Counter-Terrorism and Sentencing Bill — House of Lords, 2021-02-09
Topic: Law and Crime
Paul Strasburger (Liberal Democrats, Centre to centre-left): My Lords, I wish to argue that Clause 38 should not stand part of the Bill. In my contribution on Clause 37, I mentioned my general worries about the TPIM regime and how it circumvents all the safeguards in the criminal justice system. Those safeguards are there for a very good reason: to ensure that our trials are fair and that we do not punish people without a high degree of certainty that they deserve it. However, for the purposes of this debate, I will focus on the process that the imposition of TPIMs follows in place of a proper criminal trial and how unsatisfactory that process is by comparison with the real thing For TPIMs, a criminal trial is replaced by civil proceedings before a High Court judge. The Government present evidence to support their case for the target person to have their liberty and their other rights curtailed. I have called them "the target person" rather than "the defendant" because they have not been charged with anything and they are completely unable to defend themselves. That is because the evidence against them is presented in private to the judge without the target person’s knowledge. They are unable to see, challenge or contradict the so-called evidence because neither they nor their lawyer is aware of it. This process, known as closed material proceedings, is a very poor substitute for a proper trial, where evidence is presented in open court and the defendant’s lawyer can challenge it, present other evidence that contradicts it and cross-examine the person who provided it I mention all this because Clause 38, if enacted, would mean that a person made the subject of a TPIM in such an unfair and unsafe manner and confined to their home and subjected to other losses of their rights could find themselves in this position indefinitely, for ever, even for the rest of their lives. That is extremely harsh treatment for someone who may be innocent and has not been convicted of any crime. This treatment is far harsher than if they had been convicted in a criminal court and been sentenced to a few years in prison. In the worlds of the noble Lord, Lord Anderson, when he was the Independent Reviewer of Terrorist Legislation: "TPIMs … are as stringent as anything available in a western democracy." He considered the case for lifting the two-year cap, as Clause 38 would do, in his report on TPIMs in 2012. He concluded that the two-year limit was an acceptable compromise because two years was a serious length of time in the life of an individual and TPIMs should not be allowed to become a shadow alternative to criminal prosecution. Indeed, the Government themselves endorsed the two-year limit and in 2015 cited the observation of the noble Lord, Lord Anderson, that there was no need to "put the clock back". The Government went further and said: "The two-year limit is a reminder that executive constraints of this kind are no substitute for the criminal process, and no long-term solution" What has changed the Government’s mind such that they wish to turn it into a long-term process? I am hoping the Minister will enlighten the House when he responds, and I hope that this time he can come up with something better than a meaningless reference to flexibility or that there is no need for it now but who knows what we might need in the future. To abolish the two-year time limit and replace it with an indefinite period of successive extensions, without even troubling the court, there would need to be a compelling operational case, would there not? However, no such compelling case has been made. In fact, no case at all has been offered by the Government, so far as I am aware. Given that fact, and given, as I mentioned earlier, the flimsy and unsatisfactory nature of the TPIM process as an alternative to our proper and fair criminal justice system, we cannot countenance allowing TPIMs to be made indefinite by means of Clause 38. It must go.