Counter-Terrorism and Sentencing Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

27: Clause 37, page 34, line 35, leave out from “subsection (1)” to end of line 37 and insert “after “Secretary of State” leave out “is satisfied, on the balance of probabilities,” and insert—
“(a) for the first year of the TPIM, has reasonable grounds for suspecting; and(b) for any further years of the TPIM, is satisfied on the balance of probabilities,””Member’s explanatory statement
This amendment would leave in place the existing standard of proof for the second and subsequent years of any TPIM notice.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, TPIMs, or terrorism prevention and investigation measures, are the successors to, and relatives of, control orders. They may be imposed at the discretion of the Secretary of State, unless a court, on a preliminary look, considers them “obviously flawed”, if specified criteria are satisfied. They are summarised like this in the March 2020 annual report of the Independent Reviewer of Terrorism Legislation:

“There are up to 14 measures that can be imposed including overnight residence requirements; relocation to another part of the United Kingdom; police reporting; an electronic monitoring tag; exclusion from specific places; limits on association; limits on the use of financial services and use of telephones and computers; and a ban on holding travel documents. Breach of any measure is a criminal offence.”


It is common for all or substantially all of those measures to be imposed, severely limiting the basic freedoms of the subjects and impinging heavily on their families. Relocation—removed by the coalition in 2012—was reinstated in 2015. Additional measures are, of course, contained in the Bill.

The issue raised by Clause 37 and by these amendments, including Amendment 27 in my name and that of my noble and learned friend Lord Thomas of Cwmgiedd, is: how strongly must the Secretary of State suspect a person of involvement in terrorism before choosing to impose a TPIM on them? Since TPIMs succeeded control orders in 2012, the Secretary of State has been required to have a reasonable belief that the intended subject is or has been involved in terrorism-related activity—a belief, in other words, that the person has been involved in some capacity in the wide range of activity spelled out in Section 4 of the TPIM Act 2011. That range is not limited to the commission, preparation or instigation of acts of terrorism; it extends also to those who encourage, support and assist such behaviour. Nor need any specific act of terrorism be in prospect.

The “reasonable belief” formulation was amended in 2015 to one of satisfaction on the balance of probabilities, but the meaning is to all intents and purposes the same. The bottom line is that, before imposing this most extreme of all executive measures, the Home Secretary needs to have formed the view only that someone is, or was, probably involved in terrorism. That is already an easy standard to satisfy in the case of anyone who is likely to be a candidate for a TPIM—resource-intensive measures, as they are, that are not lightly applied for.

It is not a court that has to apply the balance of probabilities, on the basis only of admissible evidence. The judgment is entrusted to the Secretary of State, and she makes it, crucially, on the basis not just of admissible evidence but of the intelligence assessments with which she is provided by the Security Service and others. Such intelligence far exceeds what could be placed before a civil or criminal court. It is likely to include intercept material, or material supplied by foreign liaison partners who are unwilling to see it deployed in a public setting, or reports from a covert human intelligence source, whose existence could never be publicly disclosed. The Secretary of State sees all that in the form of documents, which, when I reviewed these things, I repeatedly described as thorough and conscientious. Everything is available to her, and she is required to conclude only that it probably demonstrates some involvement, past or present, in terrorism-related activity.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, there were a number of questions in the noble Lord’s intervention there. I certainly encourage him to reread the evidence given by ACC Jacques on 25 June 2020. Asked specifically about the proposal to change the burden of proof, he said:

“The Security Service points to three instances where it thinks this would have utility from an operational perspective.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Public Bill Committee, 25/6/20; col. 20]


He then outlined the three scenarios that I have just repeated—but it is certainly worth looking at his evidence in full.

We are not ignoring the views of Parliament; that is why we are here in Committee, rightly scrutinising this Bill. But I repeat that we are talking about a burden of proof that has previously existed and been enacted by your Lordships’ House and the other place; it was repeatedly tested in the courts and found to be compatible with the ECHR, so I am not sure that I agree with the characterisation that the noble Lord gives.

[Lord Anderson of Ipswich (CB) [V]]

I am grateful to the Minister for his courteous response. I do not think I ever had the pleasure of meeting him in Marsham Street, although I had a good deal of respect for his boss. I am also grateful to noble Lords from all three main parties, the Cross Benches and the Bench of Bishops, who made such interesting and supportive contributions to this debate.

Those speeches will repay careful study and, after my long opening speech, noble Lords would not thank me for revisiting their many highlights. I will say simply that it was striking to hear the observation of a former Lord Chief Justice that the change now proposed, described by the Minister as “marginal”, is “completely unacceptable in a civilised society”. I defer to the right reverend Prelate on the theological distinction between belief and suspicion, while making a mental note to ask him some time where faith fits into the spectrum.

The central question, to which, with respect to the Minister, I received no satisfactory answer, is this: if, as Chris Philp said in the Commons, the current standard of proof has, in almost 10 years, not stopped a desired TPIM from being granted, why do we need to change it? The Minister spoke of “hypothetical” cases of, for example, a returning Syrian fighter. Well, we have had 15 years-worth of real cases under control orders and TPIMS, including several hundred returned Syrian fighters who were screened and considered for these measures, and it remains the case that this issue has not posed any problem in practice.

The Minister spoke of “flexibility”. Well, most of us are flexible enough to countenance some compromise, even of basic freedoms, if there is a pressing reason for it, whether that be public health or public safety. However, until I have seen that pressing reason—or at least fully understood what it is supposed to be—I cannot support Clause 37.

The point was well made by the noble Lord, Lord Paddick, that the hypothetical cases put forward in support of 90-day police detention were without foundation. We have managed perfectly well in practice for 10 years with the 14-day limit introduced by the Conservative-Liberal Democrat coalition.

No doubt we will come back to these issues at a later stage. Before that, I shall reflect on the fair challenge from both the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer, that, in formulating Amendment 27, I may, in the absence of evidence for its position from the Government, have been too ready to compromise in respect of the first year. As to that first year, the Minister said nothing very specific—unless I missed it. However, for now, as is usual at this stage of the proceedings, I beg leave to withdraw my amendment.

Amendment 27 withdrawn.

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[Lord Anderson of Ipswich (CB) [V]]

My Lords, I will speak in this group to Amendment 30, which I have signed, together with my noble and learned friend Lord Thomas of Cwmgiedd. Clause 38, to which all these amendments relate, seeks to return in another respect to the days of control orders by removing the maximum time limit on TPIMs. Though I oppose Clause 38, as I did Clause 37 in the previous group, I would accept that the issues in this group are less clear-cut and the right solution less obvious.

In a report on the control order regime published in March 2012, shortly after that regime came to an end, I described control orders as an effective means of protecting the public from a small number of suspected terrorists who presented a substantial risk to national security but whom it was not feasible to prosecute. I observed a conscientious administrative procedure, coupled with close judicial scrutiny, which ensured a substantial degree of fairness to the subject. However, I added that those individuals were placed under extraordinary and intrusive restrictions; that this could go on indefinitely; that legal review was far from immediate; and that when the hearing did come around, controlled persons spent crucial parts of it excluded from the court, oblivious both of the detailed accusations made against them and of the submissions made by special advocates, who were able neither to communicate fully with them nor to call evidence on their behalf. I concluded that only in the face of strong necessity could it ever be justifiable for the individual to be placed in such a position by the state.

As will be the case if Clause 38 is enacted, there was no limit on the number of times a 12-month control order could be extended, so long as the statutory test continued to be met. During the currency of the control order regime, from 2005 to 2011, 15 persons were subject to control orders for more than two years—three of them for periods exceeding four years. Each of the four who had been subject to control orders for more than two years at the end of 2011 were transferred to TPIMs, where, as I recall, they served an additional two years, which was the maximum under that regime unless fresh evidence came to light—it rarely does.

Experience shows, therefore, that where the law has permitted it, Home Secretaries have considered it appropriate to keep British citizens who have never been convicted of a terrorist offence under these kinds of extreme constraints for periods in excess of five years. Indeed, had it not been for the introduction of the two-year limit, as originally recommended for all save exceptional cases by my noble friend Lord Carlile —my predecessor as Independent Reviewer of Terrorism Legislation—it is fair to assume that some subjects could have been detained in this way for far longer periods. That has been the experience with other, less all-encompassing executive orders, such as terrorist asset freezes. After all, who wants to be the civil servant or the special adviser to recommend the discharge of a control order, and who wants to be the Secretary of State to agree to it?

At the monthly TPIM review group meetings, at which all subjects were discussed, it became evident to me that the new two-year maximum limit was bringing some benefits. Since it was no longer possible for a TPIM to be used to warehouse a subject indefinitely, more serious and connected thought started to be given to an exit strategy: a suitable job, a suitable course of study, and the forging of new relationships away from the subject’s previous associates. However, as will be equally obvious, there could still be subjects who use their two years to lie low and who might still be adjudged to pose a threat when their TPIM comes to an end. That was the reasoning of those who had requested, agreed to and endorsed control orders for much longer periods than two years. I reported myself in 2013, echoing my noble friend Lord Carlile, that it was tempting to wish for longer than two years in the most serious cases.

If the goal is to minimise the potential threat regardless of the cost to civil liberties, the Government are justified in imposing indefinite executive detention. Yet that goal could also be used to justify warrantless searches of the home and general, suspicionless stop and search. All of us, surely, would instinctively recoil at such measures. I also note that, although they are notionally available in Northern Ireland, no control order or TPIM has, for whatever reason, ever been imposed there. I accept that TPIMs, although so far imposed predominantly, if not exclusively, on Muslims, have so far been only a minor rallying point for grievance: the numbers of TPIMs have been small, and the vast majority of British Muslims are only too glad to see dangerous extremists firmly dealt with. But the echo of internment can still be heard in Northern Ireland, nearly half a century on—a reminder that excess of zeal in this sensitive area can quickly become counterproductive.

There is wisdom in the words of the noble and learned Lord, Lord Clarke of Nottingham, who wrote, when Justice Secretary, in 2011:

“The primary role of any government is to keep its citizens safe and free. That means both protecting them from harm and protecting their hard-won liberties.”


Where is the correct balance to be struck? We no longer live in times when a Conservative Government could come into power promising in relation to counterterrorism law, as they did in 2010,

“a correction in favour of liberty”.

So my amendment does not seek a perpetuation of the status quo. Indeed, it would double the current maximum limit, in the absence of additional evidence, to four years, allowing plenty of time to work on TPIM subjects, while still requiring the authorities to focus on an exit strategy. Coupled with the amendment that I have already moved on standard of proof, or one of the other amendments in the previous group, it would represent a toughening of the present regime, while still at least attempting to combine the two imperatives that the noble and learned Lord, Lord Clarke, identified.

Terrorism in this country has cost us almost 100 lives since 9/11, and the threat level, although reduced only yesterday, is still “substantial”. However, as this pandemic reminds us, the existence of a threat cannot by itself dictate where the balance should be struck. The balance is for Parliament, and I suggest that a maximum of four years for these unpalatable measures—tough as it undoubtedly is—gets it about right.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

The noble Baroness, Lady McIntosh of Pickering, has withdrawn from this group, so I call the next speaker on the list, the noble and learned Lord, Lord Thomas of Cwmgiedd.

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[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, rather like the noble Baroness, Lady Hamwee, I am not sure that our two amendments have any connection whatever. None the less, it is a pleasure to be able to make this short intervention on the Bill and to probe just a little more than I did at Second Reading the role of police and crime commissioners.

I do support the strengthening of the TPIM provisions. That the Government would have to do so was entirely foreseeable in 2011, when the coalition Government insisted on the abolition of control orders, despite the warnings that I and other noble Lords gave at the time.

My amendment was drafted after discussions with the West Midlands police and crime commissioner, David Jamieson. Clearly, the provisions are potentially extremely resource-intensive and need to be used proportionately and only when absolutely necessary. I would like to make two specific comments.

As the thresholds for a TPIM are lowered and the range of measures extended, it is important that greater scrutiny and oversight are implemented to give reassurance to individuals and communities that the legislation is being used fairly. These are of course issues of grave national security concern. The oversight offered by a police and crime commissioner could help to give the Home Secretary reassurance that full consideration had been given ahead of any decision regarding a TPIM. Local oversight could also enhance the ability of the Home Secretary to make an informed decision when considering a TPIM application, variation or extension. It would enable PCCs to submit any additional information or make recommendations to the Home Secretary in respect of the community impact and the impact on local police force resources—which, as has already been discussed, can be intensive for a TPIM.

It is not entirely clear how police and crime commissioners are currently made aware of TPIMs within their local area. Certainly, the chief constable should advise the police and crime commissioner when a TPIM is being considered, but there are no clear guidelines on how this should take place. My amendment would formalise this process. We know that the number of TPIMs in place nationally is small, and therefore it should not be envisaged that this additional step in the process would present a burden for police and crime commissioners or forces. As part of this process, the information would of course have to be shared within the most appropriate, secure environment.

At Second Reading, the noble Baroness, Lady Williams, responded to that point by saying that the Home Office already works very closely with the police before a TPIM is imposed and during its lifetime. She went on to say:

“The process ensures that TPIMs are imposed only following engagement with the relevant local police force and that community impact assessments are kept up to date.”


She then said:

“The Bill already contains a clause that will allow a TPIM subject’s relocation measure to be varied where necessary on operational resource grounds.”


On those grounds, she considered that my

“proposed amendment for an additional role for PCCs … in TPIM processes is … not necessary.”—[Official Report, 21/9/20; col. 1653.]

That was disappointing. The key issue here is that TPIMs are an intervention that places significant restrictions on a person’s life, based on the balance of probabilities. Given that, PCCs could add value in the process by seeking reassurance that due process had been followed. I remind the Minister that they do this for other policing powers that might be regarded as controversial, including stop and search and the use of covert services, and it would be appropriate if it were extended to TPIMs. I commend the amendment and hope that the Minister will be sympathetic.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I have just a little to add to what has already been said about Clause 40.

The current requirement that a residence condition be “overnight” has acted as a limitation on the maximum length of the nightly period of house arrest that may be imposed under a TPIM; the noble Baroness, Lady Hamwee, referred to some of the case law on this subject. Confinement to the home during substantial parts of the day may sound almost familiar in times of Covid but it would represent a major reversal of past practice. I see that my own 2012 report, to which the Minister was kind enough to refer, confirms that even control orders featured curfews of only up to 16 hours.

In that context, I have three questions. First, if Clause 40 is passed into law, for how many hours a day will it be permissible to confine TPIM subjects to their designated residences if that is considered, in the Minister’s words, “necessary and proportionate”? Is there any reason why it should not be for 23 or, indeed, 24 hours?

Secondly, what are the specific circumstances that make it necessary for public safety to extend these already formidable powers in this way? If they are to be credible after 15 years of real-world experience, please may we have actual examples, even if they must be anonymised, rather than hypothetical ones?

Thirdly, and more generally, my sense from the last few debates is that the Government will have to work quite hard if they are to persuade noble Lords of the operational case for some of these changes—particularly as they appear not to have persuaded their own independent reviewer, with all his privileged access to classified material. What proposals does the Minister have in that regard?

[Lord Bach (Lab) [V]]

My Lords, I declare my interest as the elected and serving police and crime commissioner for Leicester, Leicestershire and Rutland. I have been in that post for nearly five years now but in three months’ time, if the 6 May elections take place as the Government propose, I will no longer have this interest to declare. I look forward to once again playing a greater role in your Lordships’ House.

However, when, as in this Bill, issues of delicate constitutional importance arise—issues that affect the relationship between the state, in the guise of the Home Secretary and the police, and the individual, in the guise here of the reasonably suspected person—surely it is important to examine with great care, as this House always does and clearly has done today, the implications for the rule of law and individual liberty. That is why I put my name to my noble friend Lord Hunt of Kings Heath’s Amendment 31, which, strangely, is in this group.

Amendment 31 suggests a practical and sensible way forward—one that balances the interests of all involved, I would argue. It suggests a role for police and crime commissioners that seems entirely appropriate and consistent with the Police Reform and Social Responsibility Act 2011. When the coalition Government proposed the setting up of what I will call PCCs, they deliberately gave them considerable responsibilities and powers. Not only were they described as the “local policing body”; the Policing Protocol Order 2011 insisted that police and crime commissioners had a role in the “totality of policing”. Sometimes, it seems as though the then Government’s intentions, as contained in the Act passed by Parliament, have not always been fulfilled by succeeding Governments, who, although keen to support the legislation, seem to draw back from some of its consequences. I very much hope that the way in which the Minister deals with this amendment will show that I am wrong.

Of course, we all agree that strong powers are needed to protect society from those who would use, aid or support terrorism to get their own way. In this Bill, there is an obvious intention to strengthen the power of the state against the individual, pointed out repeatedly by noble Lords from all sides. This involves the removal of basic safeguards, as we have heard today: first, the need for there merely to be reasonable suspicion, rather than proof of a balance of probabilities, and, secondly, the open-ended nature of a TPIM. The dangers of that last approach were referred to by the noble and learned Lord, Lord Thomas, in the context of recent public prevention legislation. Immense executive power attaches to the Home Secretary and the police, who are tasked with TPIM powers.