Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.Donate to our crowdfunder
We move to our next session, which is evidence from the Northern Ireland Human Rights Commission, with Les Allamby, the chief commissioner, and Dr Hannah Russell, the director of legal research and investigations and advice to government. Have we got you with us?
It is a pleasure to serve under your chairmanship, Mr McCabe. Thanks to colleagues from Northern Ireland for joining us. Could you outline your key concerns about the provisions in the Bill and how they relate to Northern IrelandQ ?
Apologies for my technological illiteracy. Yes, Conor, we have real concerns in relation to human rights in three areas among others. The first is the retrospective nature of many of the provisions in terms of both sentencing and release. As the Committee will know, some apply to individuals who have committed offences and not yet been sentenced, but some in particular apply to those who are already sentenced and are serving a term of imprisonment. Particularly for Northern Ireland, the change of the automatic release point of relevant terrorism sentences to two thirds and then referral to the Parole Board is being extended to Northern Ireland—it has already happened elsewhere—and the addition of polygraph testing conditions to the licence of a person who has committed a relevant terrorist offence are two of the retrospective measures for those who have been sentenced.
The second area is the extension of a number of provisions to those who are under 18, in terms of both sentencing and licensing arrangements. We have some experience, both historical and contemporary, in Northern Ireland of the impact that adults have on children and young people. It has been mentioned by the UN Committee against Torture and our own paramilitarism commission has looked at this. It is very clear that the evidence is, frankly, that 15, 16 and 17-year-olds are not leading grown men in paramilitary activity or the control of communities in Northern Ireland; it is the reverse that is true. Therefore—I will return to the rehabilitation aspects that Peter Dawson touched on—while these are serious offences that apply to under-18s and there is a very limited discretion in terms of mandatory approaches, we think that applying these provisions to children and young people raises human rights issues, particularly in terms of the UN convention on the rights of the child and a number of provisions in general comments made by the convention committee.
Our third concern is about polygraph testing. I am a great believer in evidence-based policy making. As far as I can see, there is a paucity of evidence about just how accurate polygraph testing is. Although I recognise that polygraph testing will be used only in very specific circumstances, and not for new offences and coming before the courts, and although it has been used in the case of sex offenders before, it still seems to me that, as the Independent Reviewer of Terror Legislation has suggested, there needs to be at least piloting and some evidence of its veracity.
Otherwise, it seems to me that there are two implications. Either someone who is innocent is presumed to be guilty of something without requiring any other salient evidence, which risks a miscarriage of justice and a sense of grievance, or the reverse: someone who is a danger passes the test and we fall into the risk of complacency setting in. Somebody’s licence can be revoked as a result of a polygraph test, and they could therefore be returned to prison. Also, as far as I can see—again, this was noted by Jonathan Hall—there is the possibility in the Bill of a terrorism prevention and investigation measure being applied as a result of a polygraph test. There are some significant outcomes to that. Again, applying that retrospectively also comes into play.
Finally, the purpose of the Bill is clearly laudable: to protect the public and to curtail terror. However, the Prison Reform Trust’s recent research noted the significant increase in the number of people serving very long sentences in prison, not just for offences related to terror. When you take into account the reduction in the opportunities for rehabilitation as a result of the provisions in the Bill—particularly the incentives for rehabilitation—it seems to me that that could lead to a greater risk both inside prison, in terms of overcrowding, mental health issues, suicide risks and radicalisation opportunities, as well as outside prison.
Keeping people in for longer with less prospect of rehabilitation really seems to me to be a blunt instrument to protect the public. We would do better to try offer and recognise rehabilitation pathways, alongside discerning those who are determined not to change their outlook on life and dealing with those individuals accordingly. Those are our concerns. We would be happy to put in a written submission on some of the wider issues around TPIMs, and so on.
Q That is very useful. Your point about the entitlement of every citizen of the UK, regardless of what part of the UK they are in, to have protection from terrorism is important. Do you think, though—it might be useful to add a bit of historical context to this—that there are specificities around the threat from terrorism in Northern Ireland and the approach to dealing with it, both in terms of how post-sentencing regimes work in prisons for paramilitary prisoners or those imprisoned for reasons related to terrorist offending, and in terms of an approach to deradicalisation?
Already in Northern Ireland there is common parlance in use around internment for what might be seen as measures in place for existing terrorist and paramilitary prisoners. Is there a concern on your part, first, that what is proposed might interfere with the settlement in the Good Friday agreement, particularly around licensing, and, secondly, that rather perversely it may be used by those engaged in terrorism as a further opportunity, as you say, to groom young people and present themselves as the wronged party?
Yes, Conor, I do think that there is a risk here. The number of offenders in Northern Ireland who are likely to be affected by moving to a two-thirds sentence is relatively small, but almost all of them, if not all of them—I do not have the figures in front of me, but it is certainly the vast majority—are people who will have been involved in what I might call Northern Irish-based terror activity.
Therefore, we have a small number of loyalists and dissident republicans in prison, some of whom have breached their licence conditions under the Good Friday agreement and have gone back into prison to serve the rest of their sentence, and others who have committed more contemporary crimes, often more around dissident republicanism or euphemistically “ordinary decent crime”, as it used to be called during the troubles, and people might be surprised to learn that we used to have ordinary decent criminals, and others.
In my view, what that means is that if you say to dissident republicans, possibly, and loyalists that they were going to spend x time in prison and it is now going to be y time, you will create the conditions for a sense of grievance and cause célèbres, of which we have seen plenty of examples. So, that is the downside of doing this, against—
Q Thank you, Mr McCabe. Mr Allamby and Dr Russell, thank you for taking the time to join us and give evidence this afternoon.
You will be aware that when Parliament passed the Terrorist Offenders (Restriction of Early Release) Act 2020 in February, Northern Ireland was excluded because we were concerned about issues of retrospection, owing to the differences in sentencing structure in Northern Ireland compared with the rest of the United Kingdom. Having taken very detailed and extensive further legal advice, the Government now take the view that the measures in the TORER Act can safely be applied to Northern Ireland without engaging in issues of retrospectivity, and the Bill seeks to do that. Is that a conclusion with which you concur?
Clearly, I have not seen your detailed legal advice, so I do not know, and I would have to reflect on whatever legal advice you received; we have not taken legal advice on the issue ourselves.
The one thing I would say is that, as you know, there will need to be a legislative consent motion on a number of the sentencing provisions and, off the top of my head, I suspect that this provision might be one of them. I know from discussions with the relevant Minister in Northern Ireland, who is publicly opposed to terror etc., that there are some very real practical concerns about extending this Act to Northern Ireland and some potentially unintended consequences.
So I think my answer to the question is this: listen very closely to your counterparts in the Department of Justice in Northern Ireland, and to the Justice Minister in Northern Ireland, as to whether this change is advantageous to the circumstances of Northern Ireland. Frankly, I cannot speak for either the Minister or officials, but I would take very careful cognisance of what they have to say to your own civil service colleagues.
Q Thank you, Mr Allamby. Let me assure you that we are in extremely close and ongoing dialogue with Naomi Long and others in the Northern Ireland Executive, so those conversations are happening on a very regular basis.
My final question relates to polygraphs. You mentioned the importance of evidence, and later this afternoon we are seeing a professor who is an expert in this area, as far as evidence is concerned. Would you agree that where polygraphs are used just to provide a bit more background information and perhaps prompt further investigation, rather than being used to have a biting and binding consequence, there can be some value in that, as part of a holistic assessment to work out where more work needs to be done? Nobody is suggesting that it would lead to a direct, binding consequence. Does that give you any assurance?
It gives me, I have to say, a rather limited measure of reassurance. I say that because it seems to me that if that is the case, then frankly that ought to be written into the Bill. It ought to be clear that the outcome of a polygraph test on its own should not have any adverse impact.
If you are going to introduce polygraph tests, you really should pilot them. I will quickly give you an example. It may seem a slightly odd analogy, but I used to sit on the Social Security Advisory Committee, and I remember being told many years ago by the Department for Work and Pensions that it was looking at voice recognition, as a way of starting to tell whether somebody might be telling the truth or not. Great play was made about that approach as a possible way forward in fraud detection, etc. It unravelled as the evidence became clearer that there were significant flaws in using that technology for making assumptions about whether individuals were telling the truth.
I cannot draw any objective scientific comparison between voice recognition and polygraphs, but it is a cautionary tale of rushing into using technology without piloting it and really considering what other safeguards you should have before using it.
Q Good afternoon, chief commissioner and Dr Russell. You have said that you will put in a written submission on some of the wider issues around TPIMs. Please summarise your concerns about the new TPIM proposals from a human rights perspective.
Yes, certainly. One concern is the relative absence of safeguards around extending it beyond two years. I think there ought to be additional judicial safeguards. There ought to be a test, if you are going to extend beyond two years, as to whether there is a compelling basis for doing so.
I have concerns that the loosening of the test from the balance of probabilities to reasonable suspicion. I note that we have slalomed, going back to control orders, as to what the required burden of proof is. I note the issues David Anderson raised. I also noted that the European convention on human rights memorandum issued by the Department suggested that things had changed between 2015 and 2020, but I am unsure whether that change is sufficiently compelling to reduce the test from balance of probabilities to reasonable suspicion.
TPIMs are used in a very small number of cases. They are oppressive. None the less, they are utilised on a sparing basis. But you need additional safeguards, if you will extend them beyond two years. Two years is a significant period of time in someone’s life to restrict their freedom of movement and their liberty, to the extent that TPIMs currently do, bearing in mind some of the additional provisions that will now be contained in TPIMs.
Q Briefly, I want to pick up on your concern over polygraphs and what is written into the Bill, by looking at the explanatory notes that were issued. I refer to paragraph 213 of section 34, “Polygraph conditions for terrorist offenders: Northern Ireland”, which states:
“New subsection (5) establishes that statements or physiological reactions of the offender in polygraph sessions cannot be used as evidence in proceedings for an offence against the released person.”
Does that provide you with the comfort you were seeking?
Yet again, it provides me with a very limited measure of reassurance. It is absolutely right that you should not be able to take someone back to court to suggest a new offence has been committed on the basis of the polygraph, so that provides a measure of reassurance.
But I am mindful that if, for example, you are released on licence and you fail a polygraph test, it can be used to revoke your licence and place you back in prison. That is a pretty severe consequence for technology that has not been piloted. The reassurance is welcome in those terms, but you have to understand where else the ramifications of—
Q I believe that, in the circumstance where somebody on licence fails the polygraph test, the intention is not that that would lead to revocation of licence, but that it would prompt further investigation—that is what is intended. Does that give a little more assurance that it is being used simply to assist in working out whether further investigation should be done? It would not lead to revocation of a licence on its own.
I think that is helpful—I would like to see any of those kinds of intentions in the Bill—but I come back to my fundamental point, which is that, as far as I understand it, the polygraph test is still untried in terms of its complete veracity, and we are using technology that has not been piloted in those circumstances. Frankly, if we are going to move to polygraph tests in those circumstances, I would much prefer them to be piloted, so we could then make a genuinely informed decision about their value before we start to take decisions that may have significant consequences.
Q The fight against terrorism in Northern Ireland relies very heavily on co-operation between the Police Service of Northern Ireland and the Garda Síochána. Those two systems in the north and the south are almost integrated and work very closely together on that. Does the Bill contain anything that you think might place a question mark over that, or might the Irish Government feel that some of the Bill’s contents are incompatible with their approach to working with the UK authorities vis-à-vis countering terrorism in Northern Ireland?
Conor, I honestly do not know; I have not had discussions with either the PSNI or Garda Síochána on those arrangements. I certainly do not detect from PSNI a great deal of desire to see those kinds of arrangements in place, which I certainly do not think will be enhanced, but I cannot comment meaningfully on that.
One thing that I would say is that the much more significant issue for us in terms of cross-border co-operation—it is outwith your Committee—is reaching effective security and justice arrangements when we leave the European Union at the end of December. Northern Ireland’s land border with another member state creates a full range of issues that I think are slightly different for the rest of the UK. I have not detected in public discourse anything to suggest that, but “I don’t know” is a shorter and more succinct answer.
Nothing in particular. To drive home the point about under-18s, I draw your attention to the UN convention on the rights of the child, in which a number of provisions, particularly in article 40, set out the need to treat children differently and to see the impacts that the criminal justice system can have on children who enter it as different to the impacts on adults. In the context of Northern Ireland, as it has already been raised, there are specific concerns around the recruitment of children by paramilitaries here. There are particular sensitivities around that, which need to be taken into account in the Bill.
Thank you. Does anyone have any more questions? No. In that case, I thank both our witnesses very much. Mr McGinn, I think I called you Conor Burns at the start, thereby inexplicably confusing you with the distinguished former Trade Minister, Conor Burns. I think the best and safest thing I can do is apologise to you both.