Public Order Act 2023

Debate between Joanna Cherry and Chris Philp

Tuesday 16th May 2023 Commons Chamber

[Chris Philp]

My hon. Friend puts it very well: the right to protest does not extend to the right to deliberately and intentionally disrupt the lives of fellow citizens by, for example, intentionally causing a 10-mile tailback on the M25. That is not reasonable, it is not proportionate, and it is quite right that we stop it.

[Joanna Cherry]

I do not think anyone is disputing that articles 10 and 11 of the ECHR are qualified rights, but it is not just the SNP that takes the view that this Act goes beyond what is permissible under articles 10 and 11: the Joint Committee on Human Rights, a cross-party Committee that I chair, unanimously published a report saying we thought this Act went beyond what was acceptable under articles 10 and 11. So will the Minister acknowledge that this is not just an SNP view, and that it is a view held by a cross-party Committee of both Houses that this Act went too far and breached articles 10 and 11?

[Chris Philp]

I understand that the hon. and learned Lady’s Committee reached that view; clearly the Government, informed by considered legal advice, took a different view. That is why on the front of the Bill when it was published there was a statement made under section 19(1)(a) of the Human Rights Act 1998 that the Government’s view—informed, as I have said, by legal analysis—is that it is compliant with the ECHR. That is particularly because, as the hon. and learned Lady acknowledges, articles 10 and 11 are qualified rights and they are qualified by, among other things, the right of the legislature and the Government to prevent “disorder or crime”. I put it to this House that causing a 10-mile tailback on the M25 does constitute disorder, and I would say we are entirely entitled to protect our fellow citizens from being prevented from getting to hospital or getting their children to school.

--- Later in debate ---

[Chris Philp]

No, I do not. I grateful for the opportunity to talk about that in more detail. Of course, there was an urgent question on the topic last Tuesday, when we debated and discussed it at some length. Since the hon. Member asks about the coronation, let me turn to that, as it is prayed in aid frequently. The most recent information that I have is that a total of 70 arrests were ultimately made on the coronation day. As I understand it, only six out of 70 were made under the new Public Order Act 2023. The others—I will not read out all of them—included arrests for possession of class A drugs; a sexual offender in breach of a condition; 14 people arrested and bailed for breach of the peace; 32 people arrested for conspiracy to cause public nuisance, all of whom have been bailed; one person arrested and bailed on suspicion of sexual assault; and one person arrested for handling stolen goods. The list goes on.

So 70 arrests were made, but only six of those were under the powers in the new 2023 Act. Of course, arrests may be made on the basis of reasonable suspicion. Much has been made of the fact that people were subsequently released. The six Republic protesters were released, and no further action is being taken. It is entirely possible for someone to be arrested on the basis of reasonable suspicion but, on further inquiries being made, it may be that the threshold for charge or prosecution is not met. Of course, in that case, no further action will be taken.

As I said in response to the urgent question posed by the hon. and learned Member for Edinburgh South West (Joanna Cherry) last Tuesday, we need to keep in mind the context in which the coronation took place. In the 24 hours preceding the coronation, there was a lot of intelligence—specific intelligence—about several well developed and well organised plots to cause serious disruption, including deliberately causing the horses to stampede, throwing paint over the ceremonial procession and, separately, locking on to the ceremonial route. This was a huge policing operation, with 11,500 police deployed that day, policing an enormous crowd. Things were moving very quickly indeed. Given that, the police were doing a difficult job in difficult circumstances—it was the event of a generation and the eyes of the world were upon us—and I think they did act reasonably.

[Joanna Cherry]

The Minister said a moment ago that only six people were arrested under the new Public Order Act and that they were the six Republic protesters with the luggage straps. When I asked my urgent question last week, we did not know about the Australian superfan who had had gone out to celebrate the coronation and was lifted on The Mall and held in prison all day. Will the Minister tell us on what basis that lady was arrested? I would be really interested to know, and I am sure that her solicitors will be as well.

Coronation: Policing of Protests

Debate between Joanna Cherry and Chris Philp

Tuesday 9th May 2023 Commons Chamber

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

(Urgent Question): To ask the Secretary of State for the Home Department if she will make a statement on the policing of protests during the coronation.

[The Minister for Crime, Policing and Fire (Chris Philp)]

The coronation was a once-in-a-generation moment, a moment of national pride and a moment when the eyes of the world were upon us. It was a ceremony with roots over a millennium old, marking a renewed dedication to service by His Majesty the King in this new reign. The coronation went smoothly and without disruption. I thank the 11,500 police officers who were on duty alongside 6,500 military personnel and many civilians.

Today, Commissioner Mark Rowley has outlined the intelligence picture in the hours leading up to the coronation. It included more than one plot to cause severe disruption by placing activated rape alarms in the path of horses to induce a stampede and a separate plot to douse participants in the procession with paint. That was the context: a once in a generation national moment facing specific intelligence threats about multiple, well-organised plots to disrupt it. The focus of the police was, rightly, on ensuring that the momentous occasion passed safely and without major disruption. That was successful. All plots to disrupt the coronation were foiled by a combination of intelligence work and proactive vigilant policing on the ground. I would like to thank the police and congratulate them on that success.

At the same time, extensive—[Interruption.] Wait for it. At the same time, extensive planning ensured that protests could take place. That was also successful. Hundreds of protesters exercised their right to peaceful protest, including a large group numbering in the hundreds in and around Trafalgar Square. Where the police reasonably believed they had grounds for arrest, they acted. The latest information is that 64 arrests were made. I will not comment on individual cases or specific decisions, but the arrests included a person wanted for sexual offences, people equipped to commit criminal damage with large quantities of paint, and arrests on suspicion of conspiracy to cause public nuisance, often backed by intelligence. The Met’s update last night included regret—to use its word—that six people arrested could not join the hundreds protesting in Trafalgar Square and nearby. The Met confirmed that those six people have now had their bail cancelled with no further action.

The police are operationally independent and it is primarily for the Mayor of London to hold the Met to account, but let us be clear: at the weekend officers had to make difficult judgments in fast time, in a highly pressured situation against a threatening intelligence picture. I thank the police for doing that, for delivering a successful a coronation and for enabling safe, peaceful protests.

[Joanna Cherry]

On Saturday, millions of people greatly enjoyed the coronation ceremony. Others, who wish to see a republic, chose to protest peacefully, as is their right in a democratic society. Protests in Glasgow and Edinburgh went off without incident. In London, however, protesters who had gone to considerable lengths to liaise with the Metropolitan police in advance of their protest to clear both the nature and the location of the protest, were detained, searched, arrested and held in the cells from 7 am until after 11 pm. All six of those arrested have now received letters saying there will be no further action taken against them. There were a number of other arrests of concern, but because there are no legal proceedings in respect of the six, and therefore no reason for Parliament not to begin today to address what happened to them, I will focus on them.

Graham Smith, the leader of the group Republic, tells me that the arresting police showed absolutely no interest in contacting the liaison team and seemed focused on luggage straps holding placards together, which they said might be used to lock on. The Joint Committee on Human Rights has repeatedly stressed that public authorities, including the police, are under a negative obligation not to interfere with the right to protest unlawfully and a positive obligation to facilitate peaceful protest, so why did police arrest protesters who had gone to such great lengths to clear their protest in advance, and why did they do so on grounds that they now admit were not sufficient to charge them and without following up with the liaison team? What do citizens need to do now to clear a protest in advance?

On the BBC Radio 4 “Today” programme, Sir Peter Fahy, the former chief constable of Greater Manchester police, said that what happened has to be seen in the context of media, political and public pressure on the police. He referred to what he called

“some pretty direct and personal feedback”

brought to bear on Sir Mark Rowley before the Home Affairs Committee on 26 April by the hon. Member for Ashfield (Lee Anderson)—I have notified the hon. Member that I would mention him, Mr Speaker. So, was political pressure brought to bear on the police? Sir Peter also said that the legislation, the Public Order Act 2023 and the policing Act, is very poorly defined and far too broad. That was what Opposition MPs warned of, particularly regarding offences such as locking on. Will the Minister review the legislation and set up an inquiry into what happened to those six citizens on Saturday?

[Chris Philp]

I have the greatest respect for the hon. and learned Member and take her questions seriously. She asked about pressure; the police are operationally independent and make decisions independent of Government. Ministers received a briefing, particularly as the intelligence picture escalated in the 24 hours before the event. The Mayor of London also received briefings, as did the shadow Home Secretary on Friday, I believe. There is nothing out of the ordinary in Ministers receiving briefings, not least because the police and other security and civilian agencies need to co-ordinate. The House has just debated and scrutinised the legislation at some length, and there are no plans to change it.

On the six people arrested and the question of protests more generally, I repeat the point I made in my initial answer: hundreds of people exercised their right to protest peacefully. As the hon. and learned Lady said, that was done following engagement with the Republic protest group. The fact that hundreds of people were able to protest peacefully is testament to the right of peaceful protest.

I do not want to get into the details of the six people because, frankly, neither the hon. and learned Lady nor I has all the facts. But clearly, when the arrests were made, the police reasonably believed that there were grounds to do so. I emphasise again that several hundred people were able to peacefully protest on that day, as is their absolute right.

Public Order Bill

Debate between Joanna Cherry and Chris Philp

Consideration of Lords amendments
Tuesday 7th March 2023 Commons Chamber

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

I will confine my comments to the amendments that touch on the recommendations of the Joint Committee on Human Rights, which I chair. We did not look at the debate on abortion buffer zones because that was not part of the original Bill, so I will not comment on that. In general terms, some of the points made by the right hon. Member for South Holland and The Deepings (Sir John Hayes) could be carried across. I could very well ask of him why, if that is what he so clearly believes, he would support a power to stop and search without reasonable suspicion? So it cuts both ways.

However, I will confine my comments to support for Lords amendments 1, 6 to 9, 20, 21, 23, 27, 28, 31, 32 and 33, which can basically be grouped into suspicion and stop and search, serious disruption prevention orders, and the meaning of the phrase “serious disruption”. I will speak to the Joint Committee’s report on our legislative scrutiny of the Bill, which was published on 8 June last year. It was a unanimous report of our cross-party Committee, which of course contains both MPs and peers.

The right to peaceful protest is a cornerstone of our democracy, which should be championed and protected rather than stifled. The Joint Committee concluded that while the stated intention behind the Bill was to strengthen police powers to tackle dangerous and highly disruptive protest tactics, its measures went well beyond that to the extent that we feel the Bill poses an unacceptable threat to the fundamental right to engage in peaceful protest. We have heard speeches about the historic basis of that right, and of course it is also protected in modern times under article 10 of the European convention on human rights, which deals with freedom of speech, and article 11, which deals with freedom of association.

In our report, we recommended that the power to stop and search without reasonable suspicion should be removed from the Bill. Other hon. Members have spoken about that in some detail. Basically, what we said was that the power to stop and search without reasonable suspicion inevitably gives rise to a risk of arbitrary or discriminatory use, and that it is disproportionate and inconsistent with the right to engage in peaceful protest. As we heard from other hon. Members, the police themselves said it is counterproductive and I do not understand that it is a power the police actually want as a whole. Lords amendments 6 to 9 take that out of the Bill, and I think that should be supported by this House.

[Chris Philp]

I am extremely grateful to the hon. and learned Lady for giving way. On a point of clarification, clause 11, prior to amendment by the Lords, states that although an individual does not have to be subject to suspicion before an officer can activate this section, the officer has to “reasonably believe” that a number of offences may be committed. So it is not a wholly unconstrained power to search. That reasonable suspicion in clause 11(1) does have to be engaged.

[Joanna Cherry]

I am not sure the Minister is right about that. I think what he is trying to say is that the police officer could have a highly subjective view prior to stopping, and a highly subjective view is not a reasonable suspicion. We took all these matters into account in our report.

[Joanna Cherry]

The Minister must know that we are still bound by the European convention on human rights. Clearly, from what the Home Secretary said earlier this afternoon, some Government Members are trying to find a pretext to take us out of the convention, but we are still bound by it just now. The Minister must know that in order to interfere with freedom of assembly or freedom of association, under article 11 the interference has to be lawful, necessary and proportionate. What my hon. Friend just described is not lawful, necessary and proportionate.

[Chris Philp]

rose—

[Joanna Cherry]

The Minister will get to speak at the end. I do not want to take up too much time as I have already spoken for five minutes and I do not want to upset Madam Deputy Speaker. The Minister can take the tenor of the comments so far across the House, including from the Government Benches. People are not happy about the power to stop and search without reasonable suspicion. The cross-party Committee of MPs and peers shared that unhappiness.

Online Safety Bill

Debate between Joanna Cherry and Chris Philp

Report stage
Tuesday 12th July 2022 Commons Chamber

[Joanna Cherry]

I hear what the hon. Gentleman is saying, but he will have heard the speech made by his colleague, the right hon. Member for Haltemprice and Howden (Mr Davis). Does he not accept that it is correct to say that there is a risk of an increase in content moderation, and does he therefore see the force of my amendment, which we have previously discussed privately and which is intended to ensure that Twitter and other online service providers are subject to anti-discrimination law in the United Kingdom under the Equality Act 2010?

[Chris Philp]

I did of course hear what was said by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). To be honest, I think that increased scrutiny of content which might constitute abuse of harassment, whether of women or of ethnic minorities, is to be warmly welcomed. The Bill provides that the risk assessors must pay attention to the characteristics of the user. There is no cross-reference to the Equality Act—I know the hon. and learned Lady has submitted a request on that, to which my successor Minister will now be responding—but there are references to characteristics in the provisions on safety duties, and those characteristics do of course include gender and race.

In relation to the risk that these duties are over-interpreted or over-applied, for the first time ever there is a duty for social media firms to have regard to freedom of speech. At present these firms are under no obligation to have regard to it, but clause 19(2) imposes such a duty, and anyone who is concerned about free speech should welcome that. Clauses 15 and 16 go further: clause 15 creates special protections for “content of democratic importance”, while clause 16 does the same for content of journalistic importance. So while I hugely respect and admire my right hon. Friend the Member for Haltemprice and Howden, I do not agree with his analysis in this instance.

I would now like to ask a question of my successor. He may wish to refer to it later or write to me, but if he feels like intervening, I will of course give way to him. I note that four Government amendments have been tabled; I suppose I may have authorised them at some point. Amendments 72, 73, 78 and 82 delete some words in various clauses, for example clauses 13 and 15. They remove the words that refer to treating content “consistently”. The explanatory note attached to amendment 72 acknowledges that, and includes a reference to new clause 14, which defines how providers should go about assessing illegal content, what constitutes illegal content, and how content is to be determined as being in one of the various categories.

As far as I can see, new clause 14 makes no reference to treating, for example, legal but harmful content “consistently”. According to my quick reading—without the benefit of highly capable advice—amendments 72, 73, 78 and 82 remove the obligation to treat content “consistently”, and it is not reintroduced in new clause 14. I may have misread that, or misunderstood it, but I should be grateful if, by way of an intervention, a later speech or a letter, my hon. Friend the Minister could give me some clarification.

Nationality and Borders Bill

Debate between Joanna Cherry and Chris Philp

2nd reading
Tuesday 20th July 2021 Commons Chamber

[Joanna Cherry]

What I would say to them, what the Scottish Government have said to them and what my party says to them is that they are very welcome in Scotland, but unfortunately at the moment we do not have control over that aspect of policy. Until we take the steps to ensure that we do have control over that aspect of policy, we are stuck with trying to persuade this British Government that their policies are wrong.

I fear that the chances of this Government amending the Bill in any meaningful way are absolutely zero, but I know that it matters very much to my constituents, other people in Scotland and many organisations—the Trades Union Congress in Edinburgh passed a motion condemning this Bill just in the last few days—that the Scottish National party stands against the Bill. As I say, I do not think that our stand will work, and I continue to look forward to a future where an independent Scotland will be able to set a better example on refugee policy.

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

Will the hon. and learned Lady give way?

[Joanna Cherry]

I am sorry, but I am coming to an end.

Napier Barracks Asylum Accommodation

Debate between Joanna Cherry and Chris Philp

Thursday 10th June 2021 Commons Chamber

[Chris Philp]

I think the public do expect us to reform the system and to control our borders, which is why we are bringing forward a new Bill very shortly to do exactly that. On the question of human rights, which my hon. Friend rightly raises, there is a review going on currently into the operation of the Human Rights Act 1998 that will be reporting, I think, later this year.

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

My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) has reminded the House that quite recently a Home Secretary resigned for inadvertently misleading the Home Affairs Committee. Other hon. Members have asked the Minister whether the current Home Secretary misled the Home Affairs Committee in oral evidence on 24 February this year. In response to those questions, the Minister keeps referring to a Public Health England letter from June this year that talks about full co-operation from the Home Office since spring of this year.

Of course, when the Home Secretary gave evidence on 24 February, she was talking about what had happened before then, not what happened this spring. Evidence presented to the High Court suggests that what she said—that the Department had previously followed public health guidance regarding Napier barracks in “every single way”—was simply not factually correct. The High Court has said that the fact that that public health evidence was ignored meant that the covid outbreak was “inevitable”, so why is the Home Secretary not tendering her resignation, as Amber Rudd had the grace and decency to do?

[Chris Philp]

The hon. and learned Lady refers to the letter of 1 June and says that it post-dates the Home Affairs Committee appearance on 24 February, which it does. However, the paragraph that I quoted says that the positive ongoing dialogue and collaborative working had been ongoing “since spring 2020”.

Serious Criminal Cases Backlog

Debate between Joanna Cherry and Chris Philp

Wednesday 20th January 2021 Commons Chamber

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

Criminal justice is devolved in Scotland, and here the focus has been on ensuring that jury trials continue in the most serious cases where accused persons are in custody and where the nature of the alleged offence demands that priority be given, which includes sexual offences. The report we are talking about today deals with England and Wales only. It has found numerous examples of serious cases being cancelled at short notice, and it has warned that delays could result in crime victims being unable to support prosecutions.

What new steps is the Minister taking to ensure that, as already happens in Scotland, the United Kingdom Government are complying with their duty under article 3 of the European convention on human rights to ensure that there are effective remedies for the victims of sexual offences and, in particular, that we avoid—or that he avoids—undue delay in getting cases of sexual offences to trial? I know what has been done in Scotland. I am keen to know what the Minister is going to do in England and Wales, given the finding of this report.

[Chris Philp]

We are as keen as the hon. and learned Member is and everyone is to make sure that these very sensitive cases involving rape or similar offences get heard quickly, but of course it is a matter for the judiciary to decide when they are listed and sometimes there are reasons to do with case management why a case may get adjourned while things are dealt with. But we have, for example, now rolled out the section 28 evidence provisions that I mentioned, so sensitive evidence can be given by recorded video, which can be taken well in advance of a trial—designed to help exactly what she is describing—and we have made large amounts of money available, with the extra £25 million next year and £32 million this year, to support and help witnesses and victims.

I was slightly concerned to read a remark by the Lord President in Scotland saying that during lockdown criminal cases in Scotland would be down by 75%. I am sure the hon. and learned Member shares my concern about that, and anything we can do to exchange ideas in our mutual interests I am sure we will be very happy to do.

Oral Answers to Questions

Debate between Joanna Cherry and Chris Philp

Monday 9th November 2020 Commons Chamber

[Chris Philp]

My hon. Friend is absolutely right: we need to do more with our French colleagues to prevent the embarkations. As I say, we are now funding additional gendarmes to prevent embarkations from the beaches, and we are supporting the French to provide proper, safe accommodation for migrants who would otherwise be living in the various camps. We are also investigating action at sea. My hon. Friend is quite right that if we can render these crossings essentially impossible, nobody will attempt them in the first place. Not only is that the right thing to do from a health and safety point of view, but it is the right thing to do to undermine and prevent the ruthless criminal gangs who are behind these crossings.

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

May I start by extending my sympathies to the relatives and friends of all who have died attempting these crossings?

As a matter of international law, entering a state to seek asylum without a visa is not illegal—I am happy to share with the Minister the advice from the UN High Commissioner for Refugees on the matter—but the crossings are certainly most irregular and very unsafe. Rather than fanning the flames of people’s desperation for political reasons, would it not be better for the Minister to focus on creating safe legal routes for asylum seekers? While he is attending to that, will he encourage the Home Secretary to stop her anti-lawyer rhetoric and acknowledge that there is a responsibility on politicians and other public figures to avoid saying anything that could make tensions worse or put people’s lives at risk?

[Chris Philp]

Article 31 of the refugee convention, to which I think the hon. and learned Lady was referring, makes it clear that the prohibition on criminalisation of entry applies only to people who are directly—I use the word “directly”—entering a state from somewhere that is unsafe. I respectfully point out that France is not unsafe; France is a safe country.

On the hon. and learned Lady’s question about safe and legal routes, there are a large number of such routes and around about half the people who come here to claim asylum already do so via legal routes. In addition to that, for the past five years we have been running the resettlement programme, taking people directly from conflict zones—for example, Syria—and bringing them to the United Kingdom. Over that five-year period some 25,000 people, half of whom are children, have come via the resettlement route. The resettlement route—a safe and legal route of the kind for which the hon. and learned Lady calls—is the largest resettlement programme of any European country. We have a proud record of supporting people in genuine need and we will continue to do so.

On the hon. and learned Lady’s last question, I of course completely support the Home Secretary and we will continue to fight vexatious, last-minute legal claims when it is appropriate to do so.

Oral Answers to Questions

Debate between Joanna Cherry and Chris Philp

Monday 28th September 2020 Commons Chamber

[Chris Philp]

I am a he, not a she. We will not reverse the decision, because we need to make sure that when their asylum decisions have been made, people are moved on into the community. We cannot accommodate people indefinitely. As I said in answer to the hon. Gentleman’s first question, the number of people we are accommodating has gone up from 48,000 to 60,000 as a result of stopping move-ons over the summer period. The system is under huge strain, and it is not reasonable to ask the taxpayer to accommodate people on an indefinite basis. We are doing this in a very careful and measured way. We are not doing it all in one go; we are doing it week by week, very slowly and carefully, and at all times in consultation with public health bodies.

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

I wonder whether the Minister could make me two promises today: first, to publish in Parliament the report of his evaluation of asylum accommodation and support in Glasgow, including the use of hotels and the tragic deaths that have occurred; and, secondly, to provide a copy of that report to the Lord Advocate, who is considering whether to initiate a fatal accident inquiry into the tragic deaths of asylum seekers in Glasgow during the lockdown?

[Chris Philp]

As the hon. and learned Lady says, formal investigations are going on, and of course the Home Office will support them in any way that we are asked. In relation to the internal review that is taking place, I have not received that report yet, but when I do, I will look at it carefully and consider how best to proceed thereafter. On the question of hotel use, I think we all agree that it is not ideal. We are working as rapidly as we can to reduce and eventually end the use of hotels, not just in the city of Glasgow but across the whole United Kingdom.

Counter-Terrorism and Sentencing Bill

Debate between Joanna Cherry and Chris Philp

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

[Joanna Cherry]

The Minister anticipates my objection, so perhaps I can refer him to what the assistant chief constable said in response to me during the evidence session on 25 June. I asked:

“So where there is a rapidly escalating situation or where there is a need to manage sensitive material, we already have available to us the option of a new variant TPIM without changing the standard of proof.”

and he replied:

“Well, a TPIM is a TPIM. We have the option of a TPIM to manage that case, yes, as it currently stands. MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 23, Q58.]

[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.

Oral Answers to Questions

Debate between Joanna Cherry and Chris Philp

Monday 13th July 2020 Commons Chamber

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

The NAO report mentioned by my hon. Friend the Member for Motherwell and Wishaw (Marion Fellows) is about not just value for money but people. Asylum seekers are, by their very nature, vulnerable people, with many of them being survivors of trafficking or ill treatment, including torture. Yet under the existing Home Office contracts with private companies, it is possible for those companies to shove hundreds of these asylum seekers into hotels without doing proper individual assessments of their vulnerabilities. The NAO report records that 10 months into these contracts there is no safeguarding framework. Can the Minister give us a date on which he will introduce a safeguarding framework for these private company contracts?

[Chris Philp]

The hon. and learned Lady asked about vulnerability assessments. In the Glasgow case we are discussing, vulnerability assessments were undertaken before people were moved, and I understand that 109 people who might have been moved from the temporary serviced accommodation into the hotels were not moved as a consequence of exactly that vulnerability assessment. She made a more general point about taking care of people who are vulnerable. This country has an extremely proud record in this area: last year, we made 20,000 grants of asylum or protection, which is one of the highest levels in Europe; we welcomed more than 3,500 unaccompanied asylum-seeking children, which is the highest level for any European country; and we are the only G7 country to spend 0.7% of gross national income.

[Joanna Cherry]

I thank the Minister for his answer, but I am sure he will recall that there was a degree of uncertainty about the nature of the assessments carried out in Glasgow, and I am sure he will agree that having a safeguarding framework would ensure that that sort of oversight would not happen again. He mentioned meeting the leader of the Glasgow City Council. He will be aware that many local authorities are concerned that, although the Home Office is happy to pay billions to private companies under these asylum contracts, no assessment has been made of the additional demands this places on local authority resources. Local authorities are concerned that the proper financial support they need is as far away as ever. How does he expect more local authorities to become asylum dispersal areas if the Government will not give existing local authorities the support they require?

[Chris Philp]

National Government provide a huge amount of support and finance to help asylum-seeking populations. We pay for all the accommodation. We pay for the council tax, which of course goes to local authorities, and for utility bills. Those who need healthcare are treated by the NHS, and of course funding for that flows from central Government. Those requiring education are educated, and there is a per capita funding formula to cover that. National Government are spending a huge amount of money supporting those populations. As the hon. and learned Lady said, the figures run over multiple years into billions of pounds. I am always happy to talk to local authorities about the work that they do and how we can work better together. I am already doing that with Glasgow City Council, and via the Cabinet Secretary for Communities and Local Government, Aileen Campbell, I hope to expand those conversations to cover other towns and cities in Scotland.

Counter-Terrorism and Sentencing Bill (Eighth sitting)

Debate between Joanna Cherry and Chris Philp

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

[Chris Philp]

I appreciate the hon. Lady’s intervention and the sentiments behind it, but I am not sure I entirely agree that this very small number of offences can be compared with the theft of apples. We are talking about a tiny handful of people who have committed the most serious offences where multiple people could have been killed and where the judge has found that the offenders are dangerous. Had they simply been misled, or coerced even, it might be open to interpretation as an exceptional circumstance, although we expect the exceptional circumstance derogation to be extremely rare—as the name implies, it is truly exceptional. Should truly exceptional circumstances exist, there is that opportunity open to the judge, but it would have to be truly exceptional.

To emphasise again how small the numbers are, the shadow Minister, the hon. Member for Stockton North, reading out my letter when we debated a previous clause, said that, last year, in 2019, of the 22 people convicted of terrorist offences, only four were aged between 18 and 20, and not all of those would meet the criteria for the serious terrorist sentence that we are talking about, so the numbers are microscopically small, thankfully, for those aged between 18 and 20. There is also the exceptional circumstance override, and we are talking about offences of the most serious kind, which have to pass three or four different hurdles before qualifying for the assessment that we have just described. In that context, where the offending is so serious and the risk so grave, the approach being taken is a reasonable one, but I accept the more general point about maturity in other, less serious contexts.

On the question of a review, given that the numbers are so very small, I am not wholly convinced that a bespoke review is the right thing to do, but, of course, there will be a regular review, as I might say frequently in the coming clauses, at the three-year mark, where it is right that the matter gets considered.

The hon. and learned Member for Edinburgh South West raised some points that will require consideration. It might well be that nobody at all aged 18 to 20 ends up being affected by this measure, in which case it will be a pretty short consideration. Mandating it by statute is not necessary. There are other review mechanisms. As we saw when we debated the Prevent review earlier, if we have too many statutory reviews, we end up tripping over our own shoelaces by failing to meet all the deadlines that we have created.

The questions are serious. I understand and respect them. We will need to debate them in future, quite properly and rightly, but putting this measure in the Bill is a step that we do not need to take this afternoon.

[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.

Counter-Terrorism and Sentencing Bill (Seventh sitting)

Debate between Joanna Cherry and Chris Philp

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

[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.

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

I thank the hon. and learned Lady for her constructive tone. Before she gets into the detail, will she tell us whether the Government in Holyrood will grant a legislative consent motion for the Bill?

[Joanna Cherry]

As the Minister knows, discussions about that are ongoing. He may take it that the constructive approach that I am indicating on behalf of the Scottish National party applies across the board, including the party in government in Scotland. He is aware from our discussions that there are certain concerns the impact of aspects of the Bill on devolved matters. They were addressed last week by my hon. Friend the Member for East Lothian in respect of the order for life-long restriction and the question of polygraph testing. We wish to be constructive on those matters, and that will be the approach of my colleagues at Holyrood.

Today I am focusing on TPIMs, which are a reserved matter. It is fair to say that my colleagues in Holyrood and Humza Yousaf, Scotland’s Justice Minister, have expressed some of the concerns that I am about to elaborate on. Like the hon. Member for St Helens North, my essential concern is that we have not yet seen the case for change—the case for lowering the standard of proof. We do not believe the Government have made that case, and in so saying we are in good company.

Our amendment 58, like the official Opposition’s amendment 69, seeks to raise the standard of proof, albeit it using a slightly different formulation. It is a probing amendment, but in truth, we believe that the standard of proof should stay as it is, because we do not think a case has been made out to change it. We also believe that that is where the balance of the expert evidence that this Committee has heard lies.

It is important to remember that, as has been alluded to, the changes in the Bill align the TPIMs regime more closely with its predecessor, the control orders regime. It is also important to remember that the concerns about control orders were widely shared across the House by Members from all parties. Those concerns are legitimate, because TPIMs restrict some of our most fundamental freedoms, such as freedom of expression, freedom of association, and freedom to have a private and family life. All these fundamental freedoms are restricted when somebody is sent to prison and convicted, but with a TPIM the person involved does not need to have been convicted of any crime for those freedoms to be restricted.

A TPIM is really just a step away from imprisonment, and depending on the package of restrictions, it can amount to a deprivation of liberty for the purposes of article 5 of the European convention on human rights, which for the time being at least is still a part of our domestic law. As none of the exceptions to the right to liberty in article 5 is applicable to the TPIMs regime, if the package of restrictions around a TPIMs regime amount to a deprivation of liberty, article 5 of the ECHR is breached. It is vital, therefore, that the TPIMs regime remains subject to the strictest of safeguards.

The current safeguard whereby a TPIM can only be imposed on the balance of probabilities is something that the Government are seeking to reduce considerably. We are concerned that the low threshold is disproportionate, and we do not think the Government have made out the case for lowering the threshold. It may well be that lowering the threshold would ease the administrative burden on the Government in terms of the evidence that is required for an application for a TPIM to be granted, but easing administrative burdens is not a sufficient reason to lower the standard of proof so drastically.

As I said, I will not push amendment 58 to a vote today, but if the Government continue to fail to deliver any compelling justification for their action, I anticipate that when the Bill returns to the Floor of the House, similar amendments will be tabled and there may even be a vote on whether this change should be made. The concerns that I am expressing are widely held. The hon. Member for St Helens North has told us that they are shared by the official Opposition and by the respected bodies that he listed. I know that some Conservative Back Benchers also share these concerns. Indeed, the Joint Committee on Human Rights, of which I am a member, is anxious, regarding this change as a lowering of the safeguards in relation to TPIMs. I am indebted to that Joint Committee for assisting me in my understanding of these issues.

Perhaps the most significant evidence this Committee has heard was from the current Independent Reviewer of Terrorism Legislation, Jonathan Hall QC. He has said that

“there is reason to doubt whether there exists an operational case for changing the TPIM regime at this point in time.”

I would submit that, notwithstanding the intervention on the hon. Member for St Helens North, we have heard nothing in evidence that has convinced Mr Hall QC otherwise. I asked him whether the Government had given him a business case or a justification for lowering standards of proof. He replied:

“I have obviously had discussions, but I have not been able to identify a cogent business case.” ––[Official Report, Counter-terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 15, Q31.]

That is what is missing here.

The lack of cogency or reasoned argument for the need for change mirrors the lack of appropriate evidence or justification that was presented to the House on Second Reading. If we look at the impact assessment, we see that certain questions are posed, such as:

“What is the problem under consideration? Why is government intervention necessary?”

However, the answers given to such questions relate solely to convicted offenders, with only a later reference to the policy objective to “better protect the public” and a link to the issue of

“individuals of terrorism concern outside of custody.”

Then, there is a vague explanation that the Bill will allow for more effective intervention when that is required. On the changes to TPIMs, the impact assessment says that they

“will enhance the ability of operational partners, such as counterterrorism policing, to manage the risk posed by individuals subject to TPIMs.”

It says that the change to the standard of proof will simply

“help ensure that operational partners are better able to impose TPIM notices on individuals where there is a requirement to protect national security.”

No further justification is given.

--- Later in debate ---

[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.

[Joanna Cherry]

If the evidence of the assistant chief constable and the three examples are so central to the Government’s business case, why were they not in the impact assessment and why were they not mentioned on Second Reading, when others and I were probing the Minister? For instance, the hon. Member for Bromley and Chislehurst, who is Chair of the Justice Committee, asked for the justification for the change. It seems to me the Government are seizing on this now as a justification. If it is the justification, flesh it out, put it in a business case but also, answer the question: why was it not there originally as a justification?

[Chris Philp]

I thank the hon. and learned Lady for her intervention. First, some of the details I am about to take the Committee through were mentioned on Second Reading. My right hon. Friend the Member for New Forest East (Dr Lewis) and I expressly mentioned the possibility of people returning from conflict zones such as Syria. In response to repeated interventions from the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), I gave the justification in general terms, which have been borne out subsequently by the detailed evidence.

[Joanna Cherry]

The problem of people returning from Syria, which I accept, is a significant one that has existed for a number of years. Is the Minister saying in terms that the current TPIM regime—the current standard of proof—has prevented the security services from dealing with the problem of people returning from Syria? If that is what he saying, he should say so in bald terms, rather than seizing on something after the fact to justify this significant change.

[Chris Philp]

I will finish dealing with the hon. and learned Lady’s previous intervention and then I will answer her second one. She was asking why the case was not made more fully on Second Reading. I said it was made in general terms and the example of Syria was given. I will come on to that in a moment. The reason we have witnesses appearing before Public Bill Committees is precisely to serve this purpose: to bring out the detail and let them give their testimony to the Committee and the House. The detailed testimony given by Assistant Chief Constable Tim Jacques on the morning of 25 June is precisely why we have witnesses. It is serving the function it should have done, which was to give the Committee and the House the details they asked for on Second Reading and which hon. Members are asking for today.

I turn to the detail of Tim Jacques’s testimony and give the specific and precise reasons why he and the security services believe this is important, one of which is the Syrian example, which I will elaborate on in just a moment. Assistant Chief Constable Jacques’s first reason for why the lower standard of proof is necessary to protect the public is that we may find that there are individuals whose

“risk profile is rapidly increasing”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 20, Q49.]

If someone’s behaviour is quickly changing they may go from posing a potential threat to an actual threat to actually offending very quickly. He says that it is that rapid change of circumstances that necessitates a lower burden of proof. He then goes on to give a second reason, which was mentioned by the hon. and learned Lady a moment ago, which is the threat of somebody returning from overseas. He says that where someone has been overseas—for example, in Syria—it is extremely difficult, as one can readily imagine, to gather evidence that would meet the criminal standard of proof beyond reasonable doubt.

Clearly, if someone has been operating in Syria, there will typically be no signals intelligence or eye-witness testimony, because it is very hard to get witnesses from Syria to come here, and there will be no results of other forms of surveillance: all the evidence that would normally be presented in a criminal prosecution enabling somebody’s guilt to be established beyond reasonable doubt. It is difficult—impossible, I would say—to achieve that when someone is returning. That is why, in those thankfully relatively rare circumstances, we might need to work to a lower standard of proof and reasonable suspicion in order to protect the public.

The hon. and learned Lady essentially said that people have been going to Syria for five years now, and indeed returning for four or five years. We heard in evidence from both Jonathan Hall and Tim Jacques that, historically, there have not been any examples where a TPIM was desired but not obtained owing to the burden of proof. In fact, that observation applies more generally and not only to the Syrian example. Let me directly answer the criticism immediately.

It is true, I accept, that there have been no occasions historically when a TPIM was desired but not granted owing to the burden of proof that currently exists. However, we are not seeking simply to cater for circumstances that occurred historically; we seek in this legislation, and as parliamentarians, to cater for risks that may arise in the future that may not have arisen in the past. The absence of such risks having happened in the last five or six years does not establish definitively that they will not happen in the future—such a risk might arise in the future. Indeed, the assistant chief constable effectively said that he thinks that is possible, which is why he is advocating for the lower burden of proof.

We must cater for risks, not historical certainties. That is why the evidence of the assistant chief constable is so important and why the Syrian example is a good one, even though historically we have not been inhibited. We might be in the future. A few moments ago, we heard a powerfully eloquent description of the devastating consequences that follow when the public are not protected.

Assistant Chief Constable Jacques laid out a third reason in his evidence concerning sensitive material—material that is gathered covertly, or the disclosure of which might prejudice investigations or the security services:

“The disclosure of sensitive material would potentially compromise sensitive techniques and therefore make our job and that of the Security Service harder”.––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 21, Q49.]

He says that, with a lower standard of proof, that disclosure would be required less frequently so there would not be such a requirement to disclose sensitive information.

In answer to a question posed by both Opposition Front-Bench shadow Ministers, Assistant Chief Constable Jacques laid out the business case powerfully in those three examples that I have just taken the Committee through.

[Joanna Cherry]

I have the greatest respect for the assistant chief constable and for the assistance he was able to give the Committee, but in a court of law we would call that hearsay evidence. He is not actually dealing with seeking TPIMs. The Independent Reviewer of Terrorism Legislation, who is charged by the Government with the responsibility of overviewing all this, said that there is no cogent business case.

Can the Minister explain why the independent reviewer is not convinced by the assistant chief constable’s three examples? Mr Hall said that he has had discussions with the Government—presumably the Government have put those examples to him if they are so central to the business case. Can the Minister explain to us why the Independent Reviewer of Terrorism Legislation is not convinced that there is a cogent case?

[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.

--- Later in debate ---

[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.

[Joanna Cherry]

There is no insult in saying that someone’s evidence is hearsay; it is simply that they are giving evidence about what someone else has told them. I am not undermining the witness in any way, but he is only giving evidence about what he has been told. Let us look at what he said at question 58, when I said:

“So where there is a rapidly escalating situation or where there is a need to manage sensitive material, we already have available to us the option of a new variant TPIM without changing the standard of proof.”

He responded:

“Well, a TPIM is a TPIM. We have the option of a TPIM to manage that case, yes, as it currently stands. MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 23, Q58.]

As I said to him, that is an important answer, albeit that it is hearsay. He is telling us that MI5 has said, in respect of two of the examples that the Minister is giving us as a justification for this significant change, that in no case so far has the current standard of proof been a blocker. Does that not perhaps explain why we have three distinguished Independent Reviewers of Terrorism Legislation supporting the existing standard of proof, rather than this Government’s variation?

[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.

--- Later in debate ---

[Chris Philp]

Allow me to explain why the current two-year maximum does not work from a security services perspective. As matters stand, if a TPIM comes to the end of two years and thereby automatically lapses, a brand-new application has to be made, requiring completely fresh evidence, without simply reusing the evidence used at the outset. New evidence must be obtained, which takes some time, particularly if during the two-year period of the TPIM, the subject has been careful to behave themselves, which is the purpose of the TPIM in the first place.

We have had examples of a gap caused by the renewal requirement. Jonathan Hall acknowledged that in answer to my question in his evidence on 25 June,. I asked him about gaps when TPIMs had expired and he said that he had found a couple of examples. He added:

“In one case it was a gap of a year, and in the second it was a gap of 16 months.”

In response, I said:

“It is fair to say that the risk would have existed in that 12 to 16-month period.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; Q2, c. 6.]

I was not asking about things that had actually happened; I was asking about risk—what might have happened. In response to that point, Jonathan Hall replied, “Yes.”

I went on similarly to ask Assistant Chief Constable Jacques whether a risk might exist in that gap. He said:

“Because we jointly manage TPIMs once imposed, I can speak on this. Yes, we do see an increase in the threat if that gap occurs, and that gap has occurred, as Jonathan has pointed out previously.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; Q51, c. 21.]

We therefore have clear evidence, from both the independent reviewer, Jonathan Hall, and counter-terrorism expert Assistant Chief Constable Jacques, telling us that the gap that follows the two-year expiration of a TPIM poses a risk to the public. It is right that in the Bill we seek to close that risk by allowing for carefully considered annual extensions.

In terms of protecting the subject and ensuring that the extensions are not used unreasonably, let me make the following comments to reassure the Committee and, I hope, the whole House. First, the old control order regime did not have the two-year limit. In the period when the control orders introduced by the Labour Government in 2005 were enforced, 30 lasted for two years or less, eight lasted for between two and three years, four lasted for between three and four years, and only three lasted for between four and five years. The clear majority lasted for less than two years. Only a small number—15, according to the figures that I have—lasted for more than two years, and the bulk of those lasted for three or four years. Once again, when the powers are available, they are used circumspectly and sparingly.

Further protections are laid out in statutory provisions in the Terrorism Prevention and Investigation Measures Act 2011, which will continue. The first is found in section 11 of the Act, which requires the Secretary of State to keep TPIMs under review, in particular conditions C and D, which I mentioned earlier. That is given practical effect via a quarterly review process, once every three months, in which the security services and counter-terrorism police participate. Secondly, there is an ongoing right of appeal by the subject laid out in section 16 of the 2011 Act. Section 16(1), which will continue in force, says that if

“the Secretary of State extends or revives a TPIM”,

the right of appeal will apply, so every time a TPIM is extended, the subject, if they think the extension is unreasonable, has the right to go to court to seek protection.

Given that the current gap is posing a risk to the public, as Jonathan Hall and Assistant Chief Constable Jacques very clearly said, and given that there are good and strong safeguards in place, I believe that the provisions in clause 38, allowing considered, thoughtful annual extensions, serve the purpose of protecting the public.

[Joanna Cherry]

I am not going to speak to amendment 64, but I will speak in support of Labour’s amendment 61 when we get to it.

Counter-Terrorism and Sentencing Bill (Second sitting)

Debate between Joanna Cherry and Chris Philp

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

[Chris Philp]

Q Thank you, Mr Allamby. Let me assure you that we are in extremely close and ongoing dialogue with Naomi Long and others in the Northern Ireland Executive, so those conversations are happening on a very regular basis.

My final question relates to polygraphs. You mentioned the importance of evidence, and later this afternoon we are seeing a professor who is an expert in this area, as far as evidence is concerned. Would you agree that where polygraphs are used just to provide a bit more background information and perhaps prompt further investigation, rather than being used to have a biting and binding consequence, there can be some value in that, as part of a holistic assessment to work out where more work needs to be done? Nobody is suggesting that it would lead to a direct, binding consequence. Does that give you any assurance?

Les Allamby: It gives me, I have to say, a rather limited measure of reassurance. I say that because it seems to me that if that is the case, then frankly that ought to be written into the Bill. It ought to be clear that the outcome of a polygraph test on its own should not have any adverse impact.

If you are going to introduce polygraph tests, you really should pilot them. I will quickly give you an example. It may seem a slightly odd analogy, but I used to sit on the Social Security Advisory Committee, and I remember being told many years ago by the Department for Work and Pensions that it was looking at voice recognition, as a way of starting to tell whether somebody might be telling the truth or not. Great play was made about that approach as a possible way forward in fraud detection, etc. It unravelled as the evidence became clearer that there were significant flaws in using that technology for making assumptions about whether individuals were telling the truth.

I cannot draw any objective scientific comparison between voice recognition and polygraphs, but it is a cautionary tale of rushing into using technology without piloting it and really considering what other safeguards you should have before using it.

[Joanna Cherry]

Q Good afternoon, chief commissioner and Dr Russell. You have said that you will put in a written submission on some of the wider issues around TPIMs. Please summarise your concerns about the new TPIM proposals from a human rights perspective.

Les Allamby: Yes, certainly. One concern is the relative absence of safeguards around extending it beyond two years. I think there ought to be additional judicial safeguards. There ought to be a test, if you are going to extend beyond two years, as to whether there is a compelling basis for doing so.

I have concerns that the loosening of the test from the balance of probabilities to reasonable suspicion. I note that we have slalomed, going back to control orders, as to what the required burden of proof is. I note the issues David Anderson raised. I also noted that the European convention on human rights memorandum issued by the Department suggested that things had changed between 2015 and 2020, but I am unsure whether that change is sufficiently compelling to reduce the test from balance of probabilities to reasonable suspicion.

TPIMs are used in a very small number of cases. They are oppressive. None the less, they are utilised on a sparing basis. But you need additional safeguards, if you will extend them beyond two years. Two years is a significant period of time in someone’s life to restrict their freedom of movement and their liberty, to the extent that TPIMs currently do, bearing in mind some of the additional provisions that will now be contained in TPIMs.

--- Later in debate ---

[Chris Philp]

Q Indeed. The current number of TPIMs in force is actually six, and we do not anticipate large growth in the numbers as a result of these provisions.

I have one final point. You mentioned concerns about renewal. Of course, renewal, under these proposals, would take place annually. And you mentioned a few moments ago judicial oversight as a concern. Of course, the subject of the TPIM can at any time bring a legal challenge against the use of the TPIM if they feel that it has become unfair. Does the availability of that mechanism to bring a challenge give you reassurance that the subject of the TPIM does have recourse to the courts, and can be protected by a judge, if he or she feels that that is necessary?

Michael Clancy: Well, of course, yes, it gives me some reassurance. I am glad to hear you make such a clear statement of the interpretation of the Bill. Certainly, the TPIM is reduced for one year, but it is capable of being made indefinite. If one were to take action—as you have suggested someone who is subject to one of these orders might take action—it might be the case that the judge would only be able to quash the TPIM rather than make any variation. That might be a solution that we would mutually accept, but there may be implications from that I suppose.

[Joanna Cherry]

Q The Minister referred to clear evidence of the requirement for a drop in the standard of proof. Are you aware of any clear evidence, as opposed to anecdotal evidence?

Michael Clancy: I have no evidence. As I have said, the important thing would be to see how this change to the legislation works and then, in a shortish period of time—between two to five years—think in terms of having some kind of post-legislative review, which would enable us to see whether this legislation had functioned properly and had met the objectives that the Committee has been discussing this afternoon of making people safer and protecting them. Then we can come to a view as to whether or not that change in the standard of proof was the right one.

Counter-Terrorism and Sentencing Bill

Debate between Joanna Cherry and Chris Philp

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

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

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

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

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

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

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

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

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

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

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

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

Three.

[Joanna Cherry]

Three? Excellent.

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

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

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

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

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

Procedure for Appointing Judges

Debate between Joanna Cherry and Chris Philp

Tuesday 8th October 2019 Westminster Hall

[Chris Philp]

I concur with both comments. I would also like to thank Judge McKinnon, who is a constituent of mine as well as a former chair of the bench. I agree that my comments on age apply as much to the magistracy as to the judiciary more generally—the court judges. As I said, I think my hon. Friend can look forward to a consultation on the topic before too long.

Several hon. Members raised the matter of the gender balance and ethnic composition of the bench, and I entirely understand why those points were raised. The proportion of newly appointed court judges from BME backgrounds is 11%, which compares to slightly over 15% of the population as a whole. Currently 7% of court judges and 11% of tribunal judges are, as the hon. Member for Bolton South East said, from BME backgrounds.

As for gender balance, as the hon. Lady said, 27% of High Court judges are female, and that figure rises to 32% across the courts more generally and 46% in tribunals. Also 56% of the magistracy are female and about 50% of court judges under 50 are female; that is an encouraging sign. Qualifying those remarks, I would say that we rightly expect more senior court judges to have decades of experience at the Bar, so appointments today reflect the Bar 30 or 40 years ago, when diversity was not what we would like, and there is a measure of unavoidable time lag. That does not mean that we should not take proactive and active steps—we should. We should encourage the JAC and work generally to improve diversity in the magistracy and the courts. The figures are moving in the right direction and improving, but I am sure we can do more. As a newly appointed Minister I will certainly consider what active steps can be taken in that area.

I am grateful for the opportunity to respond to this debate, to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for securing it, and to other hon. Members for attending. Those include the now very famous hon. and learned Member for Edinburgh South West—

[Joanna Cherry]

Infamous.

[Chris Philp]

Let me be generous and say famous! It gives me, the Lord Chancellor, and the Government as a whole great pleasure to reconfirm our commitment to independent, non-political appointments to the bench at all levels. That is the foundation on which the rule of law is built, and that should not change.