Counter-Terrorism and Sentencing Bill

Lord Ponsonby of Shulbrede Excerpts

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

[Lord Paddick (LD) [V]]

My Lords, as my noble friend Lord Marks of Henley-on-Thames has outlined, our Amendment 16 in this group calls for a review of the impacts of Part 1of the Bill. Why is such a review needed? The Explanatory Notes to the Bill describe its purpose as being to better protect the public from terrorism, effectively by two main means: ensuring that serious and dangerous terrorist offenders spend longer in custody, and supporting their disengagement from extremism and their rehabilitation.

I am pleased to note there is no longer any pretence that longer sentences act as a deterrent to terrorist offenders. There was no such claim from the noble Lord, Lord Parkinson of Whitley Bay, either, when he introduced the Bill to this House on Second Reading. That will save some time.

The two premises on which the Bill is based appear to be these: that the public are better protected from terrorists if terrorist offenders are in prison longer; and that a range of tailored interventions while they are in prison will lead to their disengagement from extremism and their rehabilitation. In short, the longer they are in prison, the less likely they are to pose a threat to the public and the more time is available to deradicalise and rehabilitate them.

The first and most obvious problem with the first premise is that you cannot detain every suspected terrorist for the rest of their lives, despite the Government’s attempts in this Bill to achieve exactly that for some terrorist offenders. With an increasing number of exceptions were this Bill to be passed unamended, you cannot normally lock up suspected terrorists indefinitely or so curtail their freedoms as to effectively deprive them of their liberty indefinitely. We will come to the indefinite deprivation of liberty without charge or trial when we come to the changes to the terrorism prevention and investigation measures.

The Government’s current Prevent strategy, at paragraph 3.5, says that

“radicalisation is driven by an ideology which sanctions the use of violence; by propagandists for that ideology here and overseas; and by personal vulnerabilities and specific local factors which, for a range of reasons, make that ideology seem both attractive and compelling.”

Such propagandists exist in our prisons. The Government’s argument that the longer someone is in prison, the more time there is to support their disengagement and rehabilitation can also work against their deradicalisation and rehabilitation.

First, it provides more time for them to be radicalised, or further radicalised, by propagandists in prison. There is clear evidence that this is happening. On 25 January, the Times reports the current Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, as saying that there was an increasing “drumbeat” of links between prison and terror attacks, with offenders not being properly punished for owning radical material, preaching extremism and inciting violence. The Times notes that the man given a whole life sentence last month for murdering three men in a park in Reading in a terror attack last year was befriended by a radical preacher while serving an earlier prison sentence. Secondly, if these vulnerable people believe that the sanctions imposed on them are disproportionate, or that the system that led to their imprisonment was unfair, the ideology promulgated by these propagandists is made to appear even more attractive and compelling.

No one would argue against a proportionate sentence of imprisonment for someone convicted in a court of law of a terrorist offence, as my noble friend Lord Marks has just said, or that, for a limited time, a suspected terrorist who is believed to present a real and immediate threat should not have their liberty to carry out a terrorist attack prevented while evidence is gathered upon which to base a trial in a court of law. However, paragraph 3.6 of the same Prevent strategy says:

“There is evidence to indicate that support for terrorism is associated with rejection of a cohesive, integrated, multi-faith society and of parliamentary democracy. Work to deal with radicalisation will depend on developing a sense of belonging to this country and support for our core values.”


Disproportionately long sentences of imprisonment and indefinite deprivation of liberty without charge or trial would reinforce this rejection of our cohesive, integrated, multifaith society and parliamentary democracy. They would undermine any sense of belonging to this country and any support for our core values. Indeed, they begin to call into question some of our core values.

What evidence is there that it is easier to develop a sense of belonging to this country and support for our core values while someone is in prison, compared with when they are on licence in the community? The Times article I quoted previously reports the Independent Reviewer of Terrorism Legislation as saying that encouraging and inciting terrorism were being

“successfully combated in the community”,

unlike the failure to address these issues in prison. Although he is to conduct a review of what is happening in prisons, it appears to be limited to examining how terrorism is detected, disrupted and prosecuted behind bars and whether improvements can be made, rather than the comprehensive review called for in our amendment.

For all these reasons, there is serious doubt whether Part 1 of the Bill will achieve what the Government intend by it; therefore, our Amendment 16 is necessary. Other amendments in this group call for a review of the financial impact of the Bill and the impact on the prison population, both of which could hamper the effectiveness of any deradicalisation or rehabilitation strategy and any attempt to prevent radicalisation or further radicalisation in prison. Reviews are called for on the specific impact of the Bill in Northern Ireland and on the National Probation Service, and we support these amendments as well.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, we have had a wide-ranging introduction to this group from both the noble Lords, Lord Marks and Lord Paddick. As the noble Lord, Lord Marks, said in his introduction, the amendments in this group call for a series of reviews of different aspects of the system. He expressed his misgivings and uncertainty that the system as it currently operates is succeeding and concluded his remarks by saying that a more sophisticated approach is needed.

Amendment 16 is the first amendment regarding the independent review of provisions, to which the noble Lord, Lord Marks, has spoken. The second in the group, Amendment 34 in the name of my noble and learned friend Lord Falconer, is concerned with the financial impact of the changes. The amendment would require the Secretary of State to publish a financial impact assessment of the Act within three years of it coming into force, and this would include the financial impact of extended sentences, extended licence periods, and any additional staffing resources needed as a result of the Act.

Amendment 36 in my name calls for a capacity impact assessment. This amendment would require the Secretary of State to publish an assessment of the capacity of the system as a whole. In their 2016 White Paper, Prison Safety and Reform, the then Government committed to £1.3 billion to create 10,000 new prison places by 2020 and to renovate the existing estate. The 2020 target was later changed to 2022; so far, only 206 new prison places have been built, with 3,360 under construction. The main reasons for those failures and delays were the delays in agreeing and receiving funding to build new prisons. This meant that the construction work began later than planned. In addition, HMPPS was not able to close all prisons and replace them with new ones, due to high demand, which meant it received less money from the sales of old prisons.

Amendment 38, also in my name, proposes a review of the legislation as it affects Northern Ireland. All measures in the Bill as they pertain to Northern Ireland would be reviewed annually with the Northern Ireland Minister for Justice and the Northern Ireland Executive; a report would also have to be published and laid before both Houses of Parliament. This would ensure that the Government worked constructively with the Ministry of Justice and Northern Ireland Executive, and that all the Bill’s implications were subject to regular review through the prism of Northern Ireland.

Amendment 39 proposes a review of the National Probation Service. This would require the Government to commission and publish a review of the impact of the Bill on the National Probation Service within 18 months of it coming into force. The review would have to consider, among other things, the level of probation support offered to offenders, as well as the number of specialist staff employed by the National Probation Service, and their skills.

I have received some briefing material from Napo—formerly the National Association of Probation Officers —which makes the point that the probation service is in crisis and that many of the offender management teams are struggling to maintain a balance between experienced staff and newly qualified staff. It is not uncommon to find teams in the community where the most experienced officer has only two to three years of post-qualification experience. As recruitment increases, as it is projected to increase, the pressure on the frontline staff will grow, with more probation officers being moved into management and training roles to support the trainees. The point made by Napo is that a properly remunerated and supported expansion of the probation service is needed to face the challenges ahead.

--- Later in debate ---

[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.

--- Later in debate ---

[Lord Paddick (LD) [V]]

My Lords, at the risk of sounding like a broken record, we believe that the existing TPIMs are sufficient and are at the limits of what a country that has a reputation for upholding human rights should tolerate. The extension proposed in Clause 40 would extend the requirement to remain at or within a specified residence from “overnight” to what could amount to total house arrest. As the noble Lord, Lord Anderson of Ipswich, said, that is a requirement to remain at or within the specified residence between any hours. “As are specified” is yet another step too far, as my noble friend Lord Strasburger said.

On Amendment 31, I commend the noble Lords, Lord Hunt of Kings Heath and Lord Bach, for their relentless attempts to get police and crime commissioners more involved in operational policing decisions, including operations that may have national security implications. I accept that stop and search may be considered controversial, but it does not involve issues of national security of this nature, and I am not convinced that their amendment is necessary or desirable in this case.

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[Lord Paddick (LD) [V]]

My Lords, our Amendment 30E relates to subjecting the subject of a TPIM to drug testing for class A and class B drugs only, at a police station by a constable only. I have rather different questions from those of my noble friend Lady Hamwee. The question I cannot find an answer to—and I cannot think of one myself—is, “Why?” One might cynically argue that a suspected terrorist high on cannabis might be too chilled out to conduct a terrorist attack; conversely, if the Government fear a suspected terrorist might do something stupid, for example being emboldened under the influence of a class A or class B drug, why not test for alcohol?

Bearing in mind the restrictions on the subject’s movements and communications and on who they can associate with, where do the Government think the subject of a TPIM will get his supply of class A or class B drugs? Indeed, if the subject is taking class A or class B drugs, under the noses of the police or security services, does this not raise questions about what else he might be getting his hands on, such as explosives? In short, what is the point, other than placing further restrictions, being even more intrusive and making the subject’s life even more difficult?

[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.

--- Later in debate ---

Moved by

[Lord Ponsonby of Shulbrede]

32: Clause 47, page 40, line 35, leave out subsection (1) and insert—
“(1) In section 20(9) of the Counter-Terrorism and Border Security Act 2019 (persons vulnerable to being drawn into terrorism) omit the words from “within the period” to the end and substitute “by 1 July 2021”.”Member’s explanatory statement
This amendment would reinstate a statutory deadline for the independent review of the Prevent strategy, which would have to report by 1 July 2021.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, my Amendment 32 would put into legislation a deadline for the Prevent review to be published. The Government commissioned the independent review in January 2019; it has been repeatedly delayed and postponed. The initial statutory deadline of 12 August 2020 will now be missed. The Government say that they intend to have the report by the summer of this year, but they will not commit to putting a date in the Bill. We have long campaigned for a wide-ranging and robust review, which we believe is the right approach. This amendment would reinstate a statutory deadline for the independent Prevent review.

Amendment 33 takes a slightly different approach, which is to put in place a timetable. It would ensure that the Prevent review and any recommendations were laid within 12 months rather than 18 months, as the Bill currently states. This issue has been mentioned a number of times in Committee, and I think I can guess what the Minister is going to say in response to these amendments. Nevertheless, we need to be as confident as we can be that we can get this deadline and have a reasonable timetable, because it is important that we get these things right and that people can consider the effectiveness of the Prevent programme. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I pay personal tribute to the stamina and persistence of my noble friends Lady Hamwee and Lord Paddick. I pay tribute also to the Ministers. The noble Lord, Lord Parkinson, came off the bench half way through the second half, and my noble friend Lord Paddick put up a high one, which unfortunately he dropped: the clash between the presumption of innocence and the requirement to answer a question in a polygraph, which I raised earlier. I was not satisfied with the answer that I got—that it is appropriate to question somebody after conviction, when they face a further term of imprisonment, without any form of caution. I do not think that our law is that they have to answer.

The Prevent strategy, with its statutory duty for schools, NHS trusts, prisons and local authorities to report concerns, has received much criticism. It is clear that it has not been thought fit for purpose in the Muslim community, which regards it, rightly or wrongly, as discriminatory. A lack of trust leads to a lack of co-operation. Consequently, the Government should accept the burden of completing at the earliest opportunity the review that they have announced. Deadlines have already been passed. I have no wish to go into the appointments that have been made save to wonder to what extent those who are immediately affected by the strategy have been involved.

--- Later in debate ---

[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.

Amendment 32 withdrawn.

--- Later in debate ---

Moved by

[Lord Ponsonby of Shulbrede]

37: After Clause 47, insert the following new Clause—
“Lone terrorists: review of strategy
(1) The Secretary of State must commission a review and publish a report on the effectiveness of current strategies to deal with lone terrorists.(2) A review under subsection (1) must be conducted by a person who meets the criteria for qualification for appointment to the Supreme Court, as set out in section 25 of the Constitutional Reform Act 2005 (qualification for appointment).(3) A review under subsection (1) must consider—(a) counter-terrorism policy;(b) sentencing policy as it applies to terrorist offenders;(c) the interaction and effectiveness of public services with respect to incidents of lone terrorist attacks.(4) For the purposes of subsection (3)(c), “public services” includes, but is not limited to—(a) probation;(b) the prison system;(c) mental health services;(d) local authorities; and(e) housing providers.(5) The Secretary of State must lay a copy of the report before Parliament.(6) A Minister of the Crown must table a motion in the House of Commons in relation to the report no later than three months after the report has been laid before Parliament.”Member’s explanatory statement
This new Clause ensures that the Government orders a judge-led review into the effectiveness of current strategies to deal with lone terrorists including, but not exclusively, current counter-terrorism and sentencing policy.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, Amendments 37 and 40 concern “lone terrorists” and the review of the strategy concerning them. Amendment 37 ensures that the Government will order a judge-led review into the effectiveness of current strategies to deal with lone terrorists, including, but not limited to, current “counter-terrorism policy” and “sentencing policy”. My right honourable friend Nick Thomas-Symonds has called for such a review, following the shocking and tragic incident in Reading on Saturday 20 June 2020, which was the third time in seven months that such devastation caused by a lone attacker has been seen on UK streets.

The review would undertake an assessment of the systemic response needed to address this threat, building on prior research and expertise. It would include an analysis of various public services: probation services, prisons, mental health services, housing providers and local authorities. Professor Ian Acheson, who completed a report for a Conservative Government, said last year:

“Our unsafe prisons provide a fertile breeding ground in which predators, peddling extremist and violent ideologies, can prey upon the vulnerable, creating significant risks to national security and the public at large.”


What steps are the Government taking to put forward a deradicalisation strategy in the prisons?

Amendment 40 looks at MAPPA—multiagency public protection arrangements—and its purpose is to encourage the Government to define which agencies are included within them. I have received a short briefing on this from Napo, and the point that the probation officers make is that the input into the MAPPA arrangements varies according to the individuals one is dealing with: it may be local faith-based groups, housing providers, social services, education providers or substance misuse agencies—a multitude of organisations could be called on to work within the MAPPA system. In this example—and, I have to say, in all examples that I have come across—the system is all about integrated working, and it would be helpful if the Government could offer some perspective on the agencies that they think should be working within the MAPPA system. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the lone terrorist poses a particular danger. “We do not understand them,” said the noble Lord, Lord Robathan, earlier this afternoon. By definition, the lone terrorist is not engaged in communications of any nature that could lead to his apprehension through ordinary surveillance methods and techniques. His motivation may be obscure and entirely personal to himself.

Nevertheless, he can cause huge and unexpected damage, as we saw in the London Bridge episode in Fishmongers’ Hall. In that case, the attacker had been released in the belief that he was no longer a danger to the public—yet, without any obvious motivation, he launched himself against those who were trying to help him.

I support Amendment 37, on the basis that public safety demands that we burrow down into the causes and motivations of the lone actor. The threat to public safety is such that the appointment of a judge, with all the powers that a Supreme Court judge has, is very appropriate.

--- Later in debate ---

[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.

Amendment 37 withdrawn.