Counter-Terrorism and Sentencing Bill (Sixth sitting)

Kenny MacAskill Excerpts

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

[Kenny MacAskill (East Lothian) (SNP)]

I beg to move amendment 48, in clause 32, page 28, line 22, at the end insert—

“(b) In subsection (1) at the end insert—

( ) The regulations under section 35(1) of the Counter-Terrorism and Sentencing Act 2020 must include provision that the following must not be used in evidence against the released person in any proceedings for an offence—

(a) any statement made by the released person while participating in a polygraph session, or

(b) any physiological reaction of the released person while being questioned in the course of a polygraph examination.”

This amendment ensures that the results of any polygraph test must not be disclosed for use in a criminal prosecution.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 49, in clause 33, page 29, line 41, leave out “may” and insert “must”

This amendment ensures that the results of any polygraph test must not be disclosed for use in a criminal prosecution.

Amendment 50, in clause 34, page 31, line 13, leave out “may” and insert “must”

This amendment ensures that the results of any polygraph test must not be disclosed for use in a criminal prosecution.

[Kenny MacAskill]

It is a pleasure to serve under your chairmanship, Mr Robertson. Amendments 48, 49 and 50 were tabled in the name of Scottish National party Members but were put forward by the Law Society of Scotland, trying to achieve the best interests. That is obviously the position of the Government, but there is a distinctive legal jurisdiction. I know that yesterday the Prime Minister referred to the fact that there was no border between Scotland and England, but administratively and legally there most certainly is—the Minister has commented on that both today and yesterday.

Indeed, there is also the issue of polygraphs, which these amendments relate to. They are something that is currently unknown within the Scottish legal jurisdiction. They are something that, to be fair, the Scottish Government are sceptical about, but so are the legal profession and the judiciary. However, it is accepted that this is a reserved issue. It is a Government policy, and they are entitled to bring in that policy and it will have effect. Therefore, I think we are required to ensure that Scotland is able to deal with it adequately and appropriately.

These amendments are put forward on the basis of seeking to improve the legislation or seeking assurances from the Minister that the issues causing concern are being or will be dealt with. To be fair, the amendments are not simply tautological in any way; they are, in fact, a point of principle. We know that legislation is significant, and that the interpretation of words matters. It will produce a significant difference in the outcome, and it is not a matter that we can simply leave to a future court. In bringing the amendments forward, we seek clarification on the matters of concern. “Must”, as I say, is not tautological, in our view, but gives a clear indication that it is mandatory. “May”, while it may very well end up being the likely situation, certainly leaves it much more discretionary, even if it is not entirely absent.

As I say, the amendments were tabled on the basis of seeking clarification that Scotland will be able to act within the separate structures that we have, accepting the requirement and will of the Government, but that we take into account various issues and, in particular, the ability to protect the rights of the accused or, indeed, the released person in future issues that may come before them, to ensure that it is not counterproductive for them, and indeed that the system that we are operating is able to operate as efficiently as possible.

[Alex Cunningham]

We welcome this amendment in the name of the hon. Members of the Scottish National party, and we agree that the results of any polygraph must not be disclosed for use in a criminal matter. Put simply, they are far too unreliable to be used as evidence or an indicator of a person having committed a crime. We do not determine a verdict by the toss of a coin and Members will recollect the oral evidence given by Professor Acheson, who, in answer to a question about our operating regime for polygraph tests from the hon. Member for East Lothian, said:

“I must say I am not a great fan of the polygraph solution. Polygraphs are a very good way to demonstrate a physiological response to nervousness. Most people who take polygraphs are going to be nervous, so it is a very inexact science. I think it is probably slightly better than tossing a coin.”––[Official Report, Counter-terrorism and Sentencing Public Bill Committee, 30 June 2020; c. 80.]

We should not be using a method as unreliable as a polygraph to determine whether a person has committed a crime. So I join the hon. Member for East Lothian in asking the Minister to give assurances here and now that the use of polygraph testing for offenders released on licence will not become a stepping-stone towards the introduction of polygraph testing across the justice system.

As colleagues may have noticed, I have submitted a new clause on the issue of polygraphs so I shall reserve most of my comments for the stand part debate later today, but we do need some clarification and assurance that we are not moving in the direction of an unreliable method of fact-finding like polygraphs.

What knowledge and evidence do the Government have on the reliability of polygraph tests, and why are they intent on their use in this context? As Professor Acheson said in his oral evidence,

“Polygraphs are a very good way to demonstrate a physiological response to nervousness”—

I am aware that I am repeating myself—and I, for one, would certainly be nervous undertaking a polygraph even if I knew I had not committed a crime, which makes me question whether polygraphs provide anywhere near the necessary level of assurance. We need a much more robust system if we are to start making decisions around a person’s future. We are not entirely dismissive of the place of polygraphs or the potential role that they can play, but we would not want to see the burden of proof rely heavily, or even moderately, on a polygraph result.

I plan to go into further detail in later examination of the Bill, once we reach the new clauses, on the impact of polygraph licence conditions on those with protected characteristics. In the meantime, it would help if the Minister were able to clarify the Government’s position on polygraph tests, including plans for future use.

--- Later in debate ---

[Chris Philp]

As we discussed in evidence last week, the Government—and the Committee—fully recognise that polygraph testing does not provide definitive information that meets a burden of proof that a court of law would expect to be met.

We did hear, however, compelling evidence from Professor Grubin that polygraphs provide a great deal of utility in two areas—first, in causing offenders being questioned while a polygraph is being applied to disclose more information than they otherwise would. He gave some compelling statistics, showing that a high proportion—from memory, something like two thirds—of offenders questioned with a polygraph being applied made a disclosure of information, which is a far higher figure than would ordinarily be the case. It is helpful to get people on licence to disclose information that is useful in working out whether their licence conditions are being adhered to.

Secondly, if a negative polygraph result follows in answer to particular questions, the principal consequence is further investigation by the probation service or, if appropriate, the police. Only if those further investigations yielded new evidence or new facts would further action follow. Polygraph evidence would never be admissible in a court of law, and there is no intention of that, because we heard clearly that although it is helpful, it is not definitive in a way that we would wish evidence submitted to a court of law to be definitive.

That approach is already enshrined in section 30 of the Offender Management Act 2007, expressly disallowing the admissibility of polygraph evidence in court, but it is also covered in the equivalent provisions made for the devolved Administrations in this Bill, particularly clause 33 in relation to Scotland and clause 34 in relation to Northern Ireland. The Bill and the law in general are clear about how polygraph evidence should be used.

On amendments 49 and 50, and the use of “may not” as opposed to “must not”, I think that the phrases have the same meaning. “We may not do something” means the same as “we must not do something”—it is an express prohibition. I am sure it is helpful to put my view of that on the record, and I hope that the Committee concurs. It is categoric that something that may not be used cannot be used, and must not be used in any circumstances.

In support of clause 32 standing part, this is a useful additional tool in the hands of the probation service. It is used already with sex offenders in England and Wales. Professor Grubin provided very informative evidence—certainly the most entertaining evidence that we heard during our earlier proceedings. He made a powerful case for the way in which polygraphs, used properly, carefully, with the right training and with acknowledgment of their limitations, add something to the monitoring process. Therefore I think it is appropriate to include the measures.

[Kenny MacAskill]

I am grateful for the Minister’s response. I am not going to debate “may” or “must”, which seems to be becoming a tautological argument. I am happy to accept the Minister’s assurance, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[The Chair]

With this it will be convenient to discuss new clause 6—Reports on polygraph licence conditions for terrorist offenders—

“(1) Before section 32 comes into force the Secretary of State must lay before Parliament a report in accordance with subsection (4).

(2) Before section 33 comes into force the Scottish Ministers must lay before the Scottish Parliament a report in accordance with subsection (4).

(3) Before section 34 comes into force the Department of Justice must lay before the Northern Ireland Assembly a report in accordance with subsection (4).

(4) The form of the reports is an analysis of the expected impact of the appropriate section of this Act on people with protected characteristics, including but not limited to—

(a) the impact on people from minority faith groups, including the numbers received into prison and the length of the sentence served;

(b) the impact on people from BAME communities, including the numbers received into prison and the length of the sentence served;

(c) the consequences of any disproportionate impact on people with protected characteristics on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences; and

(d) the impact on people with physical and mental disabilities.

(5) No later than the anniversary of the appropriate section coming into force in each subsequent year, the Secretary of State, Scottish Ministers and Department of Justice must each lay a further report updating the analysis under subsection (4).”

--- Later in debate ---

[Kenny MacAskill]

Amendment 56 is procedural, and may well have been superseded. Amendment 57 is to do with the situation in Scotland, where we do not have any current regime for polygraphs. It has been put forward to introduce a trigger, because the numbers in the cohort referred to by the Minister are clearly going to be limited. Even during my tenure in Scotland, we had only a handful, because most of our terrorists—all but a few—have been paramilitary and Northern Ireland-related. On that basis, it may be appropriate to have a trigger and that the provision should be implemented as and when necessary, as opposed to setting up a regime that is not going to be used perhaps ever, but certainly not for a short period of time. That would give Scottish Ministers, and indeed the Scottish legal system, an opportunity to prepare.

--- Later in debate ---

[Chris Philp]

Clause 34 essentially has the same operative effect as the clauses we have already discussed in relation to polygraphs, except in relation to Northern Ireland. For the benefit of anyone listening in Northern Ireland and that of the hon. Member for St Helens North, we will work very closely with Naomi Long and the Northern Ireland Government on this, in the same way that we will work very closely with the Scottish Government. We recognise that they are not doing this already, and before we commence the provisions, we will need to make sure that the Northern Ireland Government are operationally able and ready to use them.

Question put and agreed to.

Clause 34 accordingly ordered to stand part of the Bill.

Clause 35

Polygraph licence conditions in terrorism cases: supplementary provision

[Kenny MacAskill]

I beg to move amendment 51, in clause 35, page 33, line 8, after “State” insert

“after consulting with Scottish Ministers and the Department of Justice”.

This amendment requires the Secretary of State to consult with the Scottish Ministers and Northern Ireland Department of Justice when making regulations under clause 35(1).

[The Chair]

With this it will be convenient to discuss the following:

Amendment 52, in clause 35, page 33, line 12, after “State” insert

“after consulting with Scottish Ministers and the Department of Justice”.

This amendment requires the Secretary of State to consult with the Scottish Ministers and Northern Ireland Department of Justice when making regulations under clause 35(2).

Amendment 53, in clause 35, page 33, line 17, after “qualifications” insert “training”.

This amendment adds “training” to the list of contents in regulations made under clause 35(2).

Amendment 54, in clause 35, page 33, line 19, after “keeping” insert “and confidentiality”.

This amendment ensures that regulations under clause 35(2) include provision for confidentiality of polygraph records.

Amendment 55, in clause 35, page 33, line 43, after “State” insert

“after consulting with Scottish Ministers and the Department of Justice”.

This amendment ensures that approval by the Secretary of State of polygraph equipment under clause 35(7) should take place after consultation with the Scottish Ministers and the Northern Ireland Department of Justice.

[Kenny MacAskill]

The Minister commented on amendments 51 and 52 in his previous remarks, and we accept the grace with which his assurances have been given. The remaining amendments—53, 54 and 55—again seek some assurances. I will speak from my own experiences in Scotland, not regarding polygraphs because we have never had them, but about something that is akin in some ways: fingerprint testing and the fingerprint service.

Unlike some elements of forensic science such as DNA, it seems to me that polygraphs—as with fingerprints—are not a science, but an art. They are subject to interpretation, and mistakes can be made. During my tenure as Cabinet Secretary for Justice and my service in the Scottish Parliament before that, Scottish justice was turned on its head by a manifest injustice that came about because of an error in fingerprint identification. That error shamed Scottish justice and harmed a former serving police officer. It required us to review our fingerprint service from top to bottom, bringing in an eminent judge from Northern Ireland to address it.

Polygraph is not like a DNA test, which comes back with odds of 3 million to one. People are required to look at it and consider it. It is something relatively new, although it is operating in other jurisdictions. Who trains them? Who regulates them? Who ensures that they are kept up to speed? How do we ensure that those carrying it out are properly qualified, rather than someone seeking a fast buck? Some of this is in the drill-down detail. It may be something that has to be addressed. It is coming in.

I ask the Minister to take on board what I say, in an attempt to be helpful: some things are an art, not a science. Forensic science caused us huge difficulties in Scotland. To ensure that injustices do not arise and the service is as good as possible, we require some check against delivery, a method of regulation, an understanding of who can do it and a way of holding them to account.

[Chris Philp]

I thank the hon. Member for East Lothian for his comments. I wholly concur with what he said about the importance of training and carefully managing who conducts these tests and how they conduct them. In evidence, we heard from Professor Grubin in some detail of the critical importance of training. Without the proper training, method and the right questions, the entire process is essentially worthless and could potentially lead to false results. I accept the spirit of the hon. Gentleman’s comments.

To reassure the hon. Gentleman, in clause 35(3)(a) there is a reference to “other matters”. I explicitly assure him that that includes things such as training. The Secretary of State will address those matters in detail in the regulations, as they are addressed in the current regulations made under the existing legislation that applies to sex offenders. Identical or similar measures relating to training will be included in those regulations.

In relation to the question of confidentiality, which I have previously touched on, disclosure of any information obtained by polygraph testing will be shared only with governmental partners, particularly law enforcement agencies. It will not be disseminated or disclosed any more widely. I hope that assures the hon. Gentleman about the detail that the regulations made under clause 35 will go into. They will most certainly address the issues that he is properly raising.

[Kenny MacAskill]

I am happy to accept the Minister’s reassurances. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[Alex Cunningham]

Again, I will be brief. I am aware that an amendment that I have tabled cannot be selected for debate, so I am content to address clause 35 stand part instead.

We accept that polygraphs have their uses, albeit very limited. Most notably, we recognise that polygraph examinations have been used with some success in the management of sexual offenders since 2013 by the National Probation Service. The Minister spoke about that and convinced us that, for that reason, we do not need a pilot for the Bill.

However, as has been said over and again in the evidence sessions and in debate, they are far from 100% accurate. While they give an indication, when used in the right conditions, that can detect traits associated with lying, they are far from infallible. The Bill allows the Secretary of State to impose mandatory polygraph examinations on high-risk offenders who have been convicted of terrorist offences or offences related to terrorism. Specifically, it allows for mandatory polygraphs to be taken three months post release and every six months thereafter unless the test is failed, after which the offender would have to take them more regularly.

However, the Government seem shy of spelling out the detail of how their proposed regime will work, leaving it to secondary legislation in the shape of regulations, which are mentioned in subsection (9). I, for one, am always a little wary of the Government when they opt for that route.

The Minister needs to provide a robust explanation of why he does not want that detail in the Bill. Is it a case of having insufficient detail at this stage to work out exactly what he wants to achieve with polygraph testing, or does he share everyone else’s reservations about the application of the test? I hope that he will explain why there has to be a delay. I am sure that if the Minister looked at the legislation relating to the application of polygraph tests to sex offenders, he could cut and paste the wording, and tidy it up to suit this legislation, so there is no excuse for it not being in the Bill.

The Ministry of Justice has committed to a review of the value of polygraphing terrorist offenders and those convicted of offences related to terrorism after two years, which we very much welcome. However, as I said earlier, we would welcome that kind of commitment in the Bill, and a clear statement that people with protected characteristics will be covered specifically. It would help the Committee were the Minister to spell out how he expects such a review to be conducted, what he expects out of it, and whether he would adopt the need to achieve the specific things that I have spelled out.

I reiterate that Labour does not object to the use of polygraphs as set out in the Bill, but we should see the detail from the Government on exactly what they want to do. They ought to spell it out in the Bill. I hope that the Minister will reflect on that, and perhaps accept that it would be an easy job to cut and paste from the other legislation and to table an amendment on Report that provides the clarification we seek.