Counter-Terrorism and Sentencing Bill

Conor McGinn Excerpts

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

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

It is a pleasure to follow the hon. Member for Stoke-on-Trent North (Jonathan Gullis) in particular, and to close this debate on behalf of the Opposition. I think this has been a serious, reflective and responsible debate about the matter of primary importance for us all, which is the security of the public and the country. My overriding message and that of the shadow Home Secretary and colleagues on these Benches is clear: this Labour Opposition believe it is our first responsibility to keep our citizens, their families and our communities safe. We will be forceful and robust in supporting the fight against terrorism, and we will do everything required to keep our country safe from those who seek to attack our way of life and our values, or to do us harm. That is why we do not propose to divide the House on this matter tonight.

The tone of this debate was set by the Lord Chancellor and the shadow Justice Secretary, my right hon. Friend the Member for Tottenham (Mr Lammy). The contributions were characterised by the wisdom and expertise of the Chairs of the Home Affairs Committee, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), and of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), and the intervention of the former Chair of the Defence Committee, the right hon. Member for New Forest East (Dr Lewis), but also by the experience of former Ministers who brought their recent expertise to bear. I also think, and I say this as a relatively newly elected Member, that it is hugely impressive that so many new Members who came into this House after the last election chose today to make what I think were very considered, serious, thoughtful and non-partisan speeches. I congratulate them on that and I very much welcome it.

Events at Fishmongers’ Hall last November and on the streets of Streatham in February showed the very worst of humanity, but in the face of great darkness, we also saw the best of us shine through. I know we all commend the bravery of those who risked their lives to apprehend the attacker that day. Like others, I want to pay particular tribute to Jack Merritt and Saskia Jones, who dedicated themselves to help, support and rehabilitate others, and who are remembered by all of us in this House today for their inspirational work and their selfless service to others.

We think also of the victims of the Streatham attack, and indeed of all victims of terrorism. We thank our remarkable police officers, security services and other emergency services for their swift action at these and so many other incidents of terror, when they put themselves in harm’s way to protect us, and for the incredible and dedicated work they do every day, right now, to foil other nefarious plots that never come to fruition.

These events show the need for legislation. That the perpetrators in each case had been automatically released halfway through their sentences, with no mechanism in place to protect the public, showed that there were major holes in the legislative framework in this area that needed to be filled. Of course, this was to be done by emergency legislation earlier this year to prevent the imminent release of dozens of offenders without appropriate assessment of the risk they posed and now this wider piece of legislation before us today.

There remain a number of issues of concern that we wish to draw out during the passage of this Bill to ensure it does not fall short of what is require, because, as I believe the hon. Member for Reigate (Crispin Blunt) said, this is more complicated than just rhetoric. First, I entirely accept that there is a cohort of offenders who should serve their full custodial sentences. What I do not accept is that at that point of release, even if moving on to an extended licence period, they should not have the fullest possible expert assessment of the risk they pose by the Parole Board or a similar review mechanism. In February, when we, as the Opposition, supported the then Terrorist Offenders (Restriction of Early Release) Bill, the Lord Chancellor said this about the Streatham attacker:

“The automatic nature of his release meant that there was no parole oversight and no decision as to whether he posed a risk to the public. No one could prevent his release. It is purely thanks to the swift intervention of our incredible police officers that he did not go on to commit even more harm before he was stopped with necessary force.”—[Official Report, 12 February 2020; Vol. 671, c. 863.]

My contention is: why can the Parole Board or a similar mechanism not do this, instead of being locked out of decision making for this category of offender? At the very least we will require an explanation of what is, in effect, a proposal from government to void an important part of the current process.

Secondly, on TPIMs, the Government are changing the qualifying threshold by lowering the standard of proof from “on balance of probabilities” back to “reasonable grounds for suspecting”. This is the third change by the Government since 2010. They also propose removing the two-year limit on TPIMs. As has been said, the Independent Reviewer of Terrorism Legislation, Jonathan Hall, has said:

“TPIMs are an exceptional and valuable means of mitigating the terrorist risk posed by a small number of individuals in the United Kingdom. But there is reason to doubt whether there exists an operational case for changing the TPIM regime at this point in time.”

As my right hon. Friend the Member for Normanton, Pontefract and Castleford and the hon. Member for Bromley and Chislehurst said, this seems rather anomalous. We will, of course, listen carefully to the operational case the Government set out in Committee, but we will be pressing them on the appropriate safeguards, limits and oversight. We will also want to see evidence that they have taken into account the points raised by the hon. Members for Belfast East (Gavin Robinson) and for North Down (Stephen Farry) on how this applies in Northern Ireland, and by the hon. and learned Member for Edinburgh South West (Joanna Cherry) in respect of Scotland.

There is woefully little in this Bill on the Prevent strategy or how we counter extremism, radicalisation and hatred more widely, including how we work with and in communities. Those points were eloquently made by my hon. Friends the Members for Bethnal Green and Bow (Rushanara Ali) and for Cardiff South and Penarth (Stephen Doughty), and the right hon. Member for South Holland and The Deepings (Sir John Hayes). There is a lack of direction, purpose and, above all, clarity on the independent review of Prevent, which the Government are legally bound to present to this House in August. It should already have reported to government this month and the Minister should now be composing his response to that to present to the House in August. The review was introduced in the last counter-terror Bill, so we have now arrived at another one that is not only seeking to remove a statutory deadline, but that gives very little indication of when we are now to expect the review’s completion, which leaves the door open to yet more delay. We need some clarity on that, because otherwise the effectiveness of the entire programme, and the community’s confidence in it, is at risk.

Finally, as many hon. Members have alluded to, the Government need to focus on the dire situation in our prisons. Sadly, the perception, and in some cases the reality, is that they are taxpayer funded breeding grounds for terror. That cannot continue. It requires serious, effective investment in de-radicalisation strategies, including more prison and probation staff and wider and more comprehensive reform, a point made by the hon. and learned Member for Edinburgh South West. Again, we will seek clarity about that in Committee.

In conclusion, we do not propose to divide the House. We accept the need for clear and comprehensive legislation, so we will work with the Government to try to improve the Bill as it proceeds. We on this side of the House, as Opposition Members, are firmly committed to our first duty to protect the public and to show those who seek to attack our way of life, threaten our safety, and drive us apart with their intolerance and hatred that they will not succeed.

Counter-Terrorism and Sentencing Bill (First sitting)

Conor McGinn Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Thursday 25th June 2020 Public Bill Committees

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

Q It is a pleasure to serve under your chairmanship, Mr Robertson. Thank you, Mr Hall, for your comprehensive notes and the briefing that you provided to the Opposition in advance of the Bill. I have some specific questions following my colleagues’ earlier comments.

TPIMs are not widely in use. You have said that the system works okay—I think that was the phrase you used in this evidence session. Is there a concern that these proposals not only do not make the operation of TPIMs more effective, but actually make them less effective, not just in an operational sense but, given the speculative commentary about their being used as an alternative to prosecution or to deradicalisation strategies, in terms of public perception, which undermines their wider use?

Jonathan Hall: It is quite difficult. I am always cautious about talking about public perception, because I do not have a crystal ball. What one can say is that the best counter-terrorism response, the one that has the most common legitimacy, is criminal prosecution. One should continue to strain to prosecute terrorists. It is fairer, it means the public can see what is being done to protect them, and it results in stronger, tougher disposals.

To pick up on the point that you made, I think I mentioned in my notes that from my consideration of TPIMs, I was not entirely convinced that there was enough scrutiny by the Secretary of State and by officials of the evidential case against individuals. There certainly is consideration by the police and the Crown Prosecution Service, but 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, which would be preferable from a public perception point of view.

[Conor McGinn]

Q Given that there has been no example of where a TPIM has been unable to proceed on the basis of the current standard of proof, would you, if the Bill passes, look very carefully to ensure that there is not an immediate spike in the use of TPIMs? In November 2019 there were five in use. Is that something that you would see as a measure of whether this is a practical measure introduced to aid law enforcement or counter-terrorism, or whether it is being used as an alternative to prosecution?

Jonathan Hall: I do not have a sense that there is an intention to spike suddenly, which is why I go back to the question: what exactly is the purpose served by changing the standard of proof?

[Conor McGinn]

Q I understand that. I have some sympathy with the Government on statutory renewal being on the basis of new evidence of terrorism, but I have some concerns about what is called, rather bizarrely, “indefinite renewal”—I think your term “enduring TPIMs” is more palatable and makes more sense. Is there a logical compromise on this so that, after a certain period, there must be evidence of continuing involvement in terrorism or a lack of repudiation of terrorism, rather than the onus being on finding new evidence? Might that assuage some of the safeguarding concerns about indefinite sentencing?

Jonathan Hall: If there is evidence of continuing terrorism, that would meet the current law and allow a new TPIM to be imposed. So far as repudiation is concerned, I expect that, if the law is changed in this way, that is how these matters will be framed. It will be said that there was evidence of somebody being involved in terrorist-related activity, that they have not repudiated their views, and that therefore they remain a risk. I would not venture to suggest that one could amend the law as to how risk should be proven. I think one should leave that reasonably open.

[Conor McGinn]

Q One could argue that that is exactly what the whole thrust of the Bill is doing in relation to the standard of proof.

When relocation orders were used before, one in six were overturned in court. Are you concerned that this is rather a dubious way to proceed, if you are going to undermine not just the legislation that you are creating but the wider counter-terrorism strategy? A not insignificant proportion of the people subject to relocation orders as part of control orders in the past were able to overturn them in court.

Jonathan Hall: 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. You are right to pick up on that when one looks at the enduring TPIM. The combination of lowering the standard of proof, plus the ability for TPIMs to endure forever and the power of the measures, including relocation, means that someone could be forced to live away from their family for up to, say, a decade, on the basis that they only “may” be a terrorist. A possible safeguard is to say that if one is going to do that, one at least ought to be satisfied on the balance of probabilities.

[Conor McGinn]

Q Is it your understanding, looking at the package of measures being introduced, that you could conceivably have someone who has been convicted of a terrorism offence being free from constraints before someone who has been placed on an enduring TPIM?

Jonathan Hall: Yes.

[The Chair]

We have three Members still to ask questions, so we need to be very brief.

--- Later in debate ---

[The Chair]

Thank you.

[Conor McGinn]

Q Thank you, Assistant Chief Constable Jacques—and not just for you and your colleagues’ work now. As a north-west MP, I am particularly proud of your distinguished service in Lancashire and our region over many years. I am very pleased to see you in your current position. In terms of policing’s priorities and asks from the Government, was this top of your list?

Tim Jacques: Was what top?

[Conor McGinn]

The measures contained in the Bill: the amendments to the current operation of TPIMs, and provisions on sentencing. Is that what counter-terrorism policing in the UK feels it needs as a priority from Government?

Tim Jacques: The Bill came out of the recent changes in sentencing. One of the potential effects of those—in the previous Bill that went through Parliament—was offenders coming out without licence conditions in place. We refer to that as a cliff edge; I think Jonathan referred to a different cliff edge. For us and our operational partners—the Probation Service, the security services and so on—licence conditions are incredibly important, allowing us to manage individuals. In some of those cases there is potential for TPIMs to be applied in order to manage the risk that people pose, whereas the licence conditions do not offer that. That was the driver behind the TPIM element of the Bill.

Some of the measures and the changes that the Bill includes are the result of the Bill being put forward and talking about TPIMs. They include some of the problems that we have encountered in recent cases and that we think could be improved through legislation. This was not right at the top of our priority list, but if the Government are looking to take the Bill through, we think aspects of it are worthy of consideration by Parliament because we have encountered them operationally as problems.

[Conor McGinn]

Q Do you think you will require additional resources in order to implement the measures that are proposed in the Bill?

Tim Jacques: As you have seen, the number of TPIMs is very low. We do not envisage there being swathes of TPIMs if the Bill is enacted in its current state. There will be changes—the use of polygraph and so forth—that will have an impact. In the grand schemes of things and in the numbers that we are talking about, it will have an impact. Where TPIMs endure longer than two years, they will obviously require monitoring and resources for that. If an individual poses a risk and a threat anyway, they will consume resources regardless of whether they are on a TPIM; there is just less control around them.

[Conor McGinn]

Q May I press you a little? You say that the measures in the Bill will make the police’s job easier and will make people safer. When the police or the security services say that, I absolutely trust them and believe that that is the case. You also said there is no case where the current standard of proof prevented a TPIM, as the hon. and learned Member for Edinburgh South West said. You went on to say that some of the things, such as individuals’ risk profile increasing on returning from abroad, mean that the measures are welcome. However, those risk factors exist today and have existed for a period of time. I am trying to work out the contradiction in saying that there has not been a case where the standard of proof has prevented a TPIM, but that lowering the standard of proof will make it easier.

Tim Jacques: In relation specifically to the standard of proof, I think the security services’ point is that that may have utility in the examples that I gave. My answer to the question was on the wider changes around notification of TPIMs, the sentencing regime and so forth. It may have utility in terms of lowering the burden of proof, and it will make our collective role easier and the public safer.

[Conor McGinn]

Q I understand. Thank you. Finally, the Bill also contains a measure to remove the statutory deadline for the reporting of the Prevent review. The review was announced last January, but it has been delayed and postponed. We are now at the stage where the Government intend to have it report next summer but have removed any deadline. Is it frustrating that you have continuing speculation and debate around Prevent, with an independent review proposed, mooted and having gone through several iterations, yet you are still none the wiser about where the review is at, so you cannot get on and do not have certainty about what it will look like after the review, 16 or 17 months after it was first proposed? Is that a frustration for the police? Does that uncertainty undermine the Government’s wider counter-terrorism strategy?

Tim Jacques: We welcome the Prevent review and are very happy to engage in the Prevent review. 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. The review will be helpful, I am sure, from many perspectives.

[Conor McGinn]

Q But you are keen for it to progress speedily and get it done and out of the way.

Tim Jacques: It would be helpful if the review came to an end. Whether that will finish the debate on Prevent, of course, is another matter. It may do that; it may not. We will continue regardless, but we are happy to engage in the review and see it concluded.

[Miss Dines]

Q Assistant Chief Constable Jacques, may I first thank you on behalf of the Committee for all the work you do to keep us safe? You have made it quite clear that your view is that the provisions in the Bill will make policing easier. Can you give us a working example of that, please?

Tim Jacques: Gosh—there are many examples. If you look at some of the relocation notification measures, because of the new variant, and because some of the terrorism prevention and investigation measures we now use are not relocation, there is potentially a flaw in the legislation as currently made out that subjects do not have to tell us where they are living. That is one small but fairly clear and obvious example. If we are not relocating them, which we are not all the time now, the law does not require them to tell us where they live, which seems an obvious gap. The Bill will enable us to manage the individual to use these measures in a different way, and potentially a less intrusive or restrictive way for the individual, enabling us to manage the risks that they pose to the public.

Counter-Terrorism and Sentencing Bill (Second sitting)

Conor McGinn Excerpts

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

[The Chair]

We had better try to address that. This time we will switch sides and start with Conor Burns.

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

Q It is a pleasure to serve under your chairmanship, Mr McCabe. Thanks to colleagues from Northern Ireland for joining us. Could you outline your key concerns about the provisions in the Bill and how they relate to Northern Ireland?

Dr Russell: If you do not mind me starting and, if we manage to get Les unmuted, I will let him take over. Apologies for the difficulties with the remote working of this. I think Les is now unmuted.

Les Allamby: I think I may be. Can you hear me?

[Hon. Members]

Yes.

Les Allamby: Apologies for my technological illiteracy. Yes, Conor, we have real concerns in relation to human rights in three areas among others. The first is the retrospective nature of many of the provisions in terms of both sentencing and release. As the Committee will know, some apply to individuals who have committed offences and not yet been sentenced, but some in particular apply to those who are already sentenced and are serving a term of imprisonment. Particularly for Northern Ireland, the change of the automatic release point of relevant terrorism sentences to two thirds and then referral to the Parole Board is being extended to Northern Ireland—it has already happened elsewhere—and the addition of polygraph testing conditions to the licence of a person who has committed a relevant terrorist offence are two of the retrospective measures for those who have been sentenced.

The second area is the extension of a number of provisions to those who are under 18, in terms of both sentencing and licensing arrangements. We have some experience, both historical and contemporary, in Northern Ireland of the impact that adults have on children and young people. It has been mentioned by the UN Committee against Torture and our own paramilitarism commission has looked at this. It is very clear that the evidence is, frankly, that 15, 16 and 17-year-olds are not leading grown men in paramilitary activity or the control of communities in Northern Ireland; it is the reverse that is true. Therefore—I will return to the rehabilitation aspects that Peter Dawson touched on—while these are serious offences that apply to under-18s and there is a very limited discretion in terms of mandatory approaches, we think that applying these provisions to children and young people raises human rights issues, particularly in terms of the UN convention on the rights of the child and a number of provisions in general comments made by the convention committee.

Our third concern is about polygraph testing. I am a great believer in evidence-based policy making. As far as I can see, there is a paucity of evidence about just how accurate polygraph testing is. Although I recognise that polygraph testing will be used only in very specific circumstances, and not for new offences and coming before the courts, and although it has been used in the case of sex offenders before, it still seems to me that, as the Independent Reviewer of Terror Legislation has suggested, there needs to be at least piloting and some evidence of its veracity.

Otherwise, it seems to me that there are two implications. Either someone who is innocent is presumed to be guilty of something without requiring any other salient evidence, which risks a miscarriage of justice and a sense of grievance, or the reverse: someone who is a danger passes the test and we fall into the risk of complacency setting in. Somebody’s licence can be revoked as a result of a polygraph test, and they could therefore be returned to prison. Also, as far as I can see—again, this was noted by Jonathan Hall—there is the possibility in the Bill of a terrorism prevention and investigation measure being applied as a result of a polygraph test. There are some significant outcomes to that. Again, applying that retrospectively also comes into play.

Finally, the purpose of the Bill is clearly laudable: to protect the public and to curtail terror. However, the Prison Reform Trust’s recent research noted the significant increase in the number of people serving very long sentences in prison, not just for offences related to terror. When you take into account the reduction in the opportunities for rehabilitation as a result of the provisions in the Bill—particularly the incentives for rehabilitation—it seems to me that that could lead to a greater risk both inside prison, in terms of overcrowding, mental health issues, suicide risks and radicalisation opportunities, as well as outside prison.

Keeping people in for longer with less prospect of rehabilitation really seems to me to be a blunt instrument to protect the public. We would do better to try offer and recognise rehabilitation pathways, alongside discerning those who are determined not to change their outlook on life and dealing with those individuals accordingly. Those are our concerns. We would be happy to put in a written submission on some of the wider issues around TPIMs, and so on.

[Conor McGinn]

Q That is very useful. Your point about the entitlement of every citizen of the UK, regardless of what part of the UK they are in, to have protection from terrorism is important. Do you think, though—it might be useful to add a bit of historical context to this—that there are specificities around the threat from terrorism in Northern Ireland and the approach to dealing with it, both in terms of how post-sentencing regimes work in prisons for paramilitary prisoners or those imprisoned for reasons related to terrorist offending, and in terms of an approach to deradicalisation?

Already in Northern Ireland there is common parlance in use around internment for what might be seen as measures in place for existing terrorist and paramilitary prisoners. Is there a concern on your part, first, that what is proposed might interfere with the settlement in the Good Friday agreement, particularly around licensing, and, secondly, that rather perversely it may be used by those engaged in terrorism as a further opportunity, as you say, to groom young people and present themselves as the wronged party?

Les Allamby: Yes, Conor, I do think that there is a risk here. The number of offenders in Northern Ireland who are likely to be affected by moving to a two-thirds sentence is relatively small, but almost all of them, if not all of them—I do not have the figures in front of me, but it is certainly the vast majority—are people who will have been involved in what I might call Northern Irish-based terror activity.

Therefore, we have a small number of loyalists and dissident republicans in prison, some of whom have breached their licence conditions under the Good Friday agreement and have gone back into prison to serve the rest of their sentence, and others who have committed more contemporary crimes, often more around dissident republicanism or euphemistically “ordinary decent crime”, as it used to be called during the troubles, and people might be surprised to learn that we used to have ordinary decent criminals, and others.

In my view, what that means is that if you say to dissident republicans, possibly, and loyalists that they were going to spend x time in prison and it is now going to be y time, you will create the conditions for a sense of grievance and cause célèbres, of which we have seen plenty of examples. So, that is the downside of doing this, against—

[The Chair]

Order. I am sorry to interrupt you, but we really have to press on at this stage. Minister.

--- Later in debate ---

[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.

[The Chair]

Q Dr Russell, is there anything that you would like to add to what you have heard so far?

Dr Russell: Nothing in particular. To drive home the point about under-18s, I draw your attention to the UN convention on the rights of the child, in which a number of provisions, particularly in article 40, set out the need to treat children differently and to see the impacts that the criminal justice system can have on children who enter it as different to the impacts on adults. In the context of Northern Ireland, as it has already been raised, there are specific concerns around the recruitment of children by paramilitaries here. There are particular sensitivities around that, which need to be taken into account in the Bill.

Counter-Terrorism and Sentencing Bill (Third sitting)

Conor McGinn Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Tuesday 30th June 2020 Public Bill Committees

[Rob Butler]

Q We have heard a lot about what needs to happen in prison, but this is fundamentally a sentencing Bill. Can you expand on what additional information you think needs to be presented to the sentencing judge in cases such as these, to ensure that the right period in custody is established from the outset?

Professor Acheson: This speaks to my earlier point about making sure that experts—forensic psychologists and psychiatrists—are specially chosen and trained to produce a baseline threat assessment, after conviction but before sentencing, to allow a judge to make a more informed decision on sentencing length, duration and so on, and to establish the basis against which that person’s progress can be managed and measured through custody.

Again, I think it is exceptionally important—the Government did not accept this, but I will reiterate it, and recent events have thrown it into the light—that we should have one dedicated multi-agency specialist unit that manages terrorist offenders from their conviction until they are deemed no to longer be suitable for supervision in the community. It is the most sensible way to manage this. We have far too many hand-offs in the system at the moment.

We have this morning’s report into Joseph McCann, a manipulative psychopath who managed to disguise his dangerousness because of failures in the probation system— because of under-trained staff who were over-stressed and insufficiently curious. All those things will apply to terrorist offenders as well. Having a dedicated unit that understands in great detail the individual’s biography, their background and the antecedents, and that could help to establish a programme of treatment or intervention that is individualised to that person, seems to me to make sense in managing the risk.

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

Q Professor Acheson, I really enjoyed your Spectator article, and I agreed with a lot of it. I think it is worth the Committee hearing that its opening gambit was that opponents of the Bill were

“the usual well-heeled, left-wheeled liberal rights activists”.

Neither the Chairman nor I could ever be accused of being one of those, and I do not oppose the Bill and the measures in it per se. However, as you have identified, it is important that the Bill receives scrutiny.

I was struck by something that you said about the Government’s approach to the Bill, which was that it was “populist”. Do you think that is at the expense of longer-term strategic thinking that could be contained in the Bill, particularly around things such as the Prevent strategy? The Bill removes the statutory deadline for reviewing that strategy. I suppose what am I asking is this: are the measures in the Bill serious and strategic and will they make a difference, or are they in keeping with a populist approach to these issues, as you have alluded to?

Professor Acheson: I was being quite flippant in that article, as you have to be if you write for The Spectator. The serious point is that there is no risk-free way to deal with this very dangerous, challenging topic; every way has risk. My small expert team and I sat and looked at separation units, and we argued for weeks about which was better: separation or dispersal of highly subversive, proselytising Islamist extremists. The focus was Islamism. In the end, we came to the view that separation centres would work as the least worst way of managing this phenomenon. The reason I mention this is that we are in a period of continuous evolution, and the law will need to be able to react to that.

They are not distinct, but we have an al-Qaeda generation of terrorists, from 2005 onwards, who are serving time—sometimes extremely long sentences—for organised plots, and we have an IS generation of much more oppositional terrorists, including lots of lone actors who have come along behind. Even looking at Islamist extremism as a group is very difficult. The answer to your question is that we have a good baseline for extending the amount of time that terrorists will serve in prison. We had an intolerable situation before, when it was quite clear that the system of supervision and the sentencing framework were broken; they let people such as Sudesh Amman out of custody. But we have to look at the quality as well as the quantity of what happens. The only way to do that is relentlessly to research what works.

Sometimes I am told by people, “There’s no evidence for what you’re saying.” I sometimes react to that by thinking, “That’s a kind of code for inertia, organisationally, or for timidity.” Sometimes we have to make the evidence. The point is that we have to take some risks. I am not sure whether separation centres will work or will continue to work. Mark Fairhurst eloquently made the point that there is a great deal of reluctance in the Prison Service to use them. There is some organisational resistance to the concept, and it is not simply about not being able to find the right people. A bureaucratic structure was built around selection for separation centres, which has made it all but impossible, frankly, for anybody to get in them.

Regarding separation centres and how the legislation needs to evolve, we need to make sure, as Mark has said, that there is sufficient capability for the extreme right-wing offenders who represent the biggest threat to be removed and completely incapacitated, breaking the psychological link between the “preacher” and his adherent. We will need to be continually alert and continually changing and challenging legislation in order to arrive at the best way of managing the evolving risk.

[Conor McGinn]

Q I think you have said that although you support stronger sentences, their imposition alone will not resolve this issue. It is about—you have used this phrase—breaking the whole. I have some sympathy with what you said about the appropriateness of the Parole Board dealing with these types of offenders. Do you think that removing any assessment and taking the Parole Board out of the equation leaves a vacuum? You talked about the dedicated unit. It undoubtedly costs a lot of money, but is there a worry that removing a mechanism that is already there, regardless of how appropriate it is, and not replacing it with anything just leaves a gap?

Professor Acheson: I think there is a danger that we keep doing a Heath Robinson-type response. My critics will say, “Hold on, Ian, the Parole Board has specialist judges who sit on panels that consider terrorist offenders.” My response is: so what? Are they any better than the frontline prison officer who has been with an individual for four years, the psychiatrist who has been attached to that person’s journey, a forensic psychologist, the Security Service or the police? That is why I keep arguing that we need a completely separate way, philosophically and organisationally, of managing the risk. I am disappointed that that is not in the Bill, and that we are talking instead about skilling people up and giving them more training. I worry a little that that will continue to be exploited, given the number of hand-offs in the system.

[The Chair]

Very briefly, Sarah Dines.

Counter-Terrorism and Sentencing Bill (Fourth sitting)

Conor McGinn Excerpts

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 (Sixth sitting)

Conor McGinn Excerpts

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 (Seventh sitting)

Conor McGinn Excerpts

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

[The Chair]

Before we begin, I repeat the usual reminders about switching electronic devices to silent mode, tea and coffee not being allowed, and the importance of social distancing. Also, Hansard Reporters would be grateful if hon. Members sent any electronic copies of their speaking notes to [e-mail].

Clause 37

TPIMs: condition as to involvement in terrorism-related activity

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

I beg to move amendment 69, in clause 37, page 34, line 25, leave out

“has reasonable grounds for suspecting”.

and insert

“, on the basis of reasonable and probable grounds, believes”.

This amendment would raise the standard of proof for imposing a TPIM under the proposals in the Bill.

[The Chair]

With this it will be convenient to discuss amendment 58, in clause 37, page 34, line 26, leave out “suspecting” and insert “believing”.

This amendment would create a higher bar for the standard of proof under these proposals.

[Conor McGinn]

It is a pleasure to serve under your chairmanship, Mr Robertson. I am more used to serving alongside you in the all-party parliamentary group on racing and bloodstock, which you chair. I am speaking for the first time as a shadow Minister in Committee, and it gives me great pleasure that you are in the Chair.

We have said throughout proceedings on the Bill that, for all of us, our first and most important responsibility is to keep the British public safe. The Opposition believe that very firmly and we have approached the Bill in that spirit. We have to be forceful and robust in the fight against terrorism and do everything possible to keep our country safe from those who seek to attack our way of life and values or to do us harm. We have said that we will be a constructive Opposition on these matters, not seeking to divide or oppose for the sake of it, but using parliamentary scrutiny to do what this place does best and performing our important duty to seek to strengthen and improve legislation where it is right to do so. That is the spirit in which the amendments in my name to this clause and others are tabled.

The events at Fishmongers’ Hall and Streatham showed that there is a need for this legislation and for examination of measures such as terrorism prevention and investigation measures, which we will discuss this morning. That the perpetrators in each case had been automatically released halfway through their sentences, with no mechanism in place to protect the public, showed that there were major holes in the legislative framework that needed to be filled, first by emergency legislation earlier this year to prevent the imminent release of offenders without appropriate assessments—legislation that we supported—and now, rightly, by this wider Bill before us.

As we discuss the aspects of the Bill that fall under the remit of the Home Office, I want to say that we support the broad principles therein, but as we highlighted on Second Reading and as has been clear in some of the expert advice and evidence received by the Committee, there remain a number of issues of concern that we wish to probe and amend during the passage of the Bill, first to ensure that it does not fall short and secondly, in the spirit of co-operation, to work with the Government to improve it. It is in that spirit that I will discuss the amendments.

The Government are seeking to alter the standard of proof required to impose a TPIM such that the Secretary of State would need to believe it necessary based only on reasonable suspicion rather than the balance of probabilities. In probing further, we have tried to find a middle way, which is “reasonable and probable grounds”. We do not wish to harm the robust nature or operational utility of TPIMs. The Opposition support TPIMS and want them to be as effective as possible to keep people safe, so we welcome in principle any measures that demonstrably would help our police and security services to achieve that.

We acknowledge that the Bill puts Labour Members in a rather strange position when it comes to TPIMs, because of course it was a Labour Government who, on introducing control orders in 2005, imposed a standard of proof as proposed in this Bill, requiring only reasonable grounds for suspecting that an individual was involved in terrorism-related activity. The standard of proof was raised by the coalition Government in 2011 with the creation of the new regime, and then again by the Conservative Government in 2015. I accept and acknowledge that, and I wanted to say it in Committee. However, having heard the evidence and the Minister’s explanations, we struggle to see the logic in lowering the standard of proof now, whether it is looked at from an operational, administrative or procedural perspective. We need to be clear that policy is made based on evidence and not on amending legislation for its own sake, particularly on such an important matter. We need to see the justification, which has been lacking to date.

In November 2019, just five TPIMs were in force. The police and Security Service have been clear that to date no TPIM request has been rejected on the grounds of insufficient evidence, so one could argue that the current threshold has not proved to be an impediment, even though the security landscape has evolved in recent years, with new risk profiles and challenges coming to the fore. At the same time the Government and law enforcement agencies say that they do not wish to see, nor do they foresee, a sudden spike in the number of TPIMs in operation. They are of course valuable mechanisms, but they are also very costly.

Jonathan Hall, the Independent Reviewer of Terrorism Legislation, told the Committee:

“My concern is that you are opening up a greater margin of error if the standard of proof is lowered.”

That risk ought to be addressed by the Government. We have not yet heard a compelling operational or administrative case made for lowering the standard of proof. I have not heard one from the Minister or his colleagues, or from any of the Committee’s witnesses, so why are the Government so intent on pressing ahead with this change? Again, in the words of Jonathan Hall,

“If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?” .”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 6, Q6.]

Taken in isolation, that is a serious enough question, but when paired with the proposed changes in clause 38 on the prospective length of TPIMs, it becomes significantly more urgent.

There are concerns about the fundamental contradiction at the heart of part 2. Liberty wrote that jettisoning the limited safeguards that currently exist while ramping up the severity of the measures that can be imposed would be “a retrograde step.” The Minister needs to respond to those concerns. The Opposition are not alone in being slightly confused by the Government’s approach, particularly to lowering the standard of proof. Amnesty International stated:

“That lack of reasoned argument as to the need for this change mirrors the lack of appropriate evidence or justification presented…at second reading.”

The Bar Council said it was not clear why the reduction in the standard of proof was said to be necessary, and the Law Society of Scotland said:

“Little evidence or justification has been provided for making the change.”

Perhaps the Minister will provide clarification for the Committee, as so far the arguments put forth by the Government have not quite assuaged those reasonable concerns, which are grounded in evidence.

[Rob Butler (Aylesbury) (Con)]

Does the hon. Gentleman accept that, in the evidence session, the assistant chief constable highlighted three scenarios where the Security Service believed that lowering the standard of proof would be of use? One scenario was where an individual’s risk profile was rapidly increasing and they were moving towards posing an actual threat, with an attack plan in place, but there was not enough time to get to the stage of proof; the second was where somebody was returning from abroad, and the third related to sensitive material. The assistant chief constable said that all those scenarios created a need, as MI5 would see it, to lower the standard of proof. Does the hon. Gentleman accept that?

[Conor McGinn]

I accept what the hon. Gentleman says and the evidence given by the assistant chief constable. However, the assistant chief constable acknowledged that all of those circumstances currently exist, and that there has been no case where an application for a TPIM has not been granted. I think he was saying that shifting from the balance of probabilities to reasonable suspicion would inevitably make it easier, but he had not experienced, nor did he envisage, any circumstances where that practically had happened or would happen.

As I said at the outset, we come to this wanting to assist and support the Government, but we need to hear a little more justification for this measure in terms of its effectiveness and the reason for it. We will not seek to divide the Committee on the amendment. I tabled it to raise our concerns and those of groups in society, to give the Minister the opportunity to address some of those concerns, and to explain why we not only in principle but now clearly in practice support much of what the Government are trying to do.

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

It is a pleasure to serve under your chairmanship, Mr Robertson, and to follow the hon. Member for St Helens North. Before I speak to the specifics of amendment 58, which I do not intend to press to a vote—it is very much a probing amendment—I will reiterate the position of the Scottish National party on the Bill.

We recognise that it is the duty of any Government to keep their citizens safe and secure, and all who serve in Parliament have an obligation to assist in that endeavour. We have already given the Government our assurance that we will attempt to be as constructive as possible, to ensure that the challenge of terrorism is met and that we keep people in all communities across these islands as safe as is reasonably possible. However, we are also mindful of our duties as parliamentarians to uphold the highest standards of human rights protections.

--- Later in debate ---

[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

[Conor McGinn]

I beg to move amendment 60, in clause 38, page 34, line 31, at end insert—

“(za) in subsection (3)(a), for “and D” substitute “, D and E”;”

The amendment would require the Secretary of State to seek permission from the High Court for any TPIM extension beyond the two-year mark, as when a TPIM notice is first issued.

[The Chair]

With this, it will be convenient to discuss amendment 64, in clause 38, page 34, line 31, at end insert—

“(za) in subsection (3)(a), after ‘met’ insert ‘and the court gives the Secretary of State permission’;

(zb) after subsection (3)(a), insert ‘(ab) In determining the extension, the court must apply the principles applicable on an application for judicial review.’”

[Conor McGinn]

Let me say at the outset that this amendment is intended to probe and provoke some of the debate that we had on the previous clause, although perhaps not in quite as lengthy a way. I will not be pushing any of the amendments in my name to a vote.

The amendments cover another critical aspect to the changes proposed by the Government, which we approach in a constructive manner in the hope of aiding the Government to make a case for them by understanding them and providing proper and effective scrutiny. I know the Minister accepts and welcomes that as the role of the official Opposition.

The proposed changes to TPIMs in clause 38, when taken together, have quite a profound impact on the regime as we currently understand it. If the standard of proof is to be lowered, while simultaneously making it possible to potentially indefinitely detain someone under a TPIM by removing the current two-year limit, scrutiny, oversight and safeguards take on a new-found and even more significant role.

We have therefore tabled a number of amendments to tighten the scrutiny, oversight and effectiveness of TPIMs where they are to be extended beyond the two-year period. We believe amendment 60 would help to ensure adequate scrutiny and oversight of notices that are in place for prolonged periods of time. As the independent reviewer made abundantly clear in his note of 5 June 2020, the current system and the proposed changes lack a sense of continuing judicial oversight, which is only exacerbated by the fact that many individuals subject to a TPIM opt out of the High Court review. The independent reviewer goes on to say:

“The prospect of individuals being subject to administrative measures for many years without robust scrutiny is unappealing”.

With this amendment, we seek to address that problem. As is the case where a TPIM notice is first issued, it would compel the Secretary of State, whether now or under a future Government, to seek permission from a High Court judge where a TPIM notice is to be extended beyond the critical two-year mark.

--- Later in debate ---

[The Chair]

Order. I am terribly sorry to interrupt you. We are only discussing amendment 60 to clause 38 and amendment 64, not amendment 61 at this stage.

[Conor McGinn]

Thank you, Mr Robertson, for your guidance. I look forward to discussing amendment 61 later.

The Minister will not be unaware of the concerns raised around the extent of the two-year period, given what a TPIM entails. We hope to provide some scrutiny around that, to underscore the effectiveness and credibility of the entire process by judicial oversight review, and maintain those safeguards, to reassure the public that they are protected by TPIMs—we believe they are a hugely important part of this legislation and keeping the public safe—and that this is being done properly, with due diligence and oversight.

--- Later in debate ---

[The Chair]

We are on amendment 60 at the moment, so I call Conor McGinn.

[Conor McGinn]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Conor McGinn]

I beg to move amendment 61, in clause 38, page 34, line 31, at end insert—

“(za) for subsection (3)(a), substitute—

‘(a) may be extended under subsection (2) only if—

(i) the Secretary of State believes on the balance of probabilities that the individual is, or has been, involved in terrorism-related activity;

(ii) conditions C and D are met.’”

This amendment requires the standard of proof for renewing a TPIM notice beyond two years to be “on the balance of probabilities”, where no new terrorism-related activity can be demonstrated.

Thank you, Mr Robertson, for your gentle guidance in navigating our way through the numerous amendments. Although they are linked, it is important that we examine them on their own merits. At its core, amendment 61, like the amendment we have just discussed, is about securing strong and robust safeguards, which, as I said, we should use the Bill as an opportunity to promote rather than jettison. We should show confidence in the process and procedures that we are introducing to keep the public safe.

The prospect of a TPIM notice enduring for a prolonged or even indefinite period deserves scrutiny. It is important to remember what a TPIM can involve: overnight residence requirements, relocation to another part of the country, police reporting, an electronic monitoring tag, exclusion from specific places, limits on association, limits on the use of financial services, limits on the use of telephones and computers, and a ban on holding travel documents. Even in the dying part of the Labour party that is the traditional old right, I balk a little at some of that. I accept that it is necessary to monitor very dangerous individuals and keep the public safe, but these are some pretty fundamental liberties that we are talking about denying people. There is a responsibility on all of us to acknowledge that, and to make sure that we give it proper scrutiny. These are, rightly, robust measures, and to reiterate: we do not believe there should be impediments in cases where a longer TPIM notice that would genuinely be in the interests of keeping the public safe and secure, which is of course our first priority, should be extended. It is also important to say that these sanctions, effectively, are imposed on people who have not been convicted of any crime, and that they are being taken in addition to the lowering of the standard of proof and the extension of the period without, it appears, due oversight needs to be properly looked at.

The other point is that TPIMs are resource-intensive instruments. Assistant Chief Constable Jacques clearly said that additional resources would need to be provided. It would be good to hear a commitment from the Minister that that would the case and that, whatever law enforcement would need, and notwithstanding that a spike in TPIMs is not envisaged, the extension thereof and any addition to the current number will be properly and fully resourced.

As the hon. and learned Member for Edinburgh South West said earlier, there is testimony not just from the current reviewer of terrorism legislation, but also from previous ones. Someone as respected as Lord Carlile, for example, said that a differentiated standard of proof, effectively, would be created for extending a TPIM beyond the two-year point. That would add another layer to the complexity of what proof is required at what point, and to what extent. Jonathan Hall also noted on 5 June that that would be the case.

As I said previously, not a single TPIM measure has been rejected to date based on insufficient evidence of the higher standard of proof, so the safeguard would not operationally hinder the TPIM regime, which we agree needs to be strong and flexible. We need to ensure that those TPIMs extended for prolonged periods are subject to an extra level of scrutiny and oversight and that they are applied in reasonable and proportionate terms, fundamentally in keeping with the thrust of what they are designed to do, which is to keep the public safe.

[Joanna Cherry]

I am grateful for the opportunity to speak in support of amendment 61, and to remind hon. Members of what the current Independent Reviewer of Terrorism Legislation said in his evidence to us. I will look in particular at his response to my question 33, when he said that the combination of clause 37 and clause 38 is a “double whammy”,

“not just lowering the standard of proof but also allowing TPIMs to endure forever.”—[Official Report, Counter-terrorism and Sentencing Bill Committee, 25 June 2020; Q33, c.15.]

Indeed, he suggested the very safeguards set out in amendment 60 and 61. I support to amendment 61 for that reason. I take hon. Members back to what he said in response to my question 33. I said:

“What about looking at balancing out the changes made in this Bill to TPIMs by introducing some safeguards to ensure that TPIMs do not breach the human rights of a subject of a TPIM? Have you thought about that? We should always remember that the subject of a TPIM has not been convicted of any crime.”

He answered:

“As far as safeguards are concerned, you will probably have seen from my notes that here you have a double whammy. It is not just reducing the standard of proof but allowing TPIMs to endure forever. Something that was proposed by my predecessor”—

he meant Lord Anderson, as the hon. Member for St Helens North said—is that

“if it were right that a TPIM should continue beyond two years, at least at that stage the authorities should be able to say, on the balance of probabilities, that the person really is a terrorist. That is an example of a safeguard.”

He went on:

“Turning to the question of enduring TPIMs, another safeguard could be to ensure that a judge would have to give permission—in other words, to treat going beyond the two years without any additional proof of new terrorism-related activity as requiring a higher threshold, or some sort of exceptionality or necessity test, as a further safeguard for the subject.”

Again, in fairness, he also said:

“I do not think the authorities will be unwise in the way that they use that, but there is a risk that people will be on TPIMs for a very long time indeed. As you say, they have not been prosecuted, and it seems to be right in principle and fair that there should be some additional safeguards for those individuals.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; Q33, cc. 15-16.]

--- 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.

[Conor McGinn]

I beg to move amendment 68, in clause 38, page 34, line 35, at end insert—

‘(3A) After section 10 (Criminal investigations into terrorism-related activity) insert—

“Report on terrorism-related activity

10A (1) The chief officer of the appropriate police force must produce a report to—

(a) the Secretary of State; and

(b) the Intelligence and Security Committee of Parliament, as set out in section (1) of the Justice and Security Act 2013.

(2) A report under subsection (1) must address the—

(a) current evidence, and

(b) investigative steps that—

(i) have been, and

(ii) may still be taken

in relation to the TPIM.

(3) A report under subsection (1) must be produced two years after the imposition or extension of a TPIM.

(4) Section (3) (Reports of the ISC) of the Justice and Security Act 2013 is amended as follows.

(5) After subsection (3)(1) insert—

‘(1A) An annual report to Parliament must contain a statement as to whether it is satisfied with the content of a report produced under section (10A) of the Terrorism Prevention and Investigation Measures Act 2011.’

(6) In this section—

(a) ‘appropriate police force’;

(b) ‘chief officer’; and

(c) ‘police force’

have the meaning as set out in section 10.”’

An amendment requiring the chief officer of the relevant police force to produce a report, at a TPIM’s two-year mark, to the Secretary of State and the Intelligence and Security Committee of Parliament on the current evidence and investigative steps that had been and may still be taken in relation to the TPIM.

This amendment, which I tabled on behalf of the official Opposition builds on previous amendments to ensure not only that there is judicial oversight of the extension, as well as an exit strategy, but that the latest evidence and investigative steps, as provided by the local police, can and are thoroughly explored by the Secretary of State.

We reference the Secretary of State directly because the Bill vests a lot of power in the individual who holds that office with regard to the decision about whether to impose a TPIM. I know that the Secretary of State is busy, certainly if she is doing even half the work of the shadow Secretary of State, but it applies only to a small number of individuals. It is right, given the authority that the Secretary of State has to impose TPIMs, that he or she is therefore responsible for their continuing oversight as well.

The Minister and Committee members will know that section 10 of the 2011 Act provides for a process of evidential review whereby the Secretary of State consults the relevant chief officer of the respective police force to determine whether a criminal prosecution at any given moment is viable, credible and practical, yet the independent reviewer writes in his note of 5 June that

“for the review process I found that neither the Home Secretary nor her officials saw anything other than a tick in the box to show that the relevant chief officer had performed this role.”

If the relevant chief officer says that they have fulfilled that duty, I have full and total confidence in that. It may have become an unfashionable view in some quarters, but I trust the police, their judgment and their assessment on such matters, because they are the experts. They are the people who are tasked with overseeing, implementing and doing that work on the ground. Procedurally and practically, however, it would be of real benefit, not just for Ministers and officials in the Home Office, but for the police and the security and intelligence services more widely, if they had access to comprehensive and detailed information from the local police at that critical stage.

The amendment would, in effect, remedy an existing gap. It would strengthen the rigour of the existing process by compelling the chief officer of the appropriate force to produce a detailed report, once again at that crucial two-year mark, to the Secretary of State, outlining the latest evidence and the investigative steps that have been or might still be taken in relation to the TPIM notice. It would allow for a better informed view on the current circumstances of an individual TPIM, but also give greater encouragement and clarity to law enforcement more widely on what the next steps, including the chance of criminal prosecution, might be, which brings us back to the exit strategy that we talked about.

--- 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.

[The Chair]

With this, it will be convenient to discuss new clause 12—Additional provision in relation to polygraphs when applicable to individuals under 25—

(1) Where, in accordance with section 28 of the Offender Management Act 2007, as it applies to terrorist offenders, or Schedule 1 to the Terrorism Prevention and Investigation Measures Act 2011, a polygraph session is required of an individual aged between 18 and 25, that polygraph session must be attended by a counsellor.

(2) For the purposes of this section, a counsellor is a person who can assess the appropriateness of the application of the polygraph session and support the person to which the polygraph condition has been applied.

(3) Where the counsellor has concerns about the appropriateness of a polygraph session, these shall be reported to the Secretary of State.

(4) The Secretary of State shall lay in Parliament a report that includes—

(a) a summary of the concerns raised by counsellors on an annual basis; and

(b) a description of the actions proposed or taken to address the concerns raised.”

Counter-Terrorism and Sentencing Bill (Eighth sitting)

Conor McGinn Excerpts

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

[The Chair]

Good afternoon. I remind Members to switch electronic devices to silent, that we are not allowed tea or coffee in the Committee room, and that we are asked to respect the social distancing guidelines. Hansard would really appreciate it if Members could send electronic copies of their speaking notes to [e-mail]. I think that is all the preliminaries.

I have been advised that the intention is to sit into the evening, possibly until around 7 pm. If we do that, I propose suspending the Committee at around 4.30 pm for about half an hour. Obviously, the progress we make and the speed at which we move is in the hands of Committee members.

Clause 47

Persons vulnerable to being drawn into terrorism: timing of independent review

[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 ---

[Joanna Cherry]

I thank the Minister for taking on board some of the points that I have made. In response to his points, first, I accept that this is only for the most serious terrorist offences. I completely accept that, and I accept that the numbers of children and young people who are so sentenced may be very small, but the important thing is that, if we have a young person or child convicted of a serious terrorist offence, and given the evidence we have heard about the opportunity to deradicalise and rehabilitate, there is all the more reason to try to make sure that that opportunity is taken.

All we are asking for is a review. If it turns out that the numbers are small, as is expected, it will not be a complex or time-consuming review. Although I am not going to push my new clause to a vote, I anticipate bringing it back to the Floor of the House. I would appreciate it if the Minister, in the spirit in which he responded, could take the evidential concerns away and consider what could be done specifically to measure the impact of this legislation on children and young offenders across these isles. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 7

Review of legislation: Northern Ireland

“(1) On an annual basis from the day of this Act being passed, a report that reviews the application of the provisions of this Act in Northern Ireland must be published and laid before both Houses of Parliament by the Secretary of State.

(2) Annual reports under subsection (1) must be produced in consultation with the Northern Ireland Minister for Justice and the Northern Ireland Executive —(Conor McGinn.)

This new clause ensures that all measures in the Bill as they pertain to Northern Ireland shall be reviewed annually with the Northern Ireland Minister for Justice and the Northern Ireland Executive, and a report shall be published and laid before both Houses of Parliament.

Brought up, and read the First time.

[Conor McGinn]

I beg to move, that the clause be read a Second time.

I will not detain the Committee too long. I have much sympathy with what the Minister says about the number of reviews that have been called for, but I hope, similarly, that he might have some sympathy with those of us on the Opposition Benches. While he, in government, gets to do, all we can do at the minute is ask to review. I hope that position might change after the next election.

On Second Reading, a number of hon. Members from Northern Ireland raised the critically important point that this legislation is clearly of great significance to that region. I think we would all wish to acknowledge that so many people there have lived and continue to live with the devastating consequences of violence in their communities. It is only following concerted efforts for peace and reconciliation, which remain so vital that, we see some of those scars starting to heal.

The Minister rightly said that the Bill was designed to deal with terrorism in all its forms and was a UK-wide Bill. However, given the unique and long-standing circumstances in Northern Ireland and the hard work done to build the Good Friday and subsequent agreements and the Northern Ireland Executive, it is important that we do not risk any unintended consequences from measures in the Bill, which could have an effect in Northern Ireland and could have damaging consequences.

To that end, on behalf of the official Opposition, I am tabling new clause 7 to ensure that all measures in the Bill, as they pertain in Northern Ireland, will be renewed annually with the Northern Ireland Justice Minister and the Northern Ireland Executive and that a report is published and laid before both Houses of Parliament. The Minister will know that the Justice Minister in Northern Ireland, with whom he and I have had extensive discussions, has herself expressed some concerns about the extension of provisions in the Bill to Northern Ireland, and has raised some potential inadvertent and unintended consequences that would be undesirable.

It is vital to the success of the legislation in performing and fulfilling a UK-wide function that we seek the benefit of her expertise—or that of whoever holds that post—and continue to monitor the legislation’s implications in Northern Ireland. The structure of sentences in Northern Ireland, for example, differs from that in the rest of the UK, and there are special and unique circumstances there that mean that we ought to ensure we legislate specifically and responsibly. For example, post-sentencing regimes work in prisons for paramilitary prisoners and those in prison for reasons related to terrorist offending, and in terms of an approach to deradicalisation and the points made by the hon. and learned Member for Edinburgh South West about young people. Just as the polygraph section of the Bill has been crafted to be permissible but not mandatory in Northern Ireland, so it is right that all aspects of the Bill should be subject to review through the unique prism of Northern Ireland.

As we heard in the evidence sessions, the Northern Ireland Human Rights Commission set out a number of concerns about the legislation, including the retrospective nature of some provisions, both in terms of sentencing and release, the polygraph test, as has been mentioned, and the impact of provisions on those under the age of 18. I will not revise all those arguments here—they are known to members of the Committee—but it does seem obvious to me that it would be more advisable for the Government to work constructively with the Minister for Justice, rather than to risk legal or human rights challenges down the line. We spoke about that earlier in the Committee.

--- 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.

[Conor McGinn]

I beg to move, That the Clause be read a Second time.

As we have reiterated throughout the passage of the Bill, our overriding priority, which is shared on both sides of the Committee, is and always will be to keep the public safe, including from those individuals who seek to attack our values, destroy our way of life and divide us through abhorrent acts of violence and terror. The remarks made this morning by the hon. Member for Hertford and Stortford were a testament to that and the response to it. We in Committee were privileged to hear the speech, which was worthy of a wider audience. I hope to hear her invoke some of what her friend Louise said again on the Floor of the House on Report, because it was very valuable.

Following the shocking and tragic incident in Reading a matter of weeks ago, we need to take stock of the new and emerging threats from terrorism. The agility that the Minister has asked for in amending TPIMs should be applied when it comes to looking at the threat from lone actors. That is why we have asked for a judge-led review into the Government’s strategy on tackling the dangerous and growing menace of lone attackers. Reading was the third time in less than a year that we have witnessed such devastation on UK streets, each with a lone attacker at its core, callously intent on mayhem and destruction in our communities.

Our proposal would make provision to address the systemic response needed to that phenomenon. The new clause asks the Government to order a judge-led review of the effectiveness of current strategies to deal with lone terrorists. It should address counter-terrorism sentencing policy, as the Bill does, as it applies to terrorist offenders and the interaction and effectiveness of public services with respect to incidents of lone terrorist attacks.

Fundamentally, the review would seek to build firmly on previous research and expertise, such as the extensive work carried out by Lord Anderson that has provided a valuable insight into how we can improve and better connect the current systems. It would include an analysis of a wide range of key public services, including our probation and prison system, whose value and potential have been closely reflected on throughout these debates, but also mental health services, housing providers and local authorities, each of which can intervene at critical points. That is also why we need to get on with the Prevent review, which will play a critical part in addressing some of those issues.

There is absolutely no question about the high skill, dedication and bravery of our police and security and intelligence services. We need to do everything we can to support them as they set about their task of tackling extremism from root to branch, which is not easy. The fall in terrorism-related arrests to its lowest level in six years is concerning, particularly at a time when radicalisers and dangerous extremists increasingly operate through more and more sophisticated networks of hatred online, which are often understandably difficult for the authorities to monitor and intercept.

While the dangers of Islamist extremism persist, the menacing threat from far-right extremism is growing at a deeply disturbing rate. Far-right cases now make up almost a quarter of Prevent referrals and nearly half of all adopted Channel cases. All the while, the number of individuals in custody for terrorism-related offences and subscribing to those vile and hateful ideologies is up by one third on last year. That is on top of already record levels and steady rises over recent years.

We must urgently face up to this threat. We need to see that coherent and comprehensive strategy which, at this moment, I am afraid to say, appears to be lacking. The suspect in the Reading case was believed to be known to multiple public agencies and to have had a history of significant mental health issues; so too did the London Bridge and Streatham attackers. So many of our vital public services have interactions with individuals, which give them real concern, but they must have the necessary tools to intervene and work together in the most effective and efficient manner possible, ultimately to save lives and keep people safe.

The Lord Anderson review of 2017 outlines interesting pilot work on multi-agency centre pilots. They involve the identification of newly closed, high-risk subjects of interest; the sharing of data by MI5 and counter-terror policing with other agencies, such as local authorities and Government Departments; and the enrichment of that data from the databases of multi-agency partners. I wonder whether the Minister would write to me or enlighten the Committee on what is being done to address the existing barriers that were identified by the review to local partners’ involvement in managing subjects of interest, including the challenges of resourcing.

Lord Anderson said that

“some local authority representatives cautioned against unrealistic expectations of services such as mental health and community safety… against, what was described to me as, a background of widespread recent degradation of local services”.

[Ruth Cadbury]

I thank my hon. Friend for highlighting so clearly the risk of lone offenders, who are often not clearly linked to any particular organised network and are operating off not much more than hate, mental health problems and the internet. I think of David Copeland, who, in the space of two weeks, used nail bombs in violent attacks, causing death and injury to the black community in Brixton, gay people outside the Admiral Duncan in Soho and the Asian community in east London. Does he agree that there are potential new threats, as the independent reviewer pointed out in his evidence, such as the incel movement?

[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.

--- Later in debate ---

[Conor McGinn]

His colleague’s time, I note, but I think this is something we can work on together. My colleague, the shadow Home Secretary, has written to the Home Secretary on this matter, so while awaiting a response to that, which hopefully we will receive before Report, I will not push the new clause to a vote on this occasion.

We have approached all these amendments in the spirit of wanting to work together with the Government. As the Minister rightly says, while we are focusing here on how we can improve things, that should not for a minute be taken as an indication that we have anything other than incredible gratitude for the work that has been done to prevent what could have been many more catastrophic and devastating attacks. In that spirit, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 9

Assessment of the mental health of individuals serving a sentence affected by this Act

“(1) Where an individual is serving a sentence affected by this Act, they must be subject to an annual assessment of their mental health for the duration of their sentence and their term on licence.

(2) Where an assessment under subsection (1) indicates—

(a) a mental health condition; or

(b) a deterioration in a mental health condition since the previous assessment

the Secretary of State must take measures to treat such a mental health condition.”

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

New clause 9 would require a mental health assessment of an individual who has committed a terror offence to be carried out annually for the duration of their sentence and their term on licence. It would also require that where a mental health condition is found, or where there has been a deterioration of a mental health condition since the previous assessment, the Secretary of State must take measures to treat the mental health condition.

I am not a mental health professional and I do not claim to understand the psychology behind why somebody commits or plans to commit an act of terrorism, but it strikes me as eminently sensible to carry out regular mental health assessments of those who have committed an offence under the Bill, not because there is any correlation between having a mental health condition and committing acts of terrorism, but because mental health conditions can turn people into who they are not. By treating mental health conditions, we can provide support and reduce the chance of further criminal acts being carried out when a prisoner is released.

This is not just about preventing terrorism; it is about how we treat each other as people. It is common for people to wander down the wrong path. Of course, some paths are much more dangerous than others and it is right that people are appropriately sentenced for their crimes, but I can only imagine what it is like to be in prison for years on end. A few hours in my local Holme House Prison in Stockton is certainly enough for me. I cannot fathom what impact being in prison for a long sentence has on an individual’s mental health year after year, and time spent in prison without receiving treatment can make an existing mental health condition much worse. The individual released into society after their prison sentence has been served is left to struggle with their mental health condition. It is a recipe for disaster, but we can take simple precautions to address the problem.

Prisons and the Government have a duty of care for the physical and mental wellbeing of people in our prisons, and they should stay on top of any identified mental health conditions in order to best support offenders in their rehabilitation, so that they can make the most of deradicalisation programmes and rejoin society without any mental health illnesses blocking their way. That way, we can ensure that we have covered all the bases, that we are providing what should be basic necessities, such as mental health treatment, and that we are helping people on their way to becoming citizens who can contribute positively to society.

I recognise that mental health services in this country need much more resources, and they are often inadequate for people in the general population. That is another task for the Government: to establish high-quality mental health services for all. The new clause could take the pressure off community health services in the longer term by ensuring that people convicted of terrorist charges are as healthy as they can be when they return to society. I look forward to hearing what the Minister has to say.

Counter-Terrorism and Sentencing Bill

Conor McGinn Excerpts

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

[Alex Cunningham]

I am grateful to the Minister for his introductory remarks, particularly about how we can best work together as a Parliament, and I join him in paying tribute to the hon. Members across the House who shared personal experiences and testimonies—particularly the hon. Members for Hertford and Stortford (Julie Marson) and for Rutland and Melton (Alicia Kearns). If we had had to be convinced to support the Bill, perhaps those experiences—in particular the experience of the friend of the hon. Member for Hertford and Stortford—would have been sufficient to convince us.

The Minister’s ambition to have a sentencing regime in place for serious terrorism and terrorism-related offences has our support—no delay and no watering down—but he needs to ensure that the service is properly equipped and provides the services needed. I was therefore rather surprised—“stunned” is the word I wrote on my bit of paper—that the impact of introducing this new legislation will be less than £5 million for new prison places, an extended probation service and additional workers in the system. I cannot quite understand where that number comes from.

However, I am sure the Minister will be relieved to know that all I ask now is that he and his Home Office colleagues reflect on the challenges that we have made. I will withdraw new clause 1, but we will return to amendment 30 later. 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) he 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 counterterrorism and sentencing policy.

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

[Mr Deputy Speaker (Mr Nigel Evans)]

With this it will be convenient to discuss the following:

Amendment 59, in clause 32, page 29, line 7, at end insert—

“(4) A Terrorism Prevention and Investigation Measure may not be imposed on an individual, or renewed, solely on the basis of—

(a) any statement made by the person while participating in a polygraph examination;

(b) any physiological reaction of the person while participating in a polygraph examination; or

(c) any refusal to comply with a requirement to participate in a polygraph examination.”

This amendment will prohibit the use of information obtained from a polygraph test as a basis for imposing a TPIM notice on an individual in England and Wales.

Amendment 60, in clause 33, page 30, line 24, at end insert—

“(8) A Terrorism Prevention and Investigation Measure may not be imposed on an individual, or renewed, solely on the basis of—

(a) any statement made by the person while participating in a polygraph examination;

(b) any physiological reaction of the person while participating in a polygraph examination; or

(c) any refusal to comply with a requirement to participate in a polygraph examination.”

This amendment will prohibit the use of information obtained from a polygraph test as a basis for imposing a TPIM notice on an individual in Scotland.

Amendment 61, in clause 34, page 33, line 6, at end insert—

“(4A) A Terrorism Prevention and Investigation Measure may not be imposed on an individual, or renewed, solely on the basis of—

(a) any statement made by the person while participating in a polygraph examination;

(b) any physiological reaction of the person while participating in a polygraph examination; or

(c) any refusal to comply with a requirement to participate in a polygraph examination.”

This amendment will prohibit the use of information obtained from a polygraph test as a basis for imposing a TPIM notice on an individual in Northern Ireland.

Amendment 40, page 34, line 22, leave out clause 37.

This amendment removes the provision that lowers the standard of proof to reasonable grounds.

Amendment 37, in clause 37, page 34, line 25, leave out

““has reasonable grounds for suspecting”.”

and insert

“, on the basis of reasonable and probable grounds, believes.”.

This amendment would raise the standard of proof for imposing a TPIM under the proposals in the Bill.

Amendment 39, in clause 37, page 34, line 26, leave out “suspecting” and insert “believing”.

This amendment would create a higher bar for the standard of proof under these proposals.

Amendment 42, page 34, line 27, leave out clause 38.

Amendment 41, in clause 38, page 34, line 31, at end insert—

“(za) in subsection (3)(a), after “met” insert “and the court gives the Secretary of State permission”;

(zb) after subsection (3)(a), insert “(ab) In determining the extension, the court must apply the principles applicable on an application for judicial review.””

Amendment 46, in clause 38, page 34, line 31, at end insert—

“(za) For subsection (3)(a), substitute “may be extended under subsection (2) only if—

(i) the Secretary of State believes on the balance of probabilities that the individual is, or has been, involved in terrorism-related activity;

(ii) conditions C and D are met; and

(iii) the court gives the Secretary of State permission to extend the TPIM notice.”

This amendment will provide that any extension of a TPIM notice will require (i) a higher threshold to be met (“on the balance of probabilities”), (ii) the Secretary of State must reasonably consider that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual (Condition C), and that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual (Condition D), and (iii) judicial approval.

Amendment 47, page 35, line 21, leave out clause 39.

This amendment will remove from the Bill clause 39, which allows the Secretary of State to vary the relocation measure in a TPIM notice, if it is necessary to do so for resource reasons.

Amendment 48, page 36, line 27, leave out clause 40.

This amendment will remove from the Bill clause 40, which widens the scope for imposing a curfew beyond overnight.

Amendment 49, page 36, line 32, leave out clause 41.

This amendment will remove from the Bill clause 41, which inserts a new polygraph measure which can be imposed on TPIM subjects to test if they are complying with their TPIM measures, if the Secretary of State considers it necessary to protect the public from a risk of terrorism.

Government amendment 17.

Amendment 50, page 38, line 3, leave out clause 42.

This amendment will remove from the Bill clause 42, which introduces a new drug testing measure which can be imposed on TPIM subjects, to test for Class A and B drugs.

Government amendments 18 and 19.

Amendment 38, 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.

Amendment 51, in clause 47, page 40, leave out lines 19 to 21 and insert—

“(a) in subsection (8), replace the words “6 months” with the words “2 years”;

(b) in subsection (9), replace the words “18 months” with the words “3 years”.”

Clause 47 omits the current statutory deadline for (a) making arrangements for an independent review of Prevent and (b) laying before both Houses the report and any recommendations of the review of Prevent. Instead of removing the statutory deadlines, this amendment provides for new deadlines: in respect of (a), 2 years beginning with the day on which the Counter Terrorism and Border Security Act was passed (12 February 2019) and in respect of (b), 3 years beginning with the day on which the Counter Terrorism and Border Security Act was passed.

[Conor McGinn]

The overriding priority of this Labour Opposition is and always will be to keep the public and our communities safe. I want to concentrate on the three amendments that our Front Benchers have tabled on behalf of the official Opposition, conscious of the fact that we have little time and I wish to hear from colleagues on the Back Benches who did not have the opportunity to discuss these issues in Committee.

As we—including me, as shadow Security Minister—said on Second Reading and in Committee, the tragic events at Fishmongers’ Hall and Streatham showed that there was a clear need for legislation, and subsequent events in Reading have only affirmed that. We on the Opposition Benches are committed to being forceful and robust in the fight against terrorism, so we welcome the Bill and in principle support its introduction. We have also sought to thoughtfully scrutinise the Bill, both to gain assurances on concerns and to attempt to improve it and ensure it is up to that most important task of keeping people safe.

To delve into new clause 8, following the shocking and tragic incident in Reading on Saturday 20 June, my right hon. Friend the shadow Home Secretary called for a judge-led review of the Government’s strategy for tackling the dangerous and growing menace of lone attackers. Reading was the third time in seven months that such devastation had been witnessed on UK streets, with lone attackers responsible each time. I pay tribute to my hon. Friend the Member for Reading East (Matt Rodda), who showed such leadership and thoughtfulness in the days after the appalling attack on his community.

We on the Opposition Benches have no doubts as to the immense skill, bravery and dedication of our police and security and intelligence services. New clause 8 is fundamentally about supporting them as they tackle extremism from root to branch, because they cannot fight the battle alone. We need to look at the range of services we all rely on, particularly when we want to identify, monitor and treat subjects who pose such a huge threat to wider society.

Our proposals would make provision to assess the systemic response needed for the emerging and disturbing phenomenon of lone terrorists. A judge-led review of the effectiveness of current strategies to deal with them could effectively do that. It would address counter-terrorism policy and sentencing policy as it applies to terrorist offenders and the interactions and effectiveness of public services with respect to incidents of lone terrorist attacks. It would also undertake an analysis of a wide range of key public services, including our probation system, the prison system, mental health services, housing providers and local authorities, each of which can intervene at critical points.

The review would build on prior research and expertise, such as the extensive work carried out by Lord Anderson, the previous Independent Reviewer of Terrorism Legislation. That work has already provided insights into how we might better connect the current systems. His review’s proposal for multi-agency centre pilots would involve the identification of newly closed high-risk subjects of interest, the sharing of data by the Security Service and counter-terror policing with other agencies, such as local authorities and Departments, and the enrichment of that data using the databases of multi-agency partners. The review also highlighted barriers to local partners’ involvement in managing subjects of interest, including the challenges of resourcing.

Our public services must have the tools they need to intervene and work together in the most effective and efficient manner possible, particularly as many of the services have interactions with individuals who give them real concern. We need to undertake an assessment of the systemic response needed to confront the dangerous and growing threat of lone attackers, with all the necessary security safeguards in place, and I thank the Minister and the Security Minister for discussions on that.

Jonathan Hall, the Independent Reviewer of Terrorism Legislation, is looking at the issue in a review of the multi-agency public protection arrangements, which was commissioned by the Home Secretary. My understanding is that the review is currently with the Home Office. Can the Minister say a little bit more about that and perhaps commit to publishing it before the Bill reaches the other place, which I think would provide some assurance?

Turning to amendment 38 on TPIMs, we fully agree that the mechanisms must be robust and agile to help the police, the Security Service and their operational partners to do the job of keeping the public safe. As reflected by the amendments that the official Opposition has tabled, as well as those of the Chair of the Joint Committee on Human Rights, my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), and the hon. and learned Member for Edinburgh South West (Joanna Cherry), it is fair to say that we feel the Bill’s proposed changes to TPIMs will have a profound impact on the regime, especially when taken together.

We want TPIMs to be as effective and efficient as possible, and when those on the frontline in policing and counter-terrorism say that the changes will be useful, we fully trust and support their assessment and will do all we can to assist them. We will also, however, seek assurances that proper safeguards are in place. We would all want and expect to see such safeguards on measures of such importance in a democracy such as ours. If the standard of proof is to be lowered while simultaneously making possible a potentially indefinite TPIM by removing the current limit, then scrutiny, oversight and safeguards will take on a new-found importance. 

We must remind ourselves that a TPIM notice can involve a wide range of measures: overnight residence requirements, relocation, police reporting, an electronic monitoring tag, exclusion from certain places, limits on association, limits on the use of financial services, and limits on the use of telephone and computers, as well as a ban on holding travel documents. Those are robust measures and, in my view, rightly so, but we must not forget that TPIMs are a restriction on rights for people who have not yet been convicted of any crime. It is not in the interests of anyone to allow such individuals to remain indefinitely on TPIMs, either for their own sake, for society’s, or, crucially, in terms of bringing them to justice.

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

Does my hon. Friend accept that the concern about TPIMs is not just the breadth of measures available but their indefinite nature against people who have not actually been tried and charged?

[Conor McGinn]

I do, and I pay tribute to my right hon. Friend for the work she has done on this issue and her commitment to it. I am sure the Minister will have heard what she says. It is something I raised in Committee and I did receive some assurances from the Minister, but I think we would wish to hear—not just in the light of what my right hon. Friend says, but of what the Independent Reviewer of Terrorism Legislation said when he made a similar point—what the Minister is doing to ensure those safeguards are in place.

[Jim Shannon]

It is very important that we look at TPIMs to make sure they are usable, but does the hon. Gentleman agree it is very important that the Secretary of State’s hands are not tied by legislation, but is able to respond to any emergent terrorism attacks or activities that take place in a way that is effective? Surely that has to be prominent precedent to follow?

[Conor McGinn]

The hon. Gentleman speaks with both great personal dignity and authority on these matters. I agree. We want the system to be agile and to be able to respond. The Bill places a very significant power on the Secretary of State. In seeking to ask the Government for assurances, we want to ensure the system itself is robust, because those protections allow authority and credibility in terms of being able to respond to the ongoing terrorist threat. The amendment we propose would ensure that there are reasonable and probable grounds for a TPIM to be issued. The higher bar would create safeguards without harming the robust nature or operational utility of TPIMs, which we want to be as impactful as they can possibly be to keep people safe.

We acknowledge that it was a Labour Government who, upon introducing control orders in 2005, imposed a standard of proof, as proposed in the Bill, to require only reasonable grounds for suspecting an individual had been involved in terrorism-related activity. That was then raised by the coalition Government in 2011 with the creation of the new TPIMs regime, and again by the Conservative Government in 2015. However, I cannot help but reflect on the words of the Independent Reviewer of Terrorism Legislation to the Bill Committee, when he said:

“If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 7, Q6.]

I think the Minister has to respond to that challenge. We need assurances from the Minister today, and an operational, administrative and procedural perspective for making those changes.

We would also like clarity on an exit strategy, given the indefinite nature of what has been proposed. Our concern with an open-ended or enduring TPIM regime is that it could see difficult cases languish, with no realistic plan for a resolution of any kind. Indeed, under the proposals, as the Independent Reviewer of Terrorism Legislation confirmed to the Committee, we could conceivably see someone who has been convicted of a terrorism offence being free from constraints before someone who has been placed on an enduring TPIM. That kind of situation is intolerable and I hope the Minister will again respond to those concerns, alongside the arguments of many colleagues in the House in relation to TPIMs and polygraph testing, which, while useful as an additional information source in certain contexts, we know is controversial and untested in the counterterrorism sphere. I do not think it would be unreasonable to run a pilot scheme, as per new clause 9, so that before making such costly national changes we could see proper independent evidence of the polygraph’s reliability and utility in the specific context of terrorist offenders. We all want an effective and efficient TPIM regime to help to save lives and protect our country’s citizens from harm, and we want to work with the Government to get it right.

--- Later in debate ---

[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

Conor McGinn Excerpts

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.

[Mr Deputy Speaker (Mr Nigel Evans)]

I have been encouraged by those here physically who tell me that they will make short contributions to try to do this without imposing a time limit. May I encourage those participating remotely, if they have prepared short speeches, to stick with the speeches they have prepared?