TPIMs: condition as to involvement in terrorism-related activity

Counter-Terrorism and Sentencing Bill – in a Public Bill Committee at 9:25 am on 7th July 2020.

Alert me about debates like this

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office) 9:25 am, 7th July 2020

I beg to move amendment 69, in clause 37, page 34, line 25, leave out

“has reasonable grounds for suspecting”. and insert

“, on the basis of reasonable and probable grounds, believes”.

This amendment would raise the standard of proof for imposing a TPIM under the proposals in the Bill.

Photo of Laurence Robertson Laurence Robertson Conservative, Tewkesbury

With this it will be convenient to discuss amendment 58, in clause 37, page 34, line 26, leave out “suspecting” and insert “believing”.

This amendment would create a higher bar for the standard of proof under these proposals.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

It is a pleasure to serve under your chairmanship, Mr Robertson. I am more used to serving alongside you in the all-party parliamentary group on racing and bloodstock, which you chair. I am speaking for the first time as a shadow Minister in Committee, and it gives me great pleasure that you are in the Chair.

We have said throughout proceedings on the Bill that, for all of us, our first and most important responsibility is to keep the British public safe. The Opposition believe that very firmly and we have approached the Bill in that spirit. We have to be forceful and robust in the fight against terrorism and do everything possible to keep our country safe from those who seek to attack our way of life and values or to do us harm. We have said that we will be a constructive Opposition on these matters, not seeking to divide or oppose for the sake of it, but using parliamentary scrutiny to do what this place does best and performing our important duty to seek to strengthen and improve legislation where it is right to do so. That is the spirit in which the amendments in my name to this clause and others are tabled.

The events at Fishmongers’ Hall and Streatham showed that there is a need for this legislation and for examination of measures such as terrorism prevention and investigation measures, which we will discuss this morning. That the perpetrators in each case had been automatically released halfway through their sentences, with no mechanism in place to protect the public, showed that there were major holes in the legislative framework that needed to be filled, first by emergency legislation earlier this year to prevent the imminent release of offenders without appropriate assessments—legislation that we supported—and now, rightly, by this wider Bill before us.

As we discuss the aspects of the Bill that fall under the remit of the Home Office, I want to say that we support the broad principles therein, but as we highlighted on Second Reading and as has been clear in some of the expert advice and evidence received by the Committee, there remain a number of issues of concern that we wish to probe and amend during the passage of the Bill, first to ensure that it does not fall short and secondly, in the spirit of co-operation, to work with the Government to improve it. It is in that spirit that I will discuss the amendments.

The Government are seeking to alter the standard of proof required to impose a TPIM such that the Secretary of State would need to believe it necessary based only on reasonable suspicion rather than the balance of probabilities. In probing further, we have tried to find a middle way, which is “reasonable and probable grounds”. We do not wish to harm the robust nature or operational utility of TPIMs. The Opposition support TPIMS and want them to be as effective as possible to keep people safe, so we welcome in principle any measures that demonstrably would help our police and security services to achieve that.

We acknowledge that the Bill puts Labour Members in a rather strange position when it comes to TPIMs, because of course it was a Labour Government who, on introducing control orders in 2005, imposed a standard of proof as proposed in this Bill, requiring only reasonable grounds for suspecting that an individual was involved in terrorism-related activity. The standard of proof was raised by the coalition Government in 2011 with the creation of the new regime, and then again by the Conservative Government in 2015. I accept and acknowledge that, and I wanted to say it in Committee. However, having heard the evidence and the Minister’s explanations, we struggle to see the logic in lowering the standard of proof now, whether it is looked at from an operational, administrative or procedural perspective. We need to be clear that policy is made based on evidence and not on amending legislation for its own sake, particularly on such an important matter. We need to see the justification, which has been lacking to date.

In November 2019, just five TPIMs were in force. The police and Security Service have been clear that to date no TPIM request has been rejected on the grounds of insufficient evidence, so one could argue that the current threshold has not proved to be an impediment, even though the security landscape has evolved in recent years, with new risk profiles and challenges coming to the fore. At the same time the Government and law enforcement agencies say that they do not wish to see, nor do they foresee, a sudden spike in the number of TPIMs in operation. They are of course valuable mechanisms, but they are also very costly.

Jonathan Hall, the Independent Reviewer of Terrorism Legislation, told the Committee:

“My concern is that you are opening up a greater margin of error if the standard of proof is lowered.”

That risk ought to be addressed by the Government. We have not yet heard a compelling operational or administrative case made for lowering the standard of proof. I have not heard one from the Minister or his colleagues, or from any of the Committee’s witnesses, so why are the Government so intent on pressing ahead with this change? Again, in the words of Jonathan Hall,

“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, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 6, Q6.]

Taken in isolation, that is a serious enough question, but when paired with the proposed changes in clause 38 on the prospective length of TPIMs, it becomes significantly more urgent.

There are concerns about the fundamental contradiction at the heart of part 2. Liberty wrote that jettisoning the limited safeguards that currently exist while ramping up the severity of the measures that can be imposed would be “a retrograde step.” The Minister needs to respond to those concerns. The Opposition are not alone in being slightly confused by the Government’s approach, particularly to lowering the standard of proof. Amnesty International stated:

“That lack of reasoned argument as to the need for this change mirrors the lack of appropriate evidence or justification presented…at second reading.”

The Bar Council said it was not clear why the reduction in the standard of proof was said to be necessary, and the Law Society of Scotland said:

“Little evidence or justification has been provided for making the change.”

Perhaps the Minister will provide clarification for the Committee, as so far the arguments put forth by the Government have not quite assuaged those reasonable concerns, which are grounded in evidence.

Photo of Rob Butler Rob Butler Conservative, Aylesbury

Does the hon. Gentleman accept that, in the evidence session, the assistant chief constable highlighted three scenarios where the Security Service believed that lowering the standard of proof would be of use? One scenario was where an individual’s risk profile was rapidly increasing and they were moving towards posing an actual threat, with an attack plan in place, but there was not enough time to get to the stage of proof; the second was where somebody was returning from abroad, and the third related to sensitive material. The assistant chief constable said that all those scenarios created a need, as MI5 would see it, to lower the standard of proof. Does the hon. Gentleman accept that?

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

I accept what the hon. Gentleman says and the evidence given by the assistant chief constable. However, the assistant chief constable acknowledged that all of those circumstances currently exist, and that there has been no case where an application for a TPIM has not been granted. I think he was saying that shifting from the balance of probabilities to reasonable suspicion would inevitably make it easier, but he had not experienced, nor did he envisage, any circumstances where that practically had happened or would happen.

As I said at the outset, we come to this wanting to assist and support the Government, but we need to hear a little more justification for this measure in terms of its effectiveness and the reason for it. We will not seek to divide the Committee on the amendment. I tabled it to raise our concerns and those of groups in society, to give the Minister the opportunity to address some of those concerns, and to explain why we not only in principle but now clearly in practice support much of what the Government are trying to do.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

It is a pleasure to serve under your chairmanship, Mr Robertson, and to follow the hon. Member for St Helens North. Before I speak to the specifics of amendment 58, which I do not intend to press to a vote—it is very much a probing amendment—I will reiterate the position of the Scottish National party on the Bill.

We recognise that it is the duty of any Government to keep their citizens safe and secure, and all who serve in Parliament have an obligation to assist in that endeavour. We have already given the Government our assurance that we will attempt to be as constructive as possible, to ensure that the challenge of terrorism is met and that we keep people in all communities across these islands as safe as is reasonably possible. However, we are also mindful of our duties as parliamentarians to uphold the highest standards of human rights protections.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

I thank the hon. and learned Lady for her constructive tone. Before she gets into the detail, will she tell us whether the Government in Holyrood will grant a legislative consent motion for the Bill?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

As the Minister knows, discussions about that are ongoing. He may take it that the constructive approach that I am indicating on behalf of the Scottish National party applies across the board, including the party in government in Scotland. He is aware from our discussions that there are certain concerns the impact of aspects of the Bill on devolved matters. They were addressed last week by my hon. Friend the Member for East Lothian in respect of the order for life-long restriction and the question of polygraph testing. We wish to be constructive on those matters, and that will be the approach of my colleagues at Holyrood.

Today I am focusing on TPIMs, which are a reserved matter. It is fair to say that my colleagues in Holyrood and Humza Yousaf, Scotland’s Justice Minister, have expressed some of the concerns that I am about to elaborate on. Like the hon. Member for St Helens North, my essential concern is that we have not yet seen the case for change—the case for lowering the standard of proof. We do not believe the Government have made that case, and in so saying we are in good company.

Our amendment 58, like the official Opposition’s amendment 69, seeks to raise the standard of proof, albeit it using a slightly different formulation. It is a probing amendment, but in truth, we believe that the standard of proof should stay as it is, because we do not think a case has been made out to change it. We also believe that that is where the balance of the expert evidence that this Committee has heard lies.

It is important to remember that, as has been alluded to, the changes in the Bill align the TPIMs regime more closely with its predecessor, the control orders regime. It is also important to remember that the concerns about control orders were widely shared across the House by Members from all parties. Those concerns are legitimate, because TPIMs restrict some of our most fundamental freedoms, such as freedom of expression, freedom of association, and freedom to have a private and family life. All these fundamental freedoms are restricted when somebody is sent to prison and convicted, but with a TPIM the person involved does not need to have been convicted of any crime for those freedoms to be restricted.

A TPIM is really just a step away from imprisonment, and depending on the package of restrictions, it can amount to a deprivation of liberty for the purposes of article 5 of the European convention on human rights, which for the time being at least is still a part of our domestic law. As none of the exceptions to the right to liberty in article 5 is applicable to the TPIMs regime, if the package of restrictions around a TPIMs regime amount to a deprivation of liberty, article 5 of the ECHR is breached. It is vital, therefore, that the TPIMs regime remains subject to the strictest of safeguards.

The current safeguard whereby a TPIM can only be imposed on the balance of probabilities is something that the Government are seeking to reduce considerably. We are concerned that the low threshold is disproportionate, and we do not think the Government have made out the case for lowering the threshold. It may well be that lowering the threshold would ease the administrative burden on the Government in terms of the evidence that is required for an application for a TPIM to be granted, but easing administrative burdens is not a sufficient reason to lower the standard of proof so drastically.

As I said, I will not push amendment 58 to a vote today, but if the Government continue to fail to deliver any compelling justification for their action, I anticipate that when the Bill returns to the Floor of the House, similar amendments will be tabled and there may even be a vote on whether this change should be made. The concerns that I am expressing are widely held. The hon. Member for St Helens North has told us that they are shared by the official Opposition and by the respected bodies that he listed. I know that some Conservative Back Benchers also share these concerns. Indeed, the Joint Committee on Human Rights, of which I am a member, is anxious, regarding this change as a lowering of the safeguards in relation to TPIMs. I am indebted to that Joint Committee for assisting me in my understanding of these issues.

Perhaps the most significant evidence this Committee has heard was from the current Independent Reviewer of Terrorism Legislation, Jonathan Hall QC. He has said that

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

I would submit that, notwithstanding the intervention on the hon. Member for St Helens North, we have heard nothing in evidence that has convinced Mr Hall QC otherwise. I asked him whether the Government had given him a business case or a justification for lowering standards of proof. He replied:

“I have obviously had discussions, but I have not been able to identify a cogent business case.” ––[Official Report, Counter-terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 15, Q31.]

That is what is missing here.

The lack of cogency or reasoned argument for the need for change mirrors the lack of appropriate evidence or justification that was presented to the House on Second Reading. If we look at the impact assessment, we see that certain questions are posed, such as:

“What is the problem under consideration? Why is government intervention necessary?”

However, the answers given to such questions relate solely to convicted offenders, with only a later reference to the policy objective to “better protect the public” and a link to the issue of

“individuals of terrorism concern outside of custody.”

Then, there is a vague explanation that the Bill will allow for more effective intervention when that is required. On the changes to TPIMs, the impact assessment says that they

“will enhance the ability of operational partners, such as counterterrorism policing, to manage the risk posed by individuals subject to TPIMs.”

It says that the change to the standard of proof will simply

“help ensure that operational partners are better able to impose TPIM notices on individuals where there is a requirement to protect national security.”

No further justification is given.

If the three examples that were mentioned in the intervention on the hon. Member for St Helens North are central to the Government’s business case, let us see a business case to that effect, with a bit more flesh on the bones and a bit more explanation, because, as he said, it seems that all three of those concerns can be dealt with under the current regime. I acknowledge that there are particular demands in our current national security climate. No one can gainsay the terrible suffering and horror caused by incidents such as the one at Fishmongers’ Hall. However, it is notable that back in the days when we were discussing what became the Counter-Terrorism and Border Security Act 2019, in the aftermath of equally dreadful attacks in 2017, no such proposals were made to change the standard of proof. That is the point that Mr Hall makes in his recent notes.

It is not just Jonathan Hall who holds that view. His predecessors, including Lord Carlile, also supported a higher threshold. However, the current Independent Reviewer of Terrorism Legislation has said that

“it is not clear why there is any need to change the law in the manner proposed”

and added that

“where harsher measures are to be imposed, safeguards should be encouraged, not jettisoned. Moreover in these cases the current standard of proof does not make TPIMs impractical”.

He said that

“even administrative convenience does not appear to provide a basis for reversing the safeguard of a higher standard of proof.”

If there were a cogent business case, we might have expected to hear it on Second Reading, but we did not. Even with questioning from the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Justice Committee, we did not hear a cogent business case. Rather, we heard references to agility, which comes under the heading of administrative convenience. That is not an adequate justification for the removal of such a critical safeguard, particularly when, under clause 38, the measures to be imposed could be indefinite. When Jonathan Hall gave evidence in the first sitting of the Committee I asked him whether the Government had been able to give him an example of a case in which the protection of the public that a TPIM affords had been hampered by the existing standard of proof. He said no, the Government had not been able to give him the example of such a case. He said his understanding was that a lower standard of proof was just something that the Government wanted in their toolbox for the future, and they could not say when they would need to use that tool—just that it would be nice to have it.

Well, that is not good enough, and until a proper cogent business case is presented, either to the Committee or the whole House, I do not think that the evidence we have heard so far justifies that significant change—particularly in view of the evidence from the current Independent Reviewer of Terrorism Legislation, as well as the views of his predecessors Lord Carlile and David Anderson QC, as he then was. They supported the current standard of proof.

Photo of Rob Butler Rob Butler Conservative, Aylesbury

The hon. and learned Lady seems to be arguing for not reducing the burden of proof at all, but the amendment in her name suggests changing “suspecting” to “believing”. “Believing” would still be a reduction from the current standard of proof, so does she accept that there is potentially a halfway house, or is she arguing for no reduction at all?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

My primary position is that there should be no reduction at all. That is why I have gone to some lengths to set out the lack of a cogent business case for any reduction. The purpose of the amendment is very much like that of the amendment from the hon. Member for St Helens North: to suggest a halfway house and to probe whether the Government can come up with the business case. I will not push the amendment to a vote.

I end by reiterating what the hon. Member for St Helens North said, which is that it does not seem to be the case that the current standard of proof has been an impediment to the security services. We have had no evidence that it has prevented the security services from seeking a TPIM where they considered it necessary and appropriate to do so. To use the words of Jonathan Hall, until we have that sort of cogent business case, I do not think the Government have made their case for reducing the standard of proof.

I will not press my amendment at this stage, but I expect to see similar amendments when the Bill returns to the Floor of the House. Without such amendments, I would suspect that clause 37 would face a challenge on the Floor of the House.

Photo of Julie Marson Julie Marson Conservative, Hertford and Stortford

It is a pleasure to serve under your chairmanship again, Mr Robertson. I have listened very carefully to hon. Members. I appreciate the comments, concerns and the constructive way in which they have made their arguments. I support the Government, and I support the principle of TPIMs and of using every tool that we have in our armoury to protect the public, which I know is a concern for hon. Members.

I would like to try to put this into context, which is important, today of all days. Today is 7 July—7/7—and the 15th anniversary of one of the worst attacks that this country and this city have ever faced. It is an important reminder of why we are here doing this and why the Government want to bring in this legislation to protect the public.

With the indulgence of the Chair and the Committee, I would like to talk about my friend Louise—I will not get emotional. Fifteen years ago today, my friend Louise was on a train from Aldgate to Liverpool Street. The night before, she had had a great night out. She had been in Trafalgar Square, celebrating the fact that London had just won the bid to host the Olympics.

It was a very busy train. She was standing when the train was rocked by an explosion in the next carriage to her. Louise’s carriage filled with smoke. The lights went out and the train screeched to a juddering halt. She says her heart was beating so much she thought it was going to come out of her chest, but she fought to keep calm amid the screams and the panic around her.

Some people managed to control their panic and started helping each other. They were calling up and down the train for doctors and nurses—anyone who could come and help. Some people had fallen. Some had hit their heads. It was chaos. Some people tried to get out. They were trying to get out of the windows between the carriages. They tried to prise the doors apart. None of that would work. Someone cried out that there was a body on the track.

They waited in the dark. Some emergency lights were going on, but it was mainly dark, for over an hour, until Louise says she saw the top of a policeman’s helmet outside the tunnel. From that moment—seeing the policeman—she felt safe. All of a sudden, she felt that she was going to get out and that everything would be all right.

They could not open the doors, so those who were able to moved out of the way to make way for the injured to be carried or to walk past them. They were bloodied, black, bewildered. Many of them were bandaged with commuters’ possessions, like belts and scarves and ties. After what seemed like forever, Louise was able to get off the train, but she had to walk past the bombed carriage. She said it looked like it had just been ripped apart like a can of Coke.

She passed two bodies on the track, covered up by a fluorescent transport worker’s jacket. She saw a man who was badly injured being tended to by paramedics. He was barely clothed and was propped up against the tunnel wall—his entire body blackened by bomb blast.

She said it was very surreal to come from that black, hellish atmosphere into the light, where it was light, there were helicopters above, there were blue lights and sirens, and there was a triage unit on the pavement where people were being treated. Quite surreally, she was told to give her details to the police and she walked off into London, trying to find her husband and blackened by soot.  She said she just wanted a cup of tea, very weirdly.

The “Sliding Doors” moments, and the fear, panic and shock, came later. The overriding feeling she was left with was why did she get into that carriage, why did she not get into the next carriage and why did she survive, when so many others did not. She was determined not to change her way of life, so she got straight back on the tube and went straight back to work. I think she personifies bravery, and what we always say, that in the face of terrorism we just get on with it and we will not let our way of life be changed.

Today, 15 years to the day afterwards, Louise will be leaving flowers at Aldgate, as she does every year. Many of her fellow passengers and other victims who were affected by the incident have never been back on a tube. Some are still suffering from anxiety and depression, some suffered life-changing injuries, some lost a loved one and some will never see the light of day again. Over the weekend, I asked Louise what she would say to the Committee. This is what she said:

“Terrorism is the biggest threat we face to our way of life. I have so much faith in our intelligence and security services. I feel they should be given whatever powers and resources they need to fight it. Whilst there will always be those who slip through thej net, especially the lone wolves, we need to feel safe and learn lessons, and let our police and courts have the authority to act and protect us.”

Today I wanted to talk about Louise and pay tribute to her, and all of those affected, not just in that incident but in others. My belief is that the best tribute we could all pay is to pass this Bill.

Photo of Taiwo Owatemi Taiwo Owatemi Labour, Coventry North West

It is a pleasure to serve under your chairmanship, Mr Robertson.

The No. 1 priority for all of us here is to keep ourselves and our constituents safe. On this side of the House, we recognise the seriousness of this crime and we will do everything that we can to ensure we can effectively and robustly tackle the threat of extremism, and the terrorists who threaten our national security. As emphasised by my hon. Friend the Member for St Helens North, we aim to be a constructive Opposition in identifying areas in which we can support the Government. In other areas, where we have questions and concerns about the legislation that comes before the House, we seek to strengthen and improve that legislation, where it is right to do so.

In support of amendment 69, I will briefly highlight some of my concerns about the imposition of TPIM notices, as outlined in the Bill. Terrorist offences are especially heinous and it is incumbent on us to ensure that we maintain a good, high standard in believing that an individual falls within this threat category. Having that standard for TPIMs, which we would support to keep our constituents safe, would protect the measures and not impede their robust or operational nature.

As my hon. Friend outlined, this standard of proof has been raised twice before, by the coalition Government in 2011 and by the Conservative Government in 2015. We have to wonder why the Government seek to implement the lowering of the standard of proof in clause 37. That would inevitably broaden the category of people who are suspected of being terrorists, but who may not pose a threat at all.

Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, has serious concerns that this clause could work on the assumption that courts have and could interpret “reasonable grounds for suspecting” as

“a belief not that the person is a terrorist, only that they may be a terrorist.”

There is a strong possibility that some TPIM subjects would not be actual terrorists and, by virtue of that, be innocent.

Mr Hall, who has access to highly sensitive national security information, said that the current standard of proof “has not proven impractical” and has expressed doubt that there is an operational justification for making these changes to the regime at this time. The Opposition are firm believers in evidence-based policy making and in not amending legislation for its own sake, but these are no small matters. The threat and the serious nature of terrorist activities have implications we are all too familiar with. However, we do not see the merits of targeting individuals for the sake of it. That would see a disproportionate number of ethnic minorities and potentially innocent people subject to quite intrusive measures.

We also do not think it appropriate to add strain to the security services and to the public purse, particularly when resources are already stretched. It prompts the question of why, despite the evidence and the advice of independent reviewers, we are making this change. I urge the Minister to outline his case.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department 10:00 am, 7th July 2020

It is a pleasure to serve once again under your chairmanship, Mr Robertson. Let me once again welcome the shadow Minister to his well-deserved place on the Opposition Front Bench.

The speech given a few moments ago my hon. Friend the Member for Hertford and Stortford outlined with incredible power how important it is that we in this House and in government discharge our duty to protect the public. I thank her for sharing the experience that her friend Louise had 15 years ago today. I ask her to pass on the House’s thanks to Louise for the bravery and fortitude she showed on that day and subsequently, and for sharing her experience with the Committee. Hearing direct first-hand testimony of the kind we did a few moments ago brings to life how important this topic is and how seriously we must take our responsibility to protect our fellow citizens, so I ask my hon. Friend to pass on our thanks to Louise.

It is, of course, right that we take this moment to remember the 52 members of the public who lost their lives 15 years ago, and the 784 who were injured and who will often carry not just physical scars, but mental and psychological scars for many years to come. The shadow cast by terrorism is not just a physical shadow; it is a psychological and emotional shadow.

I turn to clause 37 and the proposed amendments. The first point I want to make, beyond reiterating that protecting the public is our primary duty, is that TPIMs are not something the Government, Ministers or the police reach for first. The first option is always to prosecute where we have evidence to do so, and that is what happens in the vast majority of cases—criminal prosecution before a judge and a jury, to the criminal standard of proof beyond reasonable doubt, is the preferred and first option. We should always keep that in mind. We fall back on TPIMs only where we believe there is a real threat to the public and where they are in fact necessary. The word “necessary” appears in the original 2011 legislation, and that test of necessity is not being changed by this new Bill. It is a last resort.

The hon. Member for St Helens North and the hon. and learned Member for Edinburgh South West both asked about the business case. Why are we introducing this change, and what is the need for this measure? I will begin by answering that question directly. As we have briefly heard from my hon. Friend the Member for Aylesbury, the answer is best found in the evidence that the Committee heard on the morning of Thursday 25 June from Assistant Chief Constable Tim Jacques. I asked him something twice in general terms, and then he answered more specifically. I asked him twice whether this legislation will

“make the public less or more safe”.

He answered very clearly,

“yes, I believe it will make the public safer.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 20, Q48.]

To be absolutely sure, I asked him again whether it will make the public safer. He said:

“That is the view of the security services…that is their clear view.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 21, Q50.]

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

The witness did say that. The Minister might recall that I then pushed the witness on the specifics of it, and he said he was talking about the totality of the package contained within the Bill—more specifically around sentencing, rather than what was proposed around TPIMs.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

I will elaborate on the questions a little further. Question 50 was specifically about TPIMs and the burden of proof. To clear that up, I will read question 50 in full—it is not very long. “For those three reasons”, which I will go through in a moment,

“you are being categorically clear with this Committee and with Parliament that the proposed lower standard of proof”— which we are now discussing—

“would be a benefit to the police and the security services, and that it would make the public safer.”

I was expressly referring not just to TPIMs but to the standard of proof. Assistant Chief Constable Jacques replied:

“That is the view of the security services…that is their clear view.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 22, Q50.]

He was answering specifically on TPIMs and on the burden of proof in question 50.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

If the evidence of the assistant chief constable and the three examples are so central to the Government’s business case, why were they not in the impact assessment and why were they not mentioned on Second Reading, when others and I were probing the Minister? For instance, the hon. Member for Bromley and Chislehurst, who is Chair of the Justice Committee, asked for the justification for the change. It seems to me the Government are seizing on this now as a justification. If it is the justification, flesh it out, put it in a business case but also, answer the question: why was it not there originally as a justification?

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

I thank the hon. and learned Lady for her intervention. First, some of the details I am about to take the Committee through were mentioned on Second Reading. My right hon. Friend Dr Lewis and I expressly mentioned the possibility of people returning from conflict zones such as Syria. In response to repeated interventions from Yvette Cooper, I gave the justification in general terms, which have been borne out subsequently by the detailed evidence.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

The problem of people returning from Syria, which I accept, is a significant one that has existed for a number of years. Is the Minister saying in terms that the current TPIM regime—the current standard of proof—has prevented the security services from dealing with the problem of people returning from Syria? If that is what he saying, he should say so in bald terms, rather than seizing on something after the fact to justify this significant change.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

I will finish dealing with the hon. and learned Lady’s previous intervention and then I will answer her second one. She was asking why the case was not made more fully on Second Reading. I said it was made in general terms and the example of Syria was given. I will come on to that in a moment. The reason we have witnesses appearing before Public Bill Committees is precisely to serve this purpose: to bring out the detail and let them give their testimony to the Committee and the House. The detailed testimony given by Assistant Chief Constable Tim Jacques on the morning of 25 June is precisely why we have witnesses. It is serving the function it should have done, which was to give the Committee and the House the details they asked for on Second Reading and which hon. Members are asking for today.

I turn to the detail of Tim Jacques’s testimony and give the specific and precise reasons why he and the security services believe this is important, one of which is the Syrian example, which I will elaborate on in just a moment. Assistant Chief Constable Jacques’s first reason for why the lower standard of proof is necessary to protect the public is that we may find that there are individuals whose

“risk profile is rapidly increasing”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 20, Q49.]

If someone’s behaviour is quickly changing they may go from posing a potential threat to an actual threat to actually offending very quickly. He says that it is that rapid change of circumstances that necessitates a lower burden of proof. He then goes on to give a second reason, which was mentioned by the hon. and learned Lady a moment ago, which is the threat of somebody returning from overseas. He says that where someone has been overseas—for example, in Syria—it is extremely difficult, as one can readily imagine, to gather evidence that would meet the criminal standard of proof beyond reasonable doubt.

Clearly, if someone has been operating in Syria, there will typically be no signals intelligence or eye-witness testimony, because it is very hard to get witnesses from Syria to come here, and there will be no results of other forms of surveillance: all the evidence that would normally be presented in a criminal prosecution enabling somebody’s guilt to be established beyond reasonable doubt. It is difficult—impossible, I would say—to achieve that when someone is returning. That is why, in those thankfully relatively rare circumstances, we might need to work to a lower standard of proof and reasonable suspicion in order to protect the public.

The hon. and learned Lady essentially said that people have been going to Syria for five years now, and indeed returning for four or five years. We heard in evidence from both Jonathan Hall and Tim Jacques that, historically, there have not been any examples where a TPIM was desired but not obtained owing to the burden of proof. In fact, that observation applies more generally and not only to the Syrian example. Let me directly answer the criticism immediately.

It is true, I accept, that there have been no occasions historically when a TPIM was desired but not granted owing to the burden of proof that currently exists. However, we are not seeking simply to cater for circumstances that occurred historically; we seek in this legislation, and as parliamentarians, to cater for risks that may arise in the future that may not have arisen in the past. The absence of such risks having happened in the last five or six years does not establish definitively that they will not happen in the future—such a risk might arise in the future. Indeed, the assistant chief constable effectively said that he thinks that is possible, which is why he is advocating for the lower burden of proof.

We must cater for risks, not historical certainties. That is why the evidence of the assistant chief constable is so important and why the Syrian example is a good one, even though historically we have not been inhibited. We might be in the future. A few moments ago, we heard a powerfully eloquent description of the devastating consequences that follow when the public are not protected.

Assistant Chief Constable Jacques laid out a third reason in his evidence concerning sensitive material—material that is gathered covertly, or the disclosure of which might prejudice investigations or the security services:

“The disclosure of sensitive material would potentially compromise sensitive techniques and therefore make our job and that of the Security Service harder”.––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 21, Q49.]

He says that, with a lower standard of proof, that disclosure would be required less frequently so there would not be such a requirement to disclose sensitive information.

In answer to a question posed by both Opposition Front-Bench shadow Ministers, Assistant Chief Constable Jacques laid out the business case powerfully in those three examples that I have just taken the Committee through.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

I have the greatest respect for the assistant chief constable and for the assistance he was able to give the Committee, but in a court of law we would call that hearsay evidence. He is not actually dealing with seeking TPIMs. The Independent Reviewer of Terrorism Legislation, who is charged by the Government with the responsibility of overviewing all this, said that there is no cogent business case.

Can the Minister explain why the independent reviewer is not convinced by the assistant chief constable’s three examples? Mr Hall said that he has had discussions with the Government—presumably the Government have put those examples to him if they are so central to the business case. Can the Minister explain to us why the Independent Reviewer of Terrorism Legislation is not convinced that there is a cogent case?

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

I was not present at those meetings, so I cannot comment on what was discussed. However, the hon. and learned Lady has herself already observed that Assistant Chief Constable Jacques’s critical testimony was ventilated in such details—publicly at least—for the first time in his evidence; of course, Jonathan Hall gave evidence just before Assistant Chief Constable Jacques. As I say, I was not privy to the conversations that took place between Jonathan Hall and my colleagues in the Home Office, so I do not know what case was presented to him, but I do know that the case presented by Tim Jacques was, at least in my view, compelling.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

Before I move on to the second leg of my support for these measures, I will of course give way to the shadow Minister, who wants to intervene.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

To echo what the hon. and learned Member for Edinburgh South West said, the evidence of the assistant chief constable was incredibly useful—he is hugely respected across law enforcement. But he was one witness. He made it clear, in response to the Minister’s questions about TPIMs, that it was the view of the security services that the lowering of the standard of proof might have “utility” when it came to the examples that he outlined—but he was also clear that the police are not the applicant.

I caution the Minister about hanging the Government’s rationale on the evidence of one witness, who also agreed with points made by the hon. and learned Member for Edinburgh South West and me: he said clearly that in no case that he knew of had a TPIM been refused based on the current standard. I pushed him on making the public safer, and he was clear that that was not solely on the basis of the proposed measure—the lowering of the standard of proof—but on the package more generally, on TPIMs and sentencing. We need to do justice to the assistant chief constable without dissecting his evidence, all the while acknowledging his incredible service and expertise on such matters.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department 10:15 am, 7th July 2020

I have made this point already, in response to an earlier intervention, but at question 50 I asked the assistant chief constable expressly about TPIMs and the burden of proof. He expressly said that it would make the public safer—he was talking there not about the generality of the Bill, but about TPIMs specifically. Of course, I welcome the fact that in more general terms he feels that the Bill will help, but that question related specifically to TPIMs.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

The assistant chief constable said:

“That is the view of the security services. We are not the applicant, but that is their clear view.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 21, Q50.]

Although he was not applying for TPIMs, he is a senior police officer involved in counter-terrorism policing, he had been briefed by the security services before giving evidence, and he is responsible for monitoring and managing TPIMs subsequently. To dismiss his evidence as hearsay—the hon. Gentleman did not, but the hon. and learned Member for Edinburgh South West did—is rather unfair, given that he had the briefing from the security services in front of him when he gave evidence and given the close role he and counter-terrorism police play in managing and monitoring TPIMs.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Spokesperson (Justice and Home Affairs), Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Home Affairs)

There is no insult in saying that someone’s evidence is hearsay; it is simply that they are giving evidence about what someone else has told them. I am not undermining the witness in any way, but he is only giving evidence about what he has been told. Let us look at what he said at question 58, when I said:

“So where there is a rapidly escalating situation or where there is a need to manage sensitive material, we already have available to us the option of a new variant TPIM without changing the standard of proof.”

He responded:

“Well, a TPIM is a TPIM. We have the option of a TPIM to manage that case, yes, as it currently stands. MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 23, Q58.]

As I said to him, that is an important answer, albeit that it is hearsay. He is telling us that MI5 has said, in respect of two of the examples that the Minister is giving us as a justification for this significant change, that in no case so far has the current standard of proof been a blocker. Does that not perhaps explain why we have three distinguished Independent Reviewers of Terrorism Legislation supporting the existing standard of proof, rather than this Government’s variation?

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

I have already accepted, a few minutes ago, that there have not been any historical examples. That was clear from the evidence. I also said, in response to an earlier intervention on Syria, that just because there have not been any historically—we are talking about very small numbers—does not mean to say that there will not be such a situation in the future. We need to guard against potential future risk. That is what we seek to do.

Let me go on to the second plank of my rationale for why this proposed burden of proof is appropriate. It is because there are significant mitigants to any risks of abuse of process, miscarriages of justice or inappropriate behaviour. I rest my case for those mitigants on two legs or stands.

The first is that we do not need to hypothesise about how a Government—any Government—might behave with access to TPIMs, or control orders, with a lower standard of proof. As the hon. Member for St Helens North pointed out, we had control orders, passed by then Labour Government in 2005, which had the lower standard of proof—the reasonable suspicion. Those persisted for approximately six years, from 2005 to 2011. During that period, 52 control orders were issued. On the morning of 25 June, I also asked Jonathan Hall whether he was aware of any misuse in that six-year period—I said seven then, but it is six—when the lower burden of proof prevailed. He said:

“I am not aware of any misuse”.––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 7, Q9.]

I also asked him whether he was aware of the Government ever having misused the powers or used them without care and circumspection; I actually asked whether, as far as he could see, the Government had used the powers “with care and circumspection”. He said:

“I am quite satisfied that the Government are doing that.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 6, Q5.]

So the control orders, as they were then, operated with a lower standard of proof for six years with no abuse or misuse identified.

The hon. and learned Member for Edinburgh South West raised a question about ECHR article 5 compliance and whether the lower burden of proof would potentially infringe that. I checked that during the debate. During the six years when 52 control orders were used, at no point, despite some challenges, were they found to be not compliant with the ECHR. The Committee can satisfy itself that when they operated previously, they did so without abuse and were not struck down as an instrument as a whole by the court.

The second set of mitigants is to be found in the Terrorism Prevention and Investigation Measures Act 2011, in which the Committee probably knows there are five conditions, labelled A to E, that have to be met for a TPIM to be granted. We are seeking to amend only one of those five conditions, condition A, which pertains to the burden of proof in so far as it touches on terrorism-related activity.

The four other conditions still have to be met and are not being changed by the Bill. For example, condition C requires the Secretary of State to reasonably consider “that it is necessary”—I labour that word “necessary”—

“for purposes connected with protecting members of the public from a risk of terrorism”.

The Secretary of State must be satisfied that there is necessity. It must not be done on a whim or because it might or may be required. It must be necessary. That is in section 3(3) of the 2011 Act, which is not being amended.

In section 3(4), condition D makes a similar point that the Secretary of State must reasonably consider

“that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity”.

Again, it uses the word “necessary”—not “possible”, “maybe” or “might”, but “necessary”. It is a very strong word.

Moreover, in section 3(5), condition E says that the Secretary of State must seek permission from the court, as described further in sections 6 and 9 of the Act. They must go to a court of law and make sure that it feels it is reasonable that a TPIM should be granted. At the outset, there is judicial oversight of the process. The Home Secretary cannot, just by a stroke of a pen, give out a TPIM and thereby restrict someone’s liberty. That is a serious matter, as the hon. and learned Member for Edinburgh South West has already said. There is judicial oversight of the process. I say again that four of the five tests laid down in section 3 of the 2011 Act are not changing. They will stay the same.

Moreover, those subjected to a TPIM have a right of appeal against it. The 2011 Act, which, again, is not being amended, provides that they can go to a court if they feel that a TPIM has been unreasonably imposed, unreasonably varied or unreasonably extended. They can ask a court for relief and the court proceedings can carry on according to the principles used in judicial review. Beyond the simple question of burden of proof around terrorist-related activities, there are those further protections in the Bill and from the courts.

I will conclude, Mr Robertson—always welcome words during one of my speeches—by saying that the powers are used sparingly. There were 52 of the old control orders in total over six years, but at any one time no more than 15 were ever in force. As the shadow Minister has said, as of November last year there were five TPIMs in force, although I think that we heard in evidence that the number might subsequently have gone up to six.

We use such powers very sparingly, for the reason that the hon. and learned Member for Edinburgh South West mentioned: they touch on an individual’s liberty. However, they are occasionally, in the words of the Act, “necessary”—necessary to protect the public, necessary to protect people such as Louise who might otherwise be killed, injured or traumatised and necessary to protect our fellow citizens. It is for those reasons of necessity that I respectfully say that the clause as drafted is an integral and an important part of the Bill.

Photo of Conor McGinn Conor McGinn Shadow Minister (Home Office)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 ordered to stand part of the Bill.