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Counter-Terrorism and Sentencing Bill

Volume 691: debated on Monday 22 March 2021

Consideration of Lords amendments

Clause 23

Terrorism sentence with fixed licence period: Scotland

With this it will be convenient to consider the following:

Lords amendments 2 to 17.

Lords amendment 18, Government motion to disagree, and Government amendments (a) to (e) in lieu.

Lords amendments 19 to 77.

We had a very constructive debate on the Bill when it passed through the House last year, and I am delighted to speak to it again this evening.

Lords amendment 18, in the name of Lord Anderson of Ipswich, proposes a new upper time limit of four years for the duration of a terrorism prevention and investigation measure. The Bill as originally drafted sought to remove the current two-year limit and instead enable a TPIM to be renewed annually for as long as necessary. Having carefully considered the amendment tabled by Lord Anderson and consulted with him, the Government, in disagreeing with the amendment, have tabled amendments (a) to (e) in lieu, which set a five-year limit instead of a four-year limit.

I am given to understand that the noble Lord Anderson is content with that, and we believe that it represents a reasonable compromise between a desire to set a reasonable limit on the maximum duration of TPIMs and protecting our fellow citizens. We heard evidence from Assistant Chief Constable Tim Jacques during the passage of the Bill that occasions have arisen when there has been a cliff edge and people have posed a risk to the public after the expiry of a TPIM. The Government believe that a five-year hard time limit is, ultimately, a reasonable compromise.

Of course, TPIMs are reviewable on an ongoing basis. They are reviewed and renewed, and if somebody ceases to be a threat, the TPIM will be discontinued. Under the Terrorism Prevention and Investigation Measures Act 2011, there is not only an ability to have regular review hearings under section 9 but a right to appeal to the courts under section 16 for people wishing to challenge a decision for their TPIM notice to be extended. Given Lord Anderson’s agreement that five years rather than four is reasonable, I hope that the House will consent to our proposed amendments (a) to (e) in lieu.

Lords amendment 17 was a concession made in the Lords, and the Government will therefore support it. It elevates the burden of proof required before imposing a TPIM from reasonable suspicion, as originally proposed in the Bill, up to reasonable belief, which is a slightly higher standard of proof. Again, I hope the House will agree that this represents a reasonable compromise between this House and the upper House. The Government believe that with that slightly higher standard of proof, we can still keep our fellow citizens safe, and we feel that Lords amendment 17 strikes the right balance. We will therefore be supporting it, and it is backed up by Lords amendment 19, which creates an ongoing annual review by the independent reviewer of terrorism legislation of the use of TPIMs, commencing for the first time next year.

I do not want to detain the House long with the other amendments, because there are a total of 77 and I do not wish to go through all of them one by one. [Hon. Members: “Go on!”] I can hear that there is enthusiasm for that, but I am going to disappoint the audience by not going through each one individually. I will just say that a number of them relate to the devolved Administrations. In particular, we have removed the polygraph clauses from Scotland and Northern Ireland, because the legislative power already exists there, should those Administrations wish to use it. We have also made some technical changes concerned with single terming in Scottish law, and some technical amendments that are consequent on the passage of the Police, Crime, Sentencing and Courts Bill.

In summary and conclusion—always a popular phrase—I think we have now arrived at a good set of measures, which will protect the public while also respecting and protecting fundamental rights. I therefore commend these amendments to the House.

It is a pleasure to follow the Minister, and I will not detain the House long or speak to each of the 77 amendments. However, there are some issues that I want to raise. I will start by thanking the Minister; I know we had a robust exchange today across the Dispatch Box, and I am sure we will have many more, but his conduct in speaking to and informing me over the course of not just this weekend, but the passage of the Bill, has been exemplary. I want to acknowledge that.

Clearly, we also want to thank those across counter-terrorism, policing and the security services and all their partners who selflessly put themselves in harm’s way to advance the effort to keep people safe. Following the horrific events of Fishmongers’ Hall, Streatham, Reading, and the Manchester Arena attack and others like it, I think that everyone across this Chamber acknowledged that there was a clear need for a change, both in legislation and approach. These Lords amendments, and particularly those that the Government have accepted, speak to the heart of that, and it is why we welcomed and supported this Bill in principle all along. It has returned to us from the other place in better shape, and I am pleased to see that some of the proposals that we made in Committee have influenced it.

However, even as amended, it is arguable whether any of what the Government have brought forward in the Bill would have had a significant role in preventing any of those attacks. I do not think there are many new tools here, if any, that the Government did not already have at their disposal. Since the passage of the Bill began, we learned that the perpetrator of the Fishmongers’ Hall attack was deemed a high-risk, category A prisoner before his release, and that there was intelligence suggesting he might be planning an attack. We know that the perpetrator of the Reading attack had been released from prison only two weeks previously, following a 17-month sentence for affray and assault, raising concerns about the influence and consequences of radicalisation in prisons, and that the ongoing inquiry into the Manchester Arena attack has already identified some serious questions about how terrorist suspects are monitored, as well as aspects of security around major events. We know that the number of offenders on licence for terrorism-related convictions recalled to prisons is steadily rising for 2020; up to just June of that year, it had doubled from what it was a decade before. That is why it was surprising for me to find out that the Government do not have any idea how many terrorist suspects are rearrested following their release after previously being arrested or charged.

On the specifics of the amendments, particularly Lords amendment 17, Lords amendment 18 and amendments (a) to (e) in lieu, the Government initially rejected our call for a review of so-called lone wolf terrorists last summer. We have since learned that they have, in fact, conducted one, but they are not willing to share the results or make clear the impact or actions that have come out of it. I have asked for a briefing on it and have not heard back. I do not think that is in keeping with my experience of my relationship with the Minister and his colleagues, and I hope that we can find a way to resolve that. [Interruption.] The Minister says from a sedentary position that it is a different Minister. He is right, but it is the same Department, and I trust that now and again they cross each other’s paths and liaise on matters relating to the Home Department.

We note the announcement in last week’s integrated review that the Government intend to set up a new counter-terrorism operations centre, but there is nothing in this Bill about that, and we have little detail about how it fits into current structures, where it will be based, who it will be accountable to and what it will do. Of course we then have the ongoing review of Prevent. Things move quickly in the sphere of counter-terrorism, and it is important that the police, the security services, their operational colleagues, this House and, above all, the British public have confidence that the Government are adapting to emerging threats and, indeed, pre-empting them. Tough talk is fine, but we need to see it matched with tough action.

In Committee, we tabled amendments that would, for example, have led to additional judicial oversight and an even higher burden of proof, and compelled the publication of an exit strategy for TPIMs. I think I argued rightly that it is not in the interests of anyone to allow individuals to remain on TPIMs indefinitely, not least in terms of bringing them to justice.

On the issue of the burden of proof, we want TPIMs to be robust but flexible. That is why we struggle to see the logic in lowering the standard of proof, whether from a procedural, administrative or operational perspective, because no prior TPIM request had been rejected at that threshold, proving that it was no impediment. That is why we tabled an amendment that would have raised the standard of proof, like the Government are proposing now some nine months later, to try to find a middle way on “reasonable and probable grounds”. The provisions before us now effectively retain that higher standard, and of course we welcome that.

We acknowledge the work of colleagues in the other place on Lords amendment 18 and the amendments in lieu in the Minister’s name. We welcome the fact that the Government have responded to our concerns and those raised by hon. Members across this House and, indeed, those in the other place, accepting the general principle of Lord Anderson’s amendment but making the limit of a TPIM notice five years rather than four. We accept that; it is a good concession. As I said before, however, we will endeavour to monitor its workings and impact as we move forward.

Again, we acknowledge the Government’s response to issues raised about the use of the polygraph. That is welcome too, and I appreciate the Minister’s engagement on that with the official Opposition and colleagues from other parts of the UK.

Finally, we welcome Lords amendment 19. We believe that the framework around TPIMs will undoubtedly be improved and enhanced by the input of the independent reviewer of terrorism legislation.

We will always be uncompromising in tackling terrorism and, in that spirit, willing to compromise and work constructively with the Government. That has been our approach throughout the Bill’s passage, and it is good to see that, in large part, the Government have listened to our concerns. However, I raise those questions, particularly because, as the Minister will be aware, this is a fast-changing environment and we need to be responsive. Getting that right is of the gravest importance for us all. Alongside scrutinising and, as appropriate and without apology, criticising the Government, I will always commit to working together where we can in this endeavour.

I have been encouraged by those here physically who tell me that they will make short contributions to try to do this without imposing a time limit. May I encourage those participating remotely, if they have prepared short speeches, to stick with the speeches they have prepared?

I shall be as short as comes naturally to me, Mr Deputy Speaker.

This is a very important Bill, because the topics are of profound significance to every citizen of this country. It is a difficult and sometimes very fine balance that has to be achieved between the key obligation of any Government to protect the citizen, and our commitment to the rule of law, due process and sensible and rational sentencing in dealing with people who are suspected of being, or have been, involved in the gravest of offences. The endeavour to get it right was very important. I think the Bill has been improved by the scrutiny. I, too, thank the Minister for his approach—it is a pleasure to follow him and the hon. Member for St Helens North (Conor McGinn) —and I think that we have got to a sensible place. I was grateful for the Minister’s briefing to me about the Government’s thinking on the Bill. As he knows, I have raised the two issues that we are discussing tonight on earlier occasions. I am grateful to the Government for listening and for the tribute to the noble Lord Anderson of Ipswich, who has vast experience in this field. I am pleased that the Government have taken on board the genuinely felt views and experience of many practitioners in the field, and I think that we have ended up in a sensible place of compromise.

The position on burden of proof is recognisable and entirely coherent, and I hope that it can now be sensibly interpreted by the relevant authorities and courts whenever necessary. It still provides a significant hold, as the Minister said, in a number of other ways to deal with the matter. The five years also seems to be a sensible compromise.

I hope that we can now send the Bill forward for Royal Assent, get it on to the statute book and make sure, above all, that we thank those in the security services and the legal system who deal, day to day, with grave and pressing matters on our behalf, sometimes in ways that cannot be seen and are not always recognised, and we make sure, where due process has to happen and we have to take exceptional measures, which are not within the norm of the way that we would deal with these things—as TPIMs are not—that we get the balance right. Efforts have been made on both sides to do that, and the Bill is therefore welcome for the way in which it provides for a balanced, constructive way forward.

I want to make just three short points, including on the standard of proof required for TPIMs and on the number of extensions that can be granted. First, however, it would be appropriate for me to start by acknowledging that many of the Lords amendments that we are considering tonight, though perhaps not speaking about, respond to concerns about how the Bill would apply to Scotland. That includes, as the Minister said, concerns about polygraph testing and the calculation of release dates. These concerns were raised previously by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), my hon. Friend the Member for East Lothian (Kenny MacAskill) and by the Scottish Government through our Justice Secretary, Humza Yousaf. I welcome the fact that UK Ministers and officials have engaged with those concerns and that a set of amendments has been agreed during the House of Lords proceedings that is acceptable to both Governments. I thank everyone involved for their work on that. That meant, of course, that legislative consent was granted by the Scottish Parliament.

Secondly, turning to TPIMs and the number of times that they can be extended, both Lords amendment 18 and the amendment in lieu are clearly better than the Government’s original position of having no effective upper limit on extensions. However, it is still worth taking a step back and reflecting on the fact that, either way, we will now be doubling, or more than doubling, the length of time that a person can be made to live under really serious TPIM restrictions, while at the same time lowering the standard of proof for imposing them. That still is concerning.

As Lord Anderson said in the House of Lords, there is a danger of TPIMs becoming a more attractive option to the authorities in prosecution. Meanwhile, the warehousing of TPIMs subjects risks becoming the norm in place of genuine attempts to develop and implement exit strategies. To my mind, the four years provided for in the Lords amendment is way more than a sufficient concession to the Government already. For the Government to push for still longer shows a bit of a tin ear to the real and genuine concerns about the nature of these orders. However, with the Opposition having decided to compromise and with Lord Anderson reportedly content, there is no need to divide the House.

Finally, and similarly, the Government and the official Opposition have also previously agreed amendment 17, setting the standard of proof for a TPIM measure as reasonable belief. Again, as we have heard, that is another compromise. It is not as low as reasonable suspicion but not as robust as the balance of probabilities. I believe that the very real concerns about the appropriateness of these standards of proof, raised previously by the Scottish National party, have still not been properly addressed. Those accepting the compromise amendments in the Lords suggested that the difference between reasonable belief and balance of probabilities would be a fine one. I acknowledge that there are very significant legal minds who are content with that compromise, yet, as the Government’s explanatory notes make clear, and as the Minister made clear in his speech, reasonable belief is clearly a lower standard.

As my hon. and learned Friend the Member for Edinburgh South West said at an earlier stage of the Bill, the case for lowering the standard of proof required

“has not been made out”.—[Official Report, 21 July 2020; Vol. 678, c. 2085.]

Indeed, Jonathan Hall, QC, the independent reviewer, remarked in his evidence to the Public Bill Committee:

“If it is right that the current standard of proof is usable and fair, and I think it is…if it ain’t broke, why fix it?”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 7, Q6.]

My colleagues and I agree with the independent reviewer and regret that the Government and the official Opposition do not at this stage. Instead of dividing the House, we will have to monitor the use of TPIMs ever more closely than before.

I, too, will speak briefly about TPIMs and the five-year limit. I listened very carefully to the Minister’s speech and the one thing that he did not offer in respect of the extension from four years to five was any actual evidence or justification. It says a lot about the way the Government do business that they seek always to expand the scope of any provision just because they can, rather than because they have any good reason for it.

My noble Friends in the House of Lords tabled an amendment for a two-year limitation on TPIMs, so the move to four years was already a significant compromise. The Minister has not brought forward any reason or evidence to justify the extension to five years, other than the fact that they can.

Like the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) has just said, however, it is not my intention to divide the House this evening, but it is worth putting down a marker. I do not think the Minister was in the House when the issue of control orders was in play, which led eventually, after some judicial intervention, to the creation of TPIMs. It seems to me that by constantly wishing to extend the boundaries of TPIMs, to lower the standard of proof and to extend the period for which they can be introduced, the Government run the very real risk of returning to the courts at some stage. We will eventually be forced back here again because the Government have insisted on acting without proper evidence or justification.

That said, the Government will clearly proceed as they choose tonight, but I fear that this is not the last we will hear on the subject.

I call Jim Shannon via video link. [Interruption.] No, so let us go to Ben Everitt in the Chamber. We will go back to Jim Shannon if we can establish a proper audio link.

Thank you, Mr Deputy Speaker. Can you hear me okay? [Laughter.]

This is a genuinely important Bill, because those who commit serious acts of terror must be met with the full weight of the justice system. Those who take lives in callous attacks on our streets should face sentences that match the severity of the crimes they commit.

I am pleased to say, as a member of the Bill Committee, that the Bill ensures that where offenders do not receive a life sentence, they will spend a minimum of 14 years behind bars. More importantly, it recognises that dangerous offenders who commit the most serious offences should not have the prospect of early release.

I am pleased that we have found a compromise on TPIMs, because the new measures in the Bill on TPIMs notices are a tool of last resort, but they will ensure that the safety of the public is paramount.

Terrorism is a malign force that is ever changing and ever harder to fight with the tools of the past. This legislation will strengthen our hand against new threats, with stronger sentencing, improved monitoring and more agile tools. I imagine we all wish that the Bill were not necessary, but as long as these threats exist, we need the wherewithal to tackle them and this Bill provides it.

I am afraid we have not been able to establish the link with Jim Shannon, so we will go straight to the Minister.

I think I can say with some confidence that we will hear from the hon. Member for Strangford (Jim Shannon) on another occasion, which I look forward to very much.

May I take this opportunity to put on record my thanks, and I think the thanks of the whole House, to the security services and the police, who do so much to keep us safe in what are often very difficult and dangerous circumstances? I also thank the shadow Minister, the Front Bench spokesmen for the Scottish National party and the other parties, and the Chair of the Justice Committee for the very constructive way in which they have engaged in the passage of the Bill. I will respond briefly to one or two points that were raised.

The shadow Minister was looking for briefing on, I think, lone actors. The Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire) would be the Minister to give that briefing. Obviously, he has had some health problems recently, but I hope that, through his private office, we can get that arranged as soon as he is back to his regular duties.

One or two questions were asked by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) about the five-year time period. I would emphasise that there are very few TPIMs in use. At the time we took evidence last year there were only six in use. Moreover, the subject has a right of appeal, as I said, under section 16 of the TPIM Act, so there are protections in place.

The hon. Gentleman also posed a question about evidence on the need for five years, rather than four years. As the shadow Minister will recall, we took evidence from assistant Chief Constable Tim Jacques, who said that there is a risk if the TPIM is terminated too early and somebody slips out. It takes time then to re-gather evidence to reimpose a new TPIM. He mentioned two examples: one where it took 12 months and another where it took 16 months. We are very keen to avoid that sort of situation, so I think there is good evidence.

Let me conclude by saying that the Bill is a very important measure. It constitutes decisive action to keep our fellow citizens safe from the scourge of terrorism. We saw in Streatham, at Fishmongers’ Hall and elsewhere how much of a threat former terrorist prisoners can pose on release. The Bill is designed to protect the public from those risks. I commend it to the House.

Lords amendment 1 agreed to.

Lords amendments 2 to 17 agreed to.

Lords amendment 18 disagreed to.

Government amendments (a) to (e) made in lieu of Lords amendment 18.

Lords amendments 19 to 77 agreed to.

Sitting suspended.



That the Order of 2 February 2021 (Air Traffic Management and Unmanned Aircraft Bill [Lords] (Programme)), be varied as follows:

(1) Paragraphs (4) and (5) of the Order shall be omitted.

(2) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion two hours after the commencement of proceedings on the Motion for this Order.

(3) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion three hours after the commencement of proceedings on the Motion for this Order.—(James Morris.)