Counter-Terrorism and Sentencing Bill — House of Commons, 2020-06-09
Topic: Law and Crime
Robert James MacGillivray Neill (Conservative, Centre-right): My hon. Friend, who has much experience in these matters, makes a very good point Ultimately, most of us who believe in the rule of law will always prefer to see prosecution and conviction as the best possible means of dealing with this issue. It is not always possible, but we still need to have important safeguards in whatever regime there is. I am sure the Government recognise that, but we really do need to get it right, for everybody’s sake. I hope that the Lord Chancellor will reflect on how best to make the case for this and to justify what is, on the face of it, a change that may well have much merit—one wants to give the benefit of the doubt—but that could perhaps do with a little more amplification as the Bill progresses. The other matter that I hope that the Lord Chancellor might bear in mind as the Bill goes forward is the need for some form or other of proper judicial scrutiny of these matters. I recognise that there are plenty of safeguards in the regime that is proposed in the Bill. However, Mr Hall makes another interesting point in one of his notes: that there has been a rather troubling development of the opting out of judicial review by some suspects subject to TPIM orders. That provision was intended to ensure that there was some oversight. It is up to them whether they do that. They may not do it necessarily for the very best of motives, given the rather warped ideological nature of what drives them, but it does ironically remove a means by which best practice can be brought in hand That is why Mr Hall suggests that a solution would be for the Secretary of State to seek the High Court’s permission for any extension beyond a two-year length of the TPIM, in the same way that he currently does when the TPIM is first made. It would be perfectly proper to make that longer TPIM, and I can quite conceive of many circumstances when it is, but perhaps the modest requirement of an application to the Court would not be onerous in the circumstances but would put in a sensible safeguard for all such cases If we go beyond the two-year length of a TPIM, perhaps we should also be looking at thinking again, at some point, about what is the burden of proof. The greater the level of restriction, as the Law Society has observed in one of its briefings, perhaps the greater the burden of proof that should be required. For example, if there is a set of conditions that includes relocation, is it perhaps reasonable to expect a greater degree of care to be taken on the burden of proof in a matter of that kind, as with other matters Those are matters of important detail. I am sure that they need not detain the progress of this Bill on Second Reading, but they are not, I submit, something that we should lose sight of Finally, on polygraphs, I accept that they have been used in relation to the release of sexual offenders, but the science on them is still very uncertain. There remain concerns among lawyers and other practitioners as to their dependability in all circumstances, which is why, after all, they are not used as evidence in criminal cases for understandable reasons. I would be worried if we became over-reliant on polygraphs without some sort of proper check and balance. When they were brought in, certainly in England and Wales, in relation to sexual offenders, they had been piloted first. It will not be possible to pilot them in this case, so is there not a strong case for post-legislative scrutiny? That is the view of the independent reviewer in his note, and it seems to fit with good practice in terms of legislation as well Those are my points, which I hope will be taken in a constructive spirit by the Government. As someone who supports the Bill, I want to get it right. We probably do not want to have to revisit burdens of proof and mechanisms any more than we need to in future. It must be in everybody’s interests to get it right this time and make it stick for as long as this awful threat persists. I will certainly support the Bill on Second Reading, but I hope that we can have constructive engagement on the detail as we go forward.