Counter-Terrorism and Sentencing Bill

Lord Thomas of Cwmgiedd Excerpts

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

[Baroness Hamwee (LD) [V]]

My Lords, given the experience of those who have put their names to the amendments in this group, I wonder whether I should say nothing so as not to damage the arguments—but I will join in.

It will be clear enough to the Committee that we on these Benches have considerable concerns about this part of the Bill. I hope that the Committee will understand that this does not mean that we do not take very seriously indeed the threat and actuality of terrorism and the work undertaken by our agencies. I say that because our amendments to the Covert Human Intelligence Sources Bill, which we completed earlier, seemed to be heard by some noble Lords as opposition to covert sources period when we were directing ourselves to authorisations to commit crime by the mechanism of making the action not a crime. I do not want too much to be read into what I am saying. This is not opposition, as I say, to the work of those who keep us as safe as they possibly can.

We are not hugely keen on TPIMs, especially on their acquiring extensions that take them back closer to control orders. We consider it appropriate to test these administrative measures in terms of how they measure up to the presumption of innocence, fair trial, liberty and all the matters that we as a society hold to be important, knowing the damage that might be done by letting them slip. We are of course aware of the Government’s argument that it is not the TPIMs themselves that we should be looking to, but the application of particular measures. If you look at that from a slightly different perspective, it is a good argument for legislative safeguards.

At the time of the last three-monthly report to Parliament on 30 November, only three TPIM notices were in force, there having been six the previous May. That begs the question as to the need for these clauses. The Home Office fact sheet on lowering the standard of proof tells us that this would

“increase flexibility by making it more practical for operational partners to demonstrate an individual is, or has been, involved in terrorism-related activity.”

That requirement should indeed be more than merely suspected.

The noble Lord, Lord Anderson, referred to the statement in the Commons by the Minister. The current standard of proof does not seem to have prevented the imposition of TPIMs. The current independent reviewer has made the same point, so this is not even a matter of administrative convenience. These measures may be civil but they can, quite understandably, be perceived as a parallel system of punishment without trial, but currently on the basis of the civil standard.

The noble Lord, Lord Anderson, and the noble and learned Lord, Lord Falconer, seek to meet the Government part way. We take the view that the alterations are not justified. I have referred to the current Independent Reviewer of Terrorism Legislation. To quote from his note on this part of the Bill,

“it is inevitable from the nature of intelligence that mistakes may be made. The significance of an individual’s actions may potentially be misinterpreted; their adherence to a cause overstated; their intentions misunderstood, if only partially. A safeguard that requires the Secretary of State to consider the intelligence presented to her by officials, and decide whether the individual has actually been involved in the terrorist-related activity that is alleged against them, and which allows a court to review that decision in the light of all information presented to it, is not an impediment to safeguarding national security.”

We oppose this clause standing part of the Bill.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, the noble Lord, Lord Anderson of Ipswich, spoke with such eloquence in making all the points that I can confine myself to making four short points.

First, as he rightly stressed, this is an important part of the conditions for TPIMs because it enables a judge and the Home Secretary, when making the decision, to concentrate on the factual evidence in relation to terrorist activity. The other conditions are more difficult to establish, or it might be more a question of judgment, but this at least concentrates on the facts.

Secondly, the amendment seeks what some may feel is an overgenerous compromise. I do not think so; I think that it is right to say that, for the first and initial period, a lower standard can be acceptable.

However, thirdly, that cannot be acceptable when one is looking at longer periods where a person’s liberty is to be constrained—particularly with the amendment that we will come to next, which concerns the indefinite detention period.

Fourthly, and finally, it seems to me that there can be no justification for making such a change unless there is evidence. Indeed, what was said about the position in the other place has been clearly set out.

I ask the Minister to set out fully what he believes is the evidence for this change. If he cannot do so in public on this occasion, there must be a means of informing those who are interested in this matter of the evidence so that it can be carefully reviewed before we impose on people accused of obviously very serious issues a standard of proof that really is completely unacceptable in any civilised society.

[Lord Faulks (Non-Afl) [V]]

My Lords, the noble Lord, Lord Anderson, has given your Lordships a very clear and succinct history of control orders and TPIMs—as one would expect, given his experience. He pointed out very fairly that control orders had the very same test that it is now proposed in the Bill should be used to decide whether a TPIM is appropriate. It is also worth pointing out that control orders were highly controversial and subject to a considerable number of challenges in the courts to see whether they survived a proper challenge based on the European Court of Human Rights and the convention. They survived that, which will reassure your Lordships.

I accept that the amendment put forward by the noble Lord, Lord Anderson, which is supported by the noble and learned Lord, Lord Thomas, is relatively modest, and I understand the reasoning for it, whereas the amendment put forward by the noble and learned Lord, Lord Falconer, goes rather further and seems to involve a degree of subjectivity—although I will listen with interest to what he says—and that subjectivity might be difficult to satisfy.

--- Later in debate ---

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

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

[Lord Thomas of Cwmgiedd (CB) [V]]

I want to add only one point to what the noble Lord, Lord Anderson of Ipswich, has just said, because I agree with the entirety of it. That one point is derived from my own experience of dealing with people who were imprisoned indefinitely under the IPP regime. During the hearing of several appeals, it became apparent that indefinite detention often makes someone more dangerous because you take away hope. I very much anticipate that we would never get to the stage where we made TPIMs that lasted for a person’s entire lifetime. The TPIM would have to come to an end at some stage, and, to my mind, giving someone a clear expectation of when the period of restriction is to end helps in dealing with the individual and prevents making him more dangerous by depriving him of any hope.

[Lord Strasburger (LD) [V]]

My Lords, I wish to argue that Clause 38 should not stand part of the Bill. In my contribution on Clause 37, I mentioned my general worries about the TPIM regime and how it circumvents all the safeguards in the criminal justice system. Those safeguards are there for a very good reason: to ensure that our trials are fair and that we do not punish people without a high degree of certainty that they deserve it. However, for the purposes of this debate, I will focus on the process that the imposition of TPIMs follows in place of a proper criminal trial and how unsatisfactory that process is by comparison with the real thing.

For TPIMs, a criminal trial is replaced by civil proceedings before a High Court judge. The Government present evidence to support their case for the target person to have their liberty and their other rights curtailed. I have called them “the target person” rather than “the defendant” because they have not been charged with anything and they are completely unable to defend themselves. That is because the evidence against them is presented in private to the judge without the target person’s knowledge. They are unable to see, challenge or contradict the so-called evidence because neither they nor their lawyer is aware of it. This process, known as closed material proceedings, is a very poor substitute for a proper trial, where evidence is presented in open court and the defendant’s lawyer can challenge it, present other evidence that contradicts it and cross-examine the person who provided it.

I mention all this because Clause 38, if enacted, would mean that a person made the subject of a TPIM in such an unfair and unsafe manner and confined to their home and subjected to other losses of their rights could find themselves in this position indefinitely, for ever, even for the rest of their lives. That is extremely harsh treatment for someone who may be innocent and has not been convicted of any crime. This treatment is far harsher than if they had been convicted in a criminal court and been sentenced to a few years in prison. In the worlds of the noble Lord, Lord Anderson, when he was the Independent Reviewer of Terrorist Legislation:

“TPIMs … are as stringent as anything available in a western democracy.”


He considered the case for lifting the two-year cap, as Clause 38 would do, in his report on TPIMs in 2012. He concluded that the two-year limit was an acceptable compromise because two years was a serious length of time in the life of an individual and TPIMs should not be allowed to become a shadow alternative to criminal prosecution. Indeed, the Government themselves endorsed the two-year limit and in 2015 cited the observation of the noble Lord, Lord Anderson, that there was no need to “put the clock back”. The Government went further and said:

“The two-year limit is a reminder that executive constraints of this kind are no substitute for the criminal process, and no long-term solution”.


What has changed the Government’s mind such that they wish to turn it into a long-term process? I am hoping the Minister will enlighten the House when he responds, and I hope that this time he can come up with something better than a meaningless reference to flexibility or that there is no need for it now but who knows what we might need in the future. To abolish the two-year time limit and replace it with an indefinite period of successive extensions, without even troubling the court, there would need to be a compelling operational case, would there not? However, no such compelling case has been made. In fact, no case at all has been offered by the Government, so far as I am aware. Given that fact, and given, as I mentioned earlier, the flimsy and unsatisfactory nature of the TPIM process as an alternative to our proper and fair criminal justice system, we cannot countenance allowing TPIMs to be made indefinite by means of Clause 38. It must go.