Amendment 14

Counter-Terrorism and Sentencing Bill - Report – in the House of Lords at 3:30 pm on 3rd March 2021.

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Lord Parkinson of Whitley Bay:

Moved by Lord Parkinson of Whitley Bay

14: Clause 34, page 29, line 21, leave out “has reasonable grounds for suspecting” and insert “reasonably believes”Member’s explanatory statementThis amendment would change the proposed new test for the imposition of a terrorism prevention and investigation measure from one of reasonable suspicion of involvement in terrorism-related activity to one of reasonable belief of such involvement.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

My Lords, in moving Amendment 14, I will speak also to Amendment 22; both stand in the name of my noble friend Lord Wolfson of Tredegar. I will respond to the other amendments in this group at the end if the noble Lords in whose names they stand speak to them.

The Government have listened to the mood of your Lordships’ House as expressed in Committee, specifically the concerns of a number of noble Lords about lowering the standard of proof for imposing a TPIM to “reasonable grounds for suspecting” involvement in terrorism-related activity. The Government have reflected on those concerns and tabled these amendments. On behalf of my noble friends and myself, I thank all noble Lords who engaged with us since Committee as we did so.

Amendment 14 will lower the existing standard of proof for imposing a TPIM of “balance of probabilities” to “reasonable belief”. However, this is a higher standard of proof than originally proposed by the Bill, and a higher standard than was applied under the previous control order regime.

As a result of this amendment, the Home Secretary will need to “reasonably believe”, rather than hold “reasonable grounds for suspecting”, that an individual is, or has been, involved in terrorism-related activity before she can impose a TPIM. In practice, and as noted by the noble Lord, Lord Anderson of Ipswich, in Committee, “reasonable belief” is closer to the current “balance of probabilities” standard than it is to “reasonable suspicion”. It is the standard that applied when TPIMs were first introduced in 2011 and the standard that is in place for other key tools used to counter terrorism, including proscription and asset-freezing orders.

During our debates on the Bill, the Government and our operational partners have outlined several scenarios where a lower standard of proof could make a substantive difference to TPIMs as a risk management tool. While I will not repeat those, I stress that the scenarios put before Parliament are not unlikely but represent the shape of the modern terrorist threat. It is in light of such threats that the Government want to future-proof this valuable risk management tool so that our operational partners, who work so hard to keep the public safe, are able to use them as they need to.

The Government are confident that this amendment represents a sensible compromise and trust that it addresses the concerns raised about the previously proposed standard of proof and the cumulative effect of the wider package of TPIM changes proposed in the Bill. We are particularly glad that the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Thomas of Cwmgiedd, have put their names to this amendment. Both raised concerns in Committee, drawing on their considerable expertise in this area. I hope it will be welcomed by others across your Lordships’ House.

Amendment 22 introduces a statutory requirement for the Independent Reviewer of Terrorism Legislation to review the operation of the TPIM Act 2011 on an annual basis for the five years following Royal Assent. Commencing with a review of the operation of the TPIM regime in 2022, the independent reviewer will prepare an annual report which the Home Secretary will lay before Parliament.

In earlier stages, a number of noble Lords spoke about the importance of independent oversight of the TPIM regime. This amendment will guarantee that, alongside the judicial oversight built into TPIMs, which the House has heard about, the independent reviewer will provide independent, rigorous and transparent scrutiny to the operation of TPIMs for the next five years. He will have full access to the relevant sensitive information and personnel and will routinely attend Home Office and Security Service chaired meetings concerning the imposition of a TPIM notice and the management of TPIM subjects.

We are pleased that the current independent reviewer, Jonathan Hall QC, has confirmed his support for this change and for government Amendment 14 on the standard of proof, and that the noble Lord, Lord Anderson of Ipswich, has put his name to the amendment, as well the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Jones of Moulsecoomb. I hope that both amendments will be welcomed. I beg to move.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 3:45 pm, 3rd March 2021

My Lords, Part 3 of the Bill raises for these Benches some considerable points of principle regarding terrorism prevention and investigation measures. I know some noble Lords may hear that as not appreciating threats posed by some and the devastation caused by actions that are more than threats. They may hear that we do not appreciate what is achieved by the agencies protecting us from harm—harm that we, the public, did not even understand we were in the way of.

None of that should be read into what we say on these amendments. What should be understood is our concern for principles regarding detention without trial and the presumption of innocence. These are principles of which our country is proud. There are principles and interests to be balanced here.

We asked to group together all the amendments regarding TPIMs, other than those regarding polygraphs, because we thought that that would be more convenient for the House and because Part 3 appears to be a package. The noble Lord, Lord Parkinson, has spoken to government Amendments 14 and 22. I will start with Amendment 22, which proposes an additional clause. We are certainly not opposing it. I wanted to understand what this proposed new clause will provide for that cannot be done now by the Independent Reviewer of Terrorism Legislation. On the last group the noble and learned Lord, Lord Stewart, stressed the importance of the independent reviewer being able to set priorities, so imposing the obligation on him is interesting. Yesterday I had the opportunity, for which I thank him, to ask the noble Lord, Lord Wolfson, about this. He confirmed that the reviewer can carry out an annual review and that this addition is due to the Government wanting to be certain about how all this is going; I hope I have that right. I welcome that the Government want to be clear, but I would not have thought that they needed the amendment.

We have had a series of energetic, diligent and what in current jargon is often called “curious” reviewers, all of whom have juggled the work of the reviewer with other professional commitments. Their time, resources and capacity are necessarily limited, so we do not regard this government amendment as some sort of concession. I should express the concern that this specific, quite narrow, statutory commitment could well limit the ability of the independent reviewer to undertake work on the very many other aspects of terrorism legislation.

As regards government Amendment 14 and our amendments to leave out certain clauses, our starting point is that there is no need to extend TPIMs, such that, taken together as they are intended to be, they amount to the possibility of house arrest for individuals who have not been found guilty of anything. The House heard in Committee, as did the House of Commons, that neither the current independent reviewer nor the police see the need for this change. No one could argue that the measures currently permitted—those imposed on individuals—are not stringent, and no one should argue that the measures should be more stringent so that they are more of a sanction or punishment, because investigation and prevention measures are not intended to be punishment. They were introduced as temporary measures. This is not a tool in the toolbox for which we see a justification for extending.

Amendment 14 changes suspicion to belief—a judgment which still must be made by the Secretary of State. Belief is a higher threshold than suspicion, and to that extent it is welcome. But it is not as high as satisfaction on the balance of probabilities that an individual is, or has been, involved in terrorism-related activity. I appreciate that there are other safeguards but, as the noble Lord, Lord Anderson, put it at the last stage, it would be a brave court that would second-guess evaluation by an elected Minister who has full access to intelligence.

The noble Lord, Lord Parkinson, may say, as he said in Committee, that the Government are given flexibility by this reduction in the threshold. I think that saying flexibility is a soft way of saying wider powers. That is why we are registering our opposition to the change in the requirement under Section 3 of the 2011 Act by our amendment to leave it out.

I cannot detach Clause 34 from Clause 35, which would effectively make a TPIM and its various measures, including “residence”—or detention—indefinite. The point was made pithily by the noble and learned Lord, Lord Thomas of Cwmgiedd, in Committee. My noble friend Lord Strasburger talked about the double whammy, reminding us of the extension of the requirement as to where an individual is to live. In Committee, the noble Lord, Lord Parkinson, referred to “an enduring TPIM.” Enduring? Indefinite? That is what Clause 35 would allow. Having no hope is a terrible thing. My noble friend Lord Marks referred to “no-hope sentences” in the context of explaining to your Lordships' House the panel’s views on rehabilitation that we had heard. No hope can have an outcome completely opposite to what is intended. It can lead to an attitude of “What have I got to lose?” It could lead to not having anything to lose and managing to get involved in terrorism, with catastrophic effect.

The noble Lord, Lord Parkinson, said yesterday, in a discussion, that the current limit gives the subject an endpoint at which he can aim, so he can spend his experience of the measures planning what to do when he is released from them. We are not persuaded by that view.

If the noble Lord, Lord Anderson, presses the amendment of up to three extensions—six years, that is—we will support it, as that is clearly an improvement on indefinite detention. If the House agrees it, we will recognise that that is what the House wishes and not divide to leave out the clause. But if it is not agreed nor put to a Division, we will seek the opinion of the House on the clause, and this is my giving notice of that.

Clause 37, on the residence measure, changes Schedule 1 to the Act to allow for the imposition of a requirement to remain at a specified residence, which is

“applicable overnight between such hours as are specified.”

Taking away the word “overnight,” as is proposed, will mean that the requirement will be “applicable … between such hours” with no specified limit. In Committee, we heard two examples of what the Government want to address with this. The first is that if a subject is thought to be a radicalising threat to children, he should be confined during hours at which young people arrive at and leave school. Frankly, I would have thought that an individual with that in mind would be rather more subtle, but that is not the point. The second example is that if an individual is a suspected attack planner, he should be curfewed for weekends during local football games—as well as, presumably, any other big local gatherings, but football games were the example. Again, in parenthesis, given that very few major matches seem to still kick off at 3 pm on a Saturday, I wonder about this. But I acknowledge that the Minister referred to the weekend, and anyway, again, that is not really the point.

We are told that all this is subject to overriding restrictions on the length of curfews established by case law, which is 16 hours at the very maximum at present. However, the Government have chosen not to put a limit into the Bill, so unless and until challenged before a court, and that is not a quick or easy process, it pretty much means house arrest. I wonder whether the police might be met—although I rather doubt it— with a subject saying one evening, “Well you kept me in all weekend, now I am off down the pub.”

The noble Lord, Lord Parkinson, said that in practice, the residence measure would likely—I stress likely—not exceed 16 hours a day without constituting an unlawful deprivation of liberty. We do not find “not likely” a reassurance, so this is also a part of the package on which we intend to divide the House.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 4:00 pm, 3rd March 2021

My Lords, nostalgia is the theme of the Government’s amendments in this group, because each of them takes us back to the wording of the original TPIM Act 2011. I am nostalgic enough for those days to have put my name to both amendments.

Amendment 14 on the standard of proof, in the name of the Minister, is a tribute to those noble Lords from all parts of the House who spoke so compellingly to the similar amendment that I had the privilege of moving in Committee. They include the noble Lord, Lord Paddick, and the noble and learned Lord, Lord Falconer, each of whom advised—rightly as it turned out—that my amendment did more than was necessary to accommodate the Government’s legitimate concerns. Gift horses should not be looked in the mouth, still less kicked in the teeth. Ministers have listened and have acted decisively. I thank them for that and welcome the retention of a standard of proof, whether expressed as reasonable belief or as balance of probabilities—between which I see no real distinction in practice—that has by the Government’s own account caused no unnecessary difficulties and exposed us to no avoidable danger over the past 10 years.

With a little more hesitation, I put my name also to the Government’s Amendment 22. This reinstates the original requirement in Section 20 of the TPIM Act 2011 for an annual review of the operation of the Act by the independent reviewer, which in turn succeeded a similar requirement in relation to control orders. Section 20 was amended in 2015 to allow the independent reviewer an increased degree of discretion as to the timing of those reviews. That was not unwelcome to the independent reviewer at the time—I declare an interest—who had, as I recall, been given a number of commissions additional to his normal annual duties. However, I understand that the current independent reviewer is content, and on that basis I support Amendment 22 on two conditions. The first is that the independent reviewer should have the necessary resources to perform his various important tasks with the frequency that will now be required and with the promptness that is so desirable. The second condition is an acceptance that, useful as these reports are to those of us concerned with policy in this area, they can be no possible substitute for the scrutiny of individual cases on the evidence that is properly the function of the TPIM review group, to which the Minister alluded, and of the courts.

However, this group is concerned with more than nostalgia. TPIMs have moved on since 2011. These notably harsh measures are harsher than they were then and will soon become harsher still. The toughest measure of all, relocation, with or without one’s family, to a distant town or city—colourfully described by Liberty as “internal exile” and removed by the 2011 Act —was restored on my recommendation in 2015. A range of other new obligations has been added to the list of available measures. Assuming that Clause 37 goes through, notwithstanding Amendment 18, TPIM subjects will for the first time be able to be confined to their houses for substantial parts of the day, while no doubt being tagged, limited in their social contacts and obliged to report to the police station during the periods that they are allowed out. That is rather a different proposition from observing a night-time curfew only in one’s home borough, which is how things were in 2011.

The cumulative effect of numerous measures under a TPIM, even under the existing law, was explained in this way by LF—a TPIM subject, anonymised like the others into a pair of initials—in recent evidence to the High Court. That evidence was summarised by Mrs Justice Farbey in the judgment handed down on 10 February this year:

“He says that he felt as if he was being asked to do something which is not humanly possible: to fulfil multiple and often changing obligations over possibly a two-year period without making one single mistake. He felt as if he was in a trap: if he were to breach any of the TPIM, he would be convicted and imprisoned. The TPIM would then be re-imposed, perhaps with even more requirements, and he would once again be at risk of breaching them.”

For, of course, while the basis for a TPIM can include conduct falling short of the criminal threshold—support, assistance and encouragement more broadly understood than in the criminal law—even the most trivial breach of a curfew or reporting requirement is a criminal offence for which the maximum penalty is five years in prison.

That is the context in which we have to consider the remaining amendments, Amendments 16 and 17. Your Lordships have three options, and I emphasise that none of them is a liberalising option. The Liberal Democrats, with their Amendment 17, offer a continuation of the status quo: a two-year maximum limit in the absence of new intelligence, as initially proposed by my predecessor, the noble Lord, Lord Carlile, save in exceptional cases, and as supported by the current independent reviewer.

The Government, with Clause 35, offer an unlimited extension, which would allow radicalisers in particular—whom the Government told the independent reviewer are

“the likely targets of enduring TPIMs”— quite simply to endure forever, even if the intensive monitoring of the subject turns up not a single scrap of evidence or intelligence suggestive of re-engagement.

My Amendment 16 takes the middle path. It recognises that, as I reported in 2013, it is tempting to wish for longer than two years in the most serious cases. However, it recognises also that TPIMs must not be allowed to become a more attractive option than prosecution, that the authorities must be incentivised to work on an exit strategy—and not simply to warehouse TPIM subjects—and that in a free country, our fellow citizens, however odious we might consider them, cannot be indefinitely confined by the state in the absence of any attempt to put them on trial.

It is said that TPIMs of indefinite duration will in reality be no such thing because Ministers will volunteer their discontinuance and because the courts can be counted on to intervene if they do not. Yet, with respect, the evidence casts doubt on both propositions. I understand from the independent reviewer, who on his own initiative asked officials about this, that every TPIM imposed since 2015, unless revoked for extraneous reasons, such as imprisonment or a court order, has been extended by the Secretary of State on the one and only occasion that this is normally permitted under the existing law. That is hardly surprising. If a released TPIM subject were subsequently to reoffend, who in active politics would want to be the Home Secretary who had chosen voluntarily to release him from constraint?

As to court proceedings, it is not just that closed material proceedings make them slow and cumbersome, that they do not allow the subject to instruct his special advocate or to call evidence on the full national security case against him, or that the Home Secretary asks for and is generally accorded—as her predecessor was by the Supreme Court last week in the Shamima Begum case—a high degree of judicial deference for her decisions relating to national security. There is also, most regrettably, a funding and hence an access to justice issue. I am again grateful to the independent reviewer for the information that of the handful of current TPIM subjects, no fewer than three—JD, HB and HC—sought funding from the Legal Aid Agency to enable them to be represented in review hearings but were turned down, after which they requested the court to discontinue those review hearings.

It is said that indefinite TPIMs will keep us safer. On that, I first invite noble Lords to reflect on the severity of my own amendment. It would mean that the Secretary of State’s initial belief that a subject has probably been involved in terrorism is enough to justify four years on a TPIM, with every move tagged and every conversation potentially monitored. If further intelligence emerges of involvement in terrorism, at any stage during those four years, under my amendment a fresh TPIM could still be imposed, again extendable up to a further four-year limit—and so on, ad infinitum. That, surely, is draconian enough.

Would we be kept safer by the indefinite warehousing of TPIM subjects beyond the four-year mark, without the need for intelligence derived from what is, after all, not just a terrorism prevention measure but a terrorism investigation measure? Such people could readily become martyrs to a certain audience as, in a small way, one or two control order subjects did. As my noble and learned friend Lord Thomas of Cwmgiedd said in Committee, by reference to the IPP regime, of which he has great experience,

“indefinite detention often makes someone more dangerous because you take away hope.”—[Official Report, 9/2/21; col. 273.]

This country has a long tradition of combining high levels of national security with a vigorous defence of individual liberty. We never imposed indefinite house arrest, relocation and other similar restrictions on those who preached communist revolution, and we have never imposed TPIMs, although we have the power to do it, on radicalisers of the extreme right wing or the Irish republican persuasion. Nor are we where we were in 2005, when it was widely feared that al-Qaeda-directed plots would take tens of thousands of innocent British lives. Existing measures have helped ensure that the total death toll from terrorism this century, in Great Britain, stands at less than 100. To introduce indefinite executive detention in response to this miserable bunch of ideologues would, I suggest, be a signal not of strength but of what the terrorists most want to see from us: fear and overreaction.

National security law must be more than a series of proportionality assessments performed by the Executive and observed by respectful courts. Something more is needed—checks and not just balances—or how else can Parliament offer guidance on where the limits should be? Your Lordships’ House has already this year greatly improved the Covert Human Intelligence Sources (Criminal Conduct) Bill, whose original version suggested that this important truth may have been forgotten. This Bill, on a similar theme, was described by the independent reviewer as

“conspicuous for its lack of safeguards.”

Amendment 16 extends the reach of these always controversial TPIM measures, but it at least retains a tangible check on the executive power to constrain—a power of which the TPIM is the strongest example known to our law. I hope that the good sense of this amendment will commend it to your Lordships. With that in mind, my intention is to test the opinion of the House.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I feel much more educated than I did half an hour ago. Today, I found myself not only supporting but signing a government amendment, which is a first for me—what a pleasure. I was in the prestigious company of two QCs and a privy counsellor. I will support any and all amendments that are moved. I find the four-year limit a little tougher to accept than that of two years, but anything that is not indefinite is an improvement.

In normal times, this issue would get much more coverage, but Brexit, Covid and everything else are taking the public’s attention away from these issues. Anything that would implement unending government surveillance and intrusion on someone’s life is, frankly, terrifying.

The amendments of the noble Lord, Lord Paddick, to remove various clauses, and those of the noble Lord, Lord Anderson, would significantly improve this Bill. I hope that noble Lords who have been involved in this Bill will continue to work with us. They have shown that they are prepared to improve the Bill and I think that further improvements are possible. I hope that they are listening and will accept these amendments.

Photo of Lord Strasburger Lord Strasburger Liberal Democrat 4:15 pm, 3rd March 2021

I speak in support of Amendments 15, 17 and 18, which would remove Clauses 34, 35 and 37 from the Bill. Each of those clauses would, if retained, significantly increase the severity of the TPIM regime or reduce the safeguards against the misuse of TPIMs and miscarriages of justice. Their combined effect would result in a dramatic increase in the powers of the Secretary of State, all to the detriment of fairness, justice and the freedom of those subjected to TPIMs.

The existing TPIM regime gives the Home Secretary the power to confine an individual to a property, perhaps located a long distance from their home, with a plethora of restrictions on how they live their lives and communicate. These clauses would give the Secretary of State new powers to impose a total 24/7 curfew, which is effectively house arrest, and to make this non-stop detention unending, permanent or until the person dies.

The subjects of TPIMs, who may never have been convicted of anything, could be condemned to a far longer period of incarceration than violent criminals and terrorists who have been convicted and sentenced by a court. That could happen without them knowing the allegations against them and without them having had any chance to see the evidence on which those assertions are based, let alone to challenge and refute them. Clause 34, even after being amended by the Government, makes it even easier for the Secretary of State to decide, at the stroke of a pen, to put an individual under this tough house arrest regime.

As the law now stands, she needs to believe, on the balance of probabilities, that the person is or has been involved in terrorism. I am no lawyer, but I can still do arithmetic and I take “on the balance of probabilities” to mean that there is a greater than 50% chance that she is right and the person is a terrorist. The clause changes the threshold from “on the balance of probabilities” to “reasonable belief”. Since the Government accept that this change lowers the burden of proof, I calculate that that means that the probability of them being a terrorist could be less than 50%, but they could still be locked away indefinitely. That means that the probability of them not being a terrorist threat could be greater than the probability that they are.

How could that come about? It could just be an honest mistake, based on flimsy evidence. We had a very strong hint that this does happen, when the current Independent Reviewer of Terrorism Legislation, who has access to classified material, gave evidence to the Public Bill Committee. He said:

“There is a risk that mistakes can be made about assessing intelligence. I have reason to believe that. My concern is that you are opening up a greater margin of error if the standard of proof is lowered. It is a fairness issue based on the authorities having all the cards.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 6.]

Answering another question, he said that he knew of instances where the intelligence had been misunderstood. There you have it: a highly reputable and well-informed person is warning us that innocent people are being punished under the current standard of proof, let alone the lower standard to which the Government would have us agree, under Clause 34, as amended.

What sort of country are we becoming if we are prepared to lock somebody away, all day and all night, indefinitely, even if the chance of them not being a threat is greater than the chance that they are, and having given them no chance to defend themselves? Why, you might ask, are the Government seeking to tilt the scales, not once but three times, towards even more draconian powers, with less justice and fewer safeguards against mistakes or abuse? You would think that there must be strong and compelling reasons for this triple assault on the fairness of our justice system, but the sad truth is that the explanations that have been offered during the passage of the Bill are utterly threadbare and unconvincing. They have the appearance of having been retrofitted, long after these clauses were added to the Bill, in a forlorn attempt to justify the unjustifiable.

The Independent Reviewer of Terrorism Legislation, with all his inside knowledge, searched for a good reason to lower the burden of proof and failed to find one. He said that

“it is not clear why there is any need to change the law in the manner proposed …where harsher measures are to be imposed, safeguards should be encouraged, not jettisoned.”

He also said that

“there is reason to doubt whether there exists an operational case for changing the TPIM regime at this … time.”

That is as forthright a condemnation of these three clauses as we are ever likely to hear from someone in his position.

What reasons have the Government come up with to justify lowering the burden of proof and therefore diminishing the safeguards against mistakes and misuse? We have been told that it will be easier to impose a TPIM, which frankly is a transparently circular argument. We have been told how hard it is to gather evidence to satisfy the current burden of proof. We have been told about pro-ISIS fighters returning from Syria being difficult to investigate. We have been told that it would simplify administration, although that is hardly a good reason for increasing the probability that innocent people are incarcerated by mistake.

All of these supposed justifications and all the others that have turned up and disappeared along the way were comprehensively holed below the water line by the Government’s star witness giving evidence to the Bill Committee. Assistant Chief Constable Tim Jacques gave evidence of behalf of the police and the intelligence services on 25 June last year. In answer to a question from Joanna Cherry MP, he made it clear that the current standard of proof is not an impediment to authorities getting a TPIM when they want it. His exact words were:

MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.”

We have been told by the police and the agencies that there is currently no problem to be solved. The Government’s last resort in devising an excuse for these clauses is to tell us that we do not know what problems are coming down the track, and that it would be nice to have another tool in the toolbox. Well, on that basis we can justify just about anything—we could use the prospect of impending but unknown doom to excuse all manner of assaults on our liberty and our lives. This “just in case” style of legislation is fraught with dangers. Powers that we were told would never be used can quickly become heavily used and set the new standard. We cannot, in all conscience, allow the Government to get away with such slapdash explanations for making their powers even more draconian while reducing the safeguards against injustice.

Clauses 34, 35 and 37 are not needed. The Government have not come close to finding a cogent and convincing justification for them. They have no place in the Bill and must go. As Jonathan Hall QC, the independent reviewer put it so eloquently in his evidence to the Bill Committee:

“If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 7.]

I invite noble Lords to support Amendments 15, 17 and 18 should the House divide on them.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

My Lords, I thank the Minister for the time he has given to speak about this Bill and for government amendment 14 on the burden of proof. I welcome the change of heart in that respect.

As to the other area on the potential length of TPIMs, I very much hope that the Minister will accept what is essentially the compromise in Amendment 16 between indefinite periods for TPIMs and the current period. It seems to me that the gap that divides us is not that great. TPIMs can be imposed not merely because criminal conduct is suspected, but also because of activities that may not be criminal. It is imposed by the Executive. Although, of course, there is a right of review to the court, a right of review is very different from the decision of a court or independent tribunal in deciding whether the grounds exist.

It is therefore important to appreciate that the very significant restrictions on liberty are imposed by the Executive, something generally alien to our tradition. It would be even more alien to our tradition to go to the extent of enabling the Executive to impose such a restriction for an indefinite period of time. Such restrictions should only be available on people’s liberty where people are convicted of serious criminal offences. Quite apart from the humanitarian and liberty and traditional aspects of that argument, there is the further argument which I raised, and will not repeat, on Second Reading: namely, indefinite orders can, as experience has shown, give people a loss of hope, and in effect make them more dangerous and less susceptible to being reformed.

The compromise that we have put forward in this amendment is further emphasised by the fact that of course if there is new evidence of activity during the period, the four years is not an absolute cut off.

Finally, there is a great deal of sense in having a cut-off period. It is very easy for any decision-maker, particularly one who is worried about the consequences of not extending the TPIM, to go on extending and extending it. It is very wasteful of resources, because enforcing a TPIM is very expensive. It is also fundamentally unfair that someone should be subject to a decision that can go on being rolled over indefinitely rather than someone—to put it in the vernacular—having to put up and charge with an offence or to shut up.

I very much hope that the Minister will think again about the compromise offered in this amendment and accept it.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, this group deals with changes to TPIMs. The current Independent Reviewer of Terrorism Legislation, someone who has unique access to secret intelligence, operational partners and government officials, has previously stated that the changes proposed in the Bill to the TPIM regime were not necessary. We agree, as my noble friend Lord Strasburger so powerfully set out in his speech.

In relation to Clause 34, the current independent reviewer says that he is not aware of any case where operational partners had wanted to impose a TPIM but were unable to do so because the burden of proof was too high, as confirmed by the representative of operational partners in the Bill Committee in the other place.

In 2006, a former Labour Government claimed that detention of a terrorist suspect without charge for up to 90 days was necessary, on the basis that, although existing limits had not been a problem up to that point, it might be necessary in future. Parliament rightly rejected the Government’s proposals and, 15 years later, such a lengthy period of detention without charge so that evidence can be gathered sufficient to charge has not proved necessary. This Government are adopting exactly the same argument here: it has never been a problem in the past, but might be in future.

However, the Government have rowed back from their position in Committee. As my noble friend Lady Hamwee said, we do not want to test the patience of the House in light of the Government’s concession, so we will not oppose Amendment 14, despite there being no evidence that this change is necessary.

On Clause 35, the fundamental principle is that TPIMs should be only a temporary measure, to protect the public from a perceived threat while evidence is gathered to charge the suspect with a substantive offence. The government argument appears to be that the suspect could be very careful not to incriminate himself if he knows there is a time limit to the restrictions placed on him. No matter how long the TPIM is in force, the argument that, if your every move is limited—who you can associate with, where you can go, what you can look at on the internet, who you can call on the telephone—the chances are that you will allow your mask to slip, just given enough time, is unconvincing. This should be about looking for existing evidence or alternative sources of evidence that can be admitted in court, rather than hoping that the suspect might incriminate himself if only we give him long enough.

Should suspicion persist despite there being insufficient evidence to put before a court, surveillance of the suspect following the lifting of the TPIM is far more likely to provide self-incriminatory evidence—rather than the Government’s argument that such evidence is likely to be forthcoming if only the TPIM were indefinite. If, as the Government seek, TPIMs can be extended indefinitely and there is suspicion—even inadmissible intelligence—of terrorist activity, but not enough evidence to prosecute, it would be a very brave Home Secretary who released such a suspect from a TPIM when she had the power to extend it indefinitely, as the noble and learned Lord, Lord Thomas of Cwmgiedd, just said.

As my noble friend Lady Hamwee said, if the noble Lord, Lord Anderson of Ipswich, whose arguments were comprehensive and compelling, divides the House on his extension of the TPIM limit to four years, we will support him, as it at least preserves the principle that TPIMs must be temporary. If he does not carry the House, we will vote on principle against TPIMs potentially becoming a means of permanently depriving an individual of his basic human rights without charge or trial.

On Clause 37, current legislation allows an overnight curfew, or remaining at a specified residence, and the courts have held that an overnight curfew may be up to 16 hours out of 24. The Government claim that “overnight” is not flexible enough and that, for example, operational partners might want to stop the suspect radicalising schoolchildren, as my noble friend Lady Hamwee said, and want to keep him at home during the day rather than at night. In that case, why is there no limit in the Bill, such as the one courts have placed on overnight curfews, to the number of hours such a curfew can be imposed?

Whatever the Government say might happen and whatever operational partners say they want the change for, the changes proposed by the Government in Clause 37 would allow a curfew of 24 hours out of 24—effectively house arrest. Were the conditions that can already be imposed by a TPIM not enough, Clause 37, with the changes the Government propose in Clause 35, could result in indefinite detention without charge or trial. The powers contained in these clauses could amount to the return of internment, albeit in someone’s own home. On this fundamental principle, we intend to seek the opinion of the House.

Government Amendment 22 to reinstate the requirement for an annual review of TPIMs is welcome—although, as my noble friend Lady Hamwee said, we are concerned about potential unintended consequences and, as the noble Lord, Lord Anderson of Ipswich, said, it must be provided the Independent Reviewer of Terrorism Legislation is given the necessary resources to conduct these reviews—but not sufficient for us not to oppose the changes to TPIMs that these clauses propose. Please add my voice and those of my noble friends in favour of any Divisions that might be called in this group.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General 4:30 pm, 3rd March 2021

This is an incredibly important debate, because it goes very much to the heart of the views we take on what the Executive can do. It is anathema to our system that the Executive can impose restrictions on individual citizens on the basis of either the balance of probabilities or, worse, reasonable suspicion. Any restrictions placed must be justified, normally in a criminal court or, in the context of the current pandemic, by an exceptional event such as the pandemic.

All those who have engaged in this debate have accepted the need for some form of TPIM. On behalf of my party, I accept that too, but all our instincts should say that it should be on the most limited ground necessary at any point. I strongly opposed, as my party did, the idea that one can impose a TPIM on the grounds of suspicion alone and welcome Amendment 14, in which the Government reject that approach and go for a situation where the Minister “reasonably believes” that the person has been engaged in terrorist activity. The difference between “reasonably believes” and “balance of probabilities” seems in practice quite difficult to define; the Minister has to believe that the person has been engaged in terrorist activity and he or she must have reasonable grounds for believing so. What is the difference between having reasonable grounds on one hand and believing it on the balance of probabilities on the other, when the person who will test that is the courts? I think it is quite fine, but we will support government Amendment 14. I am grateful that they have listened; it is a very significant shift. The difference between honestly and reasonably believing something and suspicion is significant.

I am very disappointed that the Government persist in the idea that, once you have the basis for a TPIM, you can roll it over indefinitely. As various noble Lords have pointed out, the inclination of the Executive will be to roll these things over without further evidence. Therefore, we on this side of the House will also support Amendment 16.

Four years is a long time, longer than allowed at present and, what is more, the four years can be extended if new evidence emerges during that four-year period. We think there should be a limit on when a TPIM can be granted, where there is evidence for it. We would need new evidence to extend it beyond the four years. We think that four years is a long time, but we recognise that if the House backs this four years, that is the basis for a compromise we very much hope the Government will accept.

Amendment 22 would compel the Independent Reviewer of Terrorism Legislation to conduct an annual review in relation to TPIMs. I think that is right. I agree with everybody who has said that the independent reviewer has to be properly resourced to do it. This is such an exceptional power that I think it is right that the independent reviewer should look at it every year.

On the proposition that there needs to be a limit on the period of restriction that is required in a particular home, because the power is going to be amended to remove the reference to “overnight”, the Government have given assurances that there will be such a limit, because of the courts’ imposition of limits to ensure that nobody is imprisoned in their house for 24 hours a day, which is what the noble Lord, Lord Strasburger, said the consequences of the section would be. That is not my understanding, legally, of the consequence of the removal of “overnight”, but I would like the Minister to repeat that assurance and also to say that if the court protection went, the Government would come back to ensure that it could not involve 24-hour imprisonment, in effect, in a particular house.

These are exceptional powers. Our role in this House is to ensure that they are subject to specific limits. I think the combination of government Amendment 14, Amendment 16, in the name of the noble Lord, Lord Anderson, and government Amendment 22, which would compel an annual review, is a workable compromise. I am very disappointed that the Government are not accepting it at the moment.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

My Lords, before I turn to the amendments to which I have not yet spoken, I will address a question from the noble Baroness, Lady Hamwee, on government Amendment 22, about the requirement for the independent reviewer to produce an annual report every year for the next five years. She is right to say that the independence of the independent reviewer means that he could, if he so wished, provide such a review, but we want to ensure that he does so, because of the changes that are being made by the Bill. We, like a number of noble Lords who cited his work and that of his predecessors, find them useful and would find it useful to receive them over the next five years. We do not think that is unduly burdensome, as the noble Baroness suggested it might be. Indeed, that is evidenced by the support of the current independent reviewer, Jonathan Hall, for the amendment. I hope that that reassures her on that point.

I turn to the amendments. Amendment 15, in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would remove Clause 34 in its entirety, and in doing so prevent the Government lowering the standard of proof for imposing a TPIM to “reasonable belief” of involvement in terrorism-related activity. As I set out earlier, the Government have listened to the concerns raised in Committee and brought forward a compromise, by lowering the standard of proof to a lesser extent than originally envisaged; namely, “reasonable belief” instead of “reasonable grounds for suspecting”. We are confident that this approach represents an appropriate middle ground, one that ensures we are taking action to protect the public from an evolving and more diverse terrorist threat, while addressing the concerns that were expressed in Committee. Of course, “reasonable belief” is a standard which has been used in the past, having first been introduced in 2011 by the coalition Government, which included the Liberal Democrats as well as my own party.

The Government are committed to ensuring that our operational partners have the necessary tools at their disposal to support them in their crucial work. As I explained in Committee, the operational pace for these partners is faster now than ever before. Demonstrating that a person has carried out terrorism-related activity will frequently depend on incomplete intelligence rather than hard evidence. The Public Bill Committee in another place heard from Assistant Chief Constable Tim Jacques the Security Service’s assessment of the benefits of lowering the standard of proof. I will not repeat at length the three scenarios he outlined where a lower standard of proof could make a tangible difference—the Syria returnee, a known radicaliser, or a rapidly escalating risk linked to an individual consuming online content—but I emphasise again that these are credible scenarios which our operational partners will often encounter.

That the Security Service has not so far been prevented from imposing a TPIM under the current standard of proof does not mean, as the noble Lord, Lord Strasburger, suggested, that there is no justification for the change the Government are making. It is entirely right that the Government should seek to future-proof the TPIM regime to ensure that our operational partners can continue to be able to protect the public. As I said in our earlier debates, when it comes to countering terrorism, even marginal benefits can help save lives.

As I set out in Committee, the standard of proof is just one of five conditions that need to be met in order to impose a TPIM. The other four conditions will remain unchanged, with strict conditions around the measures that can be imposed and robust safeguards for the civil liberties of the subject. That includes the courts continuing to consider, at a permission hearing, whether the Home Secretary’s initial decision to impose a TPIM notice was “obviously flawed” and preventing her imposing the notice where that is the case. Following the changes made by this Bill, TPIMs will remain a sparingly used but highly valuable tool for protecting the public from the risk posed by a small number of dangerous people. I therefore urge the noble Lord to not move that amendment.

Amendment 16, in the name of the noble Lord, Lord Anderson of Ipswich, would, as he explained, prevent a TPIM notice being renewed for as long as it is necessary for the purposes of public protection by setting a new upper limit of four years. While the Government respectfully disagree with the amendment, we support its principle in so far as it recognises that the current two-year limit is too short. In Committee, I set out the policy and operational justifications for Clause 35 and I shall summarise them again very briefly now.

First, experience has shown that there are TPIM subjects who pose an enduring risk beyond the current 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. ACC Jacques spoke of this risk, and the challenges it creates, during the Public Bill Committee in another place.

Secondly, extending the maximum duration of a TPIM beyond two years will provide more time and incentive for the TPIM subject to engage in rehabilitative programmes, adopt a different lifestyle, break away from their previous extremist contacts and demonstrate that the TPIM notice is no longer necessary.

Thirdly, removing the time limit will multiply the benefits of the TPIM by restricting the subject’s involvement in terrorism-related activity, supporting efforts to degrade their wider network, should they belong to one, and reducing the wider long-term threat from others who might have been influenced by them were it not for the TPIM in the case of known charismatic radicalisers. I acknowledge that the noble Lord’s amendment would provide for some of these benefits, but not all and only to a more limited extent. By imposing a maximum length—which would, of course, be known by the subject—there would still be a potential cliff edge at the end of the TPIM, rather than it being a tool that can be renewed for as long as it is needed.

During the operation of control orders, which could, of course, be rolled over indefinitely, there were three exceptionally dangerous individuals who were subject to an order for between four and five years. The Government have been pressed on numerous occasions during scrutiny of the Bill to refer to concrete examples from the past: I hope this experience underscores why the Government cannot accept a four-year limit. The Government believe that a TPIM imposed for the purposes of public protection should be removed only when the risk to the public has been managed.

Clause 35 will not alter condition C of the TPIM Act, which requires that the Home Secretary reasonably considers that it is necessary for the purposes of protecting the public from a risk of terrorism to impose a TPIM. If necessity can no longer be demonstrated, then the TPIM must be removed, regardless of the fact that there is no time limit. The Government have no desire to keep individuals on TPIMs any longer than is necessary and proportionate for the purposes of protecting the public from a risk of terrorism; nor do our operational partners. TPIMs are resource-intensive tools and the Security Service and counterterrorism policing possess huge expertise in focusing resources on the highest risks. When a subject no longer poses a significant risk to public safety, operational partners will be the first to seek removal of the TPIM. The Home Secretary rightly places great confidence in the expertise of the Security Service and counterterrorism policing. We should trust their judgment as to whether a TPIM remains necessary or not.

TPIMs are, of course, subject to regular scrutiny, including through quarterly and annual review meetings, which the Independent Reviewer of Terrorism Legislation is invited to attend. Through these regular meetings, key considerations such as the case for the individual’s prosecution—always our first preference—and their TPIM exit strategy are kept under careful review. Removing the time limit will not change this. I remind the noble Lord, Lord Strasburger, in particular that under Section 9 of the TPIM Act 2011 all TPIM subjects are granted an automatic review on the imposition of their TPIM notice, while Section 16 provides an avenue of appeal for subjects who wish to challenge the decision to extend their TPIM notice for a further year. Moreover, as I outlined earlier in relation to Amendment 22, to strengthen independent oversight further the Government tabled that amendment, requiring the independent reviewer to produce annual reports for the next five years. I hope that for those reasons the noble Lord, Lord Anderson of Ipswich, might even at this late stage be willing not to move his amendment.

Amendment 17 in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, would remove Clause 35 from the Bill entirely, and the Government must therefore reject it in the strongest terms for all the reasons that I have just set out. I hope that they will not press that amendment, as they indicated that they might.

Lastly, I turn to Amendment 18, also in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. It relates to Clause 37, which amends the existing overnight residence measure in Schedule 1 to the TPIM Act 2011 to enhance the ability of the Home Secretary to specify certain hours when a TPIM subject must remain at a specified residence. The amendment would remove the clause from the Bill entirely and prevent the operational benefits from being realised. That is why the Government cannot accept it. Operational partners have in the past confirmed that, with respect to some specific TPIM cases, greater flexibility than is currently provided for by the existing overnight residence measure would have been desirable. Again, we heard from the noble Baroness, Lady Hamwee, some of the examples given.

In the case of attack planners, there may be circumstances in which it is necessary to control their whereabouts during the day to prevent that attack from being carried out. In the case of charismatic radicalisers, it may be necessary to limit their contact with other people such as schoolchildren on their way to and from school. That is the issue that we are addressing by introducing the ability to impose 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 for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. As with all measures, its applicability will be carefully considered on a case-by-case basis in the context of each individual TPIM subject. It will not be part of a blanket approach.

There has been understandable interest in how that amended residence measure will operate in practice. I can provide reassurance in response to the question raised by the noble and learned Lord, Lord Falconer of Thoroton, that in the context of TPIMs there is no exception to Article 5 of the ECHR, the right to liberty. Instead there is an established body of case law that guides that, in practice, the residence measure placed on a TPIM subject could not ordinarily exceed 16 hours a day without breaching an individual’s right to liberty. We are clear that this measure should not and will not amount to an unlawful deprivation of the individual’s liberty. I therefore urge noble Lords also not to move this amendment.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Deputy Chairman of Committees, Deputy Speaker (Lords) 4:45 pm, 3rd March 2021

I have received a request from the noble Baroness, Lady Hamwee, to ask a short question.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

The Minister just referred to the number of hours in the day for which the restriction may apply. Why have the Government decided, assuming that the decision is positive, not to include in the Bill a total limit per day? He referred to Article 5 but would it have been more convenient for the Government, let alone TPIM subjects—the noble Lord, Lord Anderson, had a good deal to say about the problems of pursuing applications to the court—not to allow the prospect of getting caught up in proceedings challenging the total number of hours?

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

My Lords, the simple answer for not including that in the Bill is that we do not think that it is necessary to do so. The case law exists and has established that in practice the residence measure placed on a TPIM subject could not likely exceed 16 hours a day without constituting an unlawful deprivation of their liberty. However, measures are imposed and tested in the courts on a case-by-case basis, and that is the appropriate way to proceed.

Amendment 14 agreed.

Amendment 15 not moved.

Clause 35: TPIMs: extension of time limit