Counter-Terrorism and Sentencing Bill

Stuart C McDonald Excerpts

Consideration of Lords amendments
Monday 22nd March 2021 Commons Chamber

I hope that we can now send the Bill forward for Royal Assent, get it on to the statute book and make sure, above all, that we thank those in the security services and the legal system who deal, day to day, with grave and pressing matters on our behalf, sometimes in ways that cannot be seen and are not always recognised, and we make sure, where due process has to happen and we have to take exceptional measures, which are not within the norm of the way that we would deal with these things—as TPIMs are not—that we get the balance right. Efforts have been made on both sides to do that, and the Bill is therefore welcome for the way in which it provides for a balanced, constructive way forward.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) [V]]

I want to make just three short points, including on the standard of proof required for TPIMs and on the number of extensions that can be granted. First, however, it would be appropriate for me to start by acknowledging that many of the Lords amendments that we are considering tonight, though perhaps not speaking about, respond to concerns about how the Bill would apply to Scotland. That includes, as the Minister said, concerns about polygraph testing and the calculation of release dates. These concerns were raised previously by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), my hon. Friend the Member for East Lothian (Kenny MacAskill) and by the Scottish Government through our Justice Secretary, Humza Yousaf. I welcome the fact that UK Ministers and officials have engaged with those concerns and that a set of amendments has been agreed during the House of Lords proceedings that is acceptable to both Governments. I thank everyone involved for their work on that. That meant, of course, that legislative consent was granted by the Scottish Parliament.

Secondly, turning to TPIMs and the number of times that they can be extended, both Lords amendment 18 and the amendment in lieu are clearly better than the Government’s original position of having no effective upper limit on extensions. However, it is still worth taking a step back and reflecting on the fact that, either way, we will now be doubling, or more than doubling, the length of time that a person can be made to live under really serious TPIM restrictions, while at the same time lowering the standard of proof for imposing them. That still is concerning.

As Lord Anderson said in the House of Lords, there is a danger of TPIMs becoming a more attractive option to the authorities in prosecution. Meanwhile, the warehousing of TPIMs subjects risks becoming the norm in place of genuine attempts to develop and implement exit strategies. To my mind, the four years provided for in the Lords amendment is way more than a sufficient concession to the Government already. For the Government to push for still longer shows a bit of a tin ear to the real and genuine concerns about the nature of these orders. However, with the Opposition having decided to compromise and with Lord Anderson reportedly content, there is no need to divide the House.

Finally, and similarly, the Government and the official Opposition have also previously agreed amendment 17, setting the standard of proof for a TPIM measure as reasonable belief. Again, as we have heard, that is another compromise. It is not as low as reasonable suspicion but not as robust as the balance of probabilities. I believe that the very real concerns about the appropriateness of these standards of proof, raised previously by the Scottish National party, have still not been properly addressed. Those accepting the compromise amendments in the Lords suggested that the difference between reasonable belief and balance of probabilities would be a fine one. I acknowledge that there are very significant legal minds who are content with that compromise, yet, as the Government’s explanatory notes make clear, and as the Minister made clear in his speech, reasonable belief is clearly a lower standard.

As my hon. and learned Friend the Member for Edinburgh South West said at an earlier stage of the Bill, the case for lowering the standard of proof required

“has not been made out”.—[Official Report, 21 July 2020; Vol. 678, c. 2085.]

Indeed, Jonathan Hall, QC, the independent reviewer, remarked in his evidence to the Public Bill Committee:

“If it is right that the current standard of proof is usable and fair, and I think it is…if it ain’t broke, why fix it?”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 7, Q6.]

My colleagues and I agree with the independent reviewer and regret that the Government and the official Opposition do not at this stage. Instead of dividing the House, we will have to monitor the use of TPIMs ever more closely than before.

[Mr Alistair Carmichael (Orkney and Shetland) (LD) [V]]

I, too, will speak briefly about TPIMs and the five-year limit. I listened very carefully to the Minister’s speech and the one thing that he did not offer in respect of the extension from four years to five was any actual evidence or justification. It says a lot about the way the Government do business that they seek always to expand the scope of any provision just because they can, rather than because they have any good reason for it.

My noble Friends in the House of Lords tabled an amendment for a two-year limitation on TPIMs, so the move to four years was already a significant compromise. The Minister has not brought forward any reason or evidence to justify the extension to five years, other than the fact that they can.

Like the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) has just said, however, it is not my intention to divide the House this evening, but it is worth putting down a marker. I do not think the Minister was in the House when the issue of control orders was in play, which led eventually, after some judicial intervention, to the creation of TPIMs. It seems to me that by constantly wishing to extend the boundaries of TPIMs, to lower the standard of proof and to extend the period for which they can be introduced, the Government run the very real risk of returning to the courts at some stage. We will eventually be forced back here again because the Government have insisted on acting without proper evidence or justification.

That said, the Government will clearly proceed as they choose tonight, but I fear that this is not the last we will hear on the subject.