Counter-Terrorism and Sentencing Bill — House of Lords, 2021-02-09
Topic: Law and Crime
Brian Paddick (Liberal Democrats, Centre to centre-left): My Lords, as my noble friend Lady Hamwee has explained, we wish to see the current arrangements for terrorism prevention and investigation measures remain as they are, despite having concerns about them existing at all. As the name implies, these measures were designed to prevent terrorism while an investigation takes place. As the noble Lord, Lord Anderson of Ipswich, has explained, intelligence is often received in relation to suspected terrorists that cannot be used in a criminal trial, either because it is not legally admissible or because it would reveal the source and potentially put the source’s life in danger. That needs to be balanced against Article 6 of the European Convention on Human Rights, enshrined in British law by the Human Rights Act 1998. It requires that, in the determination of a person’s civil rights and obligations or for any criminal charge against an individual, everyone is entitled to a fair public hearing within a reasonable time by an independent and impartial tribunal established by law—this despite what the noble Lord, Lord Faulks, has said about control orders withstanding such challenges in the past The answer to these potentially conflicting obligations is TPIMs, which are supposed to be a means of protecting the public while an investigation secures the evidence necessary to convict a person of a criminal offence. They were not intended to be indefinite house arrest without trial. As we will see in the groups that follow, the Government seek to overturn this principle of a time-limited safeguarding tool during an investigation into effectively indefinite deprivation of human rights without trial The conditions imposed by a TPIM can be draconian, as the noble Lord, Lord Anderson of Ipswich, said. The subject can be told where to live and have to tell the authorities about anyone else who lives with them. They may need to get permission to stay somewhere else, they may not be allowed to travel outside a specified area without permission, they may have to surrender their passports and they may be prohibited from going to a particular place or area without permission or without being accompanied by a police officer. The authorities can have complete control over the subject’s bank and credit card accounts and they can be told that they cannot possess cash over a certain amount. The authorities can have complete control over the sale or transfer of any property that the subject has and complete control over transferring money to anyone, as well as complete control over use of phones, computers and any other electronic communication device owned or used by the subject or by anyone else who lives with the subject—these measures affect not only the subject but their innocent loved ones as well Authorities can have complete control over who the subject meets or communicates with and over where the subject works or studies. The subject may be required to report to a specified police station at specified times and to have their photograph taken at whatever time and location the Secretary of State requires and they can be electronically tagged. On the one hand, noble Lords will understand why the authorities might want to impose such conditions if the person is believed to be a terrorist threat, but they will also understand that TPIMs amount to interference with some of the most fundamental human rights of the subject These restrictions on someone’s freedoms and human rights have echoes of the sort of restrictions imposed by ISIS when it declared territory it once held a caliphate. As the noble and learned Lord, Lord Goldsmith, said in a Guardian article written when this House was considering the Counter-Terrorism Bill on 13 October 2008, "we should fight to protect the liberties the terrorists would take from us, not destroy them ourselves." The first element the Government want to change through the Bill, which is covered by this group of amendments, is the standard of proof required before someone can be subjected to a TPIM. Originally, as we have heard, in the Terrorism Prevention and Investigation Measures Act 2011 the Secretary of State had to "reasonably believe" that the subject is or has been involved in terrorism-related activity. This was changed by the Counter-Terrorism and Security Act 2015 to the Secretary of State having to be satisfied "on the balance of probabilities" —the standard required for a court to be satisfied in a civil case. The Government want to change this standard of proof to "has reasonable grounds for suspecting" A police constable may arrest someone when he has reasonable cause to suspect, and I can tell the Committee from my own personal and professional experience that this is a very low bar indeed. Of course, we are not talking about a police officer detaining someone for a few minutes or a few hours but about restricting someone’s human rights for up to two years, or indefinitely, if the Bill passes unamended. That is a shocking and frightening prospect If noble Lords’ common sense and sense of justice are not engaged by my arguments, perhaps they will be convinced by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whom other noble Lords have mentioned. He has said: "I am not aware of cases where the authorities would like to have imposed a TPIM if the standard of proof had been lower … 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; cols. 6-7.] That is actually seven words, but I think we understand what he meant. To which, no doubt, the Government will deploy the same argument successive Labour Governments used in trying unsuccessfully to extend the period that a terror suspect could be detained by the police without charge, initially under Tony Blair’s premiership to 90 days, and subsequently under Gordon Brown to 42 days. Operational partners argued that, although limits on the period a subject could be detained without charge had not been a problem up until then, they could envisage a situation where it might be an issue in the future. I suspect that is similar to the arguments the Government will deploy here. Both times, Parliament resoundingly defeated the proposals It is important that we consider the reputation of this country throughout the world for the effective protection of human rights. We should not allow such draconian limits on people’s civil liberties to be imposed on the basis of such a low standard of proof—lower than any court employs, even in civil cases The noble Lord, Lord Anderson of Ipswich, in his Amendment 27, offers a compromise, which he is developing a reputation for, trying to steer between what is arguably necessary and reasonable and what he, not without precedent, thinks the Government might accept. He suggests in his amendment that, for the first year, while intelligence-gathering is in its infancy, a TPIM might be imposed on the Government’s standard of "reasonable grounds for suspecting". After a year, the authorities should have been able to gather sufficient evidence for the Secretary of State to be convinced on the existing balance of probabilities. I see where the noble Lord is coming from but, with the greatest of respect to him, I am with the current Independent Reviewer of Terrorism Legislation on this one rather than with the former The noble and learned Lord, Lord Falconer of Thoroton, was not only a member of the Labour Governments to which I have just referred but, from memory, was fairly central to the attempts to extend detention without trial. His Amendment 28 would substitute the standard of proof required with "on the basis of reasonable and probable grounds" I look forward to hearing his explanation of how this differs from the existing and government-proposed standards of proof, as, I must confess and with the greatest respect to the noble and learned Lord, when I wrote this speech on Sunday morning I had neither the energy nor the required determination to work it out for myself. Having finished at midnight last night, I have even less energy this evening The current Independent Reviewer of Terrorism Legislation thinks that we should leave the standard of proof where it is. We agree, which is why we believe that Clause 37 should not stand part of the Bill.