Domestic Abuse Bill
Lord Parkinson of Whitley Bay Excerpts(3 years, 7 months ago)
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Lord Parkinson of Whitley Bay
That this House do not insist on its Amendment 40, to which the Commons have disagreed for their Reason 40A.
Lord Parkinson of Whitley Bay (Con)
My Lords, on behalf of my noble friend Lady Williams of Trafford, I beg to move Motion E—that this House does not insist on its Amendment 40. Noble Lords will recall that this amendment seeks to establish a firewall so that the personal data of victims of domestic abuse that are given or used for the purposes of their seeking or receiving support are not used for immigration control purposes.
While we appreciate the case that noble Lords have made throughout the passage of the Bill, the Government remain of the view that what is provided for in Amendment 40 would actually be detrimental to the safeguarding of victims of domestic abuse—and that it is premature, given the process set out by the policing inspectorate, following its report in December on the super-complaint made by Liberty and Southall Black Sisters. This view was shared in another place, where your Lordships’ amendment was disagreed by a majority of 80.
None the less, the Government have of course reflected carefully on our earlier debates on this issue. We want to ensure that all victims of crime are able to come forward to report such crimes to the police, regardless of their immigration status, and that they are not deterred from doing so because of concerns that immigration enforcement action may be taken against them. As I have previously made clear, our overriding priority is to protect the public and all victims of crime, regardless of their immigration status. Guidance issued by the National Police Chiefs’ Council, which was updated last year, makes clear that victims of domestic abuse should be treated as victims first and foremost.
The National Police Chiefs’ Council remains clear in its view that information-sharing between the police and Immigration Enforcement is in the interest of the victim. Assistant Commissioner Louisa Rolfe, the national policing lead on domestic abuse, concurred with this view when she gave oral evidence to the Public Bill Committee in another place.
There can be many benefits to sharing information, as it can establish whether a victim has a status of which they are unaware. It can also help to prevent perpetrators of abuse from coercing or controlling their victims because of their insecure immigration status. In cases like these, bringing the victim into the immigration system and providing them with a clearer understanding of their status can only help them, enabling them to obtain appropriate legal advice to regularise their stay if necessary.
I hope that noble Lords will also appreciate that the Government are duty bound to maintain an effective immigration system, to protect our public services and safeguard the most vulnerable people from exploitation due to their immigration status. The public rightly expect that everyone in this country should be subject to our laws. It is right that, when people with an irregular immigration status are identified, they should be supported to come under our immigration system and, where possible, to regularise their stay. Immigration Enforcement staff routinely help migrant victims of crime by directing them to legal advice to help them regularise their stay.
Since April 2020, Immigration Enforcement has improved its data collection and has recorded crime type on all victim referrals from the police. Between April and December last year, 128 victims of domestic abuse were referred to Immigration Enforcement. Of those 128, 75—just under 60%—already had legal status in the UK, of which some of them may have been unaware. Only 32 of these referrals—25% of them—had enforcement action taken in the form of the serving of papers to notify them of their immigration status. This was often days after the initial referral and once the individual had been safeguarded by police officers. Records show that none of the individuals has been detained and none has been removed from the United Kingdom. I hope that noble Lords will agree that these findings demonstrate some of the misconceptions which have arisen regarding the actions that Immigration Enforcement takes with migrant victims of abuse.
We understand the concerns raised by the noble Baroness, Lady Meacher, about migrant victims who do not feel safe reporting their abusers to the authorities for fear of enforcement action being taken. I am grateful to the noble Baroness for the time she made yesterday to discuss this, and her amendments, with me. As part of our review, we will engage with domestic abuse sector organisations better to understand those concerns and assess what more we can do to allay such fears. We are also engaging closely with the domestic abuse commissioner’s office throughout the review.
The amendment would also have wider-reaching impacts on domestic abuse victims receiving the NHS treatment they are entitled to. The NHS can seek information from the Home Office about a person’s immigration status to inform its assessment of their eligibility for free treatment. Data sharing of this kind may help some victims of domestic abuse to establish their eligibility for free NHS treatment when seeking treatment not covered already covered by the exemption for medical conditions caused by domestic violence.
Finally, and perhaps most pertinently, as the Commons set out in their reason for disagreeing with your Lordships, this amendment is pre-empting the super-complaint process. The outcome of the super-complaint was published by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services in December last year and made eight recommendations. It is only right that we properly take account of the recommendations in this report, not least as this is the first ever super-complaint made under the provisions of the Policing and Crime Act 2017, which were supported on all sides of your Lordships’ House.
In response to the report of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, we have committed to review the current arrangements. We remain on track to publish the outcome of that review by the end of June, as I previously set out. To legislate now would pre-empt the outcome of that review. Moreover, it is highly probable that the outcome of the review can be implemented through further updates to the National Police Chiefs’ Council guidance or other non-legislative means. If legislation is needed, there will be other opportunities, including the Police, Crime, Sentencing and Courts Bill, which has already been introduced to Parliament.
I ask the noble Baroness, Lady Meacher, and indeed the whole of your Lordships’ House, to support Motion E so that we can complete the review in line with the inspectorate’s findings and recommendations. I beg to move.
Motion E1 (as an amendment to Motion E)
Baroness Wilcox of Newport (Lab) [V]
My Lords, I make it clear at the outset that if the noble Baroness, Lady Meacher, divides the House then the Opposition Benches will strongly support her. This amendment would provide for the circumstances where victims’ data cannot be shared for immigration purposes if they come forward to report abuse. However, and importantly, it provides that, for this section to come into force, there must be a vote in both Houses to approve it, after either the Government have published their review and Parliament has debated it, or after 1 July if the Government have regrettably not lived up to their word and published their review by then. This amendment rightly and democratically gives Parliament the ability to hold the Government to account on taking action after they publish their review. It is needed to allow victims to feel able to report abuse without fear, so that dangerous perpetrators are reported and stopped.
One of the consequences of putting immigration control above the safety of victims is that perpetrators can commit these crimes with impunity—a risk not only for survivors but for wider communities. Better trust in the police to protect victims of abuse and investigate crime for migrant women will improve responses for all survivors, and indeed the public.
This revised amendment is a thoroughly reasonable backstop. It gives the Government the time they have asked for to publish their review, but it gives Parliament the power, and indeed the responsibility, to hold the Government to account and to demand action on this issue if there is no subsequent implementation. I wholly recommend the amendment to the Minister and to the Government.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to the noble Baroness, Lady Meacher, for setting out the case for her revised amendments and to all noble Lords who have spoken in this debate. Amendments 40B and 40C seek, in essence, to make the same provision as her original Amendment 40 but add a mechanism for deferred commencement. I certainly appreciate the fact that the noble Baroness has tried to seek a helpful middle course by adding this deferred commencement and engaging with the reasons given in another place for rejecting Amendment 40. However, I am afraid that we still do not think that her amendments quite solve the problem.
Until we have completed the review which I spoke about, we do not want to prejudge the outcome by writing into law the provisions of Amendment 40. The noble Baroness’s amendment provides for one outcome only, namely a blanket prohibition on the sharing of the personal data of victims of domestic abuse for immigration control purposes. To write this on to the face of the Bill, even with her suggested deferred commencement procedure, would still be prejudicial to what needs to be an open review, without any predetermined outcome. The right reverend Prelate the Bishop of London spoke of her anxiety about missing the opportunity of doing something in this Bill, but we could be left with a provision which is simply not the right way of addressing the issue noble Lords are concerned about. As I set out earlier, the outcome of the review can, in all likelihood, be given effect through non-statutory means, such as revised NPCC guidance, but we want to complete that review and make a decision once that has been done properly.
Domestic Abuse Bill
Lord Parkinson of Whitley Bay ExcerptsWednesday 10th March 2021
(3 years, 8 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 171-III Third marshalled list for Report - (10 Mar 2021)
Lord Parkinson of Whitley Bay (Con)
My Lords, we have completed scrutiny of 10 groups of amendments and have a further seven to cover today, so I suggest that this might be a sensible moment for a short break.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am sorry to interrupt the noble Baroness. I appreciate that she has three amendments to introduce—
Lord Parkinson of Whitley Bay (Con)
She has taken 20 minutes to do so already and the House is keen to debate the amendments she is putting forward. If she could do so briefly, it will give noble Lords the opportunity to do just that.
Baroness Kennedy of The Shaws (Lab) [V]
I feel that that was unnecessary, but I was coming to my conclusion anyway. There must be a causal link between the threat and the decision of the defendant to break the law, and that is a high bar. I strongly urge the House to support this new statutory defence for women who are compelled to commit crimes so that they can put it before the court where it can be tested and measured evidentially. If it passes the test, she can be acquitted.
Amendment 66 is a list of the offences to which this would not apply because of their gravity. I hope that the Crown does not think that there are two kinds of victims: those who are somehow deserving and those who are undeserving. The end of the road is when women are forced to do things that take them into the criminal ambit because of a history of abuse. I beg to move.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and all other noble Lords who have supported this amendment, for again setting out the case for it. The amendment seeks to create an offence of controlling or coercive behaviour for psychotherapists and counsellors providing services to clients.
Amendment 52 seeks, in effect, to replicate the coercive or controlling behaviour offence under Section 76 of the Serious Crime Act 2015. This offence was created to close a gap in legislation regarding patterns of coercive or controlling behaviour in a domestic abuse context; that is, during a relationship between intimate partners, former partners or family members. As such, the offence applies only to those who are “personally connected” as defined within Section 76 of the 2015 Act. The amendment would extend the offence beyond those who are personally connected as defined by that Act so that it applied to psychotherapists and counsellors.
In Committee, and again today, the noble Lord, Lord Marks, and others have strongly made the point that unregulated and fraudulent psychotherapists are able to take advantage of their clients’ vulnerability by supplanting parents and families in the affections and minds of their clients, with the purpose of turning them against their friends and families through a process called transference. The noble Lord has suggested that this abuse should be caught by the controlling or coercive behaviour offence because therapists are abusing their position of trust and the dependence of their clients.
As my noble and learned friend Lord Garnier noted, we have had a number of debates on this issue and on the importance—in the Government’s submission—of preserving the meaning of “personally connected” in relation to domestic abuse, both in this Bill and, by extension, for the purposes of the Section 76 offence. The Government recognise that noble Lords have raised an important issue and have made some spirited and cogent arguments in favour of doing something now. However, we still feel it is important to acknowledge that domestic abuse, including controlling or coercive behaviour, is a unique type of abuse underpinned by an emotional and affectionate bond between the victim and the perpetrator, as well as a complex power dynamic. The paid-for or commercial nature of the psychotherapist-client relationship represents a fundamentally different power dynamic from that of domestic abuse. In answer to the noble Lord, Lord Marks, my noble and learned friend Lord Garnier and others, that is why we do not believe that it is appropriate to replicate the Section 76 offence in other contexts such as this. I am grateful to the noble Lord, Lord Kennedy of Southwark, for recognising that this might not be the right Bill in which to do it.
As I mentioned in Committee, this is a matter for consideration by the Department of Health and Social Care. I am pleased that a number of noble Lords who have spoken in Committee and again tonight had the opportunity to discuss it in more detail with my noble friend Lady Penn, on behalf of that department, and with me. I am glad they found the discussion productive, as we did. I am grateful to those noble Lords for their time and engagement with us and with officials from both the Home Office and the Department of Health and Social Care.
As noble Lords noted, there is at present a system of accredited voluntary registration by the Professional Standards Authority for Health and Social Care. The authority has a process for quality-assuring voluntary registers of health and care professionals in the UK who are not subject to statutory regulation. It currently accredits 10 voluntary registers relating to counselling and psychotherapy, providing assurance to the public in relation to around 50,000 talking therapy professionals. These registers should be used by service users to choose a practitioner to meet their needs and to be assured that they are safe, trustworthy and competent to practise. To gain accreditation from the authority, organisations must meet 11 standards for accredited registers. I set those out in Committee so will not do that again now, but any registrant who is removed from an accredited register for conduct reasons cannot join another accredited register.
I recognise that these registers are voluntary, as a number of noble Lords have pointed out, but they provide assurance that practitioners who are on the registers are safe, trustworthy and competent. The noble Baroness, Lady Mallalieu, is right that more can be done in this area, and the Department of Health and Social Care is working with the Professional Standards Authority to improve awareness of the accredited registers programme and to encourage service users and providers—people such as GPs, as she says—to seek out the services of practitioners on an accredited register rather than unregistered individuals.
The Government are committed to a proportionate system of safeguards for the professionals who work in the health and care system, and from time to time we bring new professions into regulation. It is important that decisions to regulate a profession are evidence-based and consider the risks posed by the profession in the round, not just the risks posed by unscrupulous practitioners. The Professional Standards Authority has developed its “right-touch assurance” tool with the aim of providing advice on how best to regulate different groups in health and care. Where the Government are satisfied that the conditions for regulation of a profession are met, that can be taken forward through secondary legislation using powers in the Health Act 1999, a point that, as noble Lords mentioned today, we have explored in our helpful discussions since Committee.
The Department of Health and Social Care is currently conducting a programme of work to reform the professional regulation framework for healthcare professionals. That will provide an opportunity to consider whether the professions protected in law are the right ones and to ensure that the level of regulatory oversight is proportionate to the risks to the public.
I am conscious, as the noble Lord, Lord Alderdice, set out in his contribution, that this is an issue that has been around for a very long time—since 1971, in some form—and he has been working on it for many years. I hope that reassurance and the points that have been raised, both in these debates and in our meeting since Committee, will be fed into that work. Perhaps this will provide further reassurance: as a couple of noble Lords have alluded to, one person who spoke in Committee but is not speaking today is my noble friend Lady Finn. If nothing else, I hope noble Lords will note that they have another person on the government side who is fully sighted on these issues.
The noble Lords who have spoken in favour of the amendment have once again underlined this important issue, but I hope they will accept why we believe this is not the appropriate Bill in which to pursue the regulation of psychotherapists and counsellors. I have no doubt that they will take the further opportunity to debate this issue soon in the context of Department of Health-led legislation and, moreover, as I have indicated, the issue of regulation can be considered afresh in the context of the forthcoming review of the regulation of healthcare professionals.
The noble Lord, Lord Kennedy of Southwark, spoke of a pathway. It may not have as many paving stones as noble Lords might wish but I hope that they can discern one, and that on that basis the noble Lord, Lord Marks, will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, it is late in the evening and I shall be brief. We have heard a detailed argument from the noble and learned Lord, Lord Garnier, and my noble friend Lord Alderdice as to why this amendment fits so clearly within the ambit of the Bill. From my noble friend Lord Alderdice we also heard how close is the link between therapy and domestic abuse, and from all around the House we have heard how overdue this measure is and that it is not a recent problem that we are seeking to address.
It is also significant that this amendment attracts support from doctors and lawyers and Members of your Lordships’ House who are neither. The noble Baroness, Lady Finlay, said how common and how wrong it is that bogus therapists can take advantage of their clients, causing them real harm. The noble Lord, Lord Fairfax, was one of many Peers who know families who have been victims of this abuse, and he also powerfully argued for an end to inaction on the part of government. My noble friend Lady Jolly was another, who described graphically the behaviour of these charlatans as unethical and without shame. The noble Lord, Lord Kennedy, described our case on the amendment as a powerful case for change and called for action. So let us, please, not miss yet another opportunity, as the noble Baroness, Lady Mallalieu, put it. As the noble Baroness said, compulsory registration must sit alongside criminal sanctions, in just the way as the noble and learned Lord, Lord Garnier, pointed out. An offence of coercive control modelled on the Serious Crime Act may not be the only way to achieve it, but it is a good one.
Whatever form an amendment of the criminal law takes, the House and the Government know clearly what it is that we are trying to achieve. They really ought now to be implementing change, rather than closing the road to change. The Government need to get over the temptation to insist on drawing the distinction between what the noble Lord, Lord Parkinson, described as the emotional and affectionate bond that characterises domestic abuse and the type of abuse that these charlatans and quacks perpetrate on their victims. It will be interesting to see whether the Government can move away from insisting on that distinction. I described it earlier as a precious distinction, but it is purist at best.
“Not this Bill, not now” is no answer to the suffering of victims. We need the Government to be prepared to say, “Yes, this Bill and now”. At the very least, if they cannot say that, “The very next Bill, and soon”. We will take such opportunities as we can to bring about change. I accept that there will be opportunities to come, as the noble Lord, Lord Parkinson of Whitley Bay, indicated, and they may well be in health-driven legislation. On that basis, I beg leave to withdraw this amendment tonight, but we will be back seeking change in due course.
Counter-Terrorism and Sentencing Bill
Lord Parkinson of Whitley Bay ExcerptsTuesday 9th February 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 129-II Second marshalled list for Committee - (4 Feb 2021)
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank noble Lords who have tabled and introduced their amendments and all the noble Lords who have spoken in this debate.
Following the dreadful attacks at Fishmongers’ Hall and in Streatham, the Government reviewed the range of disruption and risk management tools at the disposal of those agencies whose job it is to keep us safe and identified areas that could be strengthened to improve public protection. We are committed to ensuring that the police and Security Service have the necessary tools to support them in their vital work.
TPIMs are an important part of those tools available to our operational partners. They were, as noble Lords have said, introduced in 2011, replacing control orders as a tool to prevent or restrict an individual’s involvement in terrorism-related activity. TPIMs are a last resort to protect the public from dangerous individuals whom it is not possible to prosecute or deport and offenders who remain a real threat after being released from prison. Clause 37 will increase the flexibility of TPIMs by amending the Terrorism Prevention and Investigation Measures Act 2011, lowering the standard of proof from “balance of probabilities” to “reasonable grounds for suspecting”.
Amendment 27 in the name of the noble Lord, Lord Anderson of Ipswich, would, as he outlined, require the Home Secretary to be satisfied, on the balance of probabilities, that an individual has been involved in terrorism-related activity when extending a TPIM notice beyond a second year. The standard of proof for initially imposing a TPIM under his amendment would be “reasonable suspicion”, the same as proposed by the Bill. I thank the noble Lord not only for the way he introduced his amendment but for his helpful outline of the background to TPIMs, control orders and the landscape against which we must examine these questions. Like everyone in your Lordships'’ House, I have immense respect for the noble Lord, who began his time as Independent Reviewer of Terrorism Legislation before I started working as an adviser at the Home Office and was still in post long after I had left. With respect, however, we do not agree with the need for his amendment.
As the noble Lord, Lord Anderson, anticipated, I will point out that the 2011 Act requires that five conditions be met before a TPIM can be imposed. These are:
“Condition A is that the Secretary of State is satisfied, on the balance of probabilities, that the individual is, or has been, involved in terrorism-related activity.”
Clause 37 amends that condition so the standard of proof will be “reasonable suspicion”. The Act continues:
“Condition B is that some or all of the relevant activity is new terrorism-related activity … Condition C is that the Secretary of State reasonably considers that it is necessary, for purposes connected with protecting members of the public from a risk of terrorism, for terrorism prevention and investigation measures to be imposed on the individual … Condition D is that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual's involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual … Condition E is that … the court gives the Secretary of State permission under section 6”
to impose the TPIM. This happens in advance of the TPIM being imposed, or shortly after in an urgent case.
The Government are amending only one of these conditions—condition A, regarding the standard of proof. Lowering the standard of proof does not mean that the Government will be able to extend TPIMs whenever there is a suspicion of terrorism-related activity. To address the question raised by my noble friend Lady McIntosh of Pickering, this is not about the frequency of TPIMs but about their flexibility as a tool for our operational partners. All the other conditions will remain unchanged, and with robust safeguards. These require the Home Secretary to be satisfied that it is necessary and proportionate, to protect the public from a risk of terrorism, to impose a TPIM notice and the measures specified in it on an individual. The Government contend that proving past terrorism-related activity and demonstrating necessity are separate and distinct limbs of the TPIM test. It is also the Government’s contention that demonstrating necessity and proportionality is the key factor when considering whether a TPIM notice should be renewed beyond its first year, rather than the standard of proof applied to terrorism-related activity.
The Section 16 appeals process is particularly important in the context of longer TPIMs. I am certain that the court will take great care, when considering Section 16 appeals, that conditions C and D, which I outlined a moment ago, continue to be met. It may help if I offer a hypothetical case to demonstrate how an enduring TPIM might work in practice. Let us imagine a scenario in which a charismatic radicaliser has been relocated, has had an overnight residence measure imposed, is prohibited from accessing internet-enabled devices and is banned from associating with several individuals. Over time, it would be reasonable to expect the TPIM notice to contain ever fewer measures, so that, for example, only one prohibited associate remained. In that sense the TPIM might function similarly to licence conditions.
There is clear precedent from the control order regime which operated under a previous Government and which, as the noble and learned Lord, Lord Falconer of Thoroton, will remember, allowed for control orders to be renewed without placing a limit on the number of renewals or increasing the standard of proof the longer they endured for the orders not to last indefinitely. Within the lifetime of control orders, 30 individuals were subject to an order for up to two years, eight for between two and three years, four for between three and four years, and only three for between four and five years. There were many cases in which the then Government either revoked or decided not to renew the control order on the grounds that the necessity test was no longer satisfied. A similar approach would be taken with TPIMs following the enactment of this clause. The Government have no desire to keep people on a TPIM any longer than is necessary and proportionate to protect the public. Removing the time limit is intended to address the risk of TPIM subjects riding out the current maximum of two years with no change to their mindset, and to address the risk of a cliff edge being created by forcing a TPIM to be removed when a risk to public safety remains. I am conscious that we will look at this issue in more detail in the next group, but I make those points because the noble Lord, Lord Anderson, said he would be keeping his ears open for a response.
As the noble Lord, Lord Anderson, said, the Public Bill Committee in another place, heard from Assistant Chief Constable Tim Jacques, Deputy Senior National Coordinator for Counter Terrorism, who spoke not just for the police but on behalf of the security services, and outlined some hypothetical cases where a lower standard of proof could make a substantive difference. I think it would be helpful to highlight the practical examples he gave. The first scenario is where significant concern about an individual’s behaviour or activities as a radicaliser has led to their arrest. There may be, however, insufficient material to reach the prosecution threshold and the individual would have to be released. As ACC Jacques says, the lower burden of proof may help to manage the risk posed by the individual while further investigative and risk-mitigation measures are pursued.
The second scenario ACC Jacques gave is where an individual’s risk profile accelerates rapidly in the form of their moving quickly from consuming terrorist material online to presenting a future risk of attack. We have sadly seen this in the case of many lone-actor terrorists. There will not always be sufficient evidence to prosecute in a scenario such as this, particularly where an individual does not have a long history of terrorism-related activity. While a variety of tools and controls to manage this risk will be considered by our operational partners, and a TPIM may not be the measure that is ultimately deemed most appropriate, lowering the standard of proof will help to ensure that a TPIM can be used where it is deemed the best tool for mitigating the risk.
The third scenario that ACC Jacques gave was where an individual has been to, say, Syria to fight for a terrorist organisation, but evidence of their activities while they are overseas is hard to gather. This addresses the point raised by my noble friend Lord Faulks. There will be a range of tools which the Government and their operational partners will consider using on a case-by-case basis to prevent or to manage that individual’s return to the UK and, if they return, prosecution will remain our strong preference. However, if there are evidential difficulties, as understandably there are when we talk about activity in theatre in places such as Syria, and we cannot meet the burden of proof required by a criminal court—that is, beyond reasonable doubt—but we do have a reasonable suspicion that a person has been involved in terrorism-related activity, then the lower standard of proof will ensure that a TPIM can be considered as a risk management tool to protect the public here in the UK.
I think it was worth setting those out in detail because these are credible and not unlikely scenarios for which we must be prepared. That is why we contend that setting the standard of proof at reasonable grounds for suspecting at the extension stage is just as important as at the imposition of a TPIM to maintain a TPIM for as long as necessary.
I now turn to Amendment 28 in the name of the noble and learned Lord, Lord Falconer of Thoroton. His amendment would require the Home Secretary to believe
“on the basis of reasonable and probable grounds”
rather than have “reasonable grounds for suspecting” that an individual is, or has been, involved in terrorism-related activity before imposing a TPIM. Again, with respect to the noble and learned Lord, we do not agree with the necessity of this amendment.
The noble and learned Lord’s amendment proposes a mixture of recognised standards of proof within the TPIM regime. Specifically, it appears to blend the standards of “reasonable belief” and “balance of probabilities”. As the noble and learned Lord said, he has suggested this formulation with the intention of creating a new middle ground between those two standard—that is, a balance between the standard which applied when the 2011 Act was first introduced, and the current standard of proof following changes made by the Counter-Terrorism and Security Act 2015. Although I am not a lawyer and, mindful of the entreaties of my noble friend Lord Wolfson of Tredegar, I do not apologise for that—I speak as a non-lawyer—but I must suggest that the mixing of established standards of proof which are recognised by the courts and by decision-makers would not be helpful or appropriate. We are not aware of evidence that the recognised standards are, in and of themselves, inoperable as thresholds. Given the potential for confusion in the application of this amendment—that is, blending legal tests of belief and probability—we urge the noble and learned Lord to withdraw his amendment on this ground alone.
Additionally, the amendment would require a higher standard of proof than is proposed under the Bill. That goes against the policy intent of the Bill, which is to ensure that our operational partners can make use of TPIMs more flexibly in their efforts to protect the public. The pace at which the Security Service and the police must operate to thwart attacks and manage risk to the public is faster than ever before. The question of whether a person has carried out terrorism-related activity will often depend on an incomplete jigsaw puzzle of intelligence rather than hard evidence, as the noble Lord, Lord Anderson of Ipswich, outlined in opening this debate. In such cases, it is right that we give our operational partners the option of a TPIM as a risk management tool.
I have already referred to the evidence given by ACC Tim Jacques, which outlined the Security Service’s assessment of the benefits of lowering the standard of proof. The three scenarios he outlined—the activities of a known radicaliser, a rapidly escalating risk from someone who has consumed terrorist-related content online and a foreign fighter returning from Syria—all apply in relation to this amendment as well and form part of the Government’s justification for respectfully disagreeing with it.
Lord Paddick (LD) [V]
I am grateful to the Minister for his explanation but I am somewhat confused. He cites the evidence given by assistant chief constable Tim Jacques and the three examples that he gave. I will carefully read his evidence in Hansard and what the Minister has said the assistant chief constable said.
From what the Minister was saying, the assistant chief constable was saying why TPIMs were necessary. It was because—I think I am quoting the Minister accurately—there was not sufficient evidence to reach the criminal standard of proof, but the criminal standard of proof is “beyond reasonable doubt”. From the examples that the assistant chief constable gave—as I say, I shall go back and read them carefully—I thought there was definitely evidence that the person may be involved in terrorism on the balance of probabilities. There would therefore be no reason in the three scenarios that the assistant chief constable gave for issuing a TPIM against those three people, on the current evidence.
The Minister has apparently ignored the history of this Parliament and its views on so-called future proofing, when it comes to the deprivation of people’s liberties and the severe imposition of restrictions on people’s human rights, as evidenced by the former Labour Government’s attempts to extend the period that terrorist suspects could be detained by the police without charge. Parliament does not take kindly to, “Well, okay, we accept that there is no evidence that a change in the standard of proof is necessary in this case, but it might be in the future, so we’re doing it just in case”. We cannot deprive people of their liberty to the extent that TPIMs do on the basis of “Well, it might be required in future”.
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.
Lord Ponsonby of Shulbrede (Lab) [V]
I am relatively new to these debates, but I remember making the point at Second Reading about the importance of rehearsing these arguments each time we make these types of orders. These orders are some of the most intrusive that we have in our country. Young people listening to these debates need to be convinced regularly of how important these orders are and that they are proportionate and protect our liberties.
In her introduction, the noble Baroness, Lady Hamwee, drew a parallel with the group; there are obvious parallels between the legal tests in the previous group and the length of the TPIMs that we have been discussing in this group. Interestingly, in responding to the previous group, the noble Lord, Lord Parkinson, talked about a reduction in the measures within TPIMs as they progress in time. I hope that the noble Lord will be able to expand on that when he winds up the debate.
As I am now used to, the noble Lord, Lord Anderson, has given a balanced view. He has put forward another compromise, although I sense that the Liberal Democrats and perhaps my own party, the Labour Party, are less convinced by this type of compromise, but nevertheless he has set one out in his amendments. I thought that he put an interesting challenge to the Minister, who is a former special adviser in the Home Office. I do not think that it was a rhetorical challenge, but I would be interested to know the noble Lord’s response. Would he have felt comfortable about recommending a discharge to an indefinite TPIM when he was in that role? It would be a difficult thing for a Minister or a special adviser to do. If the orders had a natural time limit, that would not put people in such a difficult and invidious position.
The other point made by the noble Lord, Lord Anderson, was that excessive zeal can be counterproductive. The noble and learned Lord, Lord Thomas, also made the point when he drew an interesting parallel with the IPP regime and the importance of not taking away hope from people who are subject to orders, whether they be for imprisonment or a form of effectively indefinite house arrest. The noble Lord, Lord Paddick, summed up these arrangements very well. He quoted the noble Lord, Lord Lester of Herne Hill, who I remember well in the House, when he drew parallels with internment. In fact, I may have been here when he made that speech. The noble Lord, Lord Paddick, also quoted Jonathan Hall extensively when he said that there should at the very least be an upper limit to the time that a TPIM can be in place without a further court order.
For all these reasons, the amendments as put forward by the other speakers in this group are worthy of our support.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank all noble Lords who have spoken in the debate on this group. Amendment 29, in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would require the Home Secretary to secure the permission of the court before signing a TPIM extension notice. We do not think that that is a necessary amendment to the Bill. To demonstrate why, it might be helpful to the Committee if I explain first the process by which the Home Secretary considers whether a TPIM notice should be extended, a process that will remain in place after the removal of the time limit as proposed by the Bill. I hope that that provides some reassurance to the Committee both about the thorough consideration which goes into whether the continuation of a TPIM is necessary and about the robust judicial oversight that is already built into the process.
At this stage, I should say in response to the question from the noble Lord, Lord Anderson of Ipswich, which I was certainly hoping to treat as rhetorical but which the noble Lord, Lord Ponsonby of Shulbrede, rightly picked on, these are rightly not matters in which special advisers are involved. They are questions for the Secretary of State and Ministers.
When extending a TPIM, the Home Secretary will consider the Security Service’s assessment as to whether it remains necessary. It is true that significant weight is placed on the professionalism and expertise of the Security Service, but the process is not simply a tick box exercise. The Home Office routinely challenges the Security Service’s assessments to ensure that they are robust. The scrutiny is demonstrated by the public comments which have been made by successive former Independent Reviewers of Terrorism Legislation, who, for instance, have noted that through the quarterly TPIM review group meetings all TPIM notices in force are reassessed, including whether the measures imposed or the TPIM notice itself are necessary and proportionate, and what the exit strategy is for the notice.
If the Home Secretary considers that the extension of a TPIM notice is necessary, she will then consider whether the current measures remain necessary and proportionate to restrict the individual’s involvement in terrorism-related activity, or whether any of them need varying. To address the point raised by the noble Baroness, Lady Hamwee, this can be in the form of a removal, a relaxation, or further restrictions.
This might be a good point to talk a little more about rehabilitation. To answer the question that the noble Baroness asked about whether somebody who has been subject to a TPIM could theoretically be subject to another, yes, they could, although that would have to rely on a separate national security case or evidence of terrorism-related activity. TPIMs are not designed as a tool of punishment; they are a tool of prevention and rehabilitation. Part of them involves encouraging subjects to attend what are known as desistence and disengagement programmes to assist with their rehabilitation and to turn them away from behaviour that leads them to be subjects of concern.
Decisions to extend a TPIM notice are not taken lightly but are based on detailed assessments by the Security Service and counterterrorism policing’s experience of managing the subject. The assessment that the Security Service provides will not only be based on the original national security case put forward for the imposition of the TPIM; it will also include the intelligence, both covert and overt, gathered over the course of the preceding 12 months. This could include evidence of further terrorism-related activity or non-compliance that does not reach the criminal threshold or which cannot be exhibited in open court. When extending a TPIM notice, the TPIM subject is invited to make representations before a decision is made. These are put before the Home Secretary.
As I outlined in our debate on the previous group, the 2011 Act established robust judicial oversight of the TPIM process. I will set out what that means. I hope to reassure the noble Lord, Lord Paddick, on some of the existing safeguards. The court will consider at a permission hearing whether the Home Secretary’s initial decision to impose a TPIM was “obviously flawed” and will overturn a notice or its measures where that is the case. This is known as a Section 9 hearing. If I understand the amendment, this is a process that the noble Baroness and the noble Lord would like to see replicated when a notice is extended beyond a second year.
Section 16 of the TPIM Act provides an appeal route for TPIM subjects to challenge any refusal to vary their notice or to extend it, in addition to the Section 9 hearing. The in-built appeal route available through Section 16 makes it difficult to see in practice what the amendment would achieve in establishing an additional safeguard beyond that.
In addition to the Section 9 hearing and the Section 16 appeal process, the TPIM Act also requires the Home Secretary to keep under regular review the ongoing necessity of a TPIM notice under Section 11. This responsibility is also taken seriously. It is why the Home Office runs the quarterly TPIM review groups, where all TPIM subjects are discussed, including the notices to which they are subject and whether these remain proportionate and necessary.
I turn to Amendment 30, in the name of the noble Lord, Lord Anderson of Ipswich. I thank him for outlining it. His amendment would amend the 2011 Act so that a TPIM notice can be extended on “one or more” occasions if the conditions in Section 3 of that Act continue to be met. Currently, a TPIM notice can be extended only once and therefore has a maximum duration of two years. However, we respectfully disagree with the noble Lord on the need for his amendment. It would prevent a TPIM notice being renewed for as long as it is necessary for the purposes of public protection. Instead, it would set a new upper limit of four years. While we disagree with the noble Lord’s amendment, I should say at the outset that we support its principle in so far as it recognises that there are circumstances where it may be necessary to impose a TPIM beyond the current two-year limit, which the Government contend is too short.
There are several policy and operational justifications for Clause 38. First, experience has shown that there are TPIM subjects who pose an enduring risk beyond the two-year limit. This has meant that a new TPIM has had to be imposed after reaching the current limit and, as a consequence, a dangerous cliff edge has been created while the individual is at large in the community without the appropriate risk management tools in place before a new TPIM can be imposed. That has happened on more than one occasion. ACC Tim Jacques spoke to this risk when he gave evidence to the Public Bill Committee in another place.
Lord Paddick (LD) [V]
My Lords, I am grateful to the Minister. I have two questions. First, he spoke about Section 9 hearings and the appeal route under Section 16 making our amendment unnecessary. Can he tell the Committee how many times TPIMs have been revoked or restrictions eased as a result of each of these types of hearing?
Secondly, terrorism prevention and investigation measures are, as their title describes, temporary means of preventing terrorism taking place while an investigation tries to establish evidence to convict the person in a criminal court. Control orders, on the other hand, have been used in the past for public protection. If the Government are changing the nature of TPIMs and abandoning them as a temporary measure to enable an investigation to take place in safety, why do they continue to call them TPIMs? Why not now call them control orders, which are in fact what the Government are trying to use here?
Lord Parkinson of Whitley Bay (Con)
I will take the questions in reverse order. Prosecution is always the preferred method of disrupting those involved in terrorism-related activity. That will continue to be the case even under this Bill. Under the TPIM Act 2011, the Home Secretary is required to keep prosecution under review. That will not change with the amendments we propose to the Bill. If it becomes clear that there is an avenue for prosecution, the Home Office will support the police and the Crown Prosecution Service in bringing that prosecution against the individual and seek to remove the TPIM notice if it is no longer necessary and proportionate.
On the noble Lord’s first question about the number of times that appeals have been raised, if he is happy it would be better if I write and provide that information to him and the rest of the Committee so that I can be certain that it is up to date and accurate.
Baroness Hamwee (LD) [V]
My Lords, I hope that noble Lords will forgive me if, in the interests of time, I do not comment on every contribution. I must say, I have edited my notes as we have gone along, and it is more or less the same cast of characters throughout the clauses and amendments on this part of the Bill.
I noted in particular two comments that I think are well worth keeping in mind: my noble friend Lord Strasburger saying that two years is a serious length of time, and the noble and learned Lord, Lord Thomas—who, as ever, put pithily and succinctly an issue that is at the heart of the case, as it were—saying that the effect of indefinite detention or what is perceived as indefinite detention, by the taking away of hope, is to create greater danger.
In response to the question about how many new TPIMs there have been because of the cliff-edge issue, we were told it was “more than one occasion”. If the noble Lord is able to expand on that, I would be grateful. I observe with regard to reviews—I use that term quite broadly—that it is difficult, if not impossible, for the subject to make effective representations because he does not know what points put to the Secretary of State he is responding to. It is worth saying one final sentence on the carrot—yes, that is what it is—of investing. One cannot even say that it is investing in rehabilitation, because no offence has been proved, but investing in managing the risk has to be worth it, even if you look at it coldly in terms of pounds and pence, because of the cost of enforcing and supervising TPIMs. I am looking at my screen to see whether the Minister will be able to respond to the question that I just put. As he has not leapt up—oh, he has.
Lord Parkinson of Whitley Bay (Con)
Only to disappoint the noble Baroness, but also to reassure her that I will add that to the information I provide in writing following the debate.
Baroness Hamwee (LD) [V]
I am grateful for that. We are in Committee, so it is appropriate that I beg leave to withdraw the amendment.
Lord Falconer of Thoroton (Lab) [V]
This amendment does not address head-on the power under a TPIM to require somebody to relocate. This amendment is only touching on whether the Secretary of State should by notice have power to vary a relocation measure, in part, because
“the variation is necessary for reasons connected with the efficient and effective use of resources.”
While I recognise the intrusive effect that relocation can have, I accept that there may be cases where national security demands it. I am interested to hear from the Minister what test is to be applied where a variation of a relocation order occurs when it
“is necessary for reasons connected with efficient and effective use of resources.”
I do not know, but I suspect that this concerns the perception that someone should relocate for national security reasons. Where they relocate to might be affected by the circumstances in which such an order might be enforced; the amount of resources that would be required if it was to be enforced where they normally live becoming disproportionate; or the amount of resources that would be required where they had been located becoming disproportionate. If that is right, I would have expected the measure in new subsection (1A) in Clause 39(2) to reflect something about proportionality. But there is nothing in it, and I would be interested to hear what the Minister has to say. I hope he will indicate that resource relocations will occur only when it is effectively necessary to provide for national security.
Lord Parkinson of Whitley Bay (Con)
My Lords, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, have explained, this amendment is intended to prevent the possibility, as proposed by Clause 39, of varying a TPIM subject’s relocation measure for reasons connected with the efficient and effective use of resources in relation to that individual. I hear what they say about wanting to understand and explore that through this amendment.
We do not believe that the amendment as drafted would have that effect in practice, and we think that it could inadvertently broaden out the application of the clause to enable relocation of the TPIM subject for the second time for any reason. However, as I say, I understand the questions which lie behind their tabling it.
The Government are committed to future-proofing the TPIM regime to ensure that our operational partners are fully supported to manage TPIMs efficiently and effectively. Clause 39 has an important role in doing that. It will allow the Home Secretary to move an already relocated TPIM subject to an alternative location, if necessary, for resource-related reasons, provided that the national security reason for requiring relocation still exists—that is key to note.
We want to ensure that operational partners, and in particular counterterrorism policing, are supported in their function of managing this small but significant cohort of high-risk individuals within the community. This clause seeks to ensure that there is a greater degree of flexibility in the system, so that there can continue to be effective management of a TPIM subject when operational circumstances evolve.
To provide a real-world example of where a police force finds that resources are affected, I draw the Committee’s attention to the Novichok poisonings in Amesbury, in Wiltshire, in June 2018, which suddenly and significantly diverted police resource in a small force for a considerable period of time to that important and high-profile investigation. In such a scenario, if a TPIM subject was residing within the force area, it might no longer be possible for counterterrorism policing to provide the same dedicated resources to ensure that the TPIM was being managed effectively and in a way that reduced the threat to the wider public.
The new ground to vary the relocation measure could also potentially be used to cover the following: first, a temporary move of the TPIM subject because all relevant counterterrorism officers with the necessary skills become unavailable at the same time due to illness or another temporary reason, such as during the current pandemic, for example, which I am sure will be on noble Lords’ minds; or, secondly, in circumstances where the presence of the TPIM subject becomes known locally and, as a result, there is increased pressure on counterterrorism resources to keep the subject both monitored and safe.
The noble and learned Lord, Lord Falconer of Thoroton, asked about the test for the Home Secretary. When first deciding where to relocate a TPIM subject, provided there is a national security reason to do so, the Home Secretary takes into account various factors to arrive at a proportionate decision. These include but are not limited to: the personal circumstances of the individual; the availability of services and amenities, including access to employment, education, places of worship and medical facilities; the proximity to prohibited associates; and the demographics of the community. It is reasonable to apply a similar approach when deciding whether the police force area in which the TPIM subject currently resides continues to be the most appropriate area for them to be placed.
We do not anticipate this ground to vary the relocation measure being used except in exceptional circumstances. We fully recognise that the relocation of a TPIM subject —or the re-relocation of the subject, as would be the case if relying on this new ground—is a significant action to take given the potential impact on the individual and could be used only when necessary and proportionate to do so, taking into account their Article 8 rights. The Government understand that stability in a subject’s life is a crucial factor behind their rehabilitation and supporting them to move away from an extremist mindset, which, of course, we want them to do.
The noble and learned Lord, Lord Falconer, rightly said that this amendment does not address head-on the question of relocation. However, as he raised it and noble Lords are interested, it is worth reiterating that the Home Secretary can relocate a TPIM subject only if it is necessary and proportionate to prevent and restrict involvement in terrorism-related activity, that consideration is always given to the subject’s Article 8 rights, and that, furthermore, a TPIM notice does not prevent an individual seeking or maintaining employment or study—in the past, TPIM subjects have pursued both of those. It is also worth reminding the Committee that TPIMs are different from the control order regime. Under control orders, somebody could be relocated anywhere in the country, whereas under TPIMs, relocation is up to 200 miles away from their home address.
We assess that, in most cases where a TPIM subject has been relocated but there is then a requirement to move them to a new place of residence, that is provided for within existing legislation. However, as with several of the changes we are seeking to introduce through this Bill, we deem it important expressly to create this flexibility for our operational partners within the TPIM Act 2011 as part of our mission to future-proof the system and to ensure that TPIMs can be managed efficiently and effectively.
Decisions to vary the relocation measure for resource reasons will be capable of appeal. As with other unilateral variations to the TPIM notice, the function of the appeal court will be to review whether the variation was necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. Additionally, however, for variations to the relocation measure on resource grounds, the appeal court will also review whether the variation was necessary for the efficient and effective use of resources.
Given the crucial tasks that we expect of our operational partners, we want to ensure that we support them as best we can in their effective management of TPIM subjects, as well as in their ability to respond to other high-priority work such as the examples I have given.
Amendment 30B is consequential on Amendment 30A, and the same arguments apply. I therefore invite the noble Baroness not to press her amendments.
Baroness Hamwee (LD) [V]
My Lords, I shall of course withdraw Amendment 30A and I shall not move Amendment 30B. The questions asked about proportionality and national security should be at the heart of this. The flexibility to which the Minister referred seems to suggest that subjects might be moved closer together for ease of management, which is the exact opposite of what I thought was one of the objectives of this regime.
I am still puzzled that
“purposes connected with preventing or restricting … involvement in terrorism-related activity”
in new Section 12(1A)(b) does not cover the Salisbury example that the Minister used, but, as one always does, I will look at the explanation, because I may well have missed it.
I did not miss the fact that my drafting was inadequate, but I do not take exception to that comment—that could be corrected later if necessary. I beg leave to withdraw the amendment.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, we have had two different debates in this group. The noble Baroness, Lady Hamwee, moved that Clause 40 should not stand part of the Bill, and I can do no better than the noble Lord, Lord Anderson, and his three questions, which I thought were very apposite and to the point. I will listen with interest to the Minister’s answers to those three questions.
My noble friends Lord Hunt and Lord Bach then spoke to their Amendment 31. As we have heard, the gist of the amendment is to formalise a relationship between the Secretary of State, PCCs and local chief constables to give more direct input by PCCs. In the words of my noble friend Lord Bach, PCCs are responsible for the “totality of policing” in their area. As we have heard, they are already involved in controversial matters such as stop and search and covert activities. Of course, I support my noble friends in trying to give the PCCs more formal involvement in TPIMs in their own areas.
I look forward to my noble friend Lord Bach playing a greater part in the proceedings of our House. He has for many years brought great insight into his many roles on the Front Bench, and occasionally on the Back Benches, but he will improve that even further when he comes back as a PCC. He may, of course, have to do extra time; we wait to see. I will listen with interest to what the Minister has to say, and I will support my noble friends.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank all noble Lords who have spoken in this debate. As some have remarked, Amendment 31 might have as easily sat in the previous group as this one. I turn first to that amendment, in the names of the noble Lords, Lord Hunt of King’s Heath and Lord Bach. It aims to increase the oversight that local policing bodies, including police and crime commissioners, have of TPIM notices in their area. It would require the Home Secretary to notify the relevant local policing body when a TPIM notice is imposed in their area, and when a TPIM is withdrawn, ends or is relocated, so that it no longer falls within their area. It would also require the local policing body to provide six-monthly reports to the Home Secretary, which could include recommendations regarding variations to the TPIM and its continued necessity.
Because of the operational nature of the amendment and the impact that it would have on existing processes, officials at the Home Office have consulted colleagues in Counter Terrorism Policing Headquarters on it, and they support our view that it is not needed in the Bill. Engagement with police forces is already an integral part of the TPIM regime. The Home Office works very closely with CT policing, both nationally via CTPHQ and with regional CT units, before a TPIM is imposed and during its lifetime, including regular engagement at quarterly TPIM review group meetings chaired by the Home Office. This well-established process ensures that TPIMs are imposed only following engagement with, and ultimately the consent of, the relevant local police force. This existing practice also means that local community impact assessments are kept up to date, which supports the effective and efficient management of the TPIM subject by the Home Office and operational partners.
Given the current close working relationship that we have with operational partners in the ongoing management of a TPIM subject, there is no need for the local policing body to produce six-monthly reports; review meetings are already in any event held at more regular intervals than the amendment would require reports to be written, and those meetings already consider the types of issue that the amendment is seeking to ensure are included in any report. The amendment would also distort existing roles and responsibilities; it would be inappropriate for the relevant local policing body or police and crime commissioner to put recommendations for varying a TPIM or its continued necessity directly to the Home Secretary. Those judgments are, quite rightly, led by the Home Office in conjunction with the Security Service, which makes fully informed recommendations based on its expert assessment of national security risk. Like the noble Lord, Lord Paddick, I think the examples that noble Lords gave of stop and search and other decisions are in a different category from the imposition of a TPIM.
It is vital that TPIM oversight and management processes protect the highly classified information that flows through a TPIM regime, including the details of the TPIM subject and the underlying national security case against them. The Government, CTPHQ and the Security Service are concerned about how the amendment could work in practice with regard to sharing and disclosure of such highly sensitive information. The close working relationships already in place and well-tested processes on information-sharing between the Home Office, CT policing and the Security Service make it unnecessary.
I turn to Clause 40, which amends the existing overnight residence measure in Schedule 1 to the TPIM Act to strengthen the ability of the Home Secretary to specify certain hours when a TPIM subject must remain at a specified residence. Taken literally, the amendment in the names of the noble Lord, Lord Paddick, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks of Henley-on-Thames, would remove Clause 40 from the Bill altogether and prevent several operational benefits from being realised. That is why the Government cannot support it.
Having a residence measure at our disposal is vital in managing an individual of national security concern and the risk that they pose to the public. That has long been the case, but our engagement with operational partners has established that the existing overnight measure could and should be improved to allow for greater flexibility in the way in which it can be imposed—specifically, by introducing a requirement for a TPIM subject to remain within his or her residence at specific times during the day, as well as overnight, when this is assessed as necessary and proportionate to manage the risk that they pose. The updated residence measure that Clause 40 introduces will allow the Home Secretary to specify a period that could be longer than overnight or spilt into varying segments throughout a 24-hour period, if considered necessary.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I have nothing of substance to add to the comments of the previous two speakers, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. I, too, was going to raise the point made by the noble Lord about the right to silence of someone who is subject to a TPIM, as they are not convicted of an offence. The noble Baroness adequately covered the other points, so I have nothing more to add.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank noble Lords for their contributions and brevity in this group so that we can make as much progress as possible. All these amendments are in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee.
Clause 41 provides for the addition of a polygraph measure into Schedule 1 to the TPIM Act 2011. Doing that will, in circumstances where it is assessed to be necessary and proportionate, help our operational partners to assess an individual’s compliance with his or her TPIM notice and support the decision-making on whether variations to the notice are required. That could include relaxations as well as restrictions.
As with all TPIM measures, polygraphs will not be mandatory for all TPIM subjects. I should like to reassure the Committee that we anticipate this measure being used sparingly, in a targeted and proportionate manner. Operational partners will consider its utility in relation to each TPIM subject on a case-by-case basis and make a recommendation to the Home Office for its imposition where appropriate.
By way of example, the results of a polygraph test may indicate that a TPIM subject is meeting someone whom he or she is prohibited from seeing for national security reasons at a particular location. While any findings from the polygraph test will be considered in the round by operational partners—that is, without an overreliance on the test findings and considered against other available information—the findings could inform a recommendation for the TPIM measures to be varied to restrict the subject from frequenting that specific location. The results could also be used to inform an assessment of whether a subject’s engagement with rehabilitation programmes under the TPIM notice is genuine.
We recognise that the prospect of polygraph testing understandably creates questions about the way in which information gleaned from tests may be used. That is precisely why we have taken steps to ensure that the wording of the clause is clear on that issue. The polygraph testing should only be carried out with a view to monitoring the individual’s compliance with other specified TPIM measures and assessing whether any variation of their measures is necessary. We have also specified that such information cannot be used in evidence against the individual in any criminal proceedings.
To further reassure the Committee of the steps that we are taking to ensure that this addition is both proportionate and considered, the clause sets out that the new measure will not be used unless and until the Home Office introduces regulations to make provision for the conduct of the polygraph sessions. Those regulations are likely to include detail, for example, on the qualifications and experience needed by polygraph operators and how records of the polygraph sessions should be kept, thereby ensuring transparency on how this measure will be applied in practice. The regulations would be laid before Parliament for scrutiny in the usual manner.
As with all other measures contained in Schedule 1 to the TPIM Act, this measure will not be imposed unless the Home Secretary reasonably considers it necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. It is important that we harness available technology and provide our operational partners with the tools necessary to protect the public, and that is what the clause will do.
Turning our attention to Amendment 30C, as I have set out, Clause 41 adds the new polygraph measure to the list of available measures in Schedule 1 to the 2011 Act. Following Royal Assent, if the polygraph measures are imposed, a TPIM subject will be required to undertake a polygraph test. Failure to do so would, to answer the question posed by the noble Lord, Lord Paddick, be a breach of the TPIM measure. We appreciate the spirit in which the amendment has been tabled, but we respectfully disagree about the necessity of it. Condition D in Section 3(4) of the TPIM Act 2011 requires,
“that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual”
under a TPIM notice. In addition, Section 12(1)(c) of the TPIM Act requires,
“the Secretary of State reasonably considers that the variation is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.”
Therefore, all the measures imposed under a TPIM notice and any subsequent variation must be considered to be necessary for those purposes.
Baroness Hamwee (LD) [V]
My Lords, I may have missed it, but I am not sure that the noble Lord answered the point about the right to silence. It is difficult to read body language from eight miles away.
Lord Parkinson of Whitley Bay (Con)
I apologise. I did not do so, but if the noble Baroness is happy, I will write to her and follow it up, along with any other questions that I might have missed.
Baroness Hamwee (LD) [V]
Equally, of course, we will go through the Official Report to see whether all our concerns have been addressed. For now, I beg leave to withdraw the amendment.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I have nothing to add to the points made by the previous two speakers.
Lord Parkinson of Whitley Bay (Con)
My Lords, through Clause 42 we are adding a new measure to the list of available measures in Schedule 1 to the TPIM Act 2011. If it is imposed, a TPIM subject would be required to submit to a drug test and provide a relevant sample.
Operational experience has shown that, in certain circumstances, drug use can exacerbate the risk of a subject engaging in terrorism-related activity. This new measure will support operational partners to mitigate this risk by confirming suspected drug use through a mandatory drug test and, where necessary, mandating attendance at rehabilitation programmes. They will want to follow up the questions raised by the noble Lord, Lord Paddick, about where those drugs were obtained.
We consider this amendment unnecessary because the TPIM Act already contains robust safeguards regarding the imposition of all measures on TPIM subjects. Section 3 of the TPIM Act requires that at the point that a TPIM is first imposed the Home Secretary must reasonably consider that the TPIM notice and the measures specified within it are necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. Section 12 of the TPIM Act also requires that variations of measures specified in an existing TPIM notice, which would include the imposition of a drug testing measure, cannot be made unless the Home Secretary reasonably considers that the variation is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.
Given that existing requirement, the amendment proposed does not go further than the safeguards already in place. Furthermore, the existing requirements of the TPIM Act, to which I have just referred, apply to all measures rather than being confined solely to the drug testing measure as this amendment has it. For those reasons, we invite the noble Baroness to withdraw the amendment.
Baroness Hamwee (LD) [V]
My Lords, one might expect the Home Secretary asked to approve the measure to respond by asking those requesting it what the hell—sorry—the police were doing if they had not spotted that the subject was getting hold of drugs. As I anticipated, my question had already been answered. I hope that the hours that will be imposed—to pick up my noble friend’s comparison, which is not a comparison: alcohol is a drug too—will make it impossible to get hold of alcohol as well as drugs. However, my underlying question has been answered. I beg leave to withdraw the amendment.
Lord Falconer of Thoroton (Lab) [V]
This amendment is probing the additional power given by Clause 43 of the Bill to allow the Secretary of State to seek disclosure of
“such details as may be specified of any electronic communication device possessed or used by the individual or any other person in the individual’s residence.”
Its purpose is readily understandable: namely, if the purpose of TPIMs is in part to prevent the subject of the TPIM communicating with anybody or receiving communications from anybody, the authorities should have the ability to look at all the electronic devices to which he or she has access.
However, as the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have both pointed out, that means, for example, that the wife, husband or children of a subject become subject themselves to an intrusive order. I would be very interested to know whether the authorities are going to take a different approach to the question of the subject of a TPIM’s own electronic devices, as opposed to those of his family or those belonging to those with whom he lives. What is the standard going to be? Necessary and proportionate? Strong case? I would be very interested to hear what it is. Just before I depart, I will pay tribute to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. Although I have not agreed with every one of their amendments, they have shown indefatigable probing of this Bill and incredible good nature throughout.
Lord Parkinson of Whitley Bay (Con)
My Lords, I wholeheartedly agree with the final comments of the noble and learned Lord; that is exactly what Committee stage is for. It has been thorough but good natured, and long may that continue.
Clause 43 amends the existing electronic communication device measure in order that a TPIM subject will be required, upon request, to provide details of electronic communication devices—also known as ECDs—which they possess or use, or any such devices belonging to other individuals in their residence. It almost goes without saying that in the digital age in which we now live there is vast scope for ECDs to play a key role in the conduct or facilitation of terrorism-related activity, including attack planning and the radicalisation of others in a bid to inspire them to carry out a terrorist attack.
Amendment 30F would prevent the Home Secretary from being able to require TPIM subjects to provide details of electronic communication devices belonging to other people in their residence. This would significantly undermine the utility of the changes we are seeking to make and would ultimately be to the detriment of national security. We have seen in the past that TPIM subjects will access or try to access devices belonging to others in their household, as the noble Lord, Lord Paddick, rightly noted.
Clearly, there is an important balance to be struck between security and civil liberties, particularly of family members such as children. But we are clear, particularly given how sparingly we envisage this measure being imposed, that any impact on those residing with the TPIM subject—such as their family members—will be proportionate.
Preventing the Home Secretary from being able to require the provision of certain ECD-related information, as this amendment would have it, would leave a gap in a potentially useful information source which can assist with the effective management of the TPIM subject. I am happy to reassure noble Lords that, as with all measures contained in Schedule 1 to the TPIM Act, this measure will not be applied unless the Home Secretary reasonably considers it necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.
The Committee has already heard during the course of today’s debate that the TPIM regime has inbuilt and robust judicial oversight. This includes all TPIM subjects having an automatic right to have a court review of the imposition of their TPIM notice and each of the measures imposed, as well as a right of appeal should a TPIM subject wish to challenge a variation to one or more measures contained within the TPIM notice. This oversight will of course apply to the updated ECD measure proposed in this clause.
I hope that that provides noble Lords with the reassurances that they were hoping to receive and I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee (LD) [V]
My Lords, yes, I will seek to leave to withdraw my amendment.
I find it a bit difficult to understand in this connection how one applies proportionality. The question I asked of the Minister was whether this condition would be imposed in the case of every measure. Obviously, if there is nobody else living at the residence, it would be irrelevant. However—this is a bit rhetorical—how can one apply proportionality in this connection? Either you are concerned about communications through any electronic devices or you are not. I should probably leave that hanging, because it is really a rhetorical question.
I should not finish without thanking both noble Lords who have commented on our indefatigability and good humour. I am not sure whether the good humour showed throughout; I am glad that it appeared to. I acknowledge that picking up so many separate points must seem quite tedious, but quite a lot has come out, certainly that will help us to assess how to address these clauses at the next stage of the Bill, and reading every line and every word is what we are here for.
I apologise to noble Lords who had expected to be able to take part in the Statement on Myanmar, which is a very important and urgent issue. I am very sorry: it has nothing to do with any of us who are speaking and it is a great shame that that Statement was displaced from this evening.
I beg leave to withdraw the amendment.
Lord Paddick (LD) [V]
My Lords, I completely agree with my noble friend Lord Thomas of Gresford’s comments on the suspicions that many communities have about the Prevent programme, which is why, in the Counter-Terrorism and Border Security Act 2019, this House required the Government to undertake an independent review and report on the Government’s strategy for supporting people who are vulnerable to being drawn into terrorism. A timetable was set in the 2019 Act for the Government to make arrangements within six months of that Act being passed and to report within 18 months. As my noble friend said, Clause 47 attempts to remove any timetable for starting, let alone completing, the independent review of Prevent.
As my noble friend said, and as I said at Second Reading, the most important and effective way to keep people safe from terrorist attacks is to prevent those at risk of becoming involved in terrorism-related activity doing so in the first place. It is vital that we know how effective Prevent is at identifying those at risk of being radicalised and diverting them away from potential terrorist activity, and that this is done as quickly as is reasonably practicable. Unless problems are identified and addressed, lives could be put at risk.
The noble Lord, Lord Ponsonby of Shulbrede, suggests what might be described as a challenging and optimistic target of completing the review by 1 July 2021 in his Amendment 32. With the difficulties the Government have experienced over who should lead the review and the potential challenges ahead, there is a danger that a review within this timetable might not be thorough enough.
On 26 January, less than two weeks ago, the Government appointed a replacement independent reviewer of Prevent, William Shawcross. Mr Shawcross’s previous comments on Islam and the Iraq war have raised concerns in some quarters but, assuming he remains in post, the alternative timetable in our Amendment 33 should be achievable. This would give the Secretary of State six months to make arrangements for the review and for Mr Shawcross to lay before Parliament the report and any recommendations within a period of 18 months, beginning with the day this Bill is passed. I might be biased, but we prefer our Amendment 33.
Lord Parkinson of Whitley Bay (Con)
My Lords, both amendments in this group would add a new statutory deadline for the completion of the independent review of Prevent. I certainly share the Committee’s firm commitment to the success of that independent review. It was clear in this short but important debate that our common objective is for a thorough and effective review to take place—one that will help us to learn how best to safeguard those who are vulnerable to being drawn into terrorism.
However, we must allow the new reviewer sufficient time to conduct such a thorough and effective review. These amendments would limit his options for reasonable flexibility, shorten the timeframe that he is given and put at risk his ability to do his job properly.
As the noble Lord, Lord Paddick, outlined, the review restarted two weeks ago, on 26 January, with the appointment of William Shawcross as the new independent reviewer. Our aim has been for the review to be completed by no later than August this year, but we will agree the precise timetable with Mr Shawcross shortly. We want to enable him to complete the review as swiftly as possible while affording him the consideration that his important task requires.
Of course, the uncertainties posed by the ongoing pandemic, such as the prospect of further ongoing restrictions on travel and face-to-face meetings, could, self-evidently, have implications for the reviewer, as well as for his team and all those who wish to provide input into the review. I am afraid that we therefore have to consider the potential impact of that on his ability to take evidence, including the vital work of engaging with different parts of the community. As the noble Lords, Lord Thomas of Gresford and Lord Paddick, highlighted, that work is vital, as is, for example, the reviewer witnessing for himself Prevent delivery in action so that he can deliver the thorough and evidence-based review, with practical recommendations for improvement, that we would like.
The Government believe that August this year is achievable, but this is of course dependent on the views of the new reviewer. He is independent, so I cannot speak for him at the Dispatch Box. We therefore recommend that the legislation affords the reviewer flexibility, should he feel that he needs it, to ensure that the valuable work of this review is not undermined. But we certainly hear what all noble Lords have said about the urgency, and I hope that they can hear that we share that. For those reasons, I urge the noble Lord to withdraw his amendment.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I thank the noble Lord, Lord Thomas, for the rhetorical flourish at the end of his speech, when he said that the noble Lord, Lord Paddick, had been asking, “Why?”, on many of the previous groups. In his speech today, the noble Lord, Lord Thomas asked, “When will we get the Prevent review deadline?”
The Minister gave his reasons for putting Mr Shawcross in place. He has been in place for only two weeks and I understand that the Government have had problems in getting this review off the ground. I will not take a partisan view. I do not think that the amendment in my name is better than the one in the name of the noble Lord, Lord Paddick, but it is important to try to get a realisable date or timetable in the Bill so that the Government are held to that.
I will withdraw my amendment, but we might come back with a similar one at a later stage. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I apologise to the noble Lord. The delay in getting messages to the iPad on the Woolsack meant that I did not get the message that he wished to speak on the last group. But I now call the Minister, the noble Lord, Lord Parkinson of Whitley Bay.
Lord Parkinson of Whitley Bay (Con)
My Lords, the noble Lord, Lord Paddick, continues to prove himself doughty in the face of technological challenges, and I am happy to address the question he would have asked in the previous group. He makes a valid point about the much longer timeframe proposed in his amendment, which we debated in that group. As I said, however, because Mr Shawcross is an independent reviewer, I cannot speak for him at the Dispatch Box. We must speak to him and see what he feels is the timeframe he needs. If we are able to have that conversation and he feels able to give a view before Report stage, we will of course come back and report it, but it is for the independent reviewer to make his assessment of how long he needs to do the thorough job required, as I hope the noble Lord will understand.
Turning now to this group, Amendment 37 would require the Home Secretary to commission a new, judge-led review of the effectiveness of the Government’s strategy to deal with lone-actor terrorists. While I welcome the constructive spirit in which the noble Lord, Lord Ponsonby of Shulbrede, tabled this amendment, I must respectfully disagree over the need to add it to the Bill.
I reassure the noble Lord that a great deal of work is already under way to combat the terrorist threat, including that posed by lone actors. My right honourable friend the Security Minister talked in some detail about this in a speech he gave at RUSI in November last year—particularly the term “lone actor” itself. If the noble Lord has not seen it, it is well worth reading. I would be very happy to provide noble Lords with a copy of that speech if they would like it.
The Government have been clear that we will not hesitate to act where necessary. Following the attacks at Fishmongers’ Hall and in Streatham, we brought forward legislation to address flaws in the way terrorist offenders were managed. The legislation we are now debating marks the largest overhaul of terrorist sentencing in decades. It follows on from the Terrorist Offenders (Restriction of Early Release) Act 2020, which came into force in February last year. That Act was, as noble Lords will remember, emergency legislation. One of its effects was to prevent around 50 terrorist prisoners being automatically released after serving only half their sentence, by amending their release point to at least two-thirds of their sentence and ensuring they are released only after an assessment by the Parole Board.
Following the attack at Fishmongers’ Hall in November 2019, the Lord Chancellor and the Home Secretary commissioned Jonathan Hall QC to carry out an independent review of the effectiveness of the Multi Agency Public Protection Arrangements, or MAPPA, when it comes to the management of terrorism, terrorist connections and offenders of terrorism concern in the community. MAPPA is the process through which the police, the Prison Service and the probation service work together and with other agencies—including children’s services, adult social services, health trusts and authorities, and youth offending teams—to protect the public by managing the risks posed by violent and sexual offenders living in the community.
That review found that MAPPA is a well-established process, and Mr Hall did not conclude that wholesale change is necessary. He made a number of recommendations on how the management of terrorists can be improved. In response to the review, the Government will shortly be bringing forward policing and crime legislation implementing a number of his recommendations, including new powers of premises and personal search, and an urgent power of arrest for counterterrorism policing.
This ongoing work builds on the response to the 2017 attacks. Three of the attacks in 2017 were carried out by lone actors, as was the attack in Reading, as the noble Lord, Lord Ponsonby, reminds us, which we sadly saw more recently. In 2018, the Government published a strengthened counterterrorism strategy, known as Contest, following operational improvement reviews overseen by the noble Lord, Lord Anderson of Ipswich. As part of that strategy we have piloted new multiagency approaches at the local level—in London, the West Midlands and Greater Manchester—to enable MI5 and counterterrorism policing to share more information with a broader range of partners, including government departments, the devolved Administrations and local authorities. This has enabled us to identify, mitigate and disrupt threats earlier. Our superb police, and security and intelligence agencies work around the clock to keep us safe: they have disrupted 27 terrorist plots since 2017.
There are now more than 20 government departments and agencies involved in the delivery of Contest, and we have worked to build strong relationships with the private sector, the third sector and the wider public. We will continue to invest in these relationships and drive greater integration, recognising that to reduce the risk of terrorism we need not only a whole-of-Government but a whole-of-society approach. In the context of the wide-ranging work already under way and recently completed, the Government do not consider that the noble Lord’s amendment is needed.
I turn now to Amendment 40. This proposed new clause would require the Secretary of State to lay a report within 12 months of the Bill being passed, defining which agencies are included within MAPPA for the purposes of managing terrorist offenders. The agencies included in MAPPA are already listed in Section 325 of the Criminal Justice Act 2003. As has been mentioned already, these include criminal justice agencies such as the police and the probation service, as well as other agencies, including mental health services, social services and NHS England. These agencies are placed under a statutory obligation to work together to assess and manage the risk presented by serious offenders.
Moreover, agencies with a legal duty to co-operate with MAPPA must have regard to statutory guidance issued by the Ministry of Justice. This guidance, which also sets out which agencies must co-operate, is publicly available. Agencies that do not have a statutory duty to co-operate with MAPPA are not obliged to engage. There are, however, no barriers in place to prevent this engagement for the purposes of assessing and managing the risks presented by serious offenders. It is our belief that the right agencies already have a duty to co-operate in place, and, as such, they are listed publicly in the Criminal Justice Act.
I have already mentioned Jonathan Hall’s recent review of MAPPA. On the question of the identity of the agencies involved in MAPPA, he raised no issues. He did, however, raise questions about the way in which MAPPA agencies share information with each other, and the Government have confirmed in our response to his review that we will clarify the position in upcoming legislation to put the matter beyond doubt. We believe, therefore, that since this knowledge is already publicly available and enshrined in legislation, there is no need for this amendment. I hope the noble Lord agrees and that he will be willing to withdraw it.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I thank everyone who has spoken on this short group of amendments. The Minister offered to send the RUSI speech of his friend, which I would indeed be happy to read. The gist of his comments on Amendment 37 was that a judge-led review is not needed because there are other government reviews currently under way. I hear what he says, but I will reflect on the view he expresses.
On Amendment 40, he listed the statutory bodies that are required to co-operate with MAPPA, but I thought it was interesting that the list he read out was a much shorter list than the one I got from the probation officers, who said it was very important to go wider than the short list he mentioned and include, for example, local faith-based groups, education providers and third sector substance misuse agencies. Those sorts of agencies may well be very useful and informative for the MAPPA system. I hear what the noble Lord says about Jonathan Hall and the plan to help the different MAPPA agencies co-operate with each other, which must be the right way to proceed. I will reflect on what he said, and I beg leave to withdraw my amendment.
Lord Parkinson of Whitley Bay (Con)
My Lords, with thanks to all noble Lords who have enabled us to complete the Committee’s scrutiny of the Bill this evening, I beg to move that the House do now adjourn.
Domestic Abuse Bill
Lord Parkinson of Whitley Bay ExcerptsMonday 8th February 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-VI(Rev) Revised sixth marshalled list for Committee - (8 Feb 2021)
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 141, moved by the noble Lord, Lord Marks of Henley-on-Thames, raises the important issue of controlling or coercive behaviour.
This proposed offence is modelled on the existing offence of coercive behaviour in an intimate relationship, as set out in the Serious Crime Act 2015. I support the intent behind the amendment, but this appears to be an offence committed by a person who has a relationship with a family member; this is not about families, it is a professional client/patient relationship, so it is slightly different.
My noble friend Lord Hunt of Kings Heath set out the timeline of discussions over the last 20 years. It made quite sorry listening—such a long period has elapsed and so little has been achieved. That in itself should be concerning to all noble Lords.
As we have heard in this debate, it is worrying that potentially dangerous individuals can set themselves up with little or no control or regulation—no standards appear to be adhered to—and seek to offer professional services to people who are vulnerable or have issues. Quite clearly, they are only going to make the situation much worse. My noble friend Lady Mallalieu talked about what she referred to as “quasi-healers” and gave an example of the suffering and damage that these people can cause.
I support the intent behind the amendment and its aim. However, I am not sure that this is the right Bill for it, although I accept the point made by my noble friend Lady Mallalieu that we cannot see a Bill on the horizon that it could obviously slot into, which is itself a problem for us all. I hope that the noble Lord, Lord Parkinson of Whitley Bay, will set out what the Government propose to do to address this issue and say not just that it does not belong in this Bill but what we are going to do about it, because, as we have heard today, there are clearly some serious problems that deserve to be addressed by Parliament and the Government. I would particularly like to hear what he intends to do between now and Report; I have no doubt at all we will discuss the issue again on Report after the Recess.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am very grateful to all noble Lords who have taken part in this debate today and on Wednesday evening, when we began it. I am particularly grateful to the noble Lord, Lord Marks of Henley-on-Thames, for setting out the case for this amendment, which, as he explained, seeks to extend the offence of controlling or coercive behaviour to psychotherapists and counsellors providing services to clients.
The noble Baroness, Lady Mallalieu, was right; we have perhaps as a country been slow to appreciate the scale of coercive behaviour. I am very proud that it was my right honourable friend Theresa May who provided for the offence of “controlling or coercive behaviour” in Section 76 of the Serious Crime Act 2015. That offence applies only to those who are “personally connected”, as defined in the section. It applies to intimate partners, regardless of whether they live together, to ex-partners who live together and to family members who live together. Amendment 141 would extend the offence beyond those who are personally connected, as defined by Section 76, so that it would apply to psychotherapists and counsellors. Most noble Lords who have spoken in this debate have pointed to evidence and indeed to specific harrowing cases suggesting that fraudulent psychotherapists and counsellors—or, as they understandably refer to them in many cases, charlatans—take advantage of their position to supplant friends and families in the minds and affections of their clients for the purpose of turning them against those friends and families. The noble Lord, Lord Marks, suggested that this abuse should be caught by the controlling or coercive behaviour offence because therapists are abusing their position of trust and the dependence of their clients.
We have already had a number of debates in Committee on earlier amendments where my noble friends and I have stressed the importance of preserving the meaning of “personally connected” for the purposes of the definition of domestic abuse and, by extension, for the purposes of the Section 76 offence. The controlling or coercive behaviour offence was created in 2015 to fill a particular gap in the criminal law in relation to a pattern of abusive behaviour in an intimate or family relationship. We are not persuaded that what looks like the beguilingly simple act of taking the concept of controlling or coercive behaviour in a domestic abuse setting and applying it to abuses of power by psychotherapists or counsellors should be undertaken without careful and detailed analysis. As the noble Lord, Lord Kennedy of Southwark, has said, the professional/client relationship is a different one.
We have had a thoughtful but not conclusive debate on the definitions of what constitutes a domestic setting and an intimate relationship. As the noble Baroness, Lady Jolly, said, these things may take place in the home, but often they will not. My noble friend Lady Finn explored what constitutes a domestic setting, but it is the personal connection that matters. I agree with the noble Baroness, Lady Fox of Buckley, that we want to maintain a careful focus on the definition of domestic abuse as it is widely understood, and as we want the Bill to draw further attention to. That matters not only for the architecture of the Bill, as the noble Baroness, Lady Mallalieu, said, but in making sure that the police and other agencies are tightly focused on tackling the scourge of domestic abuse, as the noble Baroness, Lady Fox, said. We think, therefore, that without proper study it would not be right to transplant the concept of controlling or coercive behaviour into what is quite a separate power dynamic.
That is not, of course, to downplay the seriousness of this issue or the harrowing examples raised by noble Lords. The Government believe that we should look to other remedies, and it might be helpful to set out some of those that exist through the action that has been taken. A system of accredited voluntary registration with the Professional Standards Authority for Health and Social Care already exists. The authority has a process for quality assuring voluntary registers of health and care professionals in the UK who are not subject to statutory regulation. It currently accredits 10 voluntary registers relating to counselling and psychotherapy, providing assurance to the public on approximately 50,000 talking therapy professionals. The registers can be used by service users to choose a practitioner to meet their needs and to be assured that those practitioners are safe, trustworthy and competent to practise.
To gain accreditation with the Professional Standards Authority, organisations have to meet 11 standards for accredited registers. These standards require organisations to have a focus on public protection, to have processes in place for handling complaints against practitioners, to set appropriate levels of education and training for entry to the register, to require registrants to undertake continuing professional development and to understand and monitor the risks associated with the practices of registrants. Any registrant who is removed from an accredited register for conduct reasons cannot join another accredited register. I recognise that the noble Lord, Lord Hunt of Kings Heath, said that these registers are voluntary. We would urge anyone looking to engage the services of a psychotherapist or counsellor to ensure that they are accredited by the Professional Standards Authority.
Noble Lords have raised issues which I know have been the subject of separate and indeed long-standing debates in your Lordships’ House. My noble and learned friend Lord Garnier and the noble Lord, Lord Hunt of Kings Heath, both referred to their experiences and insights from their time as Ministers and set out some of the actions which have been taken since. While there may be a need to legislate on this matter in the future, that is a question for the Department of Health and Social Care. I cannot commit the department one way or the other today, but for reasons of focus on the particular offence of domestic abuse, we do not feel that this Bill is the right place to do that. I therefore hope that the noble Lord will withdraw his amendment.
Baroness Fox of Buckley (Non-Afl)
My Lords, one salutary and useful aspect of this amendment is that it has focused our minds on false memories and false allegations. It is therefore a reminder that we must challenge what we believe to be the victim mindset that can lead to grave injustices. The amendment should remind the Government that abuse is so emotive that it becomes quite hard to challenge if it has been alleged. The reason why false memories have been so damaging over the years is that once the victims say that they have been abused while under the care, guidance, manipulation or coercive control of said “quack” counsellor, no one can challenge that because it is an accusation of abuse. This legislation bends the stick in the direction of victims far too much, in my opinion, and I urge the Minister to take great care and perhaps investigate some of the harrowing stories of false memory syndrome in order to learn lessons and not make the same mistakes here.
Lord Parkinson of Whitley Bay (Con)
The noble Baroness is right to say that this area needs continued and careful thought, a point also made by the noble Baroness, Lady Finlay of Llandaff, who referred to the complexity of the issues and the matters which have to be considered. We will indeed do that.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, I am grateful to the Minister for his careful response. He said that this issue goes wider than his own department, and I agree. In the period between Committee and Report, would it therefore be possible for him to meet with the noble Lord, Lord Bethell, to discuss it? It is clearly a serious issue that demands a cross-government response and that would not necessarily be met only by an amendment to a particular Bill.
Lord Parkinson of Whitley Bay (Con)
That is a sensible suggestion from the noble Lord and I am happy to commit to speaking to my noble friend about it.
Lord Kennedy of Southwark (Lab Co-op)
I was going to make the same suggestion as my noble friend Lord Hunt of Kings Heath, who made the point that this is an important issue that runs across departments. As he said, I am not sure that this is the right Bill in which to address it, but equally, I am concerned that there may not be a right vehicle at the moment. We have to find some way of dealing with this issue, which has been raised across the House. We have potentially dangerous people treating very vulnerable people and thus only making the situation worse. We should not allow that to happen and we must find a way of dealing with it.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am afraid we are having difficulty hearing my noble friend. I wonder whether she might give it another go; otherwise, we will have to move on and revert to her when the problem is sorted.
Lord Parkinson of Whitley Bay (Con)
My Lords, we still have a number of amendments to get through this evening, but I think now might be an opportune moment for a short break. I beg to move that the Committee do now adjourn until 8.23 pm.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
My Lords, the Committee will now adjourn until 8.23 pm, and we will return to deal with the group beginning with Amendment 149.
Lord Parkinson of Whitley Bay (Con)
A large number of noble Lords wish to speak on this group. We have a number of amendments to get through before the Committee rises at midnight. While of course there are no speaking limits, perhaps I may appeal for conciseness and brevity from noble Lords. That will assist us in making as much progress as possible before we rise later tonight.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, before speaking to my Amendment 157 in this group, I want to express my strong support for my noble friend Lady Lister in her Amendment 149, which she has argued for so persuasively just now. My amendment is concerned with family abuse, particularly that suffered by elderly people and disabled victims. I am glad to have the strong support of the noble Baronesses, Lady Burt, Lady Mansoor and Lady Greengross. The noble Baroness, Lady Greengross, has been an extraordinary campaigner for older people and years ago was bringing the problem of abuse being suffered by older people to national and international attention. The noble Baroness, Lady Mansoor, cannot be with us today because of a pressing engagement, but she is a strong and enthusiastic supporter of the amendment.
Our concern is that when it comes to domestic abuse, family victims are repeatedly, even continually, being forgotten. The only explanation I can think of is that elderly and disabled victims of family abuse who are dependent on their abusers are in general unable or afraid to speak out. To my mind, this should make the coverage of family abuse by Section 76 a high legislative priority. The offence of controlling or coercive behaviour under Section 76 covers such behaviour by a family member, including financial abuse, but only when they are living with their victim. According to research, most perpetuators of financial abuse against elderly people were family members rather than partners, and only 25% actually live with their victims. I believe that the UK criminal law must afford victims equal protection, irrespective of their place of residence. As Gary FitzGerald, the former CEO of Action on Elder Abuse for 18 years, has stated:
“Older women can have a higher level of physical, emotional and particularly financial dependence on perpetrators, and will often have experienced the abuse for a much greater period of time. It is those psychological and emotional relationships that are crucial in considering coercive control, much more so than whether or not the victim is living with the perpetrator.”
Material published by Action on Elder Abuse shows that financial abuse can involve victims’ houses being sold or taken without their consent, or victims giving their property away under pressure or without full awareness.
The outcome of financial abuse on older people can be devastating. Many lose large sums of money, lose property that they have lived in for years, do not receive benefits to which they are entitled, incur large debts, or simply do not have enough money to live on. Many of the alleged perpetrators of large-scale financial abuse do not deny having access to or spending large amounts of money belonging to a particular older person. They merely contend that the older person gave them permission to spend the money in question, but the vulnerability of the victims means that they are often unable to categorically deny that such permission was given. The likelihood of such cases being progressed through to a satisfactory outcome, full recovery of assets and a criminal prosecution of the perpetrator remains low. Caroline Abrahams, the charity director of Age UK, has urged the Government,
“to give serious consideration to any amendment that will improve outcomes for older victims and survivors.”
Becki Meakin, general manager of Shaping Our Lives, the national user-led organisation for disabled people, has said:
“The high incidence of violence and abuse among disabled people is related to being dependent on their family and informal networks for care and support. These caring relationships provide additional opportunities for perpetrators to abuse and coercively control. The perpetrator can coercively control the disabled person by withholding essential support such as food, medication or prevent them going out independently. This type of abuse can be done by a family member wherever they live and this type of coercive control would not be easily recognised by the legislation around stalking”
and harassment.
In her opening speech, my noble friend Lady Lister argued that it is wrong to say that post-separation economic abuse can be covered by stalking and harassment legislation, as the Government have done both in Committee in the Commons and at Second Reading. I agree with my noble friend that this is by no means sufficient.
We really need to take action on this now. Controlling or coercive behaviour, including financial abuse, does not become stalking or harassment simply because the victim does not live with their abuser.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I support both these amendments. The noble Lord, Lord Ramsbotham, has had a long-standing interest in these matters, as he explained to the Committee, and he spoke with great authority, as he usually does. He also explained that he had had recent conversations with the Minister, Victoria Atkins, and I was pleased that he explained that she is taking this problem very seriously.
The noble Baroness, Lady Finlay, gave a very sobering medical explanation of brain damage and brain injury. In my understanding, she said it is a difficult thing to assess, but it is a very real issue. I too got the review of the Disabilities Trust report on Drake Hall from 2016-18, and we have heard a number of the statistics from the noble Baroness, Lady Burt, and the noble Lord, Lord Ramsbotham.
One particular statistic that was not repeated, and which I thought was particularly revealing, was that 33% of women with a brain injury sustained their injury before committing their first offence. That shows that brain injury can, and often does, lead to life-changing behaviours, which can and do mean that, disproportion-ately, people with brain injuries end up in prison—both women and men.
The noble Lord, Lord Ramsbotham, did not actually say that this was a probing amendment, but whether or not it is, I am happy to support it. I hope to hear from the Minister that the Government are taking these sources of injury and changes in behaviour very seriously within the prison estate.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for setting out the case for these amendments, which, as he explained, follow similar suggestions from Chris Bryant MP when the Bill was debated in another place. I am pleased that my honourable friend the Minister for Safeguarding was able to meet Mr Bryant and the noble Lord, and that their discussions were—as the noble Lord said—helpful.
Amendment 155 seeks to introduce screening for acquired brain injury for female victims of domestic abuse within two weeks of a domestic abuse charge being made, including those victims to be protected by a domestic abuse protection order. Amendment 156 seeks to introduce screening for brain injury for all female prisoners within two weeks of starting their sentence, with a subsequent assessment to take place if an injury is found.
I say from the outset that we want to make sure that we provide healthcare and support that meets the specific needs of all victims of domestic abuse, and female offenders too, including those with acquired brain injury. We have carefully considered these amendments, and while we appreciate their overarching intent, we feel that legislating would not be the appropriate course of action. The noble Baroness, Lady Finlay of Llandaff, set out clearly the clinical difficulties that would be involved if we were to put this in the Bill.
The National Health Service is there to provide appropriate care and treatment for everyone who needs it, based on clinical need. This key principle on which the NHS operates means that anyone who needs a certain diagnostic test based on clinical need should receive it. The healthcare needs of victims of domestic abuse will vary greatly based on their individual circumstances and experiences but, if they need urgent assessment or treatment, they will receive this from the National Health Service.
Moreover, as we have heard throughout the scrutiny of the Bill so far, domestic abuse can manifest itself in many ways, including—as in the group of amendments we have just discussed—through coercive control or financial abuse, and it would be inappropriate to invite victims of these forms of domestic abuse for brain injury screening. That is why we do not consider that testing all female victims of domestic abuse, as this amendment suggests, would be an effective use of NHS resources or provide the personalised care they need.
Nevertheless, we believe that improvements can be made to existing screening processes through non-legislative measures. I will provide some background to that. All people entering prison receive an early health assessment within the first 24 hours. This initial assessment is comprehensive so that their health needs can be identified and addressed at an early stage. It includes a standard requirement to undertake a screening questionnaire for head injury and loss of consciousness, which focuses on issues with memory or concentration. As noble Lords have said, these can be important signs.
We acknowledge that more could be done during this screening process to identify and address specific circumstances where head injury or loss of consciousness has resulted from domestic abuse. I am pleased to say that NHS England and NHS Improvement have confirmed that they would be happy to add further questions to the existing screening tool to ascertain, where an acquired brain injury has been identified, whether that acquired brain injury occurred as a result of physical injury related to domestic abuse, sexual violence or another form of abuse.
The national screening tool is reviewed and updated by NHS England and NHS Improvement on an annual basis to allow for any changes in NICE guidance or any recommendations arising from a coroner’s report to prevent future deaths. To amend the existing screening tool, NHS England and NHS Improvement will need to agree the precise questions to be asked and how these will be reported. I am pleased to say that the initial screening questions on domestic violence and the coding that is required have already been agreed and will be implemented by April this year.
Alongside this, NHS England and NHS Improvement are continuing to work with the Disabilities Trust on a training package for healthcare practitioners to increase effectiveness when supporting people with impaired neurological functioning, either as a result of domestic abuse or for other reasons, and also to support them by providing practical steps to those working with patients and self-help tools for the patients themselves to reduce and overcome the impact of any brain injury.
In so far as Amendment 155 seeks to link screening to the making of a domestic abuse protection order, it is important to recognise that, like other protective orders, these are designed to impose requirements on the perpetrator. They cannot impose requirements on the person to be protected by the order, such as requiring them to undertake a screening for an acquired brain injury.
We will, however, use the statutory guidance to the police to recommend that they refer victims to an independent domestic violence adviser, or another specialist advocate, who will be able to advise victims of their options on a whole range of issues, including healthcare. In addition, we will include information on where to go to seek medical attention in the advice materials provided to victims which we will be producing ready for the pilots of the orders.
I hope that these non-legislative measures reassure the noble Lord, Lord Ramsbotham, that we are acting to support women with acquired brain injury and that putting this in the Bill is therefore not necessary. I am glad to repeat our thanks to him and to Mr Bryant for the discussions we have had on this important issue. I hope that the noble Lord will be willing to withdraw his amendment.
Lord Ramsbotham (CB) [V]
My Lords, I thank the Minister for that considered response and the noble Baroness, Lady Burt, and the noble Lord, Lord Ponsonby of Shulbrede, for their support. I am particularly grateful to my noble friend Lady Finlay of Llandaff for drawing on her considerable medical expertise to point out the practical medical difficulties with the timeframe proposed in Amendment 155. I majored on Amendment 156 and the assessment of victims of domestic abuse when they are received in prison, which has been proved to be so important. I will examine in detail what the Minister and my noble friend Lady Finlay said and decide what to do on Report. I beg leave to withdraw the amendment.
Lord Rosser (Lab) [V]
Amendment 158 in the name of the noble Baroness, Lady Burt of Solihull, would require the Secretary of State to issue guidance to the Child Maintenance Service to tackle the problem of abusers continuing economic abuse by withholding or reducing child maintenance payments. As the noble Baroness, Lady Burt, said, we have just had a debate on the issue of economic abuse post separation, and one of the examples given of such abuse was through the perpetrator failing to pay child maintenance.
Child maintenance is an essential source of income for many single parents in enabling them to meet their children’s basic needs, including food and clothing, and is of particular importance to victims and survivors of economic abuse, who often rely on such payments for economic stability after leaving a perpetrator. Perpetrators of economic abuse are only too aware of this, however, and withholding or unreliably paying child maintenance can be a way in which they continue to control victims and survivors, including post separation. This issue does seem to highlight the importance of agencies such as the Child Maintenance Service that provide front-line services carrying out training to recognise and respond to economic abuse, as a means of domestic abuse, as part of how they operate.
Economic abuse perpetrated through child maintenance is not new, of course; it has been used by perpetrators for some time. However, the coronavirus seems to have exacerbated the situation through providing perpetrators with increased opportunities to interfere with child maintenance payments. During the present pandemic, it has been reported that the Department for Work and Pensions has redeployed a number of Child Maintenance Service staff in order to deal with the spike in universal credit claims. It has been said that this included staff tasked with enforcing or following up child maintenance.
The media have additionally reported that the Child Maintenance Service was accepting verbal evidence from paying parents seeking to stop or reduce payments in relation to their income decreasing during the pandemic, when this would usually require evidencing through documents such as payslips. In their response, could the Government indicate whether there is validity in these reports and what guidance has been issued by the Government to the Child Maintenance Service on tackling the problem of abusers continuing economic abuse by withholding or reducing child maintenance payments—not only prior to but during the pandemic?
We support the noble Baroness, Lady Burt of Solihull, in raising this issue and await the Government’s response.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am grateful to the noble Baroness, Lady Burt of Solihull, for outlining her amendment. I certainly agree with her and all the noble Lords who have spoken that guidance for front-line staff on tackling economic abuse through the withholding or reduction of child maintenance payments is extremely important. I assure her and, I hope, the noble Lord, Lord Rosser, that the Child Maintenance Service takes the issue of domestic abuse extremely seriously and is committed to ensuring that victims of abuse get the help and support that they need to use it safely.
The service has recently substantially strengthened its procedures to support people who are experiencing domestic abuse: in particular, a new programme of domestic abuse training is currently being delivered to all Child Maintenance Service caseworkers. However, before that, the service had already implemented training in this area, designed with input from Women’s Aid. That included: recognising that domestic abuse can take various forms, including physical, psychological, emotional and financial abuse; appropriate signposting to domestic abuse support groups; and advice on contacting the police and, if people did not feel able to do so, asking whether they were content for the Child Maintenance Service to call the police on their behalf. The service has also introduced a complex needs toolkit for its caseworkers which includes clear steps to follow in order to support people who are experiencing abuse. It is regularly reviewed and strengthened on the basis of feedback. The Child Maintenance Service will continue to evaluate the effectiveness of its guidance and training in this area.
Beyond that guidance and training, there are a number of ways in which the Child Maintenance Service responds to cases involving domestic abuse. It might be helpful to outline some of them. They include waiving the application fee for victims of domestic abuse; providing appropriate advice and support to help victims use the service safely and to ensure that there is no unwanted contact between separated parents; acting as an intermediary to facilitate the exchange of bank details and ensuring that no personal information is shared; providing advice on how to set up bank accounts with a centralised sort code, which does not allow victims of abuse to be traced; and providing advice and directing people to a number of specialist domestic abuse support organisations as well as providing advice and information on how they can stay safe.
The Child Maintenance Service also has a range of strong enforcement powers, which can be used against people who consistently refuse to meet their obligations to provide financial support to their children. First, it can make deductions directly from earnings and seize funds directly from a paying parent’s bank account, either as a lump sum or regular payments. We have extended this power to cover joint and certain business accounts, thereby removing the opportunity for paying parents to put their money out of reach. Secondly, it has the capacity to seize goods or force the sale of a non-paying parent’s property. Thirdly, it can seek to have those who wilfully refuse to recognise their obligations either committed to prison or disqualified from driving. Finally, we have also introduced the ability to disqualify non-compliant parents from holding or obtaining a UK passport, which we believe acts as a strong deterrent.
We are therefore confident that the Child Maintenance Service already has sufficient enforcement powers and that it has further strengthened its procedures for supporting people who have suffered domestic abuse. I assure the noble Baroness and all noble Lords who have spoken in this brief but important debate that we will continue to monitor the effectiveness of these enforcement powers and the support that they give. With that assurance, I hope that the noble Baroness will be content to withdraw her amendment.
Baroness Burt of Solihull (LD)
My Lords, I am grateful to the speakers who have contributed to this short but, as the Minister says, important debate. The noble Baroness, Lady Jones, spoke very supportively about the importance of child maintenance to the family and how it is abused as a tool of control. The noble Lord, Lord Rosser, made an interesting contribution about the role of coronavirus and the redeployment of CMS. Obviously that is a concern.
The Minister talked about further strengthening procedures and training, which is what the Minister Alex Chalk said in the other place. I am reassured that the evaluation of the effectiveness of the guidance is continuing, and I hope that the success rate continues to rise so that more families have the wherewithal to survive economically. With that, I beg leave to withdraw the amendment.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank all noble Lords who have enabled us to cover all the amendments listed for today.
Domestic Abuse Bill
Lord Parkinson of Whitley Bay ExcerptsWednesday 3rd February 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-V Fifth marshalled list for Committee - (3 Feb 2021)
Lord Parkinson of Whitley Bay (Con)
I am afraid we cannot hear the noble Baroness. She might still be on mute.
Lord Parkinson of Whitley Bay (Con)
My Lords, it has been agreed that a short break of 15 minutes would be welcome.
Lord Garnier (Con) [V]
My Lords, I apologise for not taking part on Second Reading, although I have read the Official Report. I also apologise for keeping my noble friend the Minister, new to his job, a bit longer at the crease.
Amendment 141 proposes a new clause that is within the scope of the Bill, but its value is not dependent on the Bill. The wording and effect of Amendment 141 is self-explanatory but, if it needed any further elaboration, the noble Lord, Lord Marks of Henley-on-Thames, has just provided it in his excellent speech. I cannot improve on what he said, but now is the moment when Parliament must at last legislate to outlaw the quack counsellors who predate on vulnerable people through controlling or coercive behaviour, and to provide some sort of protection to their victims or intended victims.
I have been concerned about these quacks and trying without success to get the Government to legislate for some years. I worked with Oliver Letwin and Tom Sackville, two former Ministers, as well as parliamentary counsel and Ministry of Justice officials with the support and encouragement of David Cameron, who had a constituency interest in the matter. I spoke about these quacks at Report on the Modern Slavery Bill in November 2014 and the Serious Crime Bill in February 2015 when I was a Member of Parliament, and then again in your Lordships’ House on 2 March 2020 in the debate on the unregulated treatment of mental health, initiated by the noble Baroness, Lady Jolly. Now, thanks to the noble Lord, Lord Marks, the noble Baroness, Lady Jolly, again, and the other contributors to this debate—as well as my noble friend Lord Astor of Hever, who spoke in the debate last March about the Serious Crime Act—we are making real progress.
We have laws to protect children and those under a mental incapacity through intellectual impairment, disability or the effects of old age. We can prosecute those who dishonestly take old and frail people’s money, but we leave unprotected adults who may succumb to pressure exerted on them by others of malevolent intent because their exploitative activities currently do not come within the criminal law.
From the outset, I have had in mind some young, adult women whose experiences were brought to my attention by their parents and families. In essence, they had been brainwashed or suborned by quack counsellors. They persuaded these young people to break off all contact with their families, infected them with false memories and got them to pay fees for the so-called counselling. Some of these young women were well-off and suggestible but all of them, for no apparent reason, broke off all contact with their families.
As the noble Lord, Lord Marks, has just said, France, Belgium and Luxembourg have laws to criminalise the behaviour of predatory charlatans who exploit others in a state of emotional or psychological weakness for financial or other gain. It must be assumed that their laws do not conflict with those articles of the ECHR that protect the right to private and family life, the right to freedom of expression and association, and the right to freedom of thought, conscience and religion. To take the French example, in that jurisdiction it is an offence punishable by imprisonment and very heavy fines to abuse the ignorance or state of weakness of a minor or of a person whose particular vulnerability due to age, sickness or infirmity, to a psychological or physical disability or to pregnancy is apparent or known to the offender. It is also an offence to abuse a person in a state of physical or psychological dependency resulting from serious or repeated pressure or from techniques used to affect his judgment in order to induce the minor or other person to act, or abstain from acting, in a way seriously harmful to him.
Amendment 141 is clearly different but, I believe, as useful. One way of considering whether the proposed defence in Amendment 141 would work is to ask oneself the following questions. Would it be prosecutable in theory and in practice? Could each of the elements of the offence be proved in a real-life example? Would the measure deal with the mischief that was identified, and would it catch no one else? The answer to those questions is yes. How would it affect partners, husbands, wives, teachers, gurus, salesmen, priests and employers, all of whom are likely to have power and influence? It need not do so. Would it allow the mentally capable who want to give away their fortunes and leave their families to do so? Of course it would. Would it make sufficiently clear what was criminal behaviour and what was not? Would it comply with the European Convention on Human Rights? Yes, it would. What effect would it have on religious freedom, or freedom of expression or association? In my view, none at all.
The victims of these bogus therapists have been waiting far too long for Parliament to help them. The amendment is humane and practical, and it has nothing whatever to do with party politics. If the laws of France, Belgium and Luxembourg can protect the people that this amendment seeks to protect, the law of England can and ought to do so as well. Amendment 141, or something like it, should be added to the Bill.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am afraid we have to leave it there for this evening.
Counter-Terrorism and Sentencing Bill
Lord Parkinson of Whitley Bay ExcerptsTuesday 26th January 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 129-I Marshalled list for Committee - (21 Jan 2021)
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for reminding the Committee of the two terrorist offences at Fishmongers’ Hall and at Streatham, which formed the backdrop to this Bill. They were rightly mentioned at Second Reading; it is correct that we have them in our minds as we embark on Committee today.
Clause 1 addresses a limitation in the existing legislation to ensure that no terrorist-related offenders fall through the cracks. As the noble Lord, Lord Marks, set out, at present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing only in relation to a defined list of non-terrorism offences set out in Schedule 1 to the Sentencing Code for England and Wales and Schedule 2 to the Counter-Terrorism Act 2008 for Northern Ireland and Scotland.
Clause 1 removes this defined list of non-terrorism offences from Schedule 1 to the Sentencing Code and Schedule 2 to the 2008 Act. This is an important step, though not quite as radical as the noble Lord, Lord Marks, suggests. It will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. Closing this loophole provides a necessary flexibility in the legislation, reflecting the fact that terrorist offending takes a wide variety of forms.
On Second Reading we noted that, sadly, the terrorist threat is constantly evolving; offenders prove themselves rather inventive, alas, and it is right that the legislation keeps pace. I am glad for my noble friend Lord Naseby’s support, who sadly spoke with personal experience. I also welcome the support of the noble and learned Lord, Lord Falconer of Thoroton, for this important step in expanding the list of offences.
This clause also ensures that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact. First, it must be treated as an aggravating factor when sentencing. This will help ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk they pose to public safety. Secondly, the change will also result in the offenders being subject to the registered terrorist offender notification requirements following their release from prison, meaning that they are required to notify specified information to the police. That information supports the police to manage an offender’s risk on release much more effectively. Thirdly, once the Bill receives Royal Assent—as we hope it will—offenders convicted with a terrorist connection will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk, for instance polygraph testing.
It might help the Committee if I offer a hypothetical example to demonstrate how this change will work in practice, as noble Lords asked for. Today, someone convicted of possessing a firearm with intent to endanger life would not be guaranteed to have their sentence aggravated, even where the court has identified a terrorist connection. They would also not be subject to the restriction on early release provisions or the registered terrorist offender notification requirements upon release. That is because this offence is not listed in Schedule 1 to the Sentencing Code or Schedule 2 to the Counter-Terrorism Act 2008. Clause 1 will address this inconsistency in the current legislation by requiring the court to consider whether there is a terrorist connection and treat it as an aggravating factor if such a finding is made. It will also ensure that appropriate risk management tools, such as the notification requirements, apply following the offender’s release from prison.
I emphasise that, as is the case currently, courts will be required to apply the criminal standard of proof—that is, beyond reasonable doubt—when determining a terrorist connection at the point of sentencing. The noble Lord, Lord Thomas of Gresford, asked about this. Judges routinely have to consider whether offences which they are sentencing have been committed with aggravating factors and, in doing so, they apply the criminal standard of proof and must be satisfied that they are made out beyond reasonable doubt. I hope that addresses the question that he and others raised about the process.
It is also important that the Committee notes what the Independent Reviewer of Terrorism Legislation said in public about the Bill and these provisions, including during the oral evidence that he provided to the Public Bill Committee in another place. Asked by my honourable friend the Member for Derbyshire Dales which provision in the Bill, in his professional view, would have the biggest effect on making our citizens safer, he said that it was this one:
“That is a really welcome change, which makes people safer.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 16.]
The Bill contains a comprehensive package of measures, of which this change is an important part. It will help to establish confidence in the sentencing framework by ensuring that those who commit terrorist-related crimes receive punishments commensurate with those crimes, spend longer in custody and are subject to appropriate risk management processes following their release.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I should have opened my earlier speech by welcoming the noble Lord, Lord Wolfson of Tredegar, to his position and to the House. He has been extremely helpful to me in relation to the Domestic Abuse Bill and its provisions and I have seen him virtually on a number of occasions, so I have not completely appreciated that this is the first time that we have been together on a Bill. I also thank all noble Lords who have spoken and in particular the noble Lord, Lord Parkinson, for his response.
I listened carefully to all that the noble Lord, Lord Naseby, said. Of course we all, throughout the House, deplore terrorism and agree that it is crucial that we make our country safe from terrorism and treat terrorist offences with extreme severity. The point that I made, echoed by my noble friend Lord Thomas and, to a certain extent, by the noble and learned Lord, Lord Falconer, is that, in the effort to set up that severe framework, we must not abandon important principles of English criminal justice.
The noble Lord, Lord Parkinson of Whitley Bay, has not answered the point made by me and by my noble friend Lord Thomas and, to a lesser extent, by the noble and learned Lord, Lord Falconer, that the fact-finding process by which the aggravation of an offence carrying a sentence of more than two years’ imprisonment is to be proved has not been defined in the Bill, is taken out of the hands of the jury by the Bill and put into the hands of the judge, and does not satisfy the basic requirement of English law that the findings of fact about an offence are for the jury, and the sentencing is for the judge.
Of course I take the point made by the noble and learned Lord, Lord Falconer, that the judge has discretion in many cases—including the offence of murder, which the noble and learned Lord mentioned—to increase or reduce a sentence in accordance with his view of the evidence. However, that does not answer the central point that what we have here is the creation of a raft of new aggravated offences, and the position that it is for the judge alone to decide whether he is dealing with an aggravated offence or a basic offence; and the basic offence can be quite a minor offence in general terms.
The noble Lord, Lord Parkinson of Whitley Bay, has not answered the question from my noble friend Lord Thomas as to whether there would or would not be a Newton hearing. He has not answered the noble and learned Lord, Lord Falconer, about how the judge makes a determination that the offence is to be treated as aggravated. I invite the noble Lord to go back and discuss with his colleagues in government how this point can be dealt with so as to ensure that the aggravated offence is either charged, tried and convicted in accordance with our principles of law by the jury, or how it is to be determined on proper evidence, if not by the jury then by the judge.
The clause as it stands is unacceptable. For that reason, I maintain the questions that I have about it.