Counter-Terrorism and Sentencing Bill — House of Lords, 2020-09-21
Topic: Law and Crime
David Anderson (Crossbench, Unknown): My Lords, this is an important and well-prepared Bill, but not a perfect one. On Part 1, I respectfully adopt the points of sentencing so authoritatively made by the noble and learned Lord, Lord Thomas of Cwmgiedd. On Part 2, I associate myself with the remarks of my noble friends Lord Ramsbotham and Lady Prashar, and the concerns expressed by my successor-but-one as Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, regarding the removal of Parole Board discretion. If the possibility of early release can encourage good behaviour and reform, we should think carefully indeed before discarding it I will focus on the changes to TPIMs, the successors to Labour’s control order regime of 2005 to 2011, proposed in Part 3 of the Bill. For six years, I closely monitored the operation of TPIMs. Like the Government, I believe they are unfortunate necessities for a small number of dangerous terrorists who cannot be detained for long periods under criminal investigation, as in some continental legal systems, and who cannot be placed on trial or convicted, because the intelligence that identified their plotting is insufficient to meet the criminal standard or cannot be publicly disclosed without endangering a human source or vital investigation technique TPIMs are severe measures and are designed to be so. They are imposed by the Home Secretary, who, in contrast to a criminal court, is not constrained as to the nature of the intelligence material she may take into account. Measures may include, among many, compulsory relocation to towns or cities far distant from the subject’s home. Relocation is harsh but effective. Removed by the coalition in 2011, it was reintroduced, on my recommendation, in 2015 Any breach of any restriction, which would include, under Clauses 41 and 43, polygraph measures and drug-testing measures, can result in imprisonment for up to five years. Judicial review of TPIMs takes many months to come on, and since the intelligence relied on can often not be disclosed, it requires the subject to defend himself, without knowledge of the detailed case against him, through a special advocate who cannot take instructions from him That severity has, until now, been mitigated by two factors introduced by the coalition Government in 2011. First, TPIMs have a maximum duration of two years, save in exceptional cases—a limitation originally recommended by the noble Lord, Lord Carlile, in a report of February 2008. Secondly, the Home Secretary is required to have not just a "reasonable suspicion" of involvement in terrorism but "reasonable belief", on the balance of probability, as it is now expressed The two-year limit is a reminder that executive constraints of this kind can be no substitute for the criminal process and no long-term solution, even if, as I said in 2013, echoing the noble Lord, Lord Carlile, five years earlier, it is tempting to wish for longer in the most serious cases. Each of those mitigating factors, as has been said, would be reversed by this Bill Let me offer a comparator, which, while not exact, may be illuminating: the reasonable suspicion required of the Home Secretary by Clause 37, is the same standard that must be reached by a police officer to justify an arrest. Yet arrest without charge, even in a terrorist case, is tolerated in this country for only four days, extendable to a maximum of 14 days by repeated permission of the court. Noble Lords will remember unsuccessful attempts to increase that maximum to 90 and then 42 days. Yet under this Bill, the reasonable suspicions of the Home Secretary would be sufficient if she judged it necessary for the protection of the public—a judgment unlikely to be effectively reviewable in any court— to justify a form of house arrest that can persist for many years The Government now have huge experience with these orders, including their possible imposition on more than 400 people having returned from Syria to this country. So, it is significant that the Minister Chris Philp candidly accepted on Report in the other place, consistent with evidence given by Assistant Chief Constable Tim Jacques in Committee, that "there has not been an occasion on which the security services wanted to give a TPIM but could not do so because of the burden of proof."—[Official Report, Commons, 21/7/20; col. 2093.] We should investigate whether there is a better balance to be struck consistent with the enhanced public protection that the Bill aims to provide. Options, as the independent reviewer has suggested, include an upper limit in excess of two years and the retention of the current standard of proof, if not in all cases then at least beyond the initial period, which would take care of any valid concerns there may be about urgent cases I hope that the collective wisdom of the House will be brought to bear on the Bill in this respect.