Counter-Terrorism and Sentencing Bill — House of Lords, 2021-02-09
Topic: Law and Crime
David Anderson (Crossbench, Unknown): My Lords, I will speak in this group to Amendment 30, which I have signed, together with my noble and learned friend Lord Thomas of Cwmgiedd. Clause 38, to which all these amendments relate, seeks to return in another respect to the days of control orders by removing the maximum time limit on TPIMs. Though I oppose Clause 38, as I did Clause 37 in the previous group, I would accept that the issues in this group are less clear-cut and the right solution less obvious In a report on the control order regime published in March 2012, shortly after that regime came to an end, I described control orders as an effective means of protecting the public from a small number of suspected terrorists who presented a substantial risk to national security but whom it was not feasible to prosecute. I observed a conscientious administrative procedure, coupled with close judicial scrutiny, which ensured a substantial degree of fairness to the subject. However, I added that those individuals were placed under extraordinary and intrusive restrictions; that this could go on indefinitely; that legal review was far from immediate; and that when the hearing did come around, controlled persons spent crucial parts of it excluded from the court, oblivious both of the detailed accusations made against them and of the submissions made by special advocates, who were able neither to communicate fully with them nor to call evidence on their behalf. I concluded that only in the face of strong necessity could it ever be justifiable for the individual to be placed in such a position by the state As will be the case if Clause 38 is enacted, there was no limit on the number of times a 12-month control order could be extended, so long as the statutory test continued to be met. During the currency of the control order regime, from 2005 to 2011, 15 persons were subject to control orders for more than two years—three of them for periods exceeding four years. Each of the four who had been subject to control orders for more than two years at the end of 2011 were transferred to TPIMs, where, as I recall, they served an additional two years, which was the maximum under that regime unless fresh evidence came to light—it rarely does Experience shows, therefore, that where the law has permitted it, Home Secretaries have considered it appropriate to keep British citizens who have never been convicted of a terrorist offence under these kinds of extreme constraints for periods in excess of five years. Indeed, had it not been for the introduction of the two-year limit, as originally recommended for all save exceptional cases by my noble friend Lord Carlile —my predecessor as Independent Reviewer of Terrorism Legislation—it is fair to assume that some subjects could have been detained in this way for far longer periods. That has been the experience with other, less all-encompassing executive orders, such as terrorist asset freezes. After all, who wants to be the civil servant or the special adviser to recommend the discharge of a control order, and who wants to be the Secretary of State to agree to it At the monthly TPIM review group meetings, at which all subjects were discussed, it became evident to me that the new two-year maximum limit was bringing some benefits. Since it was no longer possible for a TPIM to be used to warehouse a subject indefinitely, more serious and connected thought started to be given to an exit strategy: a suitable job, a suitable course of study, and the forging of new relationships away from the subject’s previous associates. However, as will be equally obvious, there could still be subjects who use their two years to lie low and who might still be adjudged to pose a threat when their TPIM comes to an end. That was the reasoning of those who had requested, agreed to and endorsed control orders for much longer periods than two years. I reported myself in 2013, echoing my noble friend Lord Carlile, that it was tempting to wish for longer than two years in the most serious cases If the goal is to minimise the potential threat regardless of the cost to civil liberties, the Government are justified in imposing indefinite executive detention. Yet that goal could also be used to justify warrantless searches of the home and general, suspicionless stop and search. All of us, surely, would instinctively recoil at such measures. I also note that, although they are notionally available in Northern Ireland, no control order or TPIM has, for whatever reason, ever been imposed there. I accept that TPIMs, although so far imposed predominantly, if not exclusively, on Muslims, have so far been only a minor rallying point for grievance: the numbers of TPIMs have been small, and the vast majority of British Muslims are only too glad to see dangerous extremists firmly dealt with. But the echo of internment can still be heard in Northern Ireland, nearly half a century on—a reminder that excess of zeal in this sensitive area can quickly become counterproductive There is wisdom in the words of the noble and learned Lord, Lord Clarke of Nottingham, who wrote, when Justice Secretary, in 2011: "The primary role of any government is to keep its citizens safe and free. That means both protecting them from harm and protecting their hard-won liberties." Where is the correct balance to be struck? We no longer live in times when a Conservative Government could come into power promising in relation to counterterrorism law, as they did in 2010, "a correction in favour of liberty" So my amendment does not seek a perpetuation of the status quo. Indeed, it would double the current maximum limit, in the absence of additional evidence, to four years, allowing plenty of time to work on TPIM subjects, while still requiring the authorities to focus on an exit strategy. Coupled with the amendment that I have already moved on standard of proof, or one of the other amendments in the previous group, it would represent a toughening of the present regime, while still at least attempting to combine the two imperatives that the noble and learned Lord, Lord Clarke, identified Terrorism in this country has cost us almost 100 lives since 9/11, and the threat level, although reduced only yesterday, is still "substantial". However, as this pandemic reminds us, the existence of a threat cannot by itself dictate where the balance should be struck. The balance is for Parliament, and I suggest that a maximum of four years for these unpalatable measures—tough as it undoubtedly is—gets it about right.