Counter-Terrorism and Sentencing Bill
Public Bill Committee, 25 June 2020.
Laurence Robertson (Conservative, Tewkesbury)
Before we begin, I have a couple of housekeeping points to make. Please make sure that electronic devices are on silent. I am afraid that tea and coffee are not allowed; water is, along as it has not been near a tea bag or any coffee granules. Social distancing must be observed. Our Hansard reporters would be grateful if Members could email any electronic copies of their speaking notes to hansardnotes@parliament.uk. Please do remove jackets at any point under my chairmanship as we proceed through the Bill.
We will first consider the programme motion on the amendment paper. We will then consider a motion to allow us to deliberate in private briefly, before moving to the oral evidence session. I hope we can get through these first bits without too much debate. I call the Minister to move the programme motion that was agreed by the Programming Sub-Committee yesterday.
Chris Philp (Conservative, Croydon South)
I beg to move,
That—
(1) the Committee shall (in addition to its first meeting at 11.30 am on Thursday 25 June) meet;
(a) at 2.00 pm on Thursday 25 June;
(b) at 9.25 am and 2.00 pm on Tuesday 30 June;
(c) at 11.30 am and 2.00 pm on Thursday 2 July;
(d) at 9.25 am and 2.00 pm on Tuesday 7 July;
(e) at 11.30 am and 2.00 pm on Thursday 9 July;
(2) the Committee shall hear oral evidence in accordance with the following table:
TABLE
Day
Time
Witness
Thursday 25 June
Until no later than 12.30 pm
Jonathan Hall QC, Independent
Reviewer of Terrorism
Legislation
Thursday 25 June
Until no later than 13.00 pm
The National Police Chiefs’
Council
Thursday 25 June
Until no later than 14.30 pm
Prison Reform Trust
Thursday 25 June
Until no later than 15.00 pm
The Northern Ireland Human Rights Commission
Thursday 25 June
Until no later than 15.30 pm
Law Society of Scotland
Thursday 25 June
Until no later than 16.00 pm
Professor Donald Grubin, Newcastle University
Tuesday 30 June
Until no later than 9.55 am
The Professional Trades Union
for Prison, Correctional and
Secure Psychiatric Workers
Tuesday 30 June
Until no later than 10.25 am
The Tony Blair Institute for
Global Change
Tuesday 30 June
Until no later than 10.55 am
Professor Andrew Silke,
Cranfield University
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clause 1; Schedule 1; Clause 2; Schedule 2; Clause 3; Schedule 3; Clauses 4 to 6; Schedule 4; Clauses 7 to 19; Schedule 5; Clauses 20 and 21; Schedule 6; Clauses 22 and 23; Schedule 7; Clauses 24 and 25; Schedule 8; Clauses 26 and 27; Schedule 9; Clause 28; Schedule 10; Clauses 29 to 36; Schedule 11; Clauses 37 to 45; Schedule 12; Clauses 46 to 48; Schedule 13; Clauses 49 to 53; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 14 July.
It is a pleasure to serve under your chairmanship, Mr Robertson. I have one point of clarification to make. Yesterday, in the Programming Sub-Committee, we discussed whether we should invite the Prison Officers Association or the Prison Governors Association. On further investigation, it transpires that the Professional Trades Union for Prison, Correctional and Secure Psychiatric Workers is in fact the Prison Officers Association—that is its full name. We will therefore see the Prison Officers Association on Tuesday at 9.25 am. We had contacted the Prison Governors Association, but I am told that, rather surprisingly, it did not reply. That should satisfy the request that the shadow Minister made yesterday.
Laurence Robertson (Conservative, Tewkesbury)
Copies of written evidence that the Committee receives will be made available in the Committee Room.
Examination of Witness
Laurence Robertson (Conservative, Tewkesbury)
We will now hear evidence from Jonathan Hall QC, who is the Independent Reviewer of Terrorism Legislation. Welcome, and thank you very much for coming. I think I am supposed to ask you to introduce yourself, but I have just done that, so we will go straight into questioning.
Chris Philp (Conservative, Croydon South)
Q May I first take the opportunity to thank you for your service as Independent Reviewer of Terrorism Legislation, Mr Hall? The whole House is very grateful for the work that you do in this area, and I want to put on the record our thanks to you for doing that.
I am sure we have all read the notes that you very helpfully prepared on this legislation and published on your website at the end of May and the beginning of June. I have them in front of me and have read them with great interest. To start, I want to ask about TPIMs—terrorism prevention and investigation measures—which were the subject of some debate on Second Reading. I want first to ask about the current circumstances in which a TPIM expires and has to be reapplied for from scratch without it being possible to use the previous evidence from two or more years before. Do you think there are circumstances in which public safety may still demand a TPIM beyond the two-year period? Are these proposals a better way of handling it than the current method?
Chris Philp (Conservative, Croydon South)
Q You mentioned that, in the two cases where there have been renewals, there was a hiatus—a gap—between the expiry of the first TPIM and the second coming into force. Could you give the Committee any information about how long that gap was?
Chris Philp (Conservative, Croydon South)
Q In those hiatuses—those gaps—of between a year and almost a year and a half, there is clearly a risk to which the public is being exposed. The rationale for the proposed changes is to remove the possibility of that gap.
Chris Philp (Conservative, Croydon South)
Q But it is about risk; not all risks actualise. A risk may exist, but no consequence may follow. What we are trying to prevent with TPIMs is the risk itself. It is fair to say that the risk would have existed in that 12 to 16-month period.
Chris Philp (Conservative, Croydon South)
Q You mentioned the burden of proof earlier, which I am sure other Members will ask about in due course. With the TPIM regime as it stands, very few TPIMs are actually enforced. Published data, dating back to November last year, said that five were in force at that time. Have you seen any evidence of the Government overreaching, stretching or even misusing the TPIM powers, or would you say that the Government have exercised the powers that already exist with care and circumspection?
Chris Philp (Conservative, Croydon South)
Q So in the context of the Government having behaved responsibly and carefully so far, what basis do you have for being concerned about the change to the burden of proof, given that the powers that have existed for some years now have been used, as you have said, very carefully?
Chris Philp (Conservative, Croydon South)
Q I want to pick up on a couple of those points. We should both try to be brief, because other Committee members want to ask questions. You mentioned that the state holds all the cards, but is it not the case that a judge looks at a TPIM prior to it coming into force and if it is—I forget the phrase—“manifestly unreasonable”, or some test like that, they will strike it down? Secondly, there is, of course, a right of appeal against TPIMs, so anyone made the subject of a TPIM has those two judicial protections in place, do they not?
Chris Philp (Conservative, Croydon South)
Q It would not remove it; it would alter the balance.
Chris Philp (Conservative, Croydon South)
It certainly would not remove it.
Chris Philp (Conservative, Croydon South)
Q You mentioned the original control orders set up in 2005 by the then Labour Government, which had reasonable suspicion as the burden of proof: precisely the same burden of proof being proposed today. The years following, probably between 2005 and 2012, were the years during which the lower burden of proof—the one we are now proposing—was enforced. I know you were not the reviewer at the time, but are you aware of any evidence of misuse in that seven-year period when the lower burden of proof prevailed?
Chris Philp (Conservative, Croydon South)
Q Finally, a moment ago you posed the question, “If it ain’t broke, why fix it?”, and you said you were not aware of any cases where a lower burden of proof would have been required to control someone. Of course, we are looking prospectively rather than retrospectively. If there are conceivable circumstances in future whereby someone is potentially a threat to the British public—our constituents, who would need protection from them—and we cannot establish the matter to the higher standard but could for the lower, it clearly would be useful to change the burden of proof.
On Second Reading, my right hon. Friend the Member for New Forest East (Dr Lewis) raised the question of someone who had been a member of Daesh returning from Syria. Of course, if somebody has been circulating in Syria, it is very hard to establish their activities on the balance of probabilities. It is hard to get witness testimony and there will be no intelligence surveillance, but the fact remains that they have been to Syria and done whatever they have done over there. In those circumstances, is it conceivable that, when British citizens who are members of Daesh return from somewhere like Syria, the lower burden of proof might be helpful, or in fact necessary?
Chris Philp (Conservative, Croydon South)
Q It is clearly much harder to establish that, on the balance of probabilities, somebody was up to no good in Syria, given that the evidential base is patchy at best and possibly even non-existent.
Chris Philp (Conservative, Croydon South)
Q They would no doubt argue that they might have been in Syria and might have been members of or living in Daesh territory, but that they were not engaged in terrorist activities expressly, and we would likely have no further evidence to establish that they were.
Chris Philp (Conservative, Croydon South)
Q I have one further question, which is on a different part of the Bill: the new serious terrorism sentences and the requirement to serve all of those in prison without the prospect of early release by the Parole Board. You commented in one of your notes that the Parole Board would therefore not have involvement in release decisions in the way that they currently do in many cases. Are you reassured by the fact that, although the Parole Board would not take release decisions, the usual MAPPA—multi-agency public protection arrangements —arrangements would be engaged, the Prison Service would closely monitor and evaluate the prisoner prior to release, and of course the probation service would be closely involved both before and after release during the licence period, which is now going to be longer than would otherwise have been the case? Would you accept that the involvement of those agencies, particularly the MAPPA arrangements and the probation service, provide a good level of supervision and evaluation?
Chris Philp (Conservative, Croydon South)
Q You said that it is inherently difficult to assess dangerousness and threat. Given that, is it not safest to get them to serve the whole of their sentence in prison, to be on the safe side? All the Parole Board can do is release them early, and all we are doing is removing the Parole Board’s ability to do that. One loses nothing in terms of public safety. Given the difficulties with assessing threat that you have outlined, is it not safe and prudent as custodians of public safety, which we all are in different ways, to remove the prospect of early release?
Laurence Robertson (Conservative, Tewkesbury)
I think that we had better move on. Alex Cunningham.
Alex Cunningham (Labour, Stockton North)
It is a pleasure to serve under your chairmanship, Mr Robertson.Q
I, too, am grateful for the work that you do, Jonathan. I want to ask you a number of questions away from TPIMs; my hon. Friend the Member for St Helens North will deal with that issue. You have produced three notes on the Bill, and I want to address questions from two of them—it might be helpful for the notes to be entered as written evidence.
Point 10 of your first note states:
“The requirement of a minimum mandatory sentence for all adult offenders, however young, puts in doubt whether judges can properly reflect the fact that an adult of 18 years and one month may not be any more mature than a child of 17 years and 11 months (for whom these sentences are not available). Age may or may not result in ‘exceptional circumstances’ being found, which is the only basis on which the 14-year minimum can be avoided.”
That strikes me as a cautionary note, and I invite you to talk a bit more about that. How specifically will this piece of legislation be different for younger offenders?
Laurence Robertson (Conservative, Tewkesbury)
Mr Cunningham, can you please clarify which document you are quoting from?
Alex Cunningham (Labour, Stockton North)
I am referring to the Independent Reviewer of Terrorism Legislation’s “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (1)”.
Alex Cunningham (Labour, Stockton North)
Q But the bottom line is that with young people, perhaps, there is greater change. You have said that there may be greater opportunity for reform there than with those who are considerably older.
Alex Cunningham (Labour, Stockton North)
Q In paragraph 13 of the same report, you talk about imprisonment for public protection orders possibly being used for this cohort of offenders, but you go on to say:
“Conversely, determining whether a 7-year, 15-year or 25-year licence is appropriate at the point of sentencing for dangerous individuals who have committed the most serious offences may be asking courts to engage in guesswork.”
What would be your advice to the Committee on that particular issue?
Alex Cunningham (Labour, Stockton North)
Q That is okay. There is the younger person dimension in this area as well.
Alex Cunningham (Labour, Stockton North)
Q The Minister addressed the issue of the Parole Board and the lack of its role for people given these determined sentences. I wonder whether there is potential for some form of role there. The Minister’s Bill basically dismisses the Parole Board and leaves it to everybody else. Do you have a view about how we could perhaps persuade the Minister that there is a real role for the expertise that the Parole Board brings to this situation?
Alex Cunningham (Labour, Stockton North)
Q I was just being mischievous.
Alex Cunningham (Labour, Stockton North)
Q There has been some discussion out there in the world, where people are discussing the Bill, about the sentencing code and what the definition is of an act of terrorism. It is defined in section 69 of the sentencing code, which says that
“an offence has a terrorist connection if the offence—
(a) is, or takes place in the course of, an act of terrorism, or
(b) is committed for the purposes of terrorism.”
Do you think that is clear enough to aid the courts, or do the Government need to provide more clarity in the definition?
Alex Cunningham (Labour, Stockton North)
Q The Law Society has provided us with a brief brief, in which it addresses the issue of polygraph testing. It says, for the record: “The Law Society does not agree that polygraph conditions should be placed on individuals released on licence.” That is quite a bold statement. The Law Society suggests that we should ensure that the Bill is not a stepping-stone towards the wider introduction of polygraph testing. May I invite you to talk about polygraph testing, because you did refer to it in your note, and ask what your view of it is when it is used in this particular context within the Bill?
Alex Cunningham (Labour, Stockton North)
Q That was very helpful. Finally, there is the need for additional expertise in the field, whether that is to do with the probation service or elsewhere, for the management of offenders under the 25-year licence, which will be considerable. Is that something that you have considered?
Alex Cunningham (Labour, Stockton North)
Q The Government have tabled some 17 pages of amendments to the Bill, which you may not have seen yet; they were only published on Tuesday.
Alex Cunningham (Labour, Stockton North)
The question is probably useless, then. I was going to ask whether they had reassured you that things had changed for the better, but clearly you have not seen them.
Joanna Cherry (Scottish National Party, Edinburgh South West)
It is a pleasure to serve under your chairmanship, Mr Robertson. Mr Hall, may I add my thanks to you for your service to all of us as parliamentarians? It is much appreciated, as were the notes that you prepared in advance of the Bill.Q
I will start by asking you a couple of questions about the effect of the proposed sentencing changes in Scotland. You have produced a “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (3)” that deals with the effect of the proposed sentencing changes in Scotland and Northern Ireland. In particular, in paragraphs 8 and 9, you raise the question of how what is proposed for Scotland under clause 6 of the Bill impacts on the existing sentence in Scotland called an order for lifelong restriction. Can you tell us about that?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q What is it about an order for lifelong restriction that, in your view, makes it preferable to what is proposed under clause 6?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Am I right in understanding that the OLR cannot be imposed until a formal risk assessment has been carried out by Scotland’s Risk Management Authority for the benefit of the judge?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q What about the involvement of the Parole Board? You have already spoken favourably about what the Parole Board can bring to assessing risk of involvement in terrorism. Of course, there is a separate Parole Board for Scotland. Is that board involved in the order for lifelong restriction sentence?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q In the second part of paragraph 9 of your note, you say:
“It would be preferable if Clause 6 was disapplied where an Order for Lifelong Restriction is passed. This also raises the question of whether a more flexible indeterminate sentence, such as the Order for Lifelong Restriction, is not preferable generally to the inflexibility of a serious terrorism sentence.”
Those are your views. Have you seen anything to change your mind since you wrote the note?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Of course, sentencing is a devolved matter, so normally the Scottish Parliament would deal with it. There would have to be a legislative consent motion from the Scottish Parliament for aspects of this Bill that impact upon devolved matters, so there could be some fruitful discussion between the Scottish Government and the UK Government about your suggestion about disapplying clause 6 where an order for lifelong restriction is passed.
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q I want to ask a couple more questions about TPIMs. The Minister took you through what is being proposed. As I understand it, you have not been given a justification or a business case for lowering the standard of proof. Is that right?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Beyond the example that the right hon. Member for New Forest East raised on the Floor of the House on Second Reading about somebody who has been in Syria for a few years—you have dealt with that—have you been given any other example of a case in which the protection of the public has been hampered by the existing standard of proof?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q What about looking at balancing out the changes made in this Bill to TPIMs by introducing some safeguards to ensure that TPIMs do not breach the human rights of a subject of a TPIM? Have you thought about that? We should always remember that the subject of a TPIM has not been convicted of any crime.
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Would you welcome the retention of the two-year limit on TPIMs?
Joanna Cherry (Scottish National Party, Edinburgh South West)
I will leave it there.
Sarah Dines (Conservative, Derbyshire Dales)
It is my first time serving under your chairmanship, Mr Robertson, and it is a pleasure.Q
Mr Hall, thank you for the very thorough online report. It is over 200 pages, and it is obviously a very thorough piece of work. I want to ask a general question from the perspective of one of my constituents. Looking at the overall measures that the Bill would bring in, you must agree that they will make the average citizen safer.
Sarah Dines (Conservative, Derbyshire Dales)
Q Which provision, in your professional view, will have the biggest effect on making our citizens safer?
Conor McGinn (Labour, St Helens North)
It is a pleasure to serve under your chairmanship, Mr Robertson. Thank you, Mr Hall, for your comprehensive notes and the briefing that you provided to the Opposition in advance of the Bill. I have some specific questions following my colleagues’ earlier comments.Q
TPIMs are not widely in use. You have said that the system works okay—I think that was the phrase you used in this evidence session. Is there a concern that these proposals not only do not make the operation of TPIMs more effective, but actually make them less effective, not just in an operational sense but, given the speculative commentary about their being used as an alternative to prosecution or to deradicalisation strategies, in terms of public perception, which undermines their wider use?
Conor McGinn (Labour, St Helens North)
Q Given that there has been no example of where a TPIM has been unable to proceed on the basis of the current standard of proof, would you, if the Bill passes, look very carefully to ensure that there is not an immediate spike in the use of TPIMs? In November 2019 there were five in use. Is that something that you would see as a measure of whether this is a practical measure introduced to aid law enforcement or counter-terrorism, or whether it is being used as an alternative to prosecution?
Conor McGinn (Labour, St Helens North)
Q I understand that. I have some sympathy with the Government on statutory renewal being on the basis of new evidence of terrorism, but I have some concerns about what is called, rather bizarrely, “indefinite renewal”—I think your term “enduring TPIMs” is more palatable and makes more sense. Is there a logical compromise on this so that, after a certain period, there must be evidence of continuing involvement in terrorism or a lack of repudiation of terrorism, rather than the onus being on finding new evidence? Might that assuage some of the safeguarding concerns about indefinite sentencing?
Conor McGinn (Labour, St Helens North)
Q One could argue that that is exactly what the whole thrust of the Bill is doing in relation to the standard of proof.
When relocation orders were used before, one in six were overturned in court. Are you concerned that this is rather a dubious way to proceed, if you are going to undermine not just the legislation that you are creating but the wider counter-terrorism strategy? A not insignificant proportion of the people subject to relocation orders as part of control orders in the past were able to overturn them in court.
Conor McGinn (Labour, St Helens North)
Q Is it your understanding, looking at the package of measures being introduced, that you could conceivably have someone who has been convicted of a terrorism offence being free from constraints before someone who has been placed on an enduring TPIM?
Laurence Robertson (Conservative, Tewkesbury)
We have three Members still to ask questions, so we need to be very brief.
Laura Trott (Conservative, Sevenoaks)
It is a pleasure to serve under your chairmanship, Mr Robertson. I have a clarification question, following the Minister’s questions about TPIMs. You said that there is a gap between the two, which can be managed. Can you give us more detail on how that will be done without the powers present through TPIMs?Q
Laura Trott (Conservative, Sevenoaks)
Q Would it not be better if those individuals were on TPIMs?
Laurence Robertson (Conservative, Tewkesbury)
Thank you very much. Rob Butler.
Rob Butler (Conservative, Aylesbury)
It is a pleasure to serve under your chairmanship, Mr Robertson.Q
Mr Hall, can I address the young adult age group? It has also been referred to by the Opposition. If we accept that there are different questions of maturity, do you also accept that the 18 to 20 age group can be incredibly dangerous?
Rob Butler (Conservative, Aylesbury)
Q I was on the Youth Justice Board at the time, so I am very familiar with that case. You note that there is provision in the Bill for the under-18s, as judges will have more discretion on sentencing. You have expressed some reservations about the young adult age group—either 18 to 20, or 18 to 24, depending on how one decides to define maturity. As you have highlighted, there is some debate about what that age group should be. What would be an appropriate balance between safeguarding the possibility of people maturing out of offending while still ensuring the safety of the general public?
Rob Butler (Conservative, Aylesbury)
Q So are you suggesting an exceptional case for that young adult cohort—that they should be eligible for Parole Board consideration where older adults are not? That is what I am trying to clarify.
Laurence Robertson (Conservative, Tewkesbury)
Thank you. Julie Marson.
Julie Marson (Conservative, Hertford and Stortford)
It is a pleasure to serve under your chairmanship, Mr Robertson.Q
Thank you for all your evidence, Mr Hall. On sentencing, we have talked about rehabilitation and risk management quite a lot. The other purposes of sentencing are deterrence, protection of the public and punishment. Do you agree that those purposes are well served by the changes in sentencing that are contained in the Bill?
Laurence Robertson (Conservative, Tewkesbury)
We have come to the end of the session. Mr Hall, thank you very much indeed.
Laurence Robertson (Conservative, Tewkesbury)
We will now hear from the National Police Chiefs’ Council. Should hon. Members wish to ask a question, it would be helpful if they could catch my eye early in the proceedings, so that I can try to restrict Front Benchers as necessary.
Thank you very much for joining us, Mr Jacques. Could you please briefly introduce yourself and your organisation?
Chris Philp (Conservative, Croydon South)
Q I will try to self-censor, Mr Robertson, for brevity. I will start by asking a general question. Assistant Chief Constable, you are responsible for counter-terrorism policing. Taken in the round and viewed as a whole, will the measures in the Bill make your job easier or harder? Will they make the public less or more safe?
Chris Philp (Conservative, Croydon South)
Q Good. Thank you. We have heard TPIMs and the burden of proof extensively debated, and we have questions about why the burden of proof should be lower—reasonable suspicion rather than a higher level. Do you think that in future there might be cases where somebody threatens the safety of the public, and you are unable to meet the higher burden of proof on the balance of probabilities, but you could meet the lower burden of proof—reasonable suspicion—and that without this change that is proposed in the Bill, the public would be exposed to greater risk?
Chris Philp (Conservative, Croydon South)
Please do.
Chris Philp (Conservative, Croydon South)
Q For those three reasons, you are being categorically clear with this Committee and with Parliament that the proposed lower standard of proof would be a benefit to the police and the security services, and that it would make the public safer.
Chris Philp (Conservative, Croydon South)
Q Thank you for making that extremely clear. I am sure that the Committee will pay close attention to the advice being given to us through you by the security services. I have one more question on TPIMs, relating to the current two-year expiry date and the proposal to make them annually renewable. They will not be indefinite unless the threat is indefinite. Do the security services for whom you speak see a threat to the public as a consequence of the gaps that we have heard Mr Hall describe: the 12-month gap in one case and the 16-month gap in the other?
Alex Cunningham (Labour, Stockton North)
Q There is a very helpful question on our briefing paper about the danger that measures perceived as oppressive and disproportionate may alienate individuals who could otherwise be rehabilitated. Do you have a view on that, particularly in relation to younger people, who might be a little immature?
Alex Cunningham (Labour, Stockton North)
Q Specifically on rehabilitation, do you think we need to amend the Bill to give younger people an opportunity to appear before the Parole Board. Should they be managed differently?
Alex Cunningham (Labour, Stockton North)
Q There is much talk in the Bill about polygraphing. Do you believe that introducing polygraphs in this area will drive the benefits that the Minister hopes for? Are you satisfied that the science around them is good enough, and that they provide real value?
Alex Cunningham (Labour, Stockton North)
Q So you would want to see a trial, rather than wholesale introduction?
Alex Cunningham (Labour, Stockton North)
Q Do you have any concerns about the fact that this cohort of offenders will be released into the community without the involvement of the Parole Board? They are just taken out and simply released, although I know that other work will go on. How do you feel about the fact that there will not be the expertise of the Parole Board behind any decision for them to be released into the community?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q I have just a couple of brief questions. You have mentioned three potential justifications for lowering the current standard of proof. You will be aware that the Independent Reviewer of Terrorism Legislation does not consider that there is any justification, but just let me cover a couple of the points that you raised. Jonathan Hall tells us that at present there is something called a new variant TPIM, which has been used by the security services, and that is a means of using the existing law to reduce the administrative and litigation burden on the authorities, which really means that when fewer measures are imposed on individuals, it is not necessary to establish in evidence every chapter and verse of an individual’s terrorist-related activity before a TPIM can be imposed. Mr Hall seems to envisage that the existence of these new variant TPIMs is sufficient to reduce the sort of administrative and motivation burden on the authorities that you have described in relation to sensitive material and a rapidly increasing risk. Do you see his point?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q So where there is a rapidly escalating situation or where there is a need to manage sensitive material, we already have available to us the option of a new variant TPIM without changing the standard of proof.
Joanna Cherry (Scottish National Party, Edinburgh South West)
That is quite an important statement: there is no case so far where the current standard of proof has prevented an application for a TPIM. Thank you.
Rob Butler (Conservative, Aylesbury)
Q Assistant Chief Constable, we have heard, and probably all accept, that young people can be immature and easily led, but would the police view also be that they can be extremely dangerous?
Rob Butler (Conservative, Aylesbury)
Q And consequently there is a need for legislation around sentencing that reflects that.
Rob Butler (Conservative, Aylesbury)
Q Can you describe a little bit, from your policing perspective, the increased threat that you are seeing, from both under-18s and young adults aged 18 to either 21or 24?
Rob Butler (Conservative, Aylesbury)
Q So while it is very important that the police are able to engage with young people in a way that is constructive, it is also important that the police can keep all young people safe from the threat posed by other young people.
Laurence Robertson (Conservative, Tewkesbury)
Thank you.
Conor McGinn (Labour, St Helens North)
Thank you, Assistant Chief Constable Jacques—and not just for you and your colleagues’ work now. As a north-west MP, I am particularly proud of your distinguished service in Lancashire and our region over many years. I am very pleased to see you in your current position. In terms of policing’s priorities and asks from the Government, was this top of your list?Q
Conor McGinn (Labour, St Helens North)
The measures contained in the Bill: the amendments to the current operation of TPIMs, and provisions on sentencing. Is that what counter-terrorism policing in the UK feels it needs as a priority from Government?
Conor McGinn (Labour, St Helens North)
Do you think you will require additional resources in order to implement the measures that are proposed in the Bill?Q
Conor McGinn (Labour, St Helens North)
May I press you a little? You say that the measures in the Bill will make the police’s job easier and will make people safer. When the police or the security services say that, I absolutely trust them and believe that that is the case. You also said there is no case where the current standard of proof prevented a TPIM, asQ the hon. and learned Member for Edinburgh South West said. You went on to say that some of the things, such as individuals’ risk profile increasing on returning from abroad, mean that the measures are welcome. However, those risk factors exist today and have existed for a period of time. I am trying to work out the contradiction in saying that there has not been a case where the standard of proof has prevented a TPIM, but that lowering the standard of proof will make it easier.
Conor McGinn (Labour, St Helens North)
I understand. Thank you. Finally, the Bill also contains a measure to remove the statutory deadline for the reporting of the Prevent review. The review was announced last January, but it has been delayed and postponed. We are now at the stage where the Government intend to have it report next summer but have removed any deadline. Is it frustrating that you have continuing speculation and debate around Prevent, with an independent review proposed, mooted and having gone through several iterations, yet you are still none the wiser about where the review is at, so you cannot get on and do not have certainty about what it will look like after the review, 16 or 17 months after it was first proposed? Is that a frustration for the police? Does that uncertainty undermine the Government’s wider counter-terrorism strategy?Q
Conor McGinn (Labour, St Helens North)
Q But you are keen for it to progress speedily and get it done and out of the way.
Sarah Dines (Conservative, Derbyshire Dales)
Q Assistant Chief Constable Jacques, may I first thank you on behalf of the Committee for all the work you do to keep us safe? You have made it quite clear that your view is that the provisions in the Bill will make policing easier. Can you give us a working example of that, please?
Sarah Dines (Conservative, Derbyshire Dales)
Q You were asked earlier about rehabilitation, and I am sure no one in the room does not think that it is an important part of the state’s job and the police’s job to assist where possible. However, do you agree that at times—particularly in these troubled times—immediate safety must trump the long-term aims of rehabilitation to keep people safe?
Julie Marson (Conservative, Hertford and Stortford)
Q As the daughter of a police officer, I would like to acknowledge and recognise how much you do and how often it is police officers on the frontline running towards danger when others are running away. When we talk about the importance of the Bill’s provisions in keeping the public safe, is it fair to say that, by definition, we are keeping the police safe?
Laurence Robertson (Conservative, Tewkesbury)
We have about six minutes left. Would anybody like to come in?
Joanna Cherry (Scottish National Party, Edinburgh South West)
I would like to add to what Julie Marson said. I do not think we can say often enough how much we and our constituents appreciate the risk that police officers put themselves in. You are there for us. I think all political parties would want to associate themselves with that. Thank you.
Alex Cunningham (Labour, Stockton North)
On a point of order, Mr Robertson. Given that the Government have tabled 17 pages of amendments to the Bill, would it be in order for us to invite Mr Jonathan Hall to provide a further note on the Bill?
Laurence Robertson (Conservative, Tewkesbury)
Mr Hall is still here. Mr Cunningham is offering you extra work. If you would like to do that—[Interruption.]. I am terribly sorry; I am advised that I cannot invite you to speak again, but I think you have got the point.
Mr Jacques, I think the point Joanna Cherry made, supporting Julie Marson, was a good one that we would all echo. Thank you very much for joining us.
Steve McCabe (Labour, Birmingham, Selly Oak)
Have we got you, Mr Dawson?
Steve McCabe (Labour, Birmingham, Selly Oak)
Good afternoon. The Minister will put the first question to you.
Chris Philp (Conservative, Croydon South)
Q 71 It is a pleasure to serve under your chairmanship, as always, Mr McCabe. Mr Dawson, thank you very much for making yourself available to answer questions. I am sure the whole Committee is extremely grateful. I will keep my questions brief to allow other Committee members to come in. Would you agree that when it comes to very serious terrorist offending, the principal concern of Parliament and the entire criminal justice system should be that of public protection?
Chris Philp (Conservative, Croydon South)
Q On public protection, which we have agreed is the overriding priority, given how hard it is to rehabilitate some offenders, and that some who are apparently engaging in constructive rehabilitative work may not be, which indeed was the case of the offender at Fishmongers’ Hall—my condolences to your colleagues who were caught up in that—do you agree that keeping the most serious offenders off the street for the duration of their sentence is the only way to be certain that the public are protected?
Chris Philp (Conservative, Croydon South)
Q We are talking about offenders serving determinate sentences, but they do have hope in the sense that the sentence has a fixed length—they are going to be released at the end of their sentence. I was asking about the release point which, under the current system, may come before the end of the sentence or, under these proposals for the most serious of offenders, at the very end of the sentence. We are talking about determinate sentences, so release will come.
You mentioned trying to make people safer upon release. What sort of activity is most effective during the prison sentence, whether release comes early or not? What are the most effective interventions that lower risk when they prisoners are released, whenever that release occurs?
Steve McCabe (Labour, Birmingham, Selly Oak)
Order. I have to interrupt there, Mr Dawson, because I am conscious of the time.
Alex Cunningham (Labour, Stockton North)
Thank you very much, and good afternoon. I want to address the issue of young people—that seems to be my theme of the day. TheQ independent reviewer said that, when it comes to these sentences, age—the only basis on which the 14-year minimum sentence can be avoided—may not result in exceptional circumstances being found. I see that as a cautionary note. Do you have a view on that?
Alex Cunningham (Labour, Stockton North)
Q Let me interrupt you because we need to crack on. How could the Bill be improved to take into consideration the factors that you have just raised?
Alex Cunningham (Labour, Stockton North)
Q I am grateful for your written submission to the Committee. You were talking about parole and the Minister mentioned it earlier. What role could there be for parole in the new regime that the Government are proposing?
Alex Cunningham (Labour, Stockton North)
Q Again, the question has to be about what needs to change in the Bill to take into account the issues that you have raised.
Steve McCabe (Labour, Birmingham, Selly Oak)
Maybe we should move on. I call Joanna Cherry.
Joanna Cherry (Scottish National Party, Edinburgh South West)
Thank you, Chair. Could I ask, Mr Dawson, about something you said to the Minister at the beginning of your evidence? You said that some aspects of the Bill may undermine public protection. Can you summarise what you meant by thatQ ?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q How important is rehabilitating terrorist offenders for the ongoing protection of our constituents and the public at large?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q To be clear, you have served in the Prison Service as a deputy governor and as a governor. To what extent do you draw on that experience in your evidence today?
Steve McCabe (Labour, Birmingham, Selly Oak)
Order. We are going to move on now, to Mr Butler.
Rob Butler (Conservative, Aylesbury)
Thank you, Mr McCabe. It is a pleasure to serve under your chairmanshipQ .
Mr Dawson, in evidence this morning, the Independent Reviewer of Terrorism Legislation said that many terrorist offenders often come from a stable family background. Does that not undermine the typical view that we have of rehabilitation—that having a job, a home and a family are necessary to prevent reoffending? In fact, are terrorism and terrorism offences not driven by ideology? The rules are different.
Rob Butler (Conservative, Aylesbury)
Q But that is exactly the point that he was making, was it not? The argument normally is that when you are released from prison, what will help you not to reoffend is having the stable family, the job and the home, but that is not the case in the case of terrorism.
Rob Butler (Conservative, Aylesbury)
Q We have heard about your career in the Prison Service as a governor and deputy governor. Were there any terrorist offenders in the prisons that you ran?
Rob Butler (Conservative, Aylesbury)
Q And from your interactions with those particular prisoners, is there anything in particular that you think we should be aware of on this Bill Committee?
Steve McCabe (Labour, Birmingham, Selly Oak)
Thank you. I call Ruth Cadbury.
Ruth Cadbury (Labour, Brentford and Isleworth)
It is a pleasure to serve under your chairmanship, Mr McCabe, on my first Bill Committee. Mr Dawson, I want to pick up on the length of sentence. You say, in your submission, that merely increasing the length of time that people spend in custodyQ
“risks further alienating them and giving them grounds for grievance against the authorities”.
You are in effect saying that the Bill should include measures to ensure that effective deradicalisation programmes are provided. What would they look like?
Ruth Cadbury (Labour, Brentford and Isleworth)
Q Are there any other measures for the rehabilitation of terrorist offenders that you would like to see in the Bill?
Steve McCabe (Labour, Birmingham, Selly Oak)
Let us go to Sarah Dines. I am conscious of time.
Sarah Dines (Conservative, Derbyshire Dales)
Thank you, Chair. It is a pleasure to serve on the Committee. Mr Dawson, in your written evidence about clause 26, on the increase in the maximum sentence from 10 to 14 years, you say that there is no evidence that longer sentences protect the public. Do you not ignore the basic supposition that keeping a serious offender off the streets for a couple more years will protect the publicQ from some offenders for whom the chance of rehabilitation is quite low? Secondly, are you not ignoring the deterrent effect of longer sentences? What is the basis for your rejection of that clause?
Steve McCabe (Labour, Birmingham, Selly Oak)
We can squeeze in one last question, if you are quick, Mr Cunningham.
Alex Cunningham (Labour, Stockton North)
Q In your written evidence, you say:
“The expansion of SOPCs and the expansion of the number of offences able to be identified as having a ‘terrorist connection’ will need careful monitoring for their impact on prison security and on people from minority faith and ethnic communities”.
How can we improve the Bill to achieve that careful monitoring?
Steve McCabe (Labour, Birmingham, Selly Oak)
Order. Mr Dawson, I am afraid I will have to call you to a halt as we have run out of time. Thank you very much for your evidence to the Committee.
Examination of Witnesses
Steve McCabe (Labour, Birmingham, Selly Oak)
We move to our next session, which is evidence from the Northern Ireland Human Rights Commission, with Les Allamby, the chief commissioner, and Dr Hannah Russell, the director of legal research and investigations and advice to government. Have we got you with us?
Steve McCabe (Labour, Birmingham, Selly Oak)
We had better try to address that. This time we will switch sides and start with Conor Burns.
Conor McGinn (Labour, St Helens North)
It is a pleasure to serve under your chairmanship, Mr McCabe. Thanks to colleagues from Northern Ireland for joining us. Could you outline your key concerns about the provisions in the Bill and how they relate to Northern IrelandQ ?
Conor McGinn (Labour, St Helens North)
Q That is very useful. Your point about the entitlement of every citizen of the UK, regardless of what part of the UK they are in, to have protection from terrorism is important. Do you think, though—it might be useful to add a bit of historical context to this—that there are specificities around the threat from terrorism in Northern Ireland and the approach to dealing with it, both in terms of how post-sentencing regimes work in prisons for paramilitary prisoners or those imprisoned for reasons related to terrorist offending, and in terms of an approach to deradicalisation?
Already in Northern Ireland there is common parlance in use around internment for what might be seen as measures in place for existing terrorist and paramilitary prisoners. Is there a concern on your part, first, that what is proposed might interfere with the settlement in the Good Friday agreement, particularly around licensing, and, secondly, that rather perversely it may be used by those engaged in terrorism as a further opportunity, as you say, to groom young people and present themselves as the wronged party?
Steve McCabe (Labour, Birmingham, Selly Oak)
Order. I am sorry to interrupt you, but we really have to press on at this stage. Minister.
Chris Philp (Conservative, Croydon South)
Q Thank you, Mr McCabe. Mr Allamby and Dr Russell, thank you for taking the time to join us and give evidence this afternoon.
You will be aware that when Parliament passed the Terrorist Offenders (Restriction of Early Release) Act 2020 in February, Northern Ireland was excluded because we were concerned about issues of retrospection, owing to the differences in sentencing structure in Northern Ireland compared with the rest of the United Kingdom. Having taken very detailed and extensive further legal advice, the Government now take the view that the measures in the TORER Act can safely be applied to Northern Ireland without engaging in issues of retrospectivity, and the Bill seeks to do that. Is that a conclusion with which you concur?
Chris Philp (Conservative, Croydon South)
Q Thank you, Mr Allamby. Let me assure you that we are in extremely close and ongoing dialogue with Naomi Long and others in the Northern Ireland Executive, so those conversations are happening on a very regular basis.
My final question relates to polygraphs. You mentioned the importance of evidence, and later this afternoon we are seeing a professor who is an expert in this area, as far as evidence is concerned. Would you agree that where polygraphs are used just to provide a bit more background information and perhaps prompt further investigation, rather than being used to have a biting and binding consequence, there can be some value in that, as part of a holistic assessment to work out where more work needs to be done? Nobody is suggesting that it would lead to a direct, binding consequence. Does that give you any assurance?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Good afternoon, chief commissioner and Dr Russell. You have said that you will put in a written submission on some of the wider issues around TPIMs. Please summarise your concerns about the new TPIM proposals from a human rights perspective.
Joanna Cherry (Scottish National Party, Edinburgh South West)
Thank you.
Rob Butler (Conservative, Aylesbury)
Q Briefly, I want to pick up on your concern over polygraphs and what is written into the Bill, by looking at the explanatory notes that were issued. I refer to paragraph 213 of section 34, “Polygraph conditions for terrorist offenders: Northern Ireland”, which states:
“New subsection (5) establishes that statements or physiological reactions of the offender in polygraph sessions cannot be used as evidence in proceedings for an offence against the released person.”
Does that provide you with the comfort you were seeking?
Steve McCabe (Labour, Birmingham, Selly Oak)
Minister, do you have a supplementary question you want to put to that?
Chris Philp (Conservative, Croydon South)
Q I believe that, in the circumstance where somebody on licence fails the polygraph test, the intention is not that that would lead to revocation of licence, but that it would prompt further investigation—that is what is intended. Does that give a little more assurance that it is being used simply to assist in working out whether further investigation should be done? It would not lead to revocation of a licence on its own.
Conor McGinn (Labour, St Helens North)
Q The fight against terrorism in Northern Ireland relies very heavily on co-operation between the Police Service of Northern Ireland and the Garda Síochána. Those two systems in the north and the south are almost integrated and work very closely together on that. Does the Bill contain anything that you think might place a question mark over that, or might the Irish Government feel that some of the Bill’s contents are incompatible with their approach to working with the UK authorities vis-à-vis countering terrorism in Northern Ireland?
Steve McCabe (Labour, Birmingham, Selly Oak)
Q Dr Russell, is there anything that you would like to add to what you have heard so far?
Steve McCabe (Labour, Birmingham, Selly Oak)
Thank you. Does anyone have any more questions? No. In that case, I thank both our witnesses very much. Mr McGinn, I think I called you Conor Burns at the start, thereby inexplicably confusing you with the distinguished former Trade Minister, the right hon. Member for Bournemouth West (Conor Burns). I think the best and safest thing I can do is apologise to you both.
Examination of witness
Steve McCabe (Labour, Birmingham, Selly Oak)
Michael Clancy is the director of law reform at the Law Society of Scotland. Good afternoon, Mr Clancy.
Chris Philp (Conservative, Croydon South)
Q Thank you for joining us; we very much appreciate you taking the time to give the Committee the benefit of your opinion. The purpose of the Bill is to protect the public from serious terrorist offenders. Do you agree that the Bill achieves that purpose by and large, and is it therefore a piece of legislation that, in broad terms, the Law Society of Scotland supports?
Chris Philp (Conservative, Croydon South)
Q On the question of public protection, which you were kindly commenting on just then, one key element of the Bill is that there will be a minimum 14-year prison sentence for the most serious terrorist offenders, and for that cohort and some other serious terrorist offenders, all the sentence will be served in prison. Given the evidence we heard earlier today about how difficult it is to rehabilitate terrorist offenders and to predict whether they have been rehabilitated, do you agree that simply ensuring that they are unable to harm our fellow citizens by keeping them in prison for a longer period is the only certain way of keeping the public safe?
Chris Philp (Conservative, Croydon South)
Thank you very much.
Alex Cunningham (Labour, Stockton North)
Q Your counterpart, the Law Society of England and Wales, said in its written evidence that it does not agree that the polygraph condition should be placed on individuals released on licence, and it goes on to say that a negative polygraph reading on its own should not be sufficient to justify a recall to prison. Do you share that view?
Alex Cunningham (Labour, Stockton North)
Q Okay, we can leave that one there and move on to a question about parole. As you know, the Parole Board does not have a role where somebody has been given a determinate sentence. Do you have any concerns about the fact that the Parole Board has been taken out of the equation and will not have a role with those particular offenders?
Alex Cunningham (Labour, Stockton North)
Q Finally, the provisions are the same for young people as they are for adults. Do you have a view on that?
Alex Cunningham (Labour, Stockton North)
That is helpful. Thank you.
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Good afternoon, Mr Clancy. Can I follow up on your reference to Jonathan Hall’s notes? You will have seen that Jonathan Hall has also prepared a note—his third—on the implications for sentencing in Northern Ireland and Scotland, which I think you referred to in the written evidence you lodged. That is correct, is it not?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q We have heard evidence from Mr Hall today about the concerns he has expressed regarding the interaction between the proposed new sentence and the existing sentence of an order for lifelong restriction, which is available in the Scottish courts for the sentencing of offenders who pose a serious risk to the safety of the public. Do you share Mr Hall’s concerns about the interplay between what is proposed in this Bill, particularly in clause 6, and the existing sentence of an order for lifelong restriction?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Yes, it does; thank you very much. You have already talked about the implications of clause 33 of the Bill for Scotland, where polygraphs are not currently in use. You have explained that they are not currently used in Scotland because, as far as you understand, there is still a question mark over their reliability. Is that right?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q They are not used for anything in Scotland. I understand that they are currently used for sex offenders in England, but they are not used for sex offenders in Scotland, are they?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q You say in your written evidence that if they were introduced, that would be “a significant step”, and that it would raise various issues regarding
“responsibility, organisation, funding, monitoring and training”.
Can you elaborate on that?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Can I move now to TPIMs? What is the Law Society of Scotland’s view on the proposal to change the standard of proof from the balance of probabilities to reasonable grounds for suspecting? What is your view of that, and what are the reasons for that view?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Just to interrupt there to pick up on that last point about polygraphs, as a matter of law, a legislative consent motion will be required for this Bill in so far as it impinges on devolved matters. Is that right?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Okay. Sorry; I asked you for the Law Society of Scotland’s view on lowering the standard of proof in relation to TPIMs.
Steve McCabe (Labour, Birmingham, Selly Oak)
Order. I think we are going to move on to Sarah Dines.
Sarah Dines (Conservative, Derbyshire Dales)
Q I am looking at your written evidence. Towards the end of the document in the TPIMs section, you roundly reject the proposed changes sought to be brought through by the Government. I want to ask two things. In your final summary, you say:
“What is needed is to tackle the basic causes of these terrorist incidents”.
There are two parts to the first question: what do you say are the basic causes of crime, and why are the proposals that are being put forward not good enough? Secondly, what alternatives should be put forward? What are the causes, and what would you do, in rejecting these proposals?
Steve McCabe (Labour, Birmingham, Selly Oak)
Order. I think I am going to ask you to let me move on, Mr Clancy, because a few other people are indicating that time is moving on. Is there anyone else waiting to come in? No. In that case, I call Laura Trott.
Laura Trott (Conservative, Sevenoaks)
Thank you, Mr McCabe. It is a pleasure to serve under your chairmanship.Q
I was pleased to see in your evidence the point that an increased sentence offers an increased opportunity for greater rehabilitation while someone is in prison. Do you have any views on what form that rehabilitation should take?
Steve McCabe (Labour, Birmingham, Selly Oak)
Minister, I think you wanted to make another point.
Chris Philp (Conservative, Croydon South)
Q I have a couple of follow-up questions on the TPIM matter that you spoke about, Mr Clancy. In your oral evidence a few moments ago, you described the change in the burden of proof as problematic. I am not sure whether you heard the evidence we received this morning, but an assistant chief constable from counter-terror policing, speaking on his own behalf but also on behalf of the security services, said that lowering the standard of proof to reasonable suspicion would result in the public being better protected. He went on to lay out three potential circumstances in which that might be the case. One was rapidly changing threat levels from an individual; another was an individual returning from overseas; and there was a third circumstance as well. Given the evidence by counter-terror police on behalf of them and the security services that our citizens in the whole United Kingdom are safer with this measure, could I ask you to reconsider your description of it as problematic?
Chris Philp (Conservative, Croydon South)
Q I am extremely grateful to you for the undertaking to think about it further. That shows very commendable flexibility in response to the clear evidence.
To give you further reassurance perhaps, the lower burden of proof, reasonable suspicion, is of course not a new burden of proof, because the old control orders, in force from 2005—they were introduced by the then Labour Government—and carrying on until 2012, had the same lower burden of proof, reasonable suspicion. This morning, I asked Jonathan Hall, the independent reviewer, whether he was aware of any problems that occurred during that seven-year period, 2005 to 2012, when that lower burden of proof was in force, and he was unaware of any issues caused by it. Does that give you further reassurance?
Chris Philp (Conservative, Croydon South)
Q Indeed. The current number of TPIMs in force is actually six, and we do not anticipate large growth in the numbers as a result of these provisions.
I have one final point. You mentioned concerns about renewal. Of course, renewal, under these proposals, would take place annually. And you mentioned a few moments ago judicial oversight as a concern. Of course, the subject of the TPIM can at any time bring a legal challenge against the use of the TPIM if they feel that it has become unfair. Does the availability of that mechanism to bring a challenge give you reassurance that the subject of the TPIM does have recourse to the courts, and can be protected by a judge, if he or she feels that that is necessary?
Joanna Cherry (Scottish National Party, Edinburgh South West)
The Minister referred to clear evidence of the requirement for a drop in the standard of proof. Are you aware of any clear evidence, as opposed to anecdotal evidence?Q
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q You have already said that if there is such clear evidence, you would be happy to consider it. Is that correct?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Is it also fair to say that the concerns expressed by the Law Society of Scotland about dropping the burden of proof are those that are widely held, including by the current independent reviewer of terrorism legislation and his predecessor, David Anderson QC?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Yes. He has given us evidence this morning and provided a note to that effect, but, as always, you are being scrupulously fair.
Steve McCabe (Labour, Birmingham, Selly Oak)
Absolutely. Are there any further questions? In that case, Mr Clancy, thank you very much for giving your evidence today.
Examination of Witness
Steve McCabe (Labour, Birmingham, Selly Oak)
We now come to our final witness of the day, Professor Donald Grubin of Newcastle University, who has had the benefit of hearing some of the exchanges earlier. Let us begin.
Chris Philp (Conservative, Croydon South)
Professor Grubin, thank you very much for joining us this afternoon and taking the trouble to come here. We are extremely grateful to youQ . Perhaps you could start by introducing yourself to the Committee in the context of your academic background, and, in particular, your work on polygraphs.
Chris Philp (Conservative, Croydon South)
Q You have a long academic background, principally at Newcastle University, and you have been studying polygraphs for 20 years. Can you describe the evidence you have seen in the last 20 years about the role that polygraphs can usefully play in the criminal justice system? Feel free to comment on evidence from overseas as well as the United Kingdom.
Chris Philp (Conservative, Croydon South)
Q That is extremely helpful, thank you. What I think you are saying is that the context in which we are looking to use polygraphs for terror offenders, as for sex offenders at the moment in England and Wales, is as a prompt which may, in some circumstances, stimulate further investigation. Just to make sure I have understood you; your evidence is that all the studies you have seen say that that is a safe way of using polygraphs—as a prompt for further investigation—and that public protection is enhanced by doing it. Is that a fair summary of your evidence?
Chris Philp (Conservative, Croydon South)
My final question—
Steve McCabe (Labour, Birmingham, Selly Oak)
I am going to have to move on. Let me just to go to Mr Cunningham.
Chris Philp (Conservative, Croydon South)
Fair enough.
Steve McCabe (Labour, Birmingham, Selly Oak)
Otherwise, we will have too much.
Alex Cunningham (Labour, Stockton North)
Q We have heard very different views on the use of polygraphs. The assistant chief constable, Ted Jacques, said this morning that maybe a trial would be a good idea before it is rolled out in this particular piece of legislation, and Les Allamby said it is untested in this environment, which I suppose is one and the same thing. Is 80% accuracy good enough to recall somebody to prison?
Alex Cunningham (Labour, Stockton North)
Q But the Government seem to be depending on it now.
Alex Cunningham (Labour, Stockton North)
Q It is interesting that you should major so much on disclosures, because, as you know, the Bill takes away the role of the Parole Board in determining sentences. That is the source of a tremendous amount of data for the authorities. Do you have a view on that?
Alex Cunningham (Labour, Stockton North)
Q Okay. Finally, on young people, I have reservations about the Bill applying to young people in the same way and the same applies to polygraph tests. I wonder if you would like to comment on that directly in relation to young people, bearing in mind more general issues about mental health and the effects of such a regime.
Alex Cunningham (Labour, Stockton North)
Q So a child of 17, it is okay for them to be subject to polygraph testing?
Alex Cunningham (Labour, Stockton North)
Sorry to interrupt you, but colleagues in Scotland are suggesting that you do not have full maturation until the age of 25.
Alex Cunningham (Labour, Stockton North)
Q And the mental health issues?
Alex Cunningham (Labour, Stockton North)
Q That is helpful, but what do we need to do to improve the Bill to make sure that the issues you have just mentioned about mental health, mental health capacity and illness are taken into consideration?
Alex Cunningham (Labour, Stockton North)
That is helpful. Thank you.
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Professor Grubin, your evidence is fascinating. I think the reference to the pilot project earlier might have been in relation to jurisdictions where polygraph testing is not currently used. You will gather from my accent that my jurisdiction is Scotland—I have a legal background—and we do not use it there. You say it is part of a suite of risk management measures, so it is not pivotal but part of a suite. The previous witness pointed out that Jonathan Hall has written about Scotland’s very highly respected Risk Management Authority, and at present it does not use polygraph testing. If it were to be introduced in Scotland, it would require a pilot and various steps to be taken before it could be rolled out. I think that that is what he was referring to.
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q While we have you here, can I ask a couple of other questions to aid my own understanding? Sometimes people call polygraph tests “lie detectors”, in common parlance, but, as I understand it, that is not entirely correct. It does not measure lies; it measures the physiological changes in the central nervous system when somebody is asked a question. Is that right?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q And you have to ask a very closed question such as, “Have you accessed the internet?”
Joanna Cherry (Scottish National Party, Edinburgh South West)
Q Or, in an Irish context, if someone asks me, “Have you been to Dublin recently?” I have to confess that I have, so perhaps I would fail a lie detector test. Joking apart, it is not a lie detector test. It measures physiological changes. There is some scientific dubiety as to whether those central nervous systems are under the conscious control of the subject. What is your view on that?
Joanna Cherry (Scottish National Party, Edinburgh South West)
Thank you.
Sarah Dines (Conservative, Derbyshire Dales)
Q Thank you for your evidence, Professor Grubin. I am interested in your view of how valuable the polygraph test is in assessing an offender’s intention in the long term, in comparison with the other tools available by way of standard psychological testing.
Ruth Cadbury (Labour, Brentford and Isleworth)
Q You said that in normal circumstances the test is 80% to 90% accurate. My hon. Friend the Member for Stockton North raised questions about those with mental health problems and the issue of immaturity. I want to ask you about some other categories as to whether there are also concerns about the accuracy or appropriateness of tests: people with learning disabilities; people who are neurodiverse or have personality disorders; and non-English speakers. Are there concerns about the use of polygraph tests for those people and for any other vulnerable people?
Ruth Cadbury (Labour, Brentford and Isleworth)
Q My last question was about non-English speakers.
Laura Trott (Conservative, Sevenoaks)
Q Professor, you talked about a failure rate of up to 20%. What drives that failure rate? Is it the fact that people are tricking the test or that the examiner is making a mistake? What are the drivers behind that 20%?
Laura Trott (Conservative, Sevenoaks)
Q I have a quick follow up to that. In terms of the formulation of questions, with the sex offender work that has been done so far, how has that worked most effectively? What lessons can be learned from that when we think about applying it in terrorism offenses?
Alex Cunningham (Labour, Stockton North)
Q My hon. Friend the Member for Brentford and Isleworth talked about people with disabilities in relation to polygraph testing. You said that the success rate goes down to about 60%. Is that a fair success rate to be used as part of the evidence for a recall to prison?
Alex Cunningham (Labour, Stockton North)
Yes.
Steve McCabe (Labour, Birmingham, Selly Oak)
Minister, I think I promised I would come back to you.
Chris Philp (Conservative, Croydon South)
Q That is extremely kind; I have two final points. We had some commentary from colleagues earlier, before you arrived, that there was no evidence that this would work with terrorist offenders. Given the work with sex offenders and the work on polygraphs around the world, can you comment on whether you believe this could be used to test terror offenders as part of their licence condition monitoring?
Chris Philp (Conservative, Croydon South)
Q That brings me on to the very last question. You have mentioned that one of the main benefits of polygraph testing is that it prompts or helps to persuade the offender to disclose information that they would not otherwise disclose. You described that earlier as “information gain”. Could you give us some examples of how that happens and the kind of information gain that you have seen occur as this has been used?
Chris Philp (Conservative, Croydon South)
Q Can you quantify the information gain?
Chris Philp (Conservative, Croydon South)
Wow. Thank you.
Steve McCabe (Labour, Birmingham, Selly Oak)
Order. I am going to have to stop you there because we have run out of time. Thank you very much indeed for your evidence, Professor Grubin.