Baroness Hamwee:

Moved by Baroness Hamwee

19: Clause 38, page 32, line 15, at end insert—“(2A) The Secretary of State must publish a code of practice relating to—(a) the conduct of, and(b) the use of reports on the results of,polygraph sessions.(2B) Before publication of the code of practice under section (2A), the Secretary of State must consult appropriate persons.”Member’s explanatory statementThis Amendment would require the Secretary of State to publish a code of practice relating to the conduct and use of polygraph sessions.

My Lords, in moving Amendment 19, I will speak also to Amendments 20 and 21. Clause 38 raises a rather different issue from the other clauses in Part 3, which deals with TPIMs. The clause introduces the use of polygraphs—so we are not affected here by nostalgia for 2011.

Amendment 19 requires the Secretary of State, after consultation, to publish a code of practice about polygraph sessions, both how they are conducted and how reports on them are used. New Section 10ZA, introduced by Clause 38, provides for regulations on limited matters, as set out in that clause. The requirement imposed is

“to participate … with a view to … monitoring … compliance with other … measures” and

“assessing whether any variation of … measures is necessary”.

TPIM subjects are a different cohort from terrorism offenders, not having been convicted. Not everything, I would think, can be a direct read-across from the processes applied to terrorism offenders. In the case of an offender on licence, the tests are to assess compliance; in the event of a breach, the offender can be returned to custody. For a TPIM subject—of course there is no Parole Board here—it is not just about monitoring compliance but assessing necessity. This is a much less tight objective; in fact, if one were to use “objective” as an adjective, I am not sure that it would really meet that test. What if the subject’s reaction is ambiguous?

From the helpful briefings that we have had, as polygraph sessions are used currently and will be used in the case of terrorist offenders, the questions that are asked are closed questions: “Did you do such-and-such?”, or “Have you contacted so-and-so?” I had some difficulty thinking of the questions that might be asked, because so much of potential interest is likely to have been prohibited. I suppose that if there is a measure saying that a person will not visit whatever the nearest urban centre is, that is capable of a yes or no answer.

I wondered whether it is thought that polygraphs are an alternative to electronic monitoring, or a supplement. If there are to be polygraphs applied to TPIM subjects, it seems necessary that there should be a relevant code of practice—tailor-made, if you like—including a reminder that the subject is not an offender.

Amendment 20 specifically addresses the extension of the term of the TPIM. The new section in the Bill contains a prohibition on using a statement made, or a reaction exhibited, during a session in evidence in proceedings for an offence. But what about activity that is not an offence? It should equally be the case that statements and reactions should not be the basis for an extension of a TPIM. I hope that the Minister can confirm that there is no intention to use polygraph sessions for such a purpose, and that he can confirm how the results and report of the session may be used; in other words, what might be the outcome?

We tabled these two amendments in order for the House to hear from the Minister some more of what the Government have in mind. I do not intend to put them to the House, unless of course the Minister says that he will accept them and asks us to do so. However, even were they to be accepted, Clause 38 is not a provision that we can accept. I come back to the basic point: TPIM subjects are not convicted offenders. The clause requires them to participate in sessions and comply with the operator’s instructions if they seek to maintain that most basic of positions, the right to silence. The subject lays themselves open to the variation of the measures—in other words, further restrictions. I know that my noble friend Lord Paddick will say more about this, but we will test the opinion of the House on Clause 38. I hope this can be taken as my voice in that respect.

I anticipate withdrawing Amendment 19 at the end of the debate; I will not move Amendment 20, but we will move Amendment 21 when that point in the proceedings is reached. Let us see what the Government have to say.

My Lords, the noble Baroness, Lady Hamwee, appears to be right that the legislation in its current form does not place express limits on the use of information obtained from a polygraph for the purpose of extending a TPIM, yet my enthusiasm for Amendment 20 is limited. The reality is that TPIMs can be made and extended on the basis of a wide range of intelligence fragments, some of which may be little more than straws in the wind. It may none the less be important to take such matters into account. I think back to the Manchester Arena bomb and the ambiguous and potentially unreliable intelligence that, as I reported at the time, might, if it had been interpreted in a different way, have resulted in some sort of pre-emptive action.

An intelligence picture is typically a complex mosaic of multiple indications and assessments, of which polygraph material, depending on the circumstances, will not necessarily be the least reliable component. While it seems to me both unlikely and undesirable that a TPIM would ever be extended predominantly on the basis of polygraph material, I am wary of Parliament seeking to dictate the relative weight that is to be given to different sources of intelligence. The Executive and the courts are the bodies with expertise in this area, and I suspect that we should leave it to them.

I look forward to hearing what the Minister has to say about Amendment 19, which seems not without merit.

My Lords, my noble friend Lady Hamwee has explained Amendments 19 and 20 to the House, and it would serve little purpose to repeat that as we will not be dividing the House on them.

As my noble friend has said, compulsory polygraph tests for those convicted on licence from prison are one thing, but such tests for those not convicted of any offence, who have a right to silence when being questioned, is quite another. It is a long-established principle that a suspect in criminal proceedings should be protected from any adverse consequences of remaining silent. Clause 38 allows the Secretary of State to impose a requirement for an individual subject to a TPIM to participate in polygraph sessions and to comply with instructions given to the individual by the polygraph operator. Although any statement made by the individual while participating in the polygraph session cannot be used against them in any proceedings for an offence, a failure to answer questions could be taken as contravening a measure specified in a TPIM notice—that is, to comply with the instructions of the polygraph operator, so, in this case, the instruction to answer questions. Remaining silent during a polygraph session could therefore be an offence under Section 23 of the Terrorism Prevention and Investigation Measures Act 2011, for which the individual is liable on conviction to imprisonment for a term not exceeding five years.

If the person is convicted of a terrorism offence and is on licence and subject to a TPIM—unlikely but possible—it would be possible for them to be subjected to polygraph tests under Clause 32 of this Bill, and a failure to answer questions in those circumstances would be a breach of the licence. While we have reservations about that, we do not object to it being part of the Bill. However, if the person is not convicted and is subject to a TPIM, they have the right to silence and to be protected from any adverse consequences of remaining silent. Potentially being imprisoned for five years for failing to answer questions during a polygraph session is an adverse consequence, and we therefore intend to test the opinion of the House on whether Clause 38 should be part of the Bill.

My Lords, the effect of the Bill at the moment is that a condition of a TPIM can be that the subject takes a polygraph test, and that a failure to do that could be a breach of the TPIM’s provisions. Amendment 21 raises the question of whether that should be part of a potential TPIM. In answering that question, it is important to try to find out what the Government have in mind regarding the use of that provision. First, to what extent do they regard polygraph answers as reliable? There is a general view that they cannot be taken on their own. What is the Government’s view on that?

Secondly, will the Government introduce a code of practice, as envisaged by Amendment 19? If so, could they give some indication of what that would contain? In particular, would it be based on the American Polygraph Association’s code of practice?

Thirdly, in December 2020 Her Majesty’s Prison and Probation Service announced that it would be seeking a long-term commercial partner to deliver polygraph equipment, training and support services for the sum of £2 million. When this was announced by the Government, it was noted that any partners must provide training to the standard approved by the American Polygraph Association, which is a trade body. Can the Minister give an indication of how that is going?

Will the Minister confirm that the Government will not act solely on the basis of any physiological reaction of the individual while being questioned in the course of a polygraph examination, and that the effect of a “significant reaction” in a polygraph examination will simply lead to further inquiries being made?

There has been, over quite a long time, a legitimate—in the sense of authorised by legislation—use by the Home Office of polygraph tests in relation to sexual offenders. According to Home Office figures, over the last five years 5,228 mandatory polygraph examinations have been carried out on 2,249 sexual offenders. Will the Minister describe to the House what benefit has been obtained from this and the basis of any assertions of that benefit?

My Lords, the three amendments in this group stand in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. Amendment 19 would oblige the Secretary of State to publish a code of practice on the conduct of, and use of results from, polygraph examinations, with a requirement to consult appropriate parties on the code before its publication.

We think that such an amendment is not necessary, since equivalent provision is already made by new paragraph 10ZA, which Clause 38 of the Bill will insert into Schedule 1 of the TPIM Act 2011. As the noble Baroness, Lady Hamwee, noted, Clause 38 includes a regulation-making provision for the conduct of TPIM polygraph examinations. The new polygraph measure will not be used within the TPIM regime unless and until such regulations have been made.

These regulations are expected to include detail on, for example, the qualifications and experience needed by polygraph operators; how records of the polygraph examinations should be kept; and how reports on the results of the examinations should be prepared. This will ensure transparency in how the polygraph measure in the TPIM regime will be applied in practice.

This approach follows the practice already established by the Ministry of Justice, which has set out its use of the polygraph in licence conditions of sex offenders in the Polygraph Rules 2009. Parliament will have the opportunity to scrutinise these future regulations and they will, of course, be subject to annulment by your Lordships’ House or the other place. As such, we believe that Amendment 19 is unnecessary, and I urge the noble Baroness to withdraw it, as she indicated she might.

Amendment 20 seeks to prohibit the extension of a TPIM notice on the basis of information derived from a polygraph test. Again, we do not think this is necessary. Clause 38 specifies the purposes for which the Home Secretary may impose a requirement on an individual subject to a TPIM notice to participate in polygraph examinations. These are, first,

“monitoring the individual’s compliance with other specified measures” and secondly,

“assessing whether any variation of the specified measures is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity”.

The reference in new heading (ii) to

“variation of the specified measures” means variation of the measures set out in Schedule 1 to the TPIM Act 2011, and the duration of the TPIM is not one of those measures. Extension of the TPIM for a further year can be done only by relying on the power in Section 5 of that Act, not by way of varying measures. Therefore, any attempt to use information derived from a polygraph examination to extend the duration of a TPIM notice would be unlawful. I hope that provides some assurance to the noble Lords and that they will therefore be willing not to press Amendment 20.

Finally, Amendment 21 would remove the addition of a polygraph measure to Schedule 1 to the TPIM Act 2011 entirely. The Government cannot accept that. Adding a polygraph measure to Schedule 1, where the measure is assessed to be necessary and proportionate, will help our operational partners to assess an individual’s compliance with his or her TPIM notice. This might include being asked whether engagement with rehabilitation programmes is genuine or whether someone is, for instance, meeting prohibited associates. The insights gained from a polygraph examination will support decision-making on whether the TPIM notice should be varied, including the relaxation of measures or further restrictions.

The polygraph measure will not be mandatory for all TPIM subjects. It will be used sparingly and only where necessary and proportionate to restrict a subject’s involvement in terrorism-related activity. Whether it is judged necessary will be determined by the Security Service on a case-by-case basis and a recommendation will be made to the Home Secretary.

With a complex and evolving terrorism threat, the Government are clear that where we can benefit from technological advancements to inform our management of TPIM subjects, we must seek to do so. The noble Baroness, Lady Hamwee, asked whether this was a supplement to, rather than a replacement for, existing monitoring. It certainly is supplementary and for use on a case-by-case basis. The information derived from a polygraph examination cannot be used to extend a TPIM notice or in criminal proceedings against the individual. Clause 38 is clear on this.

Clause 38 also provides for a regulation-making power, as I set out earlier. These will include detail, for example, on the qualifications and experience required of polygraph operators and on how records of the polygraph sessions should be kept. The polygraph measure will not be used before these regulations have been considered and enacted by Parliament.

Some of the questions asked by the noble and learned Lord, Lord Falconer of Thoroton, may be better answered when those regulations are made and scrutinised. I will certainly consult the Official Report and make sure that his questions receive a response. On the basis of all that, I hope noble Lords will be willing to withdraw or not move all three amendments.

My Lords, the noble Lord, Lord Paddick, is not available, so I call the noble Baroness, Lady Hamwee.

Our views are very close, but we have not actually changed personalities yet. The noble and learned Lord, Lord Falconer, asked some extremely pertinent questions as the basis for an assessment of whether it was appropriate for the Clause to remain in the Bill. It is a great shame that we have not had the answers to that list of questions; I do not think any could have come as a surprise.

May I pursue one point? Because there is a regulation-making power in new paragraph 10ZA, it is not necessary to have a reference to a code of practice. I have sat through many debates when we have been told that codes of practice are so useful because they are flexible; they can be tweaked without having to go through the legislative process. I have to say that I am quite surprised by that answer. I do not know whether we are being told that the rules that apply under the Offender Management Act in other situations when polygraph sessions are used are the rules that will apply. It is my fault; I got slightly lost during that part of the debate. It may be my perception only but, as I heard the answers, there seemed to be a lot of repetition of what is in the Bill, not answers to concerns which underlie the amendments.

When we get to it, depending on who the broadcasters go to, one of us will move Amendment 21. For now, I beg leave to withdraw Amendment 19.

Amendment 19 withdrawn.

Amendment 20 not moved.