Counter-Terrorism and Sentencing Bill

Debate between Lord Falconer of Thoroton and Baroness Hamwee

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

[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.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Debate between Lord Falconer of Thoroton and Baroness Hamwee

Thursday 15th December 2011 Lords Chamber

[Baroness Hamwee]

My Lords—

[Lord Falconer of Thoroton]

My Lords—

[Baroness Verma]

My Lords, to assist the House I suggest we hear from the Liberal Democrat Benches first, maybe then the Convenor of the Cross Benches, followed by the noble and learned Lord, Lord Falconer, and then the Bishops.

[Baroness Hamwee]

My Lords, we complain when primary legislation is not commenced or implemented. The first instinct of the noble Lord, Lord Alli, was absolutely right, though he then extended his arguments. We also complain when legislation is not clear. This is not the case today. The Merits Committee, of which I am a member, did not make a judgment on the merits of the substance of this order. It used its entirely standard language, drawing it to the special attention of the House on the grounds that,

“it gives rise to issues of public policy likely to be of interest to the House”.

That statement is quite uncontentious.

I can see from those already attempting to intervene that we will hear today closely argued analysis of a construction of the words “Act”, “authority” and “services”, and I am always glad to recruit such expertise to the cause. Essentially, however, the issue is, “Does the order do what Section 202 of the Equality Act provides?”. I believe that it does. Or, “Does it require any individual or organisation to do what they do not wish to do?”. I believe that it does not. The order cannot trump primary legislation, nor can it require what the Act itself precludes. As we have been reminded, primary legislation says that nothing places an obligation on religious organisations to host civil partnerships if they do not wish to do so. If there are differing views within an organisation, that is not a matter for government.

The noble Baroness uses in her prayer the word “pledge”. It is not a pledge—or rather, it is more than a pledge—because the words are in Section 202. That section is surely permissive: it is an opt-in, not an opt-out. We know there are objections to it, but that was a matter for 2010. I say that to those who would like to extend that section, as well as to those who would like to see it interpreted restrictively. To attempt now to reverse it, extend it or block it, is inappropriate.

I will be quick because there are so many noble Lords who wish to speak. I find it very difficult to see anxiety engendered among people with a particular view. I do not like to see people fed fear. I realise that something that may seem entirely reasonable to me may seem very prejudicial to you, whoever you and I are—that is, whichever side of the argument one is on. I will end by voicing what others might see as my own prejudices. That 46,000 couples have entered into civil partnerships is wonderful; 92,000 people have been able to give formal, legal expression to their relationship. It is a paradox that some who advocate celebrating marriage within a faith oppose extending it to other stable relationships. I welcome the order and look forward to taking forward Section 202.

[Lord Falconer of Thoroton]

My Lords, I speak as a lawyer today. I concede my obligation to the House to set out my genuine view, because this is a legal issue and because I was formerly the Lord Chancellor. The noble Baroness, Lady O’Cathain, and the noble Lord, Lord Alli, agree the basis upon which Parliament—not only this House—passed the amendment to the Civil Partnership Act which abolished the prohibition on civil partnerships being registered in places of religious worship. My noble friend Lord Alli said at the time that there was no disagreement about this.

From the outset I want to make very clear that the amendment does not place any obligation on any religious organisations to host civil partnerships in their buildings. We made that clear by including in the amendment the words:

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host Civil Partnerships if they do not wish to do so”.

There is no doubt that that was the basis on which the provision was passed. If we have not given effect to that provision, we should not agree to these regulations. The only issue today is therefore whether as a matter of law we have given effect to it. It is for the House to make a decision about this. It is always possible to find a lawyer who says that something is arguable. It is for us to go through the provisions today and form a view about whether or not, contrary to our intention and to that of the House of Commons, we have somehow failed to achieve it.

I will very quickly go through the basic provisions so that we arrive at a clear answer. Section 2 of the Civil Partnership Act makes the moment at which a civil partnership occurs the moment at which the two partners sign the civil partnership document. Section 6 of the Act—this is, before the amendment—says that that signing can take place either at a registry office or at approved premises. It sets out provisions for premises to be approved by somebody called the registration authority. The registration authority is the local authority. The Civil Partnership Act gives the local authority discretion over whether or not they register premises. Section 6 of the Act as originally passed says that civil partnerships cannot be registered at religious premises. Section 2(5) says—and this provision remains—that there should be no religious element in relation to any registration of a civil partnership.

The amendment of the noble Lord, Lord Alli, which was supported by Parliament, did two things. First, it removed the prohibition on religious premises being used for civil partnerships. It retained the approval process, so that local authorities still approve whether premises—including religious premises—can be used for civil partnerships. Secondly, it added to the Civil Partnership Act words to the effect that for the avoidance of doubt, this does not compel any religious organisation to host a civil partnership ceremony if they do not want to.

That is the legal framework that we now have to look at. On the basis of that legal framework, my initial conclusion is that Parliament has made its intention absolutely clear: Parliament does not want to compel anybody to host registration of civil partnerships unless they want to.

I wondered what could conceivably be the argument that we have failed to express our intention clearly. I have read the two opinions that have been provided on this. I will do my best to summarise them fairly and set out why they are plainly wrong, although not lacking in bona fides. The first argument, which was advanced by Professor Mark Hill QC in his opinion dated 8 November, is that because the regulations say that—for the avoidance of doubt—the law does not compel anybody to host a civil partnership if they do not want to, the regulations saying it would not, alone, be enough. I completely agree with that. A regulation saying that hosting is not required would have no effect at all if the position was that the primary Act of Parliament did not get rid of the risk of any discriminatory legislation. However, the primary Act of Parliament does contain the prohibition, so it seems clear that Professor Hill is wrong about that.

I looked through Professor Hill’s opinion to find out what he said about the main provision in the Act, which appeared to be the critical provision. He said that Section 202, in referring to an Act, refers to the Civil Partnership Act and not to the Equality Act. I found that wholly unconvincing because the risk which the noble Baroness, Lady O’Cathain, and the QCs identify is that there are provisions in the Equality Act, except for the purpose of this argument, that might be said to create a risk of some sort of action arising from the fact that you perform civil partnerships but not marriages, or the other way round. It seems to me beyond argument that the intention of Parliament must have been to get rid of that risk by putting in the very same Act the phrase,

“For the avoidance of doubt, nothing in this Act”,

gives rise to the risk of any compulsion. For Professor Hill’s opinion to be correct, you have to assume that this House and the Commons were unaware of the risk that the Equality Act could give rise to litigation when they put into the very same Act a statement that said that allowing churches to host civil partnerships does not lead to any church being compelled to host one. I cannot think of a judge who would give effect to such a nonsensical argument.

8 November was the date on which the advice of Professor Mark Hill was obtained. His advice came under some legal attack. Noble Lords will know that the legal advisers of the Roman Catholic Church, the Church of England, the Home Office and the Equality Commission have all said that there is no legal risk. Reinforcement was obtained from Mr Aidan O’Neill QC. I am very grateful to the noble Baroness, Lady O’Cathain, for providing a copy of his advice. He gives a lot of ground in relation to it, recognising the difficulty that exists.