Police, Crime, Sentencing and Courts Bill

Baroness Hamwee Excerpts

Lords Hansard - part one & Committee stage
Wednesday 10th November 2021 Lords Chamber

Can the Minister please explain to the Committee what that means? We do not have the foggiest idea. Legislation is supposed to be capable of being understood by those to whom it applies, but this is incomprehensible to us, let alone to the poor police officer who has to apply it or the poor accused who may be subject to it. That is provided that I have the gist of what this whole thing is about, and it actually applies to police officers and the accused. However, I beg to move.

[Baroness Hamwee (LD)]

My Lords, does the Minister think that the Bill is so short that it would have spoiled it if the new provisions had been set out in full?

[Lord Wolfson of Tredegar (Con)]

My Lords, taking that last point first, one of the glories of our system is that the drafting is done by parliamentary counsel, and I will not criticise the way it has been done. However, I agree with the underlying point made by the noble Lord, Lord Paddick, that legislation ought to be—

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[Lord Paddick (LD)]

I am very grateful to the Minister. Perhaps I may gently suggest that if something akin to what the noble Lord said was contained even in the Explanatory Notes explaining that part of the Bill, we would not have to spend time in Committee trying to understand what it was about. I know that my noble friend Lady Hamwee and I have looked everywhere possible to try and decipher what that meant—to no avail. It may be that to parliamentary draftspeople it is as clear as day—but for us lesser mortals it is not. I beg leave to withdraw the amendment.

[Baroness Hamwee (LD)]

My Lords, before my noble friend withdraws his amendment, I should say that he is quite right. There are a number of different points at which it is important for people to understand what legislation means. For us looking back at legislation, we can do so online and it is important that the changes go up online as soon as possible, including in the previous legislation. This is quite a serious point that is, of course, much broader than the Bill—but I am going to infuriate the Committee by getting it off my chest. One can spend an awful lot of time trying to understand what a piece of legislation, passed 20 years ago and amended five times, actually amounts to unless what is put online is completely up to date. It wastes an awful lot of noble Lords’ time and must waste Ministers’ time trying to get their heads around it if the Explanatory Notes do not set out those things intelligibly.

[Lord Paddick (LD)]

I beg leave to withdraw the amendment.

Police, Crime, Sentencing and Courts Bill

Baroness Hamwee Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord St John of Bletso (CB)]

My Lords, I am afraid that I take a converse view on this. London has a massive problem with increasing traffic congestion, and I do not believe that reducing the speed limit to 30 mph is going to bring the death rate down to zero. On the converse, one of the biggest problems in London is pedestrians crossing the road more transfixed on their mobile telephones than on watching oncoming traffic. I am not opposing this amendment; I am just saying that reducing the speed limit will not necessarily bring the death rate down to zero.

[Baroness Hamwee (LD)]

My Lords, I do not think that my noble friend is proposing to reduce the speed limit. It is about enforcement of whatever the speed limit is.

[Baroness Randerson (LD)]

My Lords, this is a very ambitious amendment from my noble friend. It would involve significant changes to the role of local authorities. Before people say that that is not appropriate, it is worth bearing in mind that local authorities already deal with parking issues, which are in the minds of the general public, very akin to the issue of speeding offences. They also have powers, in London and in my city of Cardiff, to deal with certain moving traffic offences, such as entering yellow boxes, driving in bus lanes and so on. It actually does not make local authorities any more popular, so it is important that it is thought through carefully.

Police, Crime, Sentencing and Courts Bill

Baroness Hamwee Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to have the opportunity to respond to this short but focused debate. I am particularly grateful to the noble Lord, Lord Beith, for the measured way in which he introduced the amendment, which raises difficult issues, as I think all speakers have recognised.

The Government’s aim in this area can be briefly stated. I understand there to be relatively little or perhaps no disagreement across the Committee on this point, certainly in the light of what the noble Lord, Lord Ponsonby of Shulbrede, has just said. The aim is this: we seek to protect children from those who might take advantage of their position to sexually abuse them. The provisions we put in the Bill followed detailed review and consideration. We feel they provide the best protection for young people while still balancing—this is a critical point—where possible their right to fully consensual sexual relationships. I must underline that point at the outset, because it is very easy to overlook it.

The positions of trust offences set out in the Sexual Offences Act 2003 were never intended to apply in all scenarios in which a person might have contact with or a supervisory role in respect of somebody aged under 18. If you do that, in effect you raise the age of consent by silence. If we are going to have a debate about the age of consent, let us have one—but let us not have an inadvertent, sub silentio raising of the age of consent by having too wide a category of positions of trust.

I acknowledge that this is a very complex area. With respect, the noble Baroness, Lady Jones, said that this was a first for her because she quite liked a Henry VIII power. I am not sure whether it is a first for me that I am agreeing with her from the Dispatch Box; I think I have done it once before, but if it is not the first time it certainly does not happen too often. But I do agree with her that this is a very complex area, because we are trying to strike the right balance between protecting young people and respecting the right of those aged 16 or over to engage in consensual sexual activity.

Therefore, although it is very tempting to say, “Well, there’s been a case here and a case there, let’s widen the definitions”, we have to act on the available evidence—not anecdote, supposition or a case here or there, but real evidence. The question therefore is, as I think the noble Lord, Lord Beith, put it, if I can summarise his speech in five words, “Why these and not others?” I heard him say that I am unlikely to persuade him. I remember when judges said that to me. I rarely did persuade them—but let me have a go anyway.

The answer is this: we have looked across the field. We have spoken to a whole load of stakeholders, which I will not read into the record, but the number is vast. We have concluded that those who teach, train, supervise, instruct or coach in a sport or religion are particularly influential over a child’s development. That is why they should be captured in the positions of trust provisions. The reason is that those settings allow for roles that involve very high levels of trust, influence, power and authority. Particularly in the case of those involved in a religion, the figures are often also well-established, trusted and respected in the local community. Both sport and religion provide a child—a young person, I should say, as this goes to 18—with a strong sense of belonging, whether to a team, a squad, a community or a faith group. As noble Lords will understand, deep feelings held by the young in respect of those groups can provide unique and special opportunities for predators to exploit or manipulate them.

Another factor that we have taken into account is that when we come to sport as usually understood—for present purposes I do not want to get into the question of whether chess is a sport; that is perhaps for another government department—the physical nature of that activity means that coaches have legitimate reasons physically to touch in perhaps a more general sense than just touching, in other words putting their hands around, moving, manipulating and repositing the body of the young person they are coaching. A sports coach therefore has far more opportunities for physical contact than other roles. This again can be manipulated by abusers.

The amendment focuses on drama and music as further settings. Again, I hope it is clear from what I have said so far that I absolutely understand the motivation for these amendments but, without strong evidence to support their inclusion, I respectfully suggest to the noble Lord that there is no reason to include drama and music and exclude other settings in which adults work with children. I underline the point that it was never the intention that all settings where adults interact with children would be engaged. I suggest that it is dangerous to say, “Because there’s been a case here or a case there, we should include them.” We heard from the noble Baroness, Lady Brinton, that there had been a case involving chess in the United States. “Does that mean that we include chess here?” I ask rhetorically. I suggest the answer is no.

I will make one point on ballet—I am not sure whether that is a sport, an art form or perhaps both—of which I am obviously fairly ignorant. On the inclusion of dance, I suggest to the noble Lord that our definition of sport in Clause 45 includes types of “physical recreation” engaged in for the purpose of “competition or display”. I consider that this definition of sport would include dance. That might deal with the ballet point specifically, although I accept that the noble Lord’s point goes wider than just ballet.

I think the noble Lord, Lord Paddick, accepted that, in a number of these cases, there is no hard evidence—but we do have isolated cases. As I hope I have explained, we are seeking to rely on what appears to us to be the available evidence. To pick up the question, “What evidence would make you include new categories?”, the only answer I can give is that we are not limiting the nature of the evidence that will make us happy to consider other categories. I do not want to limit or straitjacket the sort of evidence we might look at in advance. If we find that new evidence emerges that might justify legislating further, we will do so. That is why we have put the Henry VIII power into Clause 45, so that we can add further activities if it appears appropriate—I emphasise “appropriate”—in the light of new evidence.

To come back to my main point, what we seek to do is strike this balance between safeguarding young people and, on the other hand, protecting the rights given to them by Parliament to engage in sexual activity on a consensual basis once they have reached the age of 16. I fear I might not have persuaded the noble Lord, Lord Beith, of the correctness of the Government’s position, but I hope I have explained it to him. I none the less invite him to consider withdrawing his amendment.

[Baroness Hamwee (LD)]

My Lords, before my noble friend responds, I feel very uncomfortable at the proposition that we should wait for examples of problems in specific sectors before there are provisions to deal with them. I think I have said enough, actually.

[Lord Wolfson of Tredegar (Con)]

I will reply very briefly to that point. When I say “new evidence”, I am not saying that there must be, God forbid, an incident. I am not circumscribing or limiting the nature of new evidence. If there is new evidence without there being an incident, we will look at that as well. I am certainly not saying that we will legislate only when, God forbid, there has been a terrible case. But one has to be careful. If one draws this net too widely, the effect is, sub silentio, to raise the age of consent. That was never the intention behind this provision.

[Baroness Hamwee (LD)]

My Lords, may I pursue that? What evidence are we talking about, then? We are all giving examples of where somebody in a position of trust might be by themselves with the person who trusts them. I do not follow what the evidence might be. I keep thinking of examples that have not yet been mentioned. Art lessons is another. I have been in an art lesson where the tutor has helped me to produce what I have ineptly tried to produce on a piece of paper. One could go on. What is “evidence” in this context?

[Lord Wolfson of Tredegar (Con)]

The art lesson may be a good example. With respect, there is a huge gulf between the relationship of somebody to their art teacher, if they go to an art group, and the sort of intimacy that a physical sports coach has with somebody or the sort of power, control and sense of authority that a religious leader has over a young person.

I shall give one example of evidence, picking a made-up country from private international law. Let us say that, in Ruritania, there is a huge number of cases of a particular category. It might well then be said, “We can see there is a problem with this category. It has happened in Ruritania. The circumstances are the same as in the UK. You should add that.” That is just one example. I do not want to limit the evidence that we would rely on but, with respect, we cannot say that, because there has been a case in an art class or a case here and a case there, we will include all these categories. We should not include every circumstance in which adults have close contact with under 18 year-olds. I think the noble Lord, Lord Paddick, wants to come in.

Domestic Abuse Bill

Baroness Hamwee Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

Moved by

[Baroness Hamwee]

18: Clause 37, page 23, line 28, leave out “without reasonable excuse the person fails” and insert “the court is satisfied beyond reasonable doubt that the person has without reasonable excuse failed”
Member’s explanatory statement
This amendment applies the criminal standard of proof to a breach of a domestic abuse protection order.

[Baroness Hamwee (LD) [V]]

My Lords, this amendment raises the relationship between the civil order and the criminal conviction that can result from a breach of it. I hope that this debate is as constructive as the last one, because my intention is not to divide the House but to get on record the explanation of how a DAPO—a domestic abuse protection order—and the breach of it will work.

The order may be made if the court is satisfied on the balance of probabilities, which is the civil standard of proof, that an individual has been abusive to someone with whom he or she has a personal connection— I find it difficult to use “they” of the singular. It is also a condition that the order is

“necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse”.

The civil court can impose requirements and the Bill gives examples, such as non-contact, not going to specified premises and electronic monitoring. If the subject of the order fails to comply with a requirement, without reasonable excuse, it is an offence of which he or she may be convicted. If found guilty, he or she is liable to a fine or imprisonment up to five years.

We debated protection notices and orders in Committee. The Minister, the noble Lord, Lord Wolfson, in a long and helpful reply, said that he agreed with the aims of our amendments and he summarised them correctly as:

“to ensure procedural fairness so that criminal liability and punishment for breach of a DAPO will occur only where the breach is proved to the criminal standard of proof”.

He also said:

“One of the strongest elements of a DAPO is that it is a civil order, made on the civil standard of proof. That means that if a victim is not able to, or chooses not to, seek remedy through the criminal justice system, they can still access protection from the court.”—[Official Report, 1/2/21; cols. 1950-51.]


I wonder whether the Minister can unpack that “not able”—why not? And “chooses not to”—why would we not require that course to be pursued? I understand, as much as someone who has not been in this situation can, the difficulties facing someone going through everything in a court, which is an issue that we will come to later. It is important to enable a victim to pursue both justice and protection, but it is also important to have regard to the rights of an alleged perpetrator, which is about the standard of proof to be attained.

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[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, as I indicated in Committee, I agree with the general aim of the amendment, which is to ensure that criminal liability and punishment for a breach of a DAPO should occur only if the breach is proved to the criminal standard of proof. I heard from the noble Baroness, Lady Hamwee, and a number of other contributors to this short debate that the essential purpose of the amendment is for me to repeat from the Dispatch Box what I set out in a letter. I will aim to do just that.

I therefore make two main points. First, a breach of a DAPO is a criminal offence. As with all criminal offences, this will require the police to investigate the case and refer it to prosecutors, who will decide whether to pursue a prosecution. Secondly, the fact that a breach of a DAPO is a criminal offence means that, as with all criminal offences, the criminal standard of proof will apply automatically when the court is dealing with the case. A criminal conviction cannot be entered, or criminal sanctions imposed, unless and until the criminal standard of proof has been met.

The criminal standard of proof applies, therefore, when we are dealing with a breach of a DAPO. It does not apply when we are dealing with the making a DAPO. When we look at whether a DAPO should be made, the civil standard of proof applies—that is, the balance of probabilities. But in order to impose criminal sanctions for its breach, the criminal standard of proof will apply—that is, beyond reasonable doubt. I hope that has set out the position clearly and unambiguously.

Picking up on the point made by the noble Baroness, Lady Fox of Buckley, “beyond reasonable doubt” is the standard of proof; “without reasonable excuse” is an element of the offence, which would have to be proved to that standard. That is the difference between the two phrases.

We have taken this approach to the DAPO because we want to send a clear message to perpetrators that breach of an order is a serious matter and will be acted on. As I stated in Committee and during my engagement with the noble Baroness and others since, this approach is similar to other civil protective orders that carry criminal liability for breach, such as the non-molestation order, stalking protection order and knife crime prevention order. The approach is therefore consistent with our existing legal framework.

The noble Baroness, Lady Hamwee, asked why some victims may not want to go for criminal sanctions. That might not be their preference for a number of reasons. First, they may be concerned about the possible consequences for their partner or ex-partner and would not want them criminalised for a breach or, indeed, if the point of the question was, “Why isn’t the original order criminal?”

Fundamentally, the proposed orders are intended to be preventive and not punitive. They will enable courts to impose positive requirements which can help to achieve long-term sustainable behaviour change and challenge perpetrators to address their abusive behaviour. For example, the perpetrator might be required to attend a behaviour change programme or an alcohol or substance misuse programme, or undergo a mental health assessment. That may help those victims who wish to maintain a relationship with their partner or family member but want the abuse to stop. It is a strength of the DAPO that it is such a flexible remedy.

The noble Baroness, Lady Hamwee, raised contempt of court. If a victim wanted a breach of an order other than one made in a magistrates’ court to be dealt with as a civil contempt of court, they could make a committal application to the court, including for an arrest warrant, if necessary. In those circumstances, the court has the power to remand the perpetrator on bail or in custody. We would expect that victims’ views would be considered, together with other questions of public interest, when deciding which sanction for breach is appropriate.

On her point about the guidance, the noble Baroness, Lady Hamwee, will recall that in Clause 48 there is a provision for guidance to the police, and in Clause 73 there is provision for guidance to others, including victims.

This is one of the strengths of the DAPO when compared to other existing orders used in these cases, such as the domestic violence protection order. The responses to our consultation highlighted that the absence of a criminal sanction following breach of the DVPO limits the effectiveness of that order. We have therefore ensured that non-compliance with a DAPO is met with the appropriate consequences. In that regard, I reiterate a point I made in Committee: in its report, the Joint Committee did not raise issues with using the civil standard of proof for making a DAPO when examining the draft Bill.

As the noble Lord, Lord Ponsonby, noted, the noble Lord, Lord Paddick, raised on a number of occasions that we are making a move from civil standard to criminal standard when breached. With respect, I have set out the Government’s position in response to that on a number of occasions. We are satisfied that the system we have in the Bill is appropriate. There is nothing in the point, I would respectfully say, that there is something wrong with criminal sanctions on breach for an order made on the balance of probabilities. They are two conceptually distinct questions First, what is the standard for the order to be made? Secondly, what do you have to prove for criminal sanctions when there is a breach of that order?

As for the question on going to the magistrates’ court, one of the strengths of this order is that it can be issued quickly in response to a crisis incident, as with the existing domestic violence protection order. As the noble Lord, Lord Ponsonby of Shulbrede, said, ultimately, we are dealing with the question of protection for victims.

I hope that my explanations on the standard of proof in this short debate, alongside the explanations I provided in Committee and my subsequent discussions with noble Lords, have been helpful. I hope that what I have said today has been clear and unambiguous. I therefore respectfully invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, I think my noble friend Lord Paddick’s question about the underlying architecture, if that is the right phrase, still stands, but I will not pursue it now. I am grateful to the Minister for all he said about the application of the provisions. I did not make myself as clear as I should have done about what he explained as someone not wanting to go for criminal prosecution. That was not quite my point, which was about inability and due process, which is a term we would do well to keep in mind—due process for both parties.

The Minister has been very clear in his explanation of the standard. I am conscious of how much business the House has to get through today, so I will not prolong this. I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

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[Baroness Hamwee (LD) [V]]

I thank the noble Baroness, Lady Bertin, for bringing this amendment back. She has explained the position very clearly. I have added my name, because the disclosure of a refuge address is something that should be avoided, can be avoided and usually is avoided—because it can be—but, if not avoided, can have very serious consequences. We spent some time on that at the previous stage of the Bill.

In Committee, the Minister said that he did “not dissent” from confidentiality being described as “of critical importance” and “essential”. If I may say so, that is very much counsel’s phraseology, and I am not sure where on the scale of strength of agreement as expressed by a member of the Bar all this comes, but it certainly means agreement. He also took on board my point about the safety of other occupants of the refuge if a determined abuser tracks down the address—a problem I have come up against.

Sometimes it is enough to say that such and such hardly ever happens and there are ways to ensure that it does not and, anyway, there are rules to cover the point. I do not put this issue in that category with any sense of ease or confidence. I join the noble Baroness in acknowledging that there are relevant rules but asking that their importance is emphasised in guidance, if the Bill is not amended.

[Baroness Uddin (Non-Afl) [V]]

My Lords, I support this amendment, eloquently and powerfully detailed by the noble Baronesses, Lady Bertin and Lady Hamwee. I agree that confidentiality must be inherent in safe- guarding women survivors, many of whom may have endured prolonged periods of violence prior to reaching the safety of a refuge.

I have worked with refuges and inside a refuge. I know how hard it is to ensure the safety of not just one individual but of a number of women and their families. There may be instances where refuge addresses are revealed by residents being followed by a perpetrator, or, in fact, survivors may reveal the address if they return to perpetrators for the countless, complex reason debated on many occasions in this Chamber. Regardless, our statutory institutions, including the courts, must uphold the essential principle of safeguarding, not just for the sake of one survivor but for all those who reside in refuges and for the staff responsible for protecting all survivors in such refuges.

It is critical that we acknowledge this, and I look forward to the Minister being persuaded, much more eloquently than I could ever do, by the noble Baroness, Lady Bertin. I thank the noble Baroness for moving this amendment and I wholeheartedly support her.

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[Lord Randall of Uxbridge (Con) [V]]

My Lords, we have heard a passionate and erudite speech by the noble Baroness, Lady Kennedy of The Shaws. I have attached my name to her Amendment 51 principally because I was struck by the similarity, which is mentioned in the explanatory statement, to what is set out in the Modern Slavery Act 2015, where someone cannot be found guilty of committing a criminal act if they have been subjected to the coercion of modern slavery. I can see the same parallel between that and the domestic abuse situation which has been put so well by the noble Baroness. I therefore say, in the interests of brevity, that the noble Baroness has said it all and I shall support her, certainly on Amendment 51, if she puts it to a vote.

[Baroness Hamwee (LD) [V]]

My Lords, I am glad that the noble Baroness is intent on pursuing these two amendments, to which I have added my name. She mentioned a report published recently by the Centre for Women’s Justice. The report mentioned that a defendant must be prepared, which I think means in both senses of the term, to disclose in court in the presence of the deceased’s family, how he—it is usually he—had treated her; it is usually her. I would add to that the further difficulty of disclosing the behaviour in the relationship in front of one’s own family. Shame is another component of what we have been discussing, however misplaced it is.

I mention this because I want to use this opportunity to ask the Minister about the MoJ’s review of the issues raised in this debate. I heard the Secretary of State for Justice being interviewed yesterday about the sentencing Bill which has just been introduced in the Commons. He talked about the views of a victim’s family. He referred to the victims’ commissioner, having talked to her about the disproportionately high sentences imposed because the weaker partner, as has been referred to, had to arm herself because she could not defend herself with her bare hands against a stronger person. Can the Minister tell us more? There is clearly a relationship between this and what we are discussing in the context of these amendments. Amendment 50 is not about sentencing but about culpability, and if there should be a review, we should not delay.

During the Bill’s passage, I have been struck by how fast our understanding of domestic abuse has been developing. The noble Baroness, Lady Kennedy, referred to this. In Committee, the right reverend Prelate said that she is a passionate defender of trauma-informed interventions. I am with her there. Would we have heard that 10 years ago? Perhaps 10 years ago, because that was post Corston, but it would have been quite rare in the sort of debate that we are having now, not in specialised circles and among professionals, but in this sort of debate.

Reading the report that I have just referred to, I was struck by the observation that often abuse is disclosed very late, sometimes after conviction, especially when abuse has taken the form of coercive control. The noble Baroness, Lady Kennedy, explained in Committee that this was the form of abuse in all the cases that she had been involved in. So much of our debate has touched on, if not centred on, training. I refer to this here because it is a shorthand way of referring to a thorough understanding of the subject, or as thorough as it can be, while understanding of the whole issue continues to develop.

In Committee, the Minister, when arguing for the status quo, said that it is important to ensure that wherever possible, people do not resort to criminal behaviour—well, indeed. The amendment proposed is quite limited. To quote from the 2008 Act as amended for the householder cases,

“the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.”

He also argued, as, he said, an “enthusiastic” fan of the common law, that

“the courts are quicker, more nuanced and more flexible in developing the common law”.—[Official Report, 3/2/21; col. 2285.]

They are not quick, nuanced, and flexible enough, or we would not be having this debate. I do not know the genesis of the 2008 Act but clearly it was thought then that it was necessary to produce legislation on reasonable force for the purposes of self-defence, and then of course we had the householder defence. I hope that as an equally enthusiastic parliamentarian—the enthusiasms are not mutually exclusive—the Minister takes the view that there are occasions when Parliament should lead the way.

Counter-Terrorism and Sentencing Bill

Baroness Hamwee Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

Moved by

[Baroness Hamwee]

19: Clause 32, page 29, line 18, at end insert—
“(4) In section 30 (use in criminal proceedings of evidence from polygraph sessions), in subsection (1), leave out “a released” and insert “any”.”Member’s explanatory statement
This amendment probes the use of information obtained through polygraphs against third persons.

[Baroness Hamwee (LD) [V]]

My Lords, I appreciate that the Committee dealt with some clauses regarding polygraphs on the previous day in Committee, to the extent of filleting the Bill so that certain provisions do not extend beyond England and Wales. I apologise to the Committee that I did not retrieve Amendments 19A and 19B, which were tabled at that time. I shall save my more general remarks about polygraphs for the next grouping, as this is a narrow point.

Section 30 of the Offender Management Act excludes the use of two matters as evidence in any proceedings against a released person. Those matters are physiological reactions and a statement made during participation in a polygraph session. The amendment would make it clear that those matters could not be used as evidence in proceedings against a third party, its purpose being to ask whether that is now the case. When dealing with terrorism offences, there must be a lot of interest in the contacts of individuals—and, perhaps, a lot of interest in finding evidence that can be used against those other people.

I was very grateful for the teach-in arranged by the MoJ on how these sessions are currently run for sex offenders. During that briefing, it was explained to us that the sessions are not fishing or trawling for information; they are not wide-ranging discussions to see what an offender might let slip. They use closed questions, to which the answer will primarily be yes or no. It seems to me that some questions can lend themselves to inquiries about situations which may be relevant to other persons: for instance, “Since our last session, have you had any contact with, direct or indirect, or any news of X?” or “Has your wife had any news of X’s family?” My amendment is to probe whether the answers can be used in evidence against X. I beg to move.

[Lord Faulks (Non-Afl) [V]]

My Lords, I regard this group and the next as essentially probing the Government on the use of polygraphs in relation to those convicted of serious terrorism offences. Like the noble Baroness, Lady Hamwee, I attended the briefing last week, during which the potential use of polygraphs was explained; I also found it useful. As I understand it, polygraphs will be a tool—not instead of anything else—to assist in monitoring by the National Probation Service of offenders who have been convicted of serious terrorist offences and are considered at high risk of causing further serious harm.

I need a little convincing that their use in monitoring sexual offenders is really a terribly useful precedent for the challenge presented by serious terrorist offenders, who often have particular ideological convictions which may make detecting lies or inconsistences rather a different challenge from serious sexual offenders, although I understand that polygraphs have been used by the National Probation Service since about 2013.

I suspect piloting may not be particularly easy, given the numbers involved. We all know from the terrible events following, for example, what happened at Fishmongers’ Hall how challenging it is to assess whether someone has been successfully rehabilitated or not. During the last group, the noble Lord, Lord Marks, stressed how important it was for there to be “effective deradicalisation”. I am sure all noble Lords agree that is a desirable aim, but it is something of a holy grail. As we discussed in Committee last week, effective deradicalisation has been a significant challenge for those responsible for managing offenders, not just in this country but in many others where Islamic terrorists and other extremists have presented problems.

I understand the primary purpose of this Bill to be protecting the public from the very serious consequences of offences committed by these offenders. That does not preclude the possibility of rehabilitation, but I think the balance in the public’s view is very much in favour of protecting them.

I understand that there will be an internal review of this polygraph testing—the noble and learned Lord, Lord Stewart, said so in response to a previous group—and that it is considered that it may involve something like 150 offenders, a relatively small cohort. He also said the responsibility for these offenders might, as I understand it, eventually be transferred to a specialist branch of the National Probation Service—the NSD. Experience of handling terrorist offenders in particular would certainly be desirable.

Although I look forward to the Minister’s response, this process of assessing how best to assist in monitoring serious offenders seems very challenging. Those with that responsibility need all the help they can get, given the difficulties they will encounter. At the moment, I see considerable advantage in using these polygraphs.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the question put to me by my noble friend. As I said, that is precisely what the Government seek to do: to provide an additional tool for the management of these offenders. The point he made regarding deradicalisation is, if I may say so, very perceptive. It is a difficult part of the overall structure we are putting in place in the Bill, as we have in other legislation.

I am delighted to hear that my noble friend found the teach-in session helpful. I am particularly grateful to him for putting on record the names of the people who presented it. I know that they put a lot of work into putting it together.

The only point I would respectfully disagree with my noble friend on is one that I had cause to point out to another Member of your Lordships’ House—I think last week. One must really stop apologising for not being a lawyer. I think my noble friend did it twice. I pointed out last week that what is regarded as a cause for apology in this House is generally regarded as a badge of honour everywhere else. The question put to me by my noble friend exemplifies how this is a matter for lawyers and non-lawyers.

[Baroness Hamwee (LD) [V]]

My Lords, at the briefing by the MoJ, I was one of those who volunteered—at some point when we are able to travel again—to undergo a test, because I would like to experience what it is like. I sound a note of caution about the use of private—sometimes confidential but certainly private—sessions. They are terrific and helpful, but only so far; I do not believe that they can take the place of public debate. I could respond at some length to the noble Lord, Lord Robathan, but it would be outside the scope of the amendment. The purpose of scrutiny and its place in the development of legislation mean that it must be undertaken in public. I do not mean to sound too pompous in saying that, but it is something that I believe very profoundly.

The Minister apologised for being a pesky lawyer, but I think that being a pesky lawyer or an activist lawyer is a badge of honour. I disagreed with the comment of my noble friend Lord Thomas that people would not want to apply polygraphs in criminal proceedings. I can imagine that there are a lot of situations when people in court think that they would very much like to apply a polygraph to some witnesses—but that is by the by. I have told myself that I would not take up too much time with this response, because we have a lot of amendments to get through.

Inevitably, perhaps, this turned into a more general debate. On the specific amendment, we are told that it is unnecessary, and that what one might take—I cannot think of the right term— from a polygraph would be unsuitable for use in court, because it would be hearsay. I shall have a look at that after today, but I think that there is a little bit of circularity in all that. Certainly, in the real world, the questions that might be asked would, I am sure, provide material for the police, if not the prosecution—but that is a common-sense response. I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

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[Lord Falconer of Thoroton (Lab) [V]]

This amendment proposes that the Secretary of State, within six months of the Bill being passed, should set up a pilot to see how the polygraph condition works in relation to terrorist offenders. It is a probing amendment. It may well be that a different or longer period would be required for the pilot, but the purpose of a pilot is to test a number of aspects of polygraph testing. We have gone through this on the previous group, and I do not want to spend too much time on it because we have already discussed it a lot, but I have three particular concerns that would be tested by a pilot.

First, how does polygraph testing operate in practice? I would be grateful if the Minister, who was very helpful on the previous amendment, would give us some indications about how it works in practice. By that, I mean the following. If one asks a question of an offender in a polygraph test, “Did you, in breach of your conditions, visit a certain place?”, and he gives an answer to which there is—to use the language of the Minister and the briefing—a significant response, does that mean that further investigations take place? If there is no significant response, would that mean, for example, that there would not be any further investigation? Does that give rise to risks that too much reliance will be placed on the answers in polygraphs to, for example, not undertake further investigations?

My second area of concern is the one raised by the noble Baroness, Lady Hamwee, on Amendment 19. It would appear from the very helpful answer given by the Minister on the previous group that answers given would be admissible in proceedings against another offender, albeit that their admission would be subject to the discretion of the trial judge for the other offence. In certain circumstances I can see very clearly that they might be of real evidential value—for example, because they constituted an admission or because they constituted evidence of a conspiracy, depending on the content of what is being said. Can I take it that the Government are saying that they might in certain circumstances be admissible and that they are content for that to be the position? It is important that the Committee knows what the position is.

Thirdly, am I right in saying that decisions about recall are made not by a court but by a probation officer, and are there any reasons why he or she should not rely on a significant response—to use lay man’s language, a failure—of a polygraph test? I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, the questions that have been asked are important. We cannot assume that the rules that currently apply for use with sex offenders are going to apply in terrorism cases. Indeed, Clause 35(2) tells us that there may be particular rules for terrorism cases, and even if that was not in the Bill, we know that rules can be changed at any time, relatively easily.

Polygraphs do not have a great reputation with the public, and “The Jeremy Kyle Show” did not enhance it, which is another reason for wanting to explore details today. I made the point only yesterday on the Domestic Abuse Bill that operators have to follow courses accredited by the American Polygraph Association, and I was interested—I will try to use a neutral term—that we in this country are following American practice.

Under the rules, there are requirements about reports and records. I had a look at the 2009 rules, under which the operator is required to explain the requirements of the session: that anything disclosed might be communicated to the probation officer, and that there must be consent—or, rather, written confirmation—from the offender that these explanations have been given. I stopped myself calling it “consent” because, in that situation, I wonder whether the anxiety to which my noble friend Lord Thomas referred would preclude a complete understanding by the offender of what is happening. In that situation, knowing that refusal to take a test would amount to a breach of licence conditions, would you not sign anything?

The current reviewer of terrorism legislation has called for a pilot, and, if not a pilot, then post-legislative scrutiny. Not many Bills come along for post-legislative scrutiny by Parliament. The noble and learned Lord, Lord Stewart, painted a picture that I did not quite recognise. It sounded rather more like a departmental review—an internal review—than scrutiny by Parliament to see how an Act is getting on.

At last week’s briefing, I asked about the reliability of polygraphs used on subjects who have undergone some extreme experiences, such as having been in a war zone. I understand that that cohort is particularly in the Government’s mind at the moment. The professor of psychiatry—Professor Grubin, I think—who, I understand, advises the Home Office, realised that I was referring to trauma. I had not wanted to assume that they were subjects who had been traumatised, but he was right. I remain concerned not only about what might be perceived from offenders’ reactions but that the test itself might be retraumitising, so I think that the questions being posed are very helpful.

[Lord Woolf (CB) [V]]

My Lords, it has been a privilege to listen to the speeches this afternoon. I have benefited very much from what has been said by all noble Lords and I make these submissions bearing that in mind.

At the moment, I see Clause 35(1) as the most important provision dealing with polygraph licence conditions. What we have heard this afternoon indicates just how clearly we are engaged on a learning curve at present. As I read it, subsection (1) provides that the power to use polygraph licence conditions will be limited by the regulations made in that subsection. Therefore, it seems that the whole of this debate should be conditioned by that provision, and that is why I thought it right to intervene in this almost private party that is dealing with these issues.

It seems to me that we are on a learning curve not only with regard to the provisions of this Bill but generally on the use of polygraphs in this country. It is obviously very useful to have as much material as we can so that, before we give the Government such powers as we consider appropriate, we know what the limitations will be.

I of course recognise that the Ministers we have heard address the House today would have given the assurances they did only if they were confident that they would in fact be applicable. But the provisions will be in their final form only after the regulations have already been drafted and the limitations expressed. That is why I think the whole concept in the amendment proposed by the noble and learned Lord, Lord Falconer, should be treated as being very appropriate, because this is the mechanism by which those limitations are going to be defined.

--- Later in debate ---

I am conscious that the standard to which the Government wish to return is that which was in place when control orders were first introduced in 2005. At that time, we had little experience of the deadly new threat from al-Qaeda-inspired and al-Qaeda-directed terrorism in the UK and no experience of orders of this kind. But the competing standards of proof have been tested over a period of years. The evidence is now in and the results seem to be, by the Minister’s own admission in the Commons, incontrovertible: the lower standard restricts basic liberties without keeping us any safer. In that connection, I was interested to see that the noble and learned Lord, Lord Falconer, from the Opposition Front Bench has put his name to Amendment 28, which is even a little stronger than mine. I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, given the experience of those who have put their names to the amendments in this group, I wonder whether I should say nothing so as not to damage the arguments—but I will join in.

It will be clear enough to the Committee that we on these Benches have considerable concerns about this part of the Bill. I hope that the Committee will understand that this does not mean that we do not take very seriously indeed the threat and actuality of terrorism and the work undertaken by our agencies. I say that because our amendments to the Covert Human Intelligence Sources Bill, which we completed earlier, seemed to be heard by some noble Lords as opposition to covert sources period when we were directing ourselves to authorisations to commit crime by the mechanism of making the action not a crime. I do not want too much to be read into what I am saying. This is not opposition, as I say, to the work of those who keep us as safe as they possibly can.

We are not hugely keen on TPIMs, especially on their acquiring extensions that take them back closer to control orders. We consider it appropriate to test these administrative measures in terms of how they measure up to the presumption of innocence, fair trial, liberty and all the matters that we as a society hold to be important, knowing the damage that might be done by letting them slip. We are of course aware of the Government’s argument that it is not the TPIMs themselves that we should be looking to, but the application of particular measures. If you look at that from a slightly different perspective, it is a good argument for legislative safeguards.

At the time of the last three-monthly report to Parliament on 30 November, only three TPIM notices were in force, there having been six the previous May. That begs the question as to the need for these clauses. The Home Office fact sheet on lowering the standard of proof tells us that this would

“increase flexibility by making it more practical for operational partners to demonstrate an individual is, or has been, involved in terrorism-related activity.”

That requirement should indeed be more than merely suspected.

The noble Lord, Lord Anderson, referred to the statement in the Commons by the Minister. The current standard of proof does not seem to have prevented the imposition of TPIMs. The current independent reviewer has made the same point, so this is not even a matter of administrative convenience. These measures may be civil but they can, quite understandably, be perceived as a parallel system of punishment without trial, but currently on the basis of the civil standard.

The noble Lord, Lord Anderson, and the noble and learned Lord, Lord Falconer, seek to meet the Government part way. We take the view that the alterations are not justified. I have referred to the current Independent Reviewer of Terrorism Legislation. To quote from his note on this part of the Bill,

“it is inevitable from the nature of intelligence that mistakes may be made. The significance of an individual’s actions may potentially be misinterpreted; their adherence to a cause overstated; their intentions misunderstood, if only partially. A safeguard that requires the Secretary of State to consider the intelligence presented to her by officials, and decide whether the individual has actually been involved in the terrorist-related activity that is alleged against them, and which allows a court to review that decision in the light of all information presented to it, is not an impediment to safeguarding national security.”

We oppose this clause standing part of the Bill.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, the noble Lord, Lord Anderson of Ipswich, spoke with such eloquence in making all the points that I can confine myself to making four short points.

First, as he rightly stressed, this is an important part of the conditions for TPIMs because it enables a judge and the Home Secretary, when making the decision, to concentrate on the factual evidence in relation to terrorist activity. The other conditions are more difficult to establish, or it might be more a question of judgment, but this at least concentrates on the facts.

Secondly, the amendment seeks what some may feel is an overgenerous compromise. I do not think so; I think that it is right to say that, for the first and initial period, a lower standard can be acceptable.

However, thirdly, that cannot be acceptable when one is looking at longer periods where a person’s liberty is to be constrained—particularly with the amendment that we will come to next, which concerns the indefinite detention period.

Fourthly, and finally, it seems to me that there can be no justification for making such a change unless there is evidence. Indeed, what was said about the position in the other place has been clearly set out.

I ask the Minister to set out fully what he believes is the evidence for this change. If he cannot do so in public on this occasion, there must be a means of informing those who are interested in this matter of the evidence so that it can be carefully reviewed before we impose on people accused of obviously very serious issues a standard of proof that really is completely unacceptable in any civilised society.

--- Later in debate ---

Moved by

[Baroness Hamwee]

29: Clause 38, page 35, line 2, at end insert—
“(za) in subsection (3)(a), after “met” insert “and the court gives the Secretary of State permission”;(zb) after subsection (3), insert—“(3A) In determining the extension, the court must apply the principles applicable on an application for judicial review.”

[Baroness Hamwee (LD) [V]]

My Lords, we have Amendment 29 in this group, and we oppose Clause 38 standing part of the Bill. The noble Lord, Lord Anderson, has Amendment 30. The clause allows for repeated renewals a year at a time, instead of the two-year time limit. I should perhaps acknowledge that the rubric or clause heading is “extension of time limit”. However, I noted that the Minister, in responding to the last group, referred to an “enduring TPIM”.

It is difficult to disaggregate the changes and their impact, because they will be cumulative, but this group of amendments is about the time limit. So, when he focuses on that, I hope that the Minister can share with the Committee real cases where the expiry of a TPIM has caused a problem. In other words, this is a parallel question to the questions asked and the points put in the debate on the last group regarding the standard.

TPIMs were originally intended as targeted temporary measures under emergency legislation that Parliament had to reapprove each year. As I have said, our concerns about the standard are compounded by the removal of the time limit with no additional safeguards. Even if the notice has been revoked and revived, or expired, it seems that it can be continued. Can the Minister help me by confirming whether, once subject to a TPIM—at any rate, one imposed after this Bill has been enacted—one is always subject to it being reimposed? I am intrigued that the extension cannot apply to a current TPIM but, presumably, there is nothing to stop there being a new TPIM. What is the difference between the current three measures in force, which I referred to in the previous group, and those which are expected to come within the scope of this clause?

The current Independent Reviewer of Terrorism Legislation is critical in his notes on this, as on the previous point. He says:

“If there is an operational need … despite the fact that fresh terrorism-related activity cannot be shown … it should be possible for the Home Secretary”


to be satisfied that there is an “exceptional or compelling case” to go beyond two years. He comments on processes, described as a “tick in the box”, the absence of judicial oversight, and the lack of an upper limit to ensure that different cases are not parked—or, as he says,

“at the very least, a requirement to specify an exit strategy including how the severest measures … can be tapered off.”

The noble Lord, Lord Parkinson, referred to a reduction in conditions—for instance, being able to associate with more people as years go by. Combined with the comment about an exit strategy, that seems to be extremely important, but this is the first time I have heard about the reduction in conditions. It would be very reassuring to know that this is as much a part of the Government’s programme as the other points we are considering. References to flexibility and tools really do not meet the point; one would expect those who are operational to want as many tools as possible. I look forward to other comments on the time limits and to hearing more of the Government’s thinking on why they have included this provision in the Bill. I beg to move.

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[Baroness Hamwee (LD) [V]]

My Lords, I hope that noble Lords will forgive me if, in the interests of time, I do not comment on every contribution. I must say, I have edited my notes as we have gone along, and it is more or less the same cast of characters throughout the clauses and amendments on this part of the Bill.

I noted in particular two comments that I think are well worth keeping in mind: my noble friend Lord Strasburger saying that two years is a serious length of time, and the noble and learned Lord, Lord Thomas—who, as ever, put pithily and succinctly an issue that is at the heart of the case, as it were—saying that the effect of indefinite detention or what is perceived as indefinite detention, by the taking away of hope, is to create greater danger.

In response to the question about how many new TPIMs there have been because of the cliff-edge issue, we were told it was “more than one occasion”. If the noble Lord is able to expand on that, I would be grateful. I observe with regard to reviews—I use that term quite broadly—that it is difficult, if not impossible, for the subject to make effective representations because he does not know what points put to the Secretary of State he is responding to. It is worth saying one final sentence on the carrot—yes, that is what it is—of investing. One cannot even say that it is investing in rehabilitation, because no offence has been proved, but investing in managing the risk has to be worth it, even if you look at it coldly in terms of pounds and pence, because of the cost of enforcing and supervising TPIMs. I am looking at my screen to see whether the Minister will be able to respond to the question that I just put. As he has not leapt up—oh, he has.

[Lord Parkinson of Whitley Bay (Con)]

Only to disappoint the noble Baroness, but also to reassure her that I will add that to the information I provide in writing following the debate.

[Baroness Hamwee (LD) [V]]

I am grateful for that. We are in Committee, so it is appropriate that I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

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Moved by

[Baroness Hamwee]

30A: Clause 39, page 35, leave out lines 39 to 41
Member’s explanatory statement
This amendment would prevent relocation for resource reasons.

[Baroness Hamwee (LD) [V]]

My Lords, this takes us to the issue of location and relocation. It was probably very naive of me to be taken aback at seeing the provision for variation expressed in resource terms, though perhaps I should acknowledge the Government’s transparency in doing so in the Bill. The Secretary of State already has wide powers of location and relocation so I would be interested in understanding the balancing factors to be taken into consideration. I ask this because the impact of being lifted from one’s community can be considerable. I realise that community connections may be the problem, but the support of the community can also be very positive.

I appreciate the powers are intended to have a considerable impact, but so might being placed somewhere utterly unfamiliar, where visits from friends and extended family are much more difficult because of distance as well as the deterrence of security clearance. There are more likely to be problems seeking work—if reporting and other conditions permit work—and from being cut off from one’s belief systems when one may have only a tenuous grip on reality. It could be that for that lone wolf—the lone actor, as he was referred to earlier—not being well established in the community is a significant part of the problem, which will be exacerbated.

If there is a family, what about the impact on the spouse and children? I have heard the words “depression”, “anxiety”, “enduring sense of injustice” and “stigma”, applied to how this might be experienced by children. Family cohesion breaking down is unlikely to be beneficial to the management of the subject. I have also heard relocation described as creating toxic social effects. The longer the restrictions go on, the more likely a breach is, because of the loss of hope, to which the noble and learned Lord, Lord Thomas, referred. The best course is positive engagement, and we have just been talking about that, but TPIMs seem to be the opposite, and relocation must often mean compounding a disaffection with society. I beg to move.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, have explained, this amendment is intended to prevent the possibility, as proposed by Clause 39, of varying a TPIM subject’s relocation measure for reasons connected with the efficient and effective use of resources in relation to that individual. I hear what they say about wanting to understand and explore that through this amendment.

We do not believe that the amendment as drafted would have that effect in practice, and we think that it could inadvertently broaden out the application of the clause to enable relocation of the TPIM subject for the second time for any reason. However, as I say, I understand the questions which lie behind their tabling it.

The Government are committed to future-proofing the TPIM regime to ensure that our operational partners are fully supported to manage TPIMs efficiently and effectively. Clause 39 has an important role in doing that. It will allow the Home Secretary to move an already relocated TPIM subject to an alternative location, if necessary, for resource-related reasons, provided that the national security reason for requiring relocation still exists—that is key to note.

We want to ensure that operational partners, and in particular counterterrorism policing, are supported in their function of managing this small but significant cohort of high-risk individuals within the community. This clause seeks to ensure that there is a greater degree of flexibility in the system, so that there can continue to be effective management of a TPIM subject when operational circumstances evolve.

To provide a real-world example of where a police force finds that resources are affected, I draw the Committee’s attention to the Novichok poisonings in Amesbury, in Wiltshire, in June 2018, which suddenly and significantly diverted police resource in a small force for a considerable period of time to that important and high-profile investigation. In such a scenario, if a TPIM subject was residing within the force area, it might no longer be possible for counterterrorism policing to provide the same dedicated resources to ensure that the TPIM was being managed effectively and in a way that reduced the threat to the wider public.

The new ground to vary the relocation measure could also potentially be used to cover the following: first, a temporary move of the TPIM subject because all relevant counterterrorism officers with the necessary skills become unavailable at the same time due to illness or another temporary reason, such as during the current pandemic, for example, which I am sure will be on noble Lords’ minds; or, secondly, in circumstances where the presence of the TPIM subject becomes known locally and, as a result, there is increased pressure on counterterrorism resources to keep the subject both monitored and safe.

The noble and learned Lord, Lord Falconer of Thoroton, asked about the test for the Home Secretary. When first deciding where to relocate a TPIM subject, provided there is a national security reason to do so, the Home Secretary takes into account various factors to arrive at a proportionate decision. These include but are not limited to: the personal circumstances of the individual; the availability of services and amenities, including access to employment, education, places of worship and medical facilities; the proximity to prohibited associates; and the demographics of the community. It is reasonable to apply a similar approach when deciding whether the police force area in which the TPIM subject currently resides continues to be the most appropriate area for them to be placed.

We do not anticipate this ground to vary the relocation measure being used except in exceptional circumstances. We fully recognise that the relocation of a TPIM subject —or the re-relocation of the subject, as would be the case if relying on this new ground—is a significant action to take given the potential impact on the individual and could be used only when necessary and proportionate to do so, taking into account their Article 8 rights. The Government understand that stability in a subject’s life is a crucial factor behind their rehabilitation and supporting them to move away from an extremist mindset, which, of course, we want them to do.

The noble and learned Lord, Lord Falconer, rightly said that this amendment does not address head-on the question of relocation. However, as he raised it and noble Lords are interested, it is worth reiterating that the Home Secretary can relocate a TPIM subject only if it is necessary and proportionate to prevent and restrict involvement in terrorism-related activity, that consideration is always given to the subject’s Article 8 rights, and that, furthermore, a TPIM notice does not prevent an individual seeking or maintaining employment or study—in the past, TPIM subjects have pursued both of those. It is also worth reminding the Committee that TPIMs are different from the control order regime. Under control orders, somebody could be relocated anywhere in the country, whereas under TPIMs, relocation is up to 200 miles away from their home address.

We assess that, in most cases where a TPIM subject has been relocated but there is then a requirement to move them to a new place of residence, that is provided for within existing legislation. However, as with several of the changes we are seeking to introduce through this Bill, we deem it important expressly to create this flexibility for our operational partners within the TPIM Act 2011 as part of our mission to future-proof the system and to ensure that TPIMs can be managed efficiently and effectively.

Decisions to vary the relocation measure for resource reasons will be capable of appeal. As with other unilateral variations to the TPIM notice, the function of the appeal court will be to review whether the variation was necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. Additionally, however, for variations to the relocation measure on resource grounds, the appeal court will also review whether the variation was necessary for the efficient and effective use of resources.

Given the crucial tasks that we expect of our operational partners, we want to ensure that we support them as best we can in their effective management of TPIM subjects, as well as in their ability to respond to other high-priority work such as the examples I have given.

Amendment 30B is consequential on Amendment 30A, and the same arguments apply. I therefore invite the noble Baroness not to press her amendments.

[Baroness Hamwee (LD) [V]]

My Lords, I shall of course withdraw Amendment 30A and I shall not move Amendment 30B. The questions asked about proportionality and national security should be at the heart of this. The flexibility to which the Minister referred seems to suggest that subjects might be moved closer together for ease of management, which is the exact opposite of what I thought was one of the objectives of this regime.

I am still puzzled that

“purposes connected with preventing or restricting … involvement in terrorism-related activity”

in new Section 12(1A)(b) does not cover the Salisbury example that the Minister used, but, as one always does, I will look at the explanation, because I may well have missed it.

I did not miss the fact that my drafting was inadequate, but I do not take exception to that comment—that could be corrected later if necessary. I beg leave to withdraw the amendment.

Amendment 30A withdrawn.

--- Later in debate ---

[Baroness Hamwee (LD) [V]]

My Lords, Clause 40 stand part is grouped with Amendment 31 in the names of the noble Lords, Lord Hunt and Lord Bach, which is very different. I shall confine my remarks to the clause. A curfew can be more than overnight. All the points about amendments we have debated this evening are relevant to the time—the hours of the day and night—during which a subject may be required to remain wherever he is living—plus, of course, in particular, engaging Article 5 of the European Convention on Human Rights, on the deprivation of liberty.

The ECHR memorandum published with the Bill is explicit that this provision is so that an individual can be required to observe longer curfew hours. That is not a justification, however. We have some case law, as I am sure other noble Lords may mention. In JJ, Lord Bingham said that account should be taken of

“a range of factors such as the nature, duration, effects and manner of execution or implementation”

of a measure—very much as noble Lords said on a previous group. The noble and learned Lord, Lord Brown, took the view that the absolute limit was 16 hours, and I understand that no curfew has been for a period longer than 16 hours since.

The ECHR memorandum makes the point that the principle of curfew does not breach Article 5, and I take that point, but the particular issue I want to raise in this connection is that the clause—that is, the change—makes it that much easier for the limits to be pushed longer and longer and throws on the individual the need to challenge them, rather than having clear limits set on the Secretary of State through legislation.

I am sure that noble Lords will understand, when it comes to the appetite, and indeed the ability, of an individual to challenge each measure, or extended measure, it is not an easy task. The balance—I think it is called “equality of arms”—moves completely out of balance through this clause. I beg to move.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, rather like the noble Baroness, Lady Hamwee, I am not sure that our two amendments have any connection whatever. None the less, it is a pleasure to be able to make this short intervention on the Bill and to probe just a little more than I did at Second Reading the role of police and crime commissioners.

I do support the strengthening of the TPIM provisions. That the Government would have to do so was entirely foreseeable in 2011, when the coalition Government insisted on the abolition of control orders, despite the warnings that I and other noble Lords gave at the time.

My amendment was drafted after discussions with the West Midlands police and crime commissioner, David Jamieson. Clearly, the provisions are potentially extremely resource-intensive and need to be used proportionately and only when absolutely necessary. I would like to make two specific comments.

As the thresholds for a TPIM are lowered and the range of measures extended, it is important that greater scrutiny and oversight are implemented to give reassurance to individuals and communities that the legislation is being used fairly. These are of course issues of grave national security concern. The oversight offered by a police and crime commissioner could help to give the Home Secretary reassurance that full consideration had been given ahead of any decision regarding a TPIM. Local oversight could also enhance the ability of the Home Secretary to make an informed decision when considering a TPIM application, variation or extension. It would enable PCCs to submit any additional information or make recommendations to the Home Secretary in respect of the community impact and the impact on local police force resources—which, as has already been discussed, can be intensive for a TPIM.

It is not entirely clear how police and crime commissioners are currently made aware of TPIMs within their local area. Certainly, the chief constable should advise the police and crime commissioner when a TPIM is being considered, but there are no clear guidelines on how this should take place. My amendment would formalise this process. We know that the number of TPIMs in place nationally is small, and therefore it should not be envisaged that this additional step in the process would present a burden for police and crime commissioners or forces. As part of this process, the information would of course have to be shared within the most appropriate, secure environment.

At Second Reading, the noble Baroness, Lady Williams, responded to that point by saying that the Home Office already works very closely with the police before a TPIM is imposed and during its lifetime. She went on to say:

“The process ensures that TPIMs are imposed only following engagement with the relevant local police force and that community impact assessments are kept up to date.”


She then said:

“The Bill already contains a clause that will allow a TPIM subject’s relocation measure to be varied where necessary on operational resource grounds.”


On those grounds, she considered that my

“proposed amendment for an additional role for PCCs … in TPIM processes is … not necessary.”—[Official Report, 21/9/20; col. 1653.]

That was disappointing. The key issue here is that TPIMs are an intervention that places significant restrictions on a person’s life, based on the balance of probabilities. Given that, PCCs could add value in the process by seeking reassurance that due process had been followed. I remind the Minister that they do this for other policing powers that might be regarded as controversial, including stop and search and the use of covert services, and it would be appropriate if it were extended to TPIMs. I commend the amendment and hope that the Minister will be sympathetic.

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I now call the noble Baroness, Lady Hamwee, to respond to the debate.

[Baroness Hamwee (LD) [V]]

I am in much the same position as I was with an earlier amendment: I do not see what is not already provided for in current legislation. I would be interested to know whether the examples used by the noble Lord, Lord Parkinson—the radicalising threats to children and the case of someone who is suspected of being a not-yet-fulfilled attack planner—are examples of where the police have had a real problem.

I am not reassured that a measure is “likely” not to be over 16 hours. In response to various questions, we seem to be getting the answer, “It’s necessary because it’s necessary”. We will, of course, think about this particular aspect after today; tonight, I will not seek to oppose this clause standing part of the Bill.

Clause 40 agreed.

Moved by

[Baroness Hamwee]

30C: Clause 41, page 37, line 10, after “necessary” insert “subject to the requirements of section 12 of this Act”
Member’s explanatory statement
This amendment would ensure section 12 of the Terrorism Prevention and Investigation Measures Act 2011 is not overridden.

[Baroness Hamwee (LD) [V]]

My Lords, we have Amendments 30C and 30D in this group, as well as the clause stand part debate. These take us to polygraph measures, where we were not so many hours ago in connection with terrorist offenders—those were, of course, “offenders”, while the individuals subject to TPIMs are not.

If a polygraph measure is imposed as a requirement of a TPIM and the subject refuses to comply, then one asks: so what? That becomes an offence, as I understand it, and the subject would be liable to imprisonment for up to five years and/or an unlimited fine. In an attempt to think about the “so what?” question, Amendment 30C refers to Section 12 of the 2011 Act. That section deals with the variation of measures, with some safeguards. I will not hold it against the noble Lord if he says that the drafting leaves a lot to be desired; I dare say it does. The point is to seek to be sure that what is learned from a polygraph, and so points the examiner and therefore the police in a particular direction, cannot override the safeguards in legislation.

On Amendment 30D, we know that polygraphs cannot be used as evidence in proceedings. Can they be used to point to where there may be evidence? I assume that they can, so will the Minister therefore confirm whether this can be used as evidence of a breach of a TPIM, or to extend or impose a further TPIM? I think the Law Society has made the point—I hope I am not misquoting it—that polygraphs should not be used as a route to impose a TPIM. I beg to move.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

The noble Baroness, Lady McIntosh of Pickering, has withdrawn from this group, so I call the next speaker, the noble Lord, Lord Paddick.

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I hope that this covers the questions raised by noble Lords. We have gone through the amendments quite quickly, so I will pay particular attention to the Official Report and make sure that I pick up on any questions that I have inadvertently missed. However, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, I may have missed it, but I am not sure that the noble Lord answered the point about the right to silence. It is difficult to read body language from eight miles away.

[Lord Parkinson of Whitley Bay (Con)]

I apologise. I did not do so, but if the noble Baroness is happy, I will write to her and follow it up, along with any other questions that I might have missed.

[Baroness Hamwee (LD) [V]]

Equally, of course, we will go through the Official Report to see whether all our concerns have been addressed. For now, I beg leave to withdraw the amendment.

Amendment 30C withdrawn.

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Moved by

[Baroness Hamwee]

30E: Clause 42, page 38, line 22, at beginning insert “If the Secretary of State reasonably suspects that a requirement is necessary,”
Member’s explanatory statement
This amendment would require reasonable suspicion before a requirement may be imposed under this section.

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[Baroness Hamwee (LD) [V]]

My Lords, I think that, on the last grouping, the question which lay behind this amendment was answered—but let me just check. Clause 42 covers the drug testing measure. My first thought was whether a subject could be caught up in being tested and fail the test because someone else in the house was using drugs which were detected, perhaps under his fingernail. The amendment raises the issue of reasonable suspicion, but I think the noble Lord has confirmed condition D—that the Secretary of State reasonably considers, in this case, drug testing necessary for the purposes we have talked about. It is the “reasonableness” of that consideration; I think he has confirmed that that will apply. So that he can confirm it again, I beg to move.

[Lord Paddick (LD) [V]]

My Lords, our Amendment 30E relates to subjecting the subject of a TPIM to drug testing for class A and class B drugs only, at a police station by a constable only. I have rather different questions from those of my noble friend Lady Hamwee. The question I cannot find an answer to—and I cannot think of one myself—is, “Why?” One might cynically argue that a suspected terrorist high on cannabis might be too chilled out to conduct a terrorist attack; conversely, if the Government fear a suspected terrorist might do something stupid, for example being emboldened under the influence of a class A or class B drug, why not test for alcohol?

Bearing in mind the restrictions on the subject’s movements and communications and on who they can associate with, where do the Government think the subject of a TPIM will get his supply of class A or class B drugs? Indeed, if the subject is taking class A or class B drugs, under the noses of the police or security services, does this not raise questions about what else he might be getting his hands on, such as explosives? In short, what is the point, other than placing further restrictions, being even more intrusive and making the subject’s life even more difficult?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, through Clause 42 we are adding a new measure to the list of available measures in Schedule 1 to the TPIM Act 2011. If it is imposed, a TPIM subject would be required to submit to a drug test and provide a relevant sample.

Operational experience has shown that, in certain circumstances, drug use can exacerbate the risk of a subject engaging in terrorism-related activity. This new measure will support operational partners to mitigate this risk by confirming suspected drug use through a mandatory drug test and, where necessary, mandating attendance at rehabilitation programmes. They will want to follow up the questions raised by the noble Lord, Lord Paddick, about where those drugs were obtained.

We consider this amendment unnecessary because the TPIM Act already contains robust safeguards regarding the imposition of all measures on TPIM subjects. Section 3 of the TPIM Act requires that at the point that a TPIM is first imposed the Home Secretary must reasonably consider that the TPIM notice and the measures specified within it are necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. Section 12 of the TPIM Act also requires that variations of measures specified in an existing TPIM notice, which would include the imposition of a drug testing measure, cannot be made unless the Home Secretary reasonably considers that the variation is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.

Given that existing requirement, the amendment proposed does not go further than the safeguards already in place. Furthermore, the existing requirements of the TPIM Act, to which I have just referred, apply to all measures rather than being confined solely to the drug testing measure as this amendment has it. For those reasons, we invite the noble Baroness to withdraw the amendment.

[Baroness Hamwee (LD) [V]]

My Lords, one might expect the Home Secretary asked to approve the measure to respond by asking those requesting it what the hell—sorry—the police were doing if they had not spotted that the subject was getting hold of drugs. As I anticipated, my question had already been answered. I hope that the hours that will be imposed—to pick up my noble friend’s comparison, which is not a comparison: alcohol is a drug too—will make it impossible to get hold of alcohol as well as drugs. However, my underlying question has been answered. I beg leave to withdraw the amendment.

Amendment 30E withdrawn.

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Moved by

[Baroness Hamwee]

30F: Clause 43, page 39, line 28, leave out from “individual” to end of line 29
Member’s explanatory statement
This purpose of this amendment is to question the disclosure of information about an electronic device used by any other person.

[Baroness Hamwee (LD) [V]]

My Lords, Clause 43 is about the provision of information, including information about electronic communication devices—not just devices used by the individual, but those used by any other person in the individual’s residence. I have already referred to the impact of a TPIM on other members of the family. My recollection, which may not be absolutely accurate, is that a child’s lack of access to a computer was one of the things highlighted when control orders were abolished. The burden on children is, as I said, considerable, with bullying, confusion, being called a jihadi kid and all those things. This is presumably also one of the occasions when the condition about it being reasonably necessary will apply. Can the Minister confirm that this will not be invariable? In other words, will this disclosure requirement always be applied or will an assessment be made of its necessity? I beg to move.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I wholeheartedly agree with the final comments of the noble and learned Lord; that is exactly what Committee stage is for. It has been thorough but good natured, and long may that continue.

Clause 43 amends the existing electronic communication device measure in order that a TPIM subject will be required, upon request, to provide details of electronic communication devices—also known as ECDs—which they possess or use, or any such devices belonging to other individuals in their residence. It almost goes without saying that in the digital age in which we now live there is vast scope for ECDs to play a key role in the conduct or facilitation of terrorism-related activity, including attack planning and the radicalisation of others in a bid to inspire them to carry out a terrorist attack.

Amendment 30F would prevent the Home Secretary from being able to require TPIM subjects to provide details of electronic communication devices belonging to other people in their residence. This would significantly undermine the utility of the changes we are seeking to make and would ultimately be to the detriment of national security. We have seen in the past that TPIM subjects will access or try to access devices belonging to others in their household, as the noble Lord, Lord Paddick, rightly noted.

Clearly, there is an important balance to be struck between security and civil liberties, particularly of family members such as children. But we are clear, particularly given how sparingly we envisage this measure being imposed, that any impact on those residing with the TPIM subject—such as their family members—will be proportionate.

Preventing the Home Secretary from being able to require the provision of certain ECD-related information, as this amendment would have it, would leave a gap in a potentially useful information source which can assist with the effective management of the TPIM subject. I am happy to reassure noble Lords that, as with all measures contained in Schedule 1 to the TPIM Act, this measure will not be applied unless the Home Secretary reasonably considers it necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.

The Committee has already heard during the course of today’s debate that the TPIM regime has inbuilt and robust judicial oversight. This includes all TPIM subjects having an automatic right to have a court review of the imposition of their TPIM notice and each of the measures imposed, as well as a right of appeal should a TPIM subject wish to challenge a variation to one or more measures contained within the TPIM notice. This oversight will of course apply to the updated ECD measure proposed in this clause.

I hope that that provides noble Lords with the reassurances that they were hoping to receive and I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, yes, I will seek to leave to withdraw my amendment.

I find it a bit difficult to understand in this connection how one applies proportionality. The question I asked of the Minister was whether this condition would be imposed in the case of every measure. Obviously, if there is nobody else living at the residence, it would be irrelevant. However—this is a bit rhetorical—how can one apply proportionality in this connection? Either you are concerned about communications through any electronic devices or you are not. I should probably leave that hanging, because it is really a rhetorical question.

I should not finish without thanking both noble Lords who have commented on our indefatigability and good humour. I am not sure whether the good humour showed throughout; I am glad that it appeared to. I acknowledge that picking up so many separate points must seem quite tedious, but quite a lot has come out, certainly that will help us to assess how to address these clauses at the next stage of the Bill, and reading every line and every word is what we are here for.

I apologise to noble Lords who had expected to be able to take part in the Statement on Myanmar, which is a very important and urgent issue. I am very sorry: it has nothing to do with any of us who are speaking and it is a great shame that that Statement was displaced from this evening.

I beg leave to withdraw the amendment.

Amendment 30F withdrawn.

Domestic Abuse Bill

Baroness Hamwee Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, opposition to clauses standing part of a Bill usually arises out of outright opposition, and in my case I said at Second Reading that I shared the view of my noble friend Lady Burt that polygraph testing on the present state of the technology has no place in our criminal justice system. The basic response of most lawyers to polygraph testing is to oppose its use in a criminal context precisely because there is no firm evidence of its reliability. We tend to the view, which I am sure the Minister understands, that a system of evaluating evidence whose reliability is not assured and produces essentially binary results—true or false—is inherently inimical to the approach of common-law lawyers used to a carefully balanced system of gathering, testing, and evaluating evidence.

However, my perception of polygraph testing has now become somewhat more nuanced. A major contributor to a shift in my view was an excellent teach-in organised by the Ministry of Justice last Thursday, very well presented by Heather Sutton, senior policy adviser on polygraphs and sexual offending, and Professor Don Grubin, emeritus professor of forensic psychiatry at Newcastle University. They gave a number of noble Lords a comprehensive outline of the way in which polygraph testing is used in the management of offenders subject to recall from licence under existing legislation. For my part, I have no experience of the use of polygraph testing, and no expertise on the subject. Opposition to its use as part of this Bill was canvassed in another place by my honourable friend Daisy Cooper MP. The Parliamentary Under-Secretary of State for Justice, Alex Chalk MP, provided a detailed and helpful response to a number of questions which she raised. As a result of his answers and what we were told on Thursday, I accept that there may be some force—subject to a number of questions—to the argument that there is a legitimate place for the use of polygraph testing in necessary cases, where its purpose is to avoid serious harm.

I add one particular proviso, among others, that evidence of polygraph testing must never be relied on as part of the evidence in a criminal case until its reliability is far more conclusively established than it is now. However, as I understood it, we were assured last Thursday—I would be grateful for confirmation of this from the Dispatch Box—that no decisions on recalls from licence can be taken as a result of a test indicating deception. If the result of a test implies that an offender is lying about a breach of a licence condition or about further offences, for example, investigators will ask the police to look further to see what the truth is before taking any positive action. There is therefore no recall, as I understand it, on the basis of a failed test, which will lead only to recall if the police find other evidence establishing that a breach has occurred.

However, I have some concerns about cases where an offender makes a disclosure in a polygraph test confessing to behaviour that is a dangerous breach and might therefore be recalled. It is important in such cases that the veracity or genuineness of the disclosure and its voluntariness can be thoroughly tested before any recall can take place. Our understanding was that such a disclosure would be followed generally by a hearing before a recall was confirmed, but again I seek confirmation of that.

This is genuinely a probing amendment. It is for that reason that our stand part opposition is coupled with Amendment 191, through which I advocate regulations to prevent Clause 69 being brought into force before such a scheme is piloted. I note that the Government propose to pilot these provisions before rolling them out. However, we ask that regulations bringing Clause 69 into force are not made permanent before Parliament has had an opportunity to consider a report from the Government on that pilot and has agreed to regulations being made permanent under that clause.

I appreciate that polygraph testing is used already in the case of high-risk sexual offenders to manage compliance with licence conditions and that it is included in the Counter-Terrorism and Sentencing Bill for monitoring terrorist offenders released on licence. As I understand Clause 69 of this Bill, testing will be imposed on adult high-risk offenders who are convicted of serious offences involving domestic abuse, including coercive or controlling behaviour in the domestic context, breaches of restraining orders and of a domestic abuse protection order, who have been sentenced to at least 12 months’ imprisonment. I understand that its application will be limited to offenders released on licence and to monitoring their compliance with licence conditions. However, I understand that it is also proposed to include on a discretionary basis offenders for whom concerns about the risk of reoffending would justify mandatory testing to manage risks posed by the offender to the community.

I pose a number of questions to the Minister in connection with that and other issues. Is there a cast-iron guarantee that the results of polygraph testing carried out under the clause could not be used to secure convictions for a criminal offence? To what extent could an offender be recalled from licence on the basis of a polygraph test in which he made disclosure of a breach of condition of his licence? What would be the procedure for such a recall? What is the effect of a breach of polygraph licensing conditions to be? Could evidence of such a breach be itself based on a failed polygraph test? What are the Government’s proposals for piloting in respect of polygraph tests in connection with monitoring compliance with licensing conditions in domestic abuse cases? Will there be a report of any such pilots back to Parliament? Will Parliament have an opportunity to consider the question of polygraph testing before the regulations make it permanent?

[Baroness Hamwee (LD) [V]]

My Lords, this is not the only Bill currently in your Lordships’ House that seeks to extend the use of polygraphs. I am not surprised that lawyers and what I have learned in another Bill to call operational partners have different starting points in their attitudes and expectations of polygraphs. My position is similar to that of my noble friend.

Given that we have more than one Bill proposing to introduce polygraph conditions, is this indicative of a policy change on the part of the Government, with wider use of polygraphs—perhaps wider than just these two Bills? If so, what consultation and evaluation has there been? I appreciate that it is intended that there will be a pilot of the use under this Bill, which my noble friend seeks to be absolutely sure about in Amendment 191.

Last week, during Committee on the Counter-Terrorism and Sentencing Bill, I asked about consultation with the probation service with regard to the balance between periods of custody and licence—a different point. I have now received a letter from the Advocate-General for Scotland, for which I am grateful, which, inter alia, said:

“The Probation Service is not normally consulted in respect of the creation of new custodial sentences or their licence periods.”


It is, of course, the licence period in which I am interested.

I have a similar question about consultation on the use of polygraphs during the licence period. The provisions preclude evidential use. As I understand it—the Minister will correct me if I am wrong—their purpose is to discourage reoffending. I have said before that I would prefer to put effort into training probation officers in spotting small signs of what is the truth, what is editing the facts and what are porkies.

The Home Office fact sheet published in conjunction with the Bill refers to eligibility criteria as if there are criteria beyond what is in the Offender Management Act and the Bill. Another question is whether there are additional criteria. It also refers to high-risk perpetrators. Does that mean more than the custodial sentence, as provided by the Act? Does it mean more than repeat offences? Can the Minister say something about the assessment tools in arriving at the conclusion that someone is high risk?

The Home Office factsheet refers to risk as a test. The briefing last week to which my noble friend referred was very interesting and informative, and clearly those involved with the current use of polygraphs on sex offenders are enthusiastic—one would have expected that. But we were told that, in the US, historically there has been some inappropriate or, one could say, dodgy use. I was interested that the accreditation was to standards set by the American Polygraph Association. Given that our legal systems are not identical, has the Minister any comment on that?

I had understood that it was not possible actually to fail a test, because the examinations are used to point probation officers to an offender’s possible actions and behaviours, but that term is also used in the fact sheet, where it refers to “sanctions for failing”. One step available is the imposition of additional licence conditions. My noble friend mentioned DAPOs, or domestic abuse prevention orders. Can a polygraph test be used to prompt an investigation as to whether a DAPO or, indeed, a domestic abuse prevention notice, has been complied with before custody? Can a court dealing with a DAPO require a polygraph?

I suppose that one could summarise our attitude to Clause 69 as positive but remaining to be completely convinced—so possibly somewhere between yes and no.

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[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, I regret to say that I have had a late request to speak after the Minister from the noble Baroness, Lady Hamwee. I apologise: there is often a delay when the clerk sends a message to the Woolsack. I call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

Thank you. I apologise for throwing the proceedings. I have just received an email saying that I am about to be called.

My question concerns how the Minister dealt with the fact that information—I hesitate to use the term “evidence”—obtained during a test cannot be used as evidence in legal proceedings. It has only just occurred to me that, of course, family proceedings in particular—as well as civil proceedings—are very important in respect of domestic abuse. I am unclear as to the status of what is learned during a polygraph test for family proceedings. If the Minister cannot answer that now, could he add it to the questions that he will reply to after today?

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What is clear from the experience of services working on the front line in Wales is that it is not always safe for survivors of abuse to make the application for homelessness assistance themselves. Restricting the ability of other household members to do this on their behalf puts another barrier in front of someone trying to flee a dangerous and potentially life-threatening situation. Given that we know that the greatest risk of homicide is when the victim flees the perpetrator, I ask the Government to take this opportunity, as the Bill passes through the Lords, to look again at priority need and remove this unnecessary barrier to accessing support by allowing other household members to apply for settled housing on a survivor’s behalf.

[Baroness Hamwee (LD) [V]]

My Lords, I have added my name to Amendment 146A and I support Amendment 147, tabled by the noble Lord, Lord Randall. Like others, I welcome the provisions in the Bill, but this is rather typical of the pattern of responses to many aspects of the Bill: the amendment seeks to tweak the provisions to ensure that the Bill works as I believe is intended.

There is an assumption that refuges are the answer to abuse, but that they should be only temporary for reasons relating to the individuals who occupy them and because people who get stuck in them become, to use an unpleasant term, bed blockers, which is not how anyone would like to see themselves. Refuges are certainly not a permanent solution. There are not enough refuge spaces even for temporary provision, and it is very natural for victims to want the security of their own home for themselves and their children.

Like others, I am indebted to the organisations which know their way around the legislation that relates to their own services, as is the case here. Of course, domestic abuse is by no means the only cause of homelessness, which is why one has to look at priority need. But, given that the Government have addressed this, the Bill should be complete and replicate the provisions allowing applications to be made on behalf of vulnerable individuals, as other noble Lords have said. It must be safe for the survivor to access the housing.

As regards Amendment 147, there is no need to repeat the debate about why it may be essential for someone to get right away from her or his local area. No one with children would contemplate that; you only have to think about school and social connections. I have to say I am not entirely sure how one would administer “likely to become” a victim. I remember from my days as a local councillor the difficulties related to the size of a family, because you cannot take account of a child who is not yet born. But the importance of enabling someone to get away before there is too much harm is obvious, and the need to get away demonstrates how extreme the situation must be, because often you want the support of your community for yourself and your children.

The scope for more joint working between local authorities is outside this Bill, but the use of reciprocal arrangements has a very helpful, if not very big, place in this scene. But the real issue is the need for more support and, overall, more housing supply. Not for the first time, it is a matter of resources. For every housing offer to one person, someone else is not receiving an offer.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 146A, proposed by the noble Lord, Lord Young of Cookham, is one I fully support. I would have signed it if there had been a space, but people got there before me. The amendment ensures that someone made homeless as a result of domestic abuse will have priority need for housing support. It cannot be right that a victim is left with the choice of staying with an abusive partner or becoming homeless. That is no choice at all. The amendment would allow the applicant for homelessness assistance to be either a survivor or someone who resides with the survivor—but, of course, not the abuser. Again, enabling somebody else in the household to make an application could be an important protection.

I was delighted to sign Amendment 147, tabled by the noble Lord, Lord Randall of Uxbridge, which would ensure that local connection cannot be used as a restriction when someone applies for housing, either in a refuge, in other temporary accommodation or in longer-term accommodation. This is very important to enable someone to get the help and support they want, to get them near to friends, to get them away to a place where they are not known or to get them wherever they want. It enables those in difficult, dangerous situations to get somewhere where they can rebuild their lives.

I want to thank Women’s Aid and other organisations for the help they have given all noble Lords on this Bill and for their general work. I have always been grateful to Women’s Aid for its advice on a number of issues. The example that the noble Lord, Lord Randall of Uxbridge, gave from Women’s Aid highlights the reason his amendment needs to be agreed—or, if the noble Baroness cannot agree the amendment, I hope she recognises the problem and will try to resolve it by bringing something back on Report.

In our discussion last week, we looked at the risks to victims, at home or at work, of being murdered. We have to ensure that, if somebody leaves a relationship, they can get somewhere they are safe and can rebuild their lives. It might be that they want to move to a completely different part of the country where no one knows them at all. Some victims have to completely cut off contact with abusers, because some abusers would do their damnedest to find somebody. We know people can choose not to be on the electoral register and that there is anonymous registration, but what shops they go to and where their families and friends are will still be known, so we have to ensure that people who want to can get away completely and start life afresh. That is why the noble Lord’s amendment is so important—so that no local authority can suggest, “Oh, you can’t come here because you’ve got no connection”. “That’s exactly why I want to come here—I’ve got no connection.” That is a really important issue. I look forward to the response from the noble Baroness at the end of the debate.

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

I think we must move on. I call the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

My Lords, my sympathy to the noble Baroness, Lady Helic; that is a very disconcerting situation.

I have added my name to Amendments 148 and 151. I would have added it to Amendment 160 but it is one of those amendments where the slots for adding one’s name fill up very quickly. I am particularly sorry about that because it puts the point very succinctly, and I would have liked to have heard the noble Baroness, Lady Helic, before I spoke.

This is a matter of equality, of principle as well as a practicality. Last week we debated amendments relating to immigration status. I do not want to repeat too much of that debate but one cannot say too often that what we do must be rooted in equality and humanity. A victim may believe that she has no status. That very situation can be and is used for coercion and control. She—usually “she”, though not invariably—may in effect go underground or find herself in a very perilous situation while her abuser goes unpunished, and noble Lords will understand what all that entails, or of course she may remain with her abuser since she may have nowhere to go “back” to. As I recall, the noble and learned Baroness, Lady Butler-Sloss, talked about this last week.

I was struck by a representation made by Southall Black Sisters that was quoted in the report by the committee on the draft Bill, which I will repeat:

“Abused migrant women are at risk of the most serious and prolonged forms of abuse, slavery and harm but cannot access justice or protection if they have unsettled immigration status; they are effectively excluded from the few protective measures contained in the Bill. The Bill does nothing to remove immigration and other barriers, including providing safe reporting measures to encourage abused migrant women to access necessary protection.”


I regard protection as including access to resources. These reasons apply to all the amendments in this group, which are among the priorities of the domestic abuse commissioner designate.

Domestic Abuse Bill

Baroness Hamwee Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I congratulate the noble Lord, Lord Rosser, on the excellent way in which he has presented the amendment in place of his noble friend Lord Ponsonby. He has been able to use the great experience of his noble friend in family proceedings in illustration of the amendment.

I strongly support the amendment because I feel certain that, while cross-examination is important, contact between the parties in a family proceedings, although much more spread out, is of critical importance. Things such as the arrangements for children to be with one parent or the other are often extremely difficult to work out. It requires personal and direct contact between the parties, because it is next to impossible to accommodate the needs of the parties without it. It is therefore extremely important that this is done with a fair amount of detail to allow representation to be made.

That is, in principle, already part of the government Bill, but the Magistrates’ Association—of which the noble Lord, Lord Ponsonby, is a good example—has great experience of how it should work, and the amendment seeks to work that out in some detail. I warmly support it because it is very well done. As I said on a previous occasion, the fact that the Magistrates’ Association supports it is a powerful reason for us to support it too.

[Baroness Hamwee (LD) [V]]

My Lords, my noble friend Lord Marks will speak to most of the amendments regarding court proceedings, but I am glad to be able to say a word on this one. I acknowledge that the Government recognise the need for measures to support victims of domestic abuse in various proceedings. Like the noble and learned Lord, Lord Mackay, I think the very fact that Amendment 121 was tabled by a practitioner who has already shared with the Committee a lot of extremely useful experience, as he does on all occasions, and from the Magistrates’ Association, whose briefings I have always found very useful, pretty much makes the point. It is certainly very persuasive.

As I read it, the amendment would address what is meant by “engagement” in a particular context. As the noble Lord, Lord Rosser, explained—his explanation was clear—in family cases the proceedings are generally not a single event but comprise a series of hearings. They are quite unlike proceedings in the criminal court or the civil court, where a discrete claim is dealt with. To use a bit of current jargon, I read this as enabling the court to be agile in applying, as it goes along, appropriate measures and making directions as it becomes clear that they are needed.

In an attempt not to oppose the amendment but to develop it, I have been wondering how it would—or maybe will—operate in practice. One assumes that there will be a need to find a lawyer for whatever reason, probably financial, and that the parties will have already considered that. Who will pay the lawyer, and pay enough for them to do a complete job, not just coming in at the last minute but understanding the whole background to the proceedings and taking full instructions? If the lawyer is appointed by the court, to whom is he responsible? Is the person he represents a client for all purposes? I absolutely take the point about the difficulty that litigants in person have, so finding ways to assist can only be to the good. I hope that these proposals can be taken forward.

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[Baroness Newlove (Con) [V]]

My Lords, I support measures to improve the safety of family court proceedings for survivors of domestic abuse and their children so will use my time to speak to Amendments 132 and 135.

Amendment 135 would offer victims of domestic abuse transparency about their right to appeal in the family courts. It would not introduce a new right to appeal; rather, it would make victims aware of the existing rights that they can exercise. As someone who has navigated the justice system, I can attest to how overwhelming and disempowering it can be. Basic information about the most fundamental rights is often not communicated properly. In fact, it is never known until many years later. This is particularly worrying when there are time limits on accessing rights, as is the case with appeals in the family courts, where you have 21 days unless the judge has specified otherwise.

These issues are only deepened when you are without legal representation. Following legal aid reforms in 2013, most private-law children cases now involve at least one litigant in person. Research has shown how the challenges of self-representation are particularly pronounced in cases involving domestic abuse, a fact reflected in the Ministry of Justice’s harm panel report. Indeed, I have heard from many survivors of domestic abuse who have represented themselves in court and have felt that their abuse was dismissed or misunderstood and that the fact-finding procedures, such as practice direction 12J, were not followed. None of them was aware of their right to appeal.

The Court of Appeal has recently heard evidence from four linked cases and will consider the family court’s approach to domestic abuse. During these proceedings, the President of the Family Division, Sir Andrew McFarlane, noted his surprise that systemic issues have been identified with how the courts handle domestic abuse as so few cases are appealed. Many factors will inform a decision to appeal, including financial limitations and emotional strain. However, from the survivors of domestic abuse whom I have spoken to, it appears that one of the biggest factors is the lack of awareness that such an avenue is available to them. The President of the Family Division has been clear that the appeals process is the correct mechanism for examining the courts’ approach to domestic abuse. This amendment would help that to become a reality on the ground.

Amendment 132 would place a duty on courts to share information about proceedings involving the same victim. It is something that we know should happen, but unfortunately it often does not. Again, I point to the Ministry of Justice’s harm panel report and the recurring issue of the family courts not adequately managing risk. The report specifically acknowledged the courts’ failure to identify abuse through repeated court applications. The criminal courts can often offer crucial information that would give family judges a clearer picture of risk in a case—for example, where protective orders, such as restraining orders or non-molestation orders have been granted. The Suzy Lamplugh Trust recently estimated that 38% of its domestic abuse and stalking casework clients who are in the family courts have some form of protective order—a restraining order, non-molestation order or stalking protection order—against the perpetrator. Equipping judges with this information would support them to better identify abusive dynamics and provide some contextual evidence when suspected repeated and vexatious applications are being made.

The second half of the amendment is designed to address these repeat applications. While barring orders technically exist to allow intervention on such behaviour, the reality is that they are rarely used. The Ministry of Justice’s review heard evidence from a specialist organisation which was not aware of any barring orders being made in the child sexual abuse cases it had supported, even when there had been a conviction and the abusive parent had made multiple applications for child arrangement orders or variations. In the Government’s implementation plan, there was a commitment to urgently review the use of barring orders and to consider them for inclusion in this Bill, so I ask my noble friend for an update on this commitment.

[Baroness Hamwee (LD) [V]]

My Lords, I feel slightly embarrassed to be coming in ahead of the noble Baroness, Lady Helic, who has her name to one of these amendments. I look forward to hearing what she has to say.

I think—and I apologise if I have this wrong—that on Monday it was said from the Government Front Bench that refuge addresses were never disclosed. We need to allow for human error and human ingenuity. We have previously touched on how many victims have moved away from their home area in order that their whereabouts will not be discovered but, as we have also heard, abusers can be determined. So much of the issue is about power and control, so it is not difficult to see that an abuser might do everything to track down a victim. The noble Baroness, Lady Bertin, referred to the prevalence of stalking. Knowing that a victim has moved to a refuge must be a red rag to some bulls. The dangers are not only to the victim of that abuser but to other occupants of the refuge. I am aware of situations where others have been endangered, including the children of the occupants, as well of course as the children of the victim and of the abuser, themselves victims. What must a child think when they are uprooted by Mummy, told that they are going somewhere where Daddy cannot get at them, and then Daddy appears? The noble Baroness, Lady Bertin, also referred to the horror stories on which I have been briefed.

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This amendment is supported by the domestic abuse commissioner, who is in situ at the moment, the Victims’ Commissioner, women’s NGOs and, it goes without saying, the many organisations that have ever dealt with a case where a woman has killed after years of abuse. That is rare, yes, thank God, but we have to make sure that justice is available to those women too. I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, I do not know whether the noble Baroness, Lady Kennedy, was intending not to speak to her next amendment, which is grouped with this one, but perhaps I will, though it will not be as good a speech as she would have made. This is another group of amendments that I would say seeks to apply up-to-date thinking to bring the law up to date. I am pleased to have been able to add my name to the noble Baroness’s amendments because I always want to be on the same side as she is; I think her middle name must be “Indefatigable”.

Parliamentarians learn from experts by experience. I think we have used that phrase already today. That does not mean being uncritical or bringing a hearts-and-flowers sentimental approach to things but being open to really listening to experiences. We are lucky to have in this House experts with another sort of experience—the lived experience of applying professional expertise in acting for clients—so they have a well-informed perspective. Clearly, the Minister who will be replying—he is not being given much time off today—to yet another group of amendments has been applying his own expertise as well as having his brief. It has been very refreshing to listen to him.

Section 76 of the Criminal Justice and Immigration Act 2008, which would be amended by Amendment 139 is—it says so in terms—intended to clarify the operation of the common law defences of self-defence and defence of property. Those two were very closely linked in the minds of the public in the reaction to reports of Englishman Tony Martin defending his castle. This brought about the householder defence but it is, in fact, just about self-defence, and so is this amendment, although one might substitute the notion of home as a haven rather than as a castle, as it was referred to in the Martin case. The amendment uses Section 76 to address whether the degree of force is reasonable in the circumstances but—or maybe “and”, as in the householder case—does not allow force which is “grossly disproportionate” in the circumstances as the person using the force believes them to be. This is why this is so much a matter of bringing the law into line with up-to-date thinking about domestic abuse, in particular coercive and controlling behaviour.

We have already debated, and will go on to debate in other amendments, the impact of such abuse on the whole person. It is a traumatic response that goes far deeper than a black eye “because I walked into a door, silly me”. I am not going to repeat the amendments and arguments that we have already heard today, because noble Lords will hear them in the context of the days of debate—we have had several days of debate—on this issue. My relative brevity on this amendment does not mean that I support it any less strongly.

I turn to Amendments 140 and 145. Amendment 145 is very long but is, if you like, consequential on Amendment 140. This is modelled on the statutory defence in the Modern Slavery Act, which recognises that a perpetrator may actually be a victim of modern slavery. In this amendment, the compulsion to commit offences is attributable to being a victim of domestic abuse and having no reasonable alternative. The provisions are adjusted for those under 18. Similarly, this amendment uses up-to-date thinking about what drives a woman—it is usually a woman—to offend. I cannot read my writing. I have written “significant”—I hope I am not leaving out a significant point.

The Modern Slavery Act defence was in the independent review of the Act, whose findings were accepted by the Government as striking the right balance between protecting victims and, in that case, preventing opportunistic misuse. There was careful consideration of the reported difficulties in disproving the defence to the criminal standard, but the review panel was satisfied that the jury system which applied was appropriate. The Government said they would keep this under review, as they should.

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[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord, Lord Paddick, for those questions. First, Section 76 of the Criminal Justice and Immigration Act dealt with a specific circumstance, whereby Parliament considered that that instance ought to be reflected by way of a specific statutory defence. The question for this evening is whether there is a suitable read-across into the matters we are discussing. For the reasons I sought to explain, I suggest that there is not.

Secondly, as to the option to retreat, I hope I made it clear that I was not saying that there is always an option to retreat in domestic abuse cases; I was making the point that there is generally very little option to retreat in the householder case. Again, that is an instance where you cannot simply read across to the domestic abuse case. I hope the noble Lord is content with those responses, but I am very happy if he wants to take those points up with me hereafter so that we can discuss them.

[Baroness Hamwee (LD) [V]]

My Lords, I understand the points that the Minister has made about the common law developing—that is inherent in it—but, like my noble friend, I want to pursue the point about flexibility. If the courts were that flexible—I suppose this is a rhetorical question—would we be moving and speaking to these amendments?

The proposed new clause in Amendment 140 is modelled on—but, I accept, does not completely repeat—the provisions of Section 45 of the Modern Slavery Act, referring to “the person’s circumstances”. As far as I am aware, I have not received the briefing from the Prison Reform Trust, but does the Minister accept that the remarks of the right reverend Prelate and the noble Lord, Lord Bradley, go very much to the point about a person’s circumstances? The Minister referred to concern about misuse. At Second Reading, I think I made the point that if there is misuse we should be looking at the misuse, not at not applying a defence which should be a good defence in general.

Finally—again, I suppose this is rhetorical—with regard to the balance, and we are for ever searching for the right balance, does the Minister agree that, given the fast-developing understanding of domestic abuse and its impact, civil society will likely pretty quickly, in parallel, be developing its ideas about what is the right balance?

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Baroness, Lady Hamwee, for those various questions. On the issue of the person’s circumstances, I hope I set that position out in my reply. Perhaps it is the sort of point I could set out to her in writing in a couple of paragraphs, if she would not mind.

We are concerned when defences may be being misused; I made it clear that there are some concerns with the victims of slavery defence in that context. On the last point, which I think the noble Baroness accepted was somewhat rhetorical, she is certainly right that we always seek a balance. The point she makes that the law must keep up with the expectations of civil society is a profound one; it is, indeed, one of the big advantages of the common law. I am sure, therefore, that the issues raised by these amendments will continue to be discussed. The question before the Committee this evening is whether the legislature should provide for explicit statutory defences in these terms. For the reasons I have sought to set out, in my opinion, it should not.

Counter-Terrorism and Sentencing Bill

Baroness Hamwee Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received one request to speak after the Minister from the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

The noble and learned Lord very briefly answered the questions on consultation from my noble friend Lord Thomas. I hope he has in his brief the answer to the headline question of whether consultation was undertaken with probation and what its views were on the balance between custody and licence.

[Lord Stewart of Dirleton (Con)]

Will the noble Baroness confirm that she is referring to the probation service?

[Baroness Hamwee (LD) [V]]

I appreciate that there are levels and areas of probation. The question extends to all parts of those who provide probation services, but the central probation service, offender management, is probably more relevant to this than local probation services.

[Lord Stewart of Dirleton (Con)]

If I may, I will respond to the noble Baroness’s question in writing.

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[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

The noble Lord, Lord Ramsbotham, has experienced computer problems, so we must move on to the noble Baroness, Lady Hamwee.

[Baroness Hamwee (LD) [V]]

My Lords, my name is to the amendment of the noble Lord, Lord Hunt. It would have been added to the amendment of the noble Lord, Lord Ponsonby, but I was caught out by the speed at which we suddenly arrived at these proceedings. I appreciate that there are differences between the amendments, including the time period for review, and the amendment of the noble Lord, Lord Ponsonby, is not confined to prisoners sentenced under Part 1. In particular, there is the criteria for assessment to which the noble Lord, Lord Carlile, referred.

Like others, I have been struck by Ian Acheson’s work. One of the many things that he has said that has been quoted widely is that:

“We cannot speak to dead terrorists. We can speak for dead victims. They demand that policymakers take risks to ensure that the people who wish to harm us through a corrupt ideology are engaged, not shunned. This should happen not because states are weak, but because they are confident the strength of their values will ultimately prevail.”


He has, of course, described prisons as incubators of radical behaviour. They are incubators of crime of all sorts: Islamic extremism, right-wing extremism, drug crime and other organised crime. Are there hothouses within the incubators? Given that resources are not infinite, what is the best balance between work in prison and work in the community? To pick up a point made earlier this afternoon, I do not regard the rights of offenders versus the public as being the issue; both are about effective means of achieving the safety of the public.

Programmes must be assessed and, no doubt, evaluation and adaptation is not a one-off but a continuing process. All this has a context: the conditions in our prisons. That is hardly a novel point. How suitable are those places for rehabilitation? How well trained are staff? Do they have the capacity to spot the signs of how prisoners are affected by other prisoners and by their experience of imprisonment?



I have not seen mention, though I am sure it has been addressed, of the recruitment of staff from Muslim communities, who may be alert to what non-Muslims would not see. In the interests of balance, I should refer—although I am not sure how—to those who might be thought of, in a prejudiced, caricatured way, as having right-wing sympathies. I am not sure how you would do that, but I want to make it clear that this is not a single issue.

If terrorists are segregated from the rest of the prison population, does that reinforce their beliefs and attitudes? Is there a cumulative experience? What if the terrorism is rooted in different, opposing ideologies? What are the vulnerabilities of prisoners to becoming radicalised? How different is that process from being drawn further into, say, drugs crime or other violent crime? Indeed, may it not require more sophistication and knowledge to draw someone into Islamist extremism, which, as I understand it—others will know much more about it—involves much teaching and studying of the Koran?

None of this can be separated from what goes on outside prison, including when a prisoner is on licence. The skills required by the probation service are considerable, especially in the face of what I understand to be increasing sophistication on the part of prisoners on licence regarding how to game the system—the noble Lord, Lord Carlile, may have referred obliquely to that. I cannot begin to answer my questions, and there are not nearly enough of them, but this is the moment to ask them.

[Lord Faulks (Non-Afl) [V]]

My Lords, I join other noble Lords in welcoming my noble friend Lord Wolfson to his position. I can say from experience that it is a challenging but rewarding post.

It is well understood that deradicalisation programmes are particularly challenging to evaluate. There is nothing new about this. I remember attending meetings in Brussels to discuss with my fellow Justice Ministers the problem of radicalisation in prison and the best response to it. There was no real agreement on that but my clear impression was that in 2015, we were already adopting a much more sophisticated approach to the problem than were other countries within the European Union. This is not some tedious pro-Brexit point: the whole purpose of our meeting was to try to share intelligence and work out the best response. However, even the most enthusiastic supporter of the various deradicalisation initiatives would acknowledge the difficulty of assessing their success or otherwise.

As I understand it, there are already a number of programmes deployed in prisons that are targeted at terrorist offenders, and I expect the Minister to tell us a great deal more about them. I have read what Jonathan Hall said about what are, effectively, offences that are committed in prison by the radicalisation of prisoners by other prisoners. This may well have happened in the case of the murder of three men in Forbury Gardens in Reading, which many noble Lords will remember all too clearly.

In 2016, Ian Acheson made a number of recommendations. A number of noble Lords have said that little progress has been made. I await the Minister’s comments on that, but I understood that quite a few initiatives had been taken, including training officers to spot signs of extremism and increasing the number of staff with specific counter-terrorism experience or knowledge.