was hoping that we might receive a commitment from the Government to publish their MAPPA— multi-agency public protection arrangements—review before we got to consideration in the House of Lords, because it is important, given the removal of the statutory deadline for Prevent and given that the Opposition have proposed a review on lone actors, to have some timeframe on that. I appreciate and understand that the Minister has made valiant efforts to do that, but I regret that it has not been forthcoming to date. I hope that in considering the request for a review on lone actors, the Government understand that we do so in a constructive spirit.

[Chris Philp]

The Lord Chancellor has appeared, as if by magic, behind the Speaker’s Chair and has indicated to me by eloquent gesticulation that the MAPPA review will indeed be published before the consideration of the Bill in the other place.

[Conor McGinn]

I thank the Lord Chancellor and the Minister for that commitment. The robust exchanges we have had have been in the context and spirit of working constructively on a Bill of huge importance, which is concerned with keeping our country and its citizens safe. Our proposals for that review are in keeping with that view. We await to see what the MAPPA review by the independent reviewer of terrorism legislation comes forward with. Colleagues in the other place will no doubt wish to scrutinise that. On that basis, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

Clause 4

Serious terrorism sentence for adults aged under 21: England and Wales

Amendment proposed: 30, page 5, line 35, at end insert—

“(7) The pre-sentence report must —

(a) take account of the offender’s age;

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(8) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (7) and consider whether they constitute exceptional circumstances under subsection (2).”.—(Alex Cunningham.)

Question put, That the amendment be made.

Counter-Terrorism and Sentencing Bill (Eighth sitting)

Debate between Chris Philp and Conor McGinn

Committee stage & Committee Debate: 8th sitting: House of Commons
Tuesday 7th July 2020 Public Bill Committees

[Conor McGinn (St Helens North) (Lab)]

I beg to move amendment 62, in clause 47, page 40, line 17, leave out subsection (1) and insert—

“(1) In section 20(9) of the Counter-Terrorism and Border Security Act 2019 (support for persons vulnerable to being drawn into terrorism) for the words from ‘within the period’ to the end substitute ‘by 1 July 2021’.”.

This amendment would reinstate a statutory deadline for the independent review of the Prevent strategy, which will have to report by 1 July 2021.

It is a pleasure to serve under your chairmanship, Mr McCabe. I know that, over your distinguished years in this House, you have taken a keen interest in home affairs, so it is particularly appropriate for you to chair this session.

I said on Second Reading that, as well as what in the Bill, we are concerned about what it does not contain. The Government have missed a real opportunity to expound upon their wider strategy for tackling extremism, radicalisation and terrorism. This is most acutely felt in the proposal, in effect, to remove the statutory deadline for a review of the Prevent strategy that was announced some 19 months ago. We know that Prevent has been a crucial part of this country’s counter-terrorism strategy. In giving evidence to the Committee, Assistant Chief Constable Tim Jacques said:

“Prevent is a critically important part of our role; it is absolutely vital. It is controversial, and has been controversial, but we engage in it, we operate, and we protect the public through Prevent every day.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 25-26, Q66.]

I find myself in full agreement with all that, because it is a vital tool and also, as the ACC acknowledged, one that has an element of controversy, or certainly dispute, around it.

It is hugely disappointing—not, I must add, solely to Opposition Members, but to civic society and, crucially, to those dedicated individuals who deliver the policy on the frontline—to now see a real lack of purpose and clarity regarding the programme’s direction under this Government. The independent review was legally bound to report to the House by 12 August this year, but it is obvious that this deadline is going to be missed, resulting in a further lack of clarity and, sadly, I suspect, a further question mark around the credibility of the programme itself. To make matters worse, the Bill now actively seeks to remove any deadline at all.

The independent review was announced last January— 19 months ago—following a long-running campaign by Opposition Members and civic society, but it has since been delayed and postponed. We believed then, and we believe now, that a wide-ranging, robust review is the right approach. By now, that review should have been finished and reported to Ministers. In fact, that should have happened two months ago; if anything, the Minister should now be preparing to come before the House to give the Government’s response to it.

Frankly, it begs a question about competency at the Home Office that things have been allowed to get to the present stage. We would of course have been willing to accept mitigations that might have been needed because of the impact of the covid-19 pandemic on tight deadlines. However, we have already had dithering and false starts over the period of the review. The fact that the Government are now seeking to remove the statutory deadline, and leaving little indication of when we are to expect completion, leaves the explanations that we have had to date from them with little or no validity.

The Government have said that they would like the report to be completed by next summer; in that case, why not accept my amendment and put that on the face of the Bill? I do not think that I am being unreasonable in saying that we are allowing the Government a year from now—19 months into the process already—by which time it should have reported. We are being constructive in granting another year, and I do not think that it is reasonable for the Government to respond, “Well, you’ll just have to take our word for it.” I am afraid that we have not been able to rely on the Government to meet previous deadlines. The amendment would reinstate the statutory deadline for an independent review of Prevent by 1 July.

As I stressed on Second Reading, the introduction of the Bill before the Prevent review under the 2019 Act has even reported makes it clear what a quantity of time has been wasted. Lord Carlile was initially appointed to lead the review, but he stood down. That is important. I have huge respect for him. I have spoken to him in preparing for the Bill Committee and he has an exceptionally valuable contribution to make to the debate. Lord Carlile’s having to stand down from the review was nothing to do with his integrity or ability; it was to do with the appointment process. It is important that the Opposition say that and make it clear. It was unfortunate and a pity; it was also avoidable. I hope that the Government have learned lessons from that about putting robust mechanisms in place for the appointment of independent reviewers of something that is as controversial and critical as Prevent. I felt that it was important to say that we thank Lord Carlile for the work that he did. We also thank Lord Anderson and the current Independent Reviewer of Terrorism Legislation, Jonathan Hall, for the work that they do.

It is not beyond the bounds of reason, but the Minister cannot see that the amendment is constructive. It it would simply put into the Bill something that he says the Government would like to do, which is to report by next summer. We need some clarity about it. We need to end the continuing speculation about Prevent, which threatens to undermine the effectiveness and credibility of the programme. We need some coherence and surety about its centrality to the Government’s counter-terrorism strategy. The best way to get that is for the Government to commit to completing the review, not a month or even six months from now, but a year from now. That is eminently doable and reasonable.

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

It is a pleasure once again to serve under your chairmanship, Mr McCabe. I agree entirely with the points that the shadow Minister made about the importance of the Prevent review. It is a critical assessment, which the Government welcome, and we look forward to receiving it. As the hon. Member for St Helens North said, the original deadline, set out in previous legislation, was August this year. To state the obvious, that deadline will be missed. The two reasons for that are, first, the coronavirus epidemic, and, secondly, the resignation of Lord Carlile, which the hon. Gentleman mentioned.

Lord Carlile was appointed last summer, so he would have had a year to do his job, but unfortunately he stepped down in December owing to legal challenges about the manner of his appointment. I am able to confirm that a full and open competition is being run for a replacement. The closing date for applications was 22 June—a couple of weeks ago—and the applications will be assessed by an independent panel. I hope that gives the shadow Minister the assurance he sought on questions of process.

Given that the process of appointing Lord Carlile’s successor has not yet concluded because the application deadline was only a couple of weeks ago, completing the review will be challenging, but we want it to be done by the summer of next year, as the shadow Minister says. We would like to see it completed by August 2021, and that is the objective that the new chairman or chairwoman will be given. However, to put the deadline in primary legislation risks repeating the mistakes that we made previously: a deadline was set out in the statute, and for reasons that were not foreseeable at the time—first the resignation of Lord Carlile, and secondly, the coronavirus epidemic—it became impossible to meet that deadline. If unforeseeable circumstances arise again and something unexpected happens that causes another delay, we do not want to fall foul of a statutory deadline that requires primary legislation to correct.

The obligation to complete the review remains in statute. It is a statutory obligation that must be fulfilled, and that remains, but putting a deadline on it as we did before risks our falling into the same trap twice. I hope that the shadow Minister will accept the clear statement of intention to get this done by August next year. The applications were taken in an open process, and they will be assessed by an independent panel, so the process issues will not re-arise. Our commitment is absolute. On the obligation to put this in statute, the deadline could be problematic if something unforeseen happens again.

[Conor McGinn]

Unusually in our discussions, I cannot accept the Minister’s explanation. I do not think an explanation has been given for the delay between Lord Carlile’s standing down and the beginning of the recruitment process for a new independent chair, which could have predated the coronavirus pandemic. Given one would expect that some preparatory work was done in the period that Lord Carlile was in post, which would inform the new chair’s review, any suggestion that it might not be completed by next summer is hugely concerning.

The fundamental point is that we have been reasonable about it. We have accepted some of what the Government have said about wanting to do this properly, wanting to ensure it is fully independent, and wanting to respect the ongoing recruitment process, but as for giving it from now until 1 July next year to ensure it reports before Parliament goes into summer recess, to give surety and clarity to the wider public, to civic society who take an interest in such matters, and fundamentally to the people we charge with carrying out Prevent and implementing its strategies on the ground, I do not think they should have to wait any longer than is necessary. So I am afraid that, despite what the Minister says, I feel obliged to press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Chris Philp]

I thank the shadow Minister for introducing new clause 7, which would, along with other proposed new clauses, create a veritable snowstorm of statutory reviews. I appreciate the comments he made about the tools available to the Opposition, which I hope not to have to avail myself of in the near future—who knows what might happen?—but I would say that the Opposition have many tools at their disposal, which they frequently use, including debates, questions, parliamentary questions, Freedom of Information Act requests, and so on and so forth. There is no shortage of methods, quite rightly, by which any Government may be properly held to account by Parliament.

On Northern Ireland particularly, we fully recognise that it has a unique history and that terrorism is interwoven into some parts of that. We have taken very careful time—a great deal of time—to make sure that we have not in any way interfered with or unpicked the very important provisions in the Belfast agreement, because we do not want to do anything that interferes with or undermines that very important agreement. However, matters of national security and terrorism are reserved matters and, as far as possible, we would like to have a consistent position, which is broadly speaking what the Bill seeks to do.

I understand there are issues of sensitivity, which the Justice Minister in Northern Ireland, Naomi Long, has raised with the Ministry of Justice here in London; it sounds as if she has also raised them with the shadow Minister. As I said in response to an intervention on our very first day of line-by-line consideration, we are in the process of having a very detailed, in-depth dialogue on those issues and are going through them one by one. Whether it is before or after the Bill is enacted, as I hope it will, I put on the record that we will always engage sensitively and deeply with the Northern Ireland Administration and, of course, the Government in Scotland in these areas, recognising how important they are to all parts of the United Kingdom. I assure the hon. Gentleman that that will be done with sensitivity and receptiveness.

On a statutory obligation to conduct a further review, I have mentioned my general position. Given Parliament’s ability to question and debate, to FOI and so on and so forth—there is no lack of scrutiny—I do not think that a further statutory review would add anything to the process. I accept the point, however, that we need to keep a close eye on these matters and be in continued and close dialogue with all our colleagues in the various Administrations, in Belfast and Holyrood in particular.

[Conor McGinn]

I thank the Minister for his comments. The only part I would challenge is the claim that there is no lack of scrutiny in Parliament, as we have a body that is tasked with overseeing scrutiny and overviewing all these matters that has not yet been reconstituted—the Intelligence and Security Committee. It is clear to me from discussions with colleagues in Northern Ireland, and given the dialogue that the Minister has had with the hon. Member for East Lothian and the hon. and learned Member for Edinburgh South West that he is acting in good faith and is keen to resolve any outstanding matters with the devolved legislatures. It is important to put on record that that is very much the message that I have received. I encourage him to continue those discussions.

The Minister is right to assert that it is clearly a reserved matter, but there are elements that require a legislative consent motion, which will be difficult to get through the Northern Ireland Assembly. If the Justice Minister has reservations about it, one can only imagine what other parties in the Assembly and the Executive might have to say. I encourage him to continue those discussions. I am happy to assist him in finding a resolution and a way forward, because it is important that we get it right. On that basis, I will not press the clause to a vote and I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 8

Lone terrorists: Review of strategy

‘(1) The Secretary of State must commission a review and publish a report on the effectiveness of current strategies to deal with lone terrorists.

(2) A review under subsection (1) must be conducted by a person who meets the criteria for qualification for appointment to the Supreme Court, as set out in section 25 of the Constitutional Reform Act 2005.

(3) A review under subsection (1) must consider—

(a) counter-terrorism policy;

(b) sentencing policy as it applies to terrorist offenders;

(c) the interaction and effectiveness of public services with respect to incidents of lone terrorist attacks.

(4) For the purposes of subsection (3)(c), “public services” includes but is not limited to—

(a) probation;

(b) the prison system;

(c) mental health services;

(d) local authorities; and

(e) housing providers.

(5) The Secretary of State must lay a copy of the report before Parliament.

(6) A Minister of the Crown must, not later than 3 months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.’—(Conor McGinn.)

This new clause ensures that the Government orders a judge-led review into the effectiveness of current strategies to deal with lone terrorists including, but not exclusively, current counter-terrorism and sentencing policy.

Brought up, and read the First time.

--- Later in debate ---

[Conor McGinn]

I do. My hon. Friend has eloquently outlined the development of the terrorist threat and its changed dynamics, as well as the fundamental point that hatred and terrorism does not discriminate. It is not homogeneous, because it is perpetrated by different people with different motives, nor does it discriminate, because fundamentally other people are hurt by it.

In asking for this, we are saying to the Government that those three attacks in different places, perpetrated by different people with no connections, over a relatively short space of time, provide evidence of a new and increasing threat. Coupled with the increase in right-wing extremism and the manifestation of that through referrals to Prevent and arrests, that needs to be looked at very carefully. Things have moved on since Lord Anderson’s very good report in 2017.

It is time that the Government looked at that again to identify the issues Lord Anderson raised and what they have done to break down some of the barriers that he identified in 2017 that were preventing us from apprehending these people at various junctures throughout their journey—from starting out with an extremist ideology to, on their own, as lone actors, committing the most heinous crimes, causing the types of suffering, hurt and heartache that were expressed so eloquently earlier today.

[Chris Philp]

The hon. Member for St Helens North has raised an important matter: the problem of lone wolf attackers acting outside recognised group structures. We have seen, in those incidents that he referred to, the terrible impact of the actions of those people who, while they are acting alone, none the less cause devastating consequences for the victims of their actions. We should take the threat they pose extremely seriously.

Since those first two events—at Fishmongers’ Hall and in Streatham—we have moved to change the law in a number of areas. First, we introduced emergency legislation—the Terrorist Offenders (Restriction of Early Release) Act 2020—which came into force on 26 February. As we know, that ended the automatic early release of terrorist prisoners and instead moved their release point to two thirds with Parole Board consent or later if not given, followed by the period on licence. We have legislated today to ensure that there is at least a year on licence, even where they serve their full term. That was one element of the response to those events to which the hon. Gentleman referred.

Of course, this legislation we are debating is part of that response, making sure that those most serious offenders are physically prevented from harming the public by incapacitation, which is a second important element of the Government’s response. The third element was a review of the MAPPA—multi-agency public protection arrangements—which the Home Secretary and the Lord Chancellor commissioned in the aftermath of the Fishmongers’ Hall attack from Jonathan Hall QC, whom we met a couple of weeks ago, to see what more we can do to ensure that those agencies are working together where opportunities arise to identify somebody who might pose a threat to the public. That work was extremely important.

It is worth saying that in the three years since March 2017, 25 different attacks have been foiled so, while it is of course a tragedy that any attacks at all happen, the measures taken have disrupted, foiled and prevented 25 atrocities that might otherwise have taken place. Now would be a good time, in that context, to extend our thanks and gratitude to counter-terrorism police and the security services, who have done that work to keep us and our constituents safe these past few years.

The hon. Gentleman’s point about the need to be vigilant on this topic is well made. My colleague the Security Minister, my right hon. Friend the Member for Old Bexley and—

[Conor McGinn]

Sidcup.

[Chris Philp]

The hon. Member for St Helens North is more familiar with parliamentary constituencies than I am. My hon. Friend the Security Minister is working on this and I am sure, in a spirit of cross-party co-working, he would be willing to sit down and have a chat, possibly a confidential chat, with the hon. Gentleman about the work that is going on in this area.

It is a good topic to debate and to think about. I have made my views on statutory reviews clear and I will not repeat them, but this is a topic that Parliament should be considering. We have been discussing it ourselves, because these threats do exist and we need to do everything we can on prevention, not only through policing, but through other forms of intervention. The spirit of the hon Gentleman’s comments is one I embrace and agree with, while very gently and politely resisting another statutory review.

[Conor McGinn]

I was going to put the new clause to a vote, but I thank the Minister for his very generous offer—

[Chris Philp]

Of James’s time.

Counter-Terrorism and Sentencing Bill (Seventh sitting)

Debate between Chris Philp and Conor McGinn

Committee stage & Committee Debate: 7th sitting: House of Commons
Tuesday 7th July 2020 Public Bill Committees

[Chris Philp]

It is a pleasure to serve once again under your chairmanship, Mr Robertson. Let me once again welcome the shadow Minister to his well-deserved place on the Opposition Front Bench.

The speech given a few moments ago my hon. Friend the Member for Hertford and Stortford outlined with incredible power how important it is that we in this House and in government discharge our duty to protect the public. I thank her for sharing the experience that her friend Louise had 15 years ago today. I ask her to pass on the House’s thanks to Louise for the bravery and fortitude she showed on that day and subsequently, and for sharing her experience with the Committee. Hearing direct first-hand testimony of the kind we did a few moments ago brings to life how important this topic is and how seriously we must take our responsibility to protect our fellow citizens, so I ask my hon. Friend to pass on our thanks to Louise.

It is, of course, right that we take this moment to remember the 52 members of the public who lost their lives 15 years ago, and the 784 who were injured and who will often carry not just physical scars, but mental and psychological scars for many years to come. The shadow cast by terrorism is not just a physical shadow; it is a psychological and emotional shadow.

I turn to clause 37 and the proposed amendments. The first point I want to make, beyond reiterating that protecting the public is our primary duty, is that TPIMs are not something the Government, Ministers or the police reach for first. The first option is always to prosecute where we have evidence to do so, and that is what happens in the vast majority of cases—criminal prosecution before a judge and a jury, to the criminal standard of proof beyond reasonable doubt, is the preferred and first option. We should always keep that in mind. We fall back on TPIMs only where we believe there is a real threat to the public and where they are in fact necessary. The word “necessary” appears in the original 2011 legislation, and that test of necessity is not being changed by this new Bill. It is a last resort.

The hon. Member for St Helens North and the hon. and learned Member for Edinburgh South West both asked about the business case. Why are we introducing this change, and what is the need for this measure? I will begin by answering that question directly. As we have briefly heard from my hon. Friend the Member for Aylesbury, the answer is best found in the evidence that the Committee heard on the morning of Thursday 25 June from Assistant Chief Constable Tim Jacques. I asked him something twice in general terms, and then he answered more specifically. I asked him twice whether this legislation will

“make the public less or more safe”.

He answered very clearly,

“yes, I believe it will make the public safer.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 20, Q48.]

To be absolutely sure, I asked him again whether it will make the public safer. He said:

“That is the view of the security services…that is their clear view.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 21, Q50.]

[Conor McGinn]

The witness did say that. The Minister might recall that I then pushed the witness on the specifics of it, and he said he was talking about the totality of the package contained within the Bill—more specifically around sentencing, rather than what was proposed around TPIMs.

[Chris Philp]

I will elaborate on the questions a little further. Question 50 was specifically about TPIMs and the burden of proof. To clear that up, I will read question 50 in full—it is not very long. “For those three reasons”, which I will go through in a moment,

“you are being categorically clear with this Committee and with Parliament that the proposed lower standard of proof”—

which we are now discussing—

“would be a benefit to the police and the security services, and that it would make the public safer.”

I was expressly referring not just to TPIMs but to the standard of proof. Assistant Chief Constable Jacques replied:

“That is the view of the security services…that is their clear view.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 22, Q50.]

He was answering specifically on TPIMs and on the burden of proof in question 50.

--- Later in debate ---

[Chris Philp]

I was not present at those meetings, so I cannot comment on what was discussed. However, the hon. and learned Lady has herself already observed that Assistant Chief Constable Jacques’s critical testimony was ventilated in such details—publicly at least—for the first time in his evidence; of course, Jonathan Hall gave evidence just before Assistant Chief Constable Jacques. As I say, I was not privy to the conversations that took place between Jonathan Hall and my colleagues in the Home Office, so I do not know what case was presented to him, but I do know that the case presented by Tim Jacques was, at least in my view, compelling.

[Conor McGinn]

rose—

[Chris Philp]

Before I move on to the second leg of my support for these measures, I will of course give way to the shadow Minister, who wants to intervene.

[Conor McGinn]

To echo what the hon. and learned Member for Edinburgh South West said, the evidence of the assistant chief constable was incredibly useful—he is hugely respected across law enforcement. But he was one witness. He made it clear, in response to the Minister’s questions about TPIMs, that it was the view of the security services that the lowering of the standard of proof might have “utility” when it came to the examples that he outlined—but he was also clear that the police are not the applicant.

--- Later in debate ---

[Chris Philp]

I have made this point already, in response to an earlier intervention, but at question 50 I asked the assistant chief constable expressly about TPIMs and the burden of proof. He expressly said that it would make the public safer—he was talking there not about the generality of the Bill, but about TPIMs specifically. Of course, I welcome the fact that in more general terms he feels that the Bill will help, but that question related specifically to TPIMs.

[Conor McGinn]

Read the whole answer.

[Chris Philp]

The assistant chief constable said:

“That is the view of the security services. We are not the applicant, but that is their clear view.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 21, Q50.]

Although he was not applying for TPIMs, he is a senior police officer involved in counter-terrorism policing, he had been briefed by the security services before giving evidence, and he is responsible for monitoring and managing TPIMs subsequently. To dismiss his evidence as hearsay—the hon. Gentleman did not, but the hon. and learned Member for Edinburgh South West did—is rather unfair, given that he had the briefing from the security services in front of him when he gave evidence and given the close role he and counter-terrorism police play in managing and monitoring TPIMs.

[Chris Philp]

I have already accepted, a few minutes ago, that there have not been any historical examples. That was clear from the evidence. I also said, in response to an earlier intervention on Syria, that just because there have not been any historically—we are talking about very small numbers—does not mean to say that there will not be such a situation in the future. We need to guard against potential future risk. That is what we seek to do.

Let me go on to the second plank of my rationale for why this proposed burden of proof is appropriate. It is because there are significant mitigants to any risks of abuse of process, miscarriages of justice or inappropriate behaviour. I rest my case for those mitigants on two legs or stands.

The first is that we do not need to hypothesise about how a Government—any Government—might behave with access to TPIMs, or control orders, with a lower standard of proof. As the hon. Member for St Helens North pointed out, we had control orders, passed by then Labour Government in 2005, which had the lower standard of proof—the reasonable suspicion. Those persisted for approximately six years, from 2005 to 2011. During that period, 52 control orders were issued. On the morning of 25 June, I also asked Jonathan Hall whether he was aware of any misuse in that six-year period—I said seven then, but it is six—when the lower burden of proof prevailed. He said:

“I am not aware of any misuse”.––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 7, Q9.]

I also asked him whether he was aware of the Government ever having misused the powers or used them without care and circumspection; I actually asked whether, as far as he could see, the Government had used the powers “with care and circumspection”. He said:

“I am quite satisfied that the Government are doing that.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 6, Q5.]

So the control orders, as they were then, operated with a lower standard of proof for six years with no abuse or misuse identified.

The hon. and learned Member for Edinburgh South West raised a question about ECHR article 5 compliance and whether the lower burden of proof would potentially infringe that. I checked that during the debate. During the six years when 52 control orders were used, at no point, despite some challenges, were they found to be not compliant with the ECHR. The Committee can satisfy itself that when they operated previously, they did so without abuse and were not struck down as an instrument as a whole by the court.

The second set of mitigants is to be found in the Terrorism Prevention and Investigation Measures Act 2011, in which the Committee probably knows there are five conditions, labelled A to E, that have to be met for a TPIM to be granted. We are seeking to amend only one of those five conditions, condition A, which pertains to the burden of proof in so far as it touches on terrorism-related activity.

The four other conditions still have to be met and are not being changed by the Bill. For example, condition C requires the Secretary of State to reasonably consider “that it is necessary”—I labour that word “necessary”—

“for purposes connected with protecting members of the public from a risk of terrorism”.

The Secretary of State must be satisfied that there is necessity. It must not be done on a whim or because it might or may be required. It must be necessary. That is in section 3(3) of the 2011 Act, which is not being amended.

In section 3(4), condition D makes a similar point that the Secretary of State must reasonably consider

“that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity”.

Again, it uses the word “necessary”—not “possible”, “maybe” or “might”, but “necessary”. It is a very strong word.

Moreover, in section 3(5), condition E says that the Secretary of State must seek permission from the court, as described further in sections 6 and 9 of the Act. They must go to a court of law and make sure that it feels it is reasonable that a TPIM should be granted. At the outset, there is judicial oversight of the process. The Home Secretary cannot, just by a stroke of a pen, give out a TPIM and thereby restrict someone’s liberty. That is a serious matter, as the hon. and learned Member for Edinburgh South West has already said. There is judicial oversight of the process. I say again that four of the five tests laid down in section 3 of the 2011 Act are not changing. They will stay the same.

Moreover, those subjected to a TPIM have a right of appeal against it. The 2011 Act, which, again, is not being amended, provides that they can go to a court if they feel that a TPIM has been unreasonably imposed, unreasonably varied or unreasonably extended. They can ask a court for relief and the court proceedings can carry on according to the principles used in judicial review. Beyond the simple question of burden of proof around terrorist-related activities, there are those further protections in the Bill and from the courts.

I will conclude, Mr Robertson—always welcome words during one of my speeches—by saying that the powers are used sparingly. There were 52 of the old control orders in total over six years, but at any one time no more than 15 were ever in force. As the shadow Minister has said, as of November last year there were five TPIMs in force, although I think that we heard in evidence that the number might subsequently have gone up to six.

We use such powers very sparingly, for the reason that the hon. and learned Member for Edinburgh South West mentioned: they touch on an individual’s liberty. However, they are occasionally, in the words of the Act, “necessary”—necessary to protect the public, necessary to protect people such as Louise who might otherwise be killed, injured or traumatised and necessary to protect our fellow citizens. It is for those reasons of necessity that I respectfully say that the clause as drafted is an integral and an important part of the Bill.

[Conor McGinn]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 ordered to stand part of the Bill.

Clause 38

TPIMs: extension of time limit

--- Later in debate ---

[Chris Philp]

Amendment 61 seeks to introduce a higher standard of proof—the balance of probabilities—if a TPIM is to be extended beyond two years. We debated at some length the relative merits of reasonable suspicion and the balance of probabilities in relation to clause 37, so I do not propose to repeat those arguments at great length. However, I hope I established in my previous remarks the importance of the reasonable suspicion burden of proof, rather than the balance of probabilities.

On the issue of extension, I gave the reasons why it is important to avoid this two-year cliff edge a few minutes ago, during the debate on amendments 60 and 64. I also drew attention to the protections that exist, particularly the review process in section 11 of the TPIM Act, which is an internal process that goes on on a quarterly basis. I also drew attention to the right of appeal under section 16 of the same Act. Every time one of these orders gets extended by a year, the subject has a right to go back to the court if he or she feels they are being treated unreasonably and unfairly. For all those reasons, I think the annual renewal process, with a right of appeal should the subject feel the renewal is unreasonable, provides adequate protection.

The shadow Minister, the hon. Member for St Helens North, asked about counter-terrorism resources. As I am sure he is aware, counter-terrorism police expenditure was significantly increased earlier this year. The police have a great deal more resources than they had previously, and as Assistant Chief Constable Jacques said in evidence,

“Neither we nor the Security Service envisage a large increase in those numbers—

the numbers of people on TPIMs—

“as a result of the provisions in the Bill”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; Q49, c. 20.]

although as the shadow Minister said, some may endure longer. We are absolutely committed to making sure the resources required are available.

[Conor McGinn]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Conor McGinn]

I beg to move amendment 67, in clause 38, page 34, line 33, at end insert—

“(ab) after subsection (3)(b) insert—

(3A) Where a TPIM notice has been extended under subsection (3), the Secretary of State must review, at 6 monthly intervals, whether it is appropriate to issue a revocation notice under section (13)(1).

(3B) A review under subsection 3A will include a memorandum to—

(a) the chief officer of the relevant police force;

(b) the Security Service,

(c) the Secret Intelligence Service, and

(d) the Government Communications Headquarters

outlining a tailored exit strategy.

(3C) A ‘tailored exit strategy’ under subsection (3B) shall include—

(a) an assessment of the individual’s current security threat, which must include an assessment of the current evidence and investigative steps as provided by the bodies listed in subsection (3B);

(b) a plan for agencies and public services to engage with the individual to promote rehabilitation for the duration of the TPIM; and

(c) a plan for how TPIM measures may be removed if no new evidence of terrorist related activity is provided.”

An amendment to require the Secretary of State to specify a provisional exit strategy for a TPIM notice, upon any renewal beyond the two-year mark.

It always struck me as a strange and inflexible design flaw of TPIMs that they had a set limit of two years. My right hon. Friend the Member for Normanton, Pontefract and Castleford, who chairs the Select Committee on Home Affairs, reminded the House on Second Reading that

“Control orders were set for a year but could be renewed”,

but

“TPIMs were fixed at two years.”—[Official Report, 9 June 2020; Vol. 677, c. 229.]

As far back as 2011, my right hon. Friend was raising concerns about what that would mean for the small number of people who might be extremely dangerous after two years, and what provisions would be in place to ensure the public were protected.

It would be good to introduce a measure of flexibility to TPIMs, but my concern is that by doing so that way, the Government leave a very open-ended approach, which could see cases effectively kicked into the long grass, often at great expense and with no realistic strategy for resolution of any kind. When imposing a TPIM, we must always have sight of what resolution is—whether prosecution or the removal of the notice—rather than the idea that we can indefinitely extend the TPIM and leave those who are subject to them in a sort of terrorism-suspect limbo.

The amendment seeks to address the open-ended nature of the Government’s changes by requiring the Secretary of State to specify what we have called a provisional exit strategy for a TPIM notice upon any renewal beyond the two-year mark. Under the provision in the amendment, the Secretary of State would be obliged to undertake a review every six months to set out whether it is appropriate to issue a revocation notice and to draw up, with police and security services, a tailored exit strategy. That strategy would involve an assessment of the individual’s current security threat, which should be the most fundamental and overarching aspect to the TPIM; a plan for agencies and public services to engage with the individual to promote rehabilitation for the duration of the TPIM if possible; and a plan for how TPIM measures can be removed if no new evidence of terrorist-related activity is provided.

It is not in anyone’s interest to allow individuals to remain indefinitely on TPIMs, not just for their own sake but for that of wider society because, crucially, they should be brought to justice and put through the judicial process. As Jonathan Hall said:

“There is the risk that, once a TPIM has been made and someone has been identified as a risk, that takes priority—in other words, the TPIM is the best way of protecting the public—over trying to get criminal evidence to prosecute”.––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 17, Q37.]

Having heard the wide-ranging evidence from witnesses, as well as what the security services and others have said, I am in no doubt that that is far from being the motivation of anyone involved in overseeing a TPIM, but those are important points to bear in mind none the less.

The idea of an indefinite TPIM means that someone convicted of a terrorist offence could conceivably be free of constraints before someone who is placed on an enduring TPIM. As we legislate in this place, we need to be cognisant of the potential for that to occur, which would be quite perverse and bizarre, albeit quite unlikely. The idea of leaving someone subject to a TPIM indefinitely is not cost-effective for the taxpayer and, notwithstanding all the amendments that we have tabled, does nothing to tackle the issues that have brought the individual to the point that they are subjected to the TPIM—namely, entering dangerous extremism and being suspected, as the lower standard of proof would say, of becoming engaged in criminal and terrorist activity.

I worry that the indefinite TPIM discourages a move towards seeking a conviction when that is appropriate, and increases the risk of individuals slipping under the radar over time if their cases are not regularly reviewed by those tasked with implementing the TPIM. An exit strategy would keep that small number of cases at the forefront of the Secretary of State’s mind and would ensure that, if there were enduring or extended TPIMs, we would not allow them to become indefinite beyond that which is reasonable.

[Chris Philp]

On the point about potential perpetuity TPIMs, once again I assure the Committee that history from the old control order regime teaches us that the number of TPIMs enduring beyond two or three years is exceptionally small, and the subject always has a right of appeal to the court. On the question about reviews and the exit strategy, which is the topic of the amendment, the Government essentially agree with the comments about their importance but, in fact, that is precisely what happens already. I have referred to the fact that section 11 of the TPIM Act requires the Secretary of State to keep under review whether conditions C and D are being met—that is, whether there is terrorist-related activity or whether the public need to be protected. That is given practical effect by a TPIM review group, a so-called TRG, that meets on a quarterly basis. The topics that it discusses are exactly those that the shadow Minister quite rightly and eloquently laid out a few minutes ago, including the exit strategy.

That was reviewed and commented on in the 2018 report of the then Independent Reviewer of Terrorism Legislation, Max Hill QC, who is now, of course, the Director of Public Prosecutions. In relation to the TPIM review group’s activity, he said that

“the TRG meets at three-monthly intervals”,

which is twice as often as the amendment calls for, and that

“very careful consideration is given to every aspect of the TPIM in force, including…the individual measures, each in turn…the exit strategy, in other words timely preparation for returning the TPIM subject to his”—

or her—

“home life at the end of the TPIM.”

I am delighted to be able to say to the Committee that exactly the review mechanisms, including the exit strategy, that the shadow Minister is calling for are already in place and were validated by the then independent reviewer, Max Hill, in 2018.

[Conor McGinn]

I do not have anything to add except to say that that was a rare example of a probing amendment that probed and received assurances, so I do not seek to press it to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Chris Philp]

I will be brief, because we have discussed at some length the question of extensions and an exit strategy. I echo the comments about section 10 of the 2011 Act. As the shadow Minister said, section 10 places a duty on the Secretary of State to consult the relevant chief officer of police as to whether there is sufficient evidence to prosecute a terrorism-related offence before imposing a TPIM. The chief officer must then consult the relevant prosecuting authority. Once the TPIM has been imposed, section 10 says that the chief officer

“must ensure investigations of the TPIM subject’s conduct is kept under review throughout the duration of the TPIM with a view to prosecution for an offence related to terrorism if the evidential threshold can be met”.

Essentially, I think that what the hon. Gentleman reasonably asks for is enshrined in section 10 of the 2011 Act. I point again to the operation of the TPIM review group, to which I referred to in the previous debate, which meets regularly every three months and has input from police and the security services to do exactly what the shadow Minister asks.

On oversight and reporting, the hon. Gentleman mentioned the ISC. I believe it will be constituted soon, but that is not in my gift or purview. I think the most suitable person to oversee, monitor and scrutinise the activities of the Government in this area is the Independent Reviewer of Terrorism Legislation, whom we have all been quoting very frequently. He clearly does a very energetic and active job in this sphere.

[Conor McGinn]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 ordered to stand part of the Bill.

Clause 39

TPIMs: variation of measures

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

[Chris Philp]

Clause 39 inserts an additional ground for variation into section 12 of the old TPIM Act that I have been quoting from. By virtue of that, it will be possible for the Secretary of State to vary the relocation measure in a TPIM notice, if considered strictly necessary,

“for reasons connected with the…effective use of resources in relation to the individual.”

The new ground for variation will apply only where the individual has already been relocated away from their home address and where the national security reason for requiring relocation still exists.

[Conor McGinn]

I want briefly to draw the Minister and the Committee’s attention to the fact that, when these relocation orders were previously challenged by those subject to them, one sixth of those cases were upheld. In introducing this measure, the Government need to ensure that their legal processes are very robust in that regard.

Question put and agreed to.

Clause 39 ordered to stand part of the Bill.

Clause 40

TPIMs: extension of residence measure

[Conor McGinn]

I beg to move amendment 70, in clause 40, page 36, line 31, at end insert—

“(c) after paragraph (1)(5) insert—

‘(5A) Where the Secretary of State has imposed on an individual a requirement to reside at a specified residence which is shared with another individual or individuals, the Secretary of State shall provide for an assessment to be made of the suitability of these individuals to reside together.’”

Requirement for a report on approved premises putting offenders in shared accommodation together.

This amendment puts forward a requirement for a report on approved premises putting offenders in shared accommodation together. That is an issue of real concern: the most effective sentencing policy or preventive intervention can be meaningless, frankly, when pitted against the pressure, manipulation or radicalisation that a vulnerable person might be exposed to from a friend, associate or, sadly, even a family member.

We heard throughout the witness sessions that custody can only have a protective impact by taking that particular person off the street, so to speak, for that specified period, and that it is on release that they are exposed. As Peter Dawson, from the Prison Reform Trust, said,

“people are going to be released, and that is when the risk arises”.––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 35, Q79.]

The importance of positive relationships cannot be undervalued. As Mr Dawson said,

“particularly after a long sentence, a stable home and relationships with people who have kept faith with you and who have belief in your future are absolutely the things that help someone as a mature person.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 36, Q82.]

All the evidence supports that view, so it is also the case that negative association and exposure to extremist pressure within shared accommodation carries real risks, particularly for young offenders.

We are therefore tabling this amendment to ensure that:

“Where the Secretary of State has imposed on an individual a requirement to reside at a specified residence which is shared with another individual or individuals, the Secretary of State shall provide for an assessment to be made of the suitability of these individuals to reside together.”

It would be pointless and perverse for the state to designate specific accommodation as part of a directive, only for that accommodation and those contained therein to be a major influence on increasing reoffending risks. Due diligence must be done on the appropriateness of the residence and those individuals.

The state cannot be responsible for ordering someone into a dangerous or radicalising environment; that would undermine all the other measures contained in the Bill. Therefore, I hope the Government will reflect on this amendment. I do not intend to push it to a vote, but I felt none the less it was important to move it.

[Chris Philp]

Relocation measures are on occasion a very important way of protecting the public. As Jonathan Hall said in his evidence to us on 25 June:

“Relocation is an important power. It is regrettable, in the sense that it is a very strong measure and causes a lot of disruption, but I am quite satisfied that in a small number of cases it is needed.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 18, Q40.]

The necessity of relocation on occasion is not in dispute.

In relation to the point that the shadow Minister makes about not putting people into multi-occupancy premises, let me say that the Government and the police never put people into multi-occupancy premises—that is to say, we do not impose a requirement on the subject to reside with other individuals. They would never be put into accommodation with other people, for all the reasons that he mentioned.

Of course, we do regular risk assessments of TPIM subjects, including via the auspices of the TPIM review group that I mentioned a little earlier, which meets quarterly. The group looks not only at the issues we have talked about previously to do with exit strategy and so on, but at various other matters, including the relocation measures and how those are working.



As I have said previously, a former Independent Reviewer Of Terrorism Legislation has commented positively, saying that these quarterly TPIM review groups entail robust discussion of every aspect of the TPIM, including residency, and consider every individual part of that TPIM in turn. I hope that gives the shadow Minister the assurance he requires that people are not compelled to live in multi-occupancy premises, with the potentially adverse consequences that may flow from that.

[Conor McGinn]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 ordered to stand part of the Bill.

Clause 41

TPIMs: polygraph measure

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

Counter-Terrorism and Sentencing Bill (Sixth sitting)

Debate between Chris Philp and Conor McGinn

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

[Chris Philp]

Clause 30 and the amendments to it essentially apply to Northern Ireland. Some months ago in Parliament, we debated the provisions to end the automatic early release of terrorist prisoners. Committee members will recall that at the time we did not apply those provisions to Northern Ireland. But having carefully considered, in particular, the European convention on human rights and common law retrospectivity provisions, we are now comfortable that those principles are not infringed by applying the Terrorist Offenders (Restriction of Early Release) Act 2020 provisions to Northern Ireland, and this clause does so.

Amendments 33 and 34 are consequential on those changes. Amendment 33 ensures that terrorist prisoners who will serve longer in custody as a result of the Bill are not released early for the purposes of deportation under the early removal scheme in Northern Ireland. That is a consequential point. Amendment 34 ensures, for offenders who will be newly eligible for parole commissioner-considered release through the provisions of this Bill in Northern Ireland, that that is done in accordance with the parole commissioners’ existing rules. That brings Northern Ireland fully into conformity with the rest of the United Kingdom.

[Conor McGinn (St Helens North) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Robertson. The main focus of my contribution to the Committee as the shadow Security Minister will be on part 3 of the Bill, but for reasons obvious even to the untrained ear, I have been asked to speak on some of the Northern Ireland aspects of the Bill.

May I crave your indulgence for a moment, Mr Robertson? While the Committee has been sitting, it has been announced that the largest ever law enforcement operation in the UK took place today. Operation Venetic has seen 746 arrests, with £54 million of criminal cash seized, along with 77 firearms and 2 tonnes of drugs. The whole Committee will want to pay tribute to Lynne Owens and the National Crime Agency and all the police forces involved in that fantastic operation. [Hon. Members: “Hear, hear.”]

I am always concerned when I hear Ministers talk about Northern Ireland being brought into “conformity” with the rest of the United Kingdom, because although it is an integral part of the Union, and that is indisputable under the terms of the various agreements that have been reached, it is not the same as other parts of the United Kingdom, particularly when it comes to measures relating to tackling terrorism, because there is a long history there that has evolved over how to address that, particularly when it comes to sentencing, rehabilitation and the particular licensing arrangements that there are.

I have had, as I know the Minister has had, extensive discussions with the Justice Minister in the Northern Ireland Executive on this clause in particular. We have tabled a new clause to ask for all the provisions to be reviewed, so I do not intend to speak on all the Northern Ireland measures contained herein until that is debated, but I did think it important to draw attention to this matter, particularly after discussions with Naomi Long on behalf of the Northern Ireland Executive.

There is real concern about the retrospective removal of the automatic right to release. The Justice Minister in the Department is very clear that that will require amendments to sentence-calculation processes and, critically, the power of the Department to refer cases to the parole commissioners and the powers of the commissioner to direct early release for offenders subject to determinate custodial sentences. The concerns can be condensed down to some key points.

The first is about—I was interested to hear what the Minister said about this—attracting legal challenge on ECHR-compatibility grounds. There is a belief in the Department of Justice in Northern Ireland that these measures will attract that. In addition, there is concern that the Department of Justice in Northern Ireland will be a respondent to any challenge that is made in the Northern Ireland High Court or subsequent proceedings in the Northern Ireland Court of Appeal, which could be a significant drain on its resources.

There is concern about the risk of destabilising the separated regime. The Committee might not be aware that paramilitary prisoners or those convicted of terrorist offences in Northern Ireland are separated. They are held in specific circumstances and subjected to specific programmes, on the basis of their perceived paramilitary affiliation.

Another worrying element is the potential increased risk to the safety of prison staff as a result of the reaction to these measures. In recent years we have seen David Black and Adrian Ismay, two prison officers in Northern Ireland, murdered by dissident republicans. That is something that we need to be very cognisant of: in making laws here, we have a direct impact on the people who we are asking to carry them out. They have to live in the community in Northern Ireland and face the threat that they, along with our brave police officers and the Police Service of Northern Ireland, do every day.

There is also a concern—shared by colleagues from the Democratic Unionist party as well as by the Justice Minister—that this has the potential to lead to currently serving terrorist offenders being released without licence supervision. It undermines the public protection arrangements currently in place and goes against the ethos and principles of the Northern Ireland sentencing framework. In taking these measures to avoid a cliff edge in England and Wales, we may inadvertently introduce a cliff edge to Northern Ireland that is mitigated by arrangements that are already in place there.

There was a more general concern about the erosion of the principle of judicial discretion to set appropriate custodial and licence periods. I thought it important that the Committee heard those concerns, because we, as the official Opposition, share some of them and want to work, as we always have done, in a bipartisan manner—not just on issues of national security, but on matters pertaining to Northern Ireland. It was important from that perspective and because we do not have Northern Ireland Members here to make those arguments. We do have, after years of painstaking effort by Governments of all hues, the restoration of the Executive, so it was important that the Minister of Justice for Northern Ireland—in addition to the influence she is bringing to bear in discussions with the Minister—had those concerns publicly recorded with the Committee.

[Chris Philp]

Let me briefly reply. I echo the hon. Member’s comments about the operations today. Our police and security services do fantastic work, and the huge operation today is an example of that work at its very best, so I join him in thanking them and congratulating them on the tremendous work they have done.

On Northern Ireland, the hon. Member is quite right: we are currently having detailed conversations with Naomi Long, the Justice Minister in Northern Ireland. As he says, it is very good news that the functioning Executive has been restored—it is good for Northern Ireland and good for us in Westminster to have a body that we can have dialogue with. Let me assure him that the dialogue is ongoing; it touches on many of the issues that he raised.

On the risk of legal challenge, the hon. Member will know that there has already been a legal challenge to the TORER Act that we passed back in February, and that is subject to a judgment that we await; I will therefore not comment on that any further. What I will say—in fact, I have said this to Naomi Long—is that we will certainly support the Northern Ireland Department of Justice in any litigation that it gets involved in. We have obviously done a great deal of work in preparing for that case; we would be happy to make that available and to support the Department in every way. We would not want it to be, as the hon. Member has suggested, burdened by having to defend cases. We will certainly stand with it and help practically with preparing for those cases, so that they do not unduly drain what I know are quite limited resources. I can give him a direct assurance on that. More generally, we are involved in detailed discussions, which are continuing.

Question put and agreed to.

Clause 30 accordingly ordered to stand part of the Bill.

Clause 31

Removal of early release for dangerous terrorist prisoners: Northern Ireland

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

Counter-Terrorism and Sentencing Bill (Fourth sitting)

Debate between Chris Philp and Conor McGinn

Committee stage & Committee Debate: 4th sitting: House of Commons
Tuesday 30th June 2020 Public Bill Committees

[Chris Philp]

Clause 3 has essentially the same purpose as clause 2. Clause 2 applied to England and Wales; clause 3 does essentially the same thing in relation to Northern Ireland, by amending article 12 of the Criminal Justice (Northern Ireland) Order 2008.

[Conor McGinn (St Helens North) (Lab)]

There is a specific point on this and some other measures in this Bill pertaining to Northern Ireland: they will require a legislative consent motion in the Northern Ireland Assembly. To start as we mean to go on, and so that I do not have to ask the Minister this at every juncture, will he outline what representations he has received from the Northern Ireland Executive, specifically the Justice Minister? For the benefit of the Committee, will he also set out what it means to have to go through the legislative consent motion process?

Counter-Terrorism and Sentencing Bill (Second sitting)

Debate between Chris Philp and Conor McGinn

Committee stage & Committee Debate: 2nd sitting: House of Commons
Thursday 25th June 2020 Public Bill Committees

[Chris Philp]

Q I believe that, in the circumstance where somebody on licence fails the polygraph test, the intention is not that that would lead to revocation of licence, but that it would prompt further investigation—that is what is intended. Does that give a little more assurance that it is being used simply to assist in working out whether further investigation should be done? It would not lead to revocation of a licence on its own.

Les Allamby: I think that is helpful—I would like to see any of those kinds of intentions in the Bill—but I come back to my fundamental point, which is that, as far as I understand it, the polygraph test is still untried in terms of its complete veracity, and we are using technology that has not been piloted in those circumstances. Frankly, if we are going to move to polygraph tests in those circumstances, I would much prefer them to be piloted, so we could then make a genuinely informed decision about their value before we start to take decisions that may have significant consequences.

[Conor McGinn]

Q The fight against terrorism in Northern Ireland relies very heavily on co-operation between the Police Service of Northern Ireland and the Garda Síochána. Those two systems in the north and the south are almost integrated and work very closely together on that. Does the Bill contain anything that you think might place a question mark over that, or might the Irish Government feel that some of the Bill’s contents are incompatible with their approach to working with the UK authorities vis-à-vis countering terrorism in Northern Ireland?

Les Allamby: Conor, I honestly do not know; I have not had discussions with either the PSNI or Garda Síochána on those arrangements. I certainly do not detect from PSNI a great deal of desire to see those kinds of arrangements in place, which I certainly do not think will be enhanced, but I cannot comment meaningfully on that.

One thing that I would say is that the much more significant issue for us in terms of cross-border co-operation—it is outwith your Committee—is reaching effective security and justice arrangements when we leave the European Union at the end of December. Northern Ireland’s land border with another member state creates a full range of issues that I think are slightly different for the rest of the UK. I have not detected in public discourse anything to suggest that, but “I don’t know” is a shorter and more succinct answer.