My Lords, I thank noble Lords for their contributions and brevity in this group so that we can make as much progress as possible. All these amendments are in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee.
Clause 41 provides for the addition of a polygraph measure into Schedule 1 to the TPIM Act 2011. Doing that will, in circumstances where it is assessed to be necessary and proportionate, help our operational partners to assess an individual’s compliance with his or her TPIM notice and support the decision-making on whether variations to the notice are required. That could include relaxations as well as restrictions.
As with all TPIM measures, polygraphs will not be mandatory for all TPIM subjects. I should like to reassure the Committee that we anticipate this measure being used sparingly, in a targeted and proportionate manner. Operational partners will consider its utility in relation to each TPIM subject on a case-by-case basis and make a recommendation to the Home Office for its imposition where appropriate.
By way of example, the results of a polygraph test may indicate that a TPIM subject is meeting someone whom he or she is prohibited from seeing for national security reasons at a particular location. While any findings from the polygraph test will be considered in the round by operational partners—that is, without an overreliance on the test findings and considered against other available information—the findings could inform a recommendation for the TPIM measures to be varied to restrict the subject from frequenting that specific location. The results could also be used to inform an assessment of whether a subject’s engagement with rehabilitation programmes under the TPIM notice is genuine.
We recognise that the prospect of polygraph testing understandably creates questions about the way in which information gleaned from tests may be used. That is precisely why we have taken steps to ensure that the wording of the clause is clear on that issue. The polygraph testing should only be carried out with a view to monitoring the individual’s compliance with other specified TPIM measures and assessing whether any variation of their measures is necessary. We have also specified that such information cannot be used in evidence against the individual in any criminal proceedings.
To further reassure the Committee of the steps that we are taking to ensure that this addition is both proportionate and considered, the clause sets out that the new measure will not be used unless and until the Home Office introduces regulations to make provision for the conduct of the polygraph sessions. Those regulations are likely to include detail, for example, on the qualifications and experience needed by polygraph
operators and how records of the polygraph sessions should be kept, thereby ensuring transparency on how this measure will be applied in practice. The regulations would be laid before Parliament for scrutiny in the usual manner.
As with all other measures contained in Schedule 1 to the TPIM Act, this measure will not be imposed unless the Home Secretary reasonably considers it necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity. It is important that we harness available technology and provide our operational partners with the tools necessary to protect the public, and that is what the clause will do.
Turning our attention to Amendment 30C, as I have set out, Clause 41 adds the new polygraph measure to the list of available measures in Schedule 1 to the 2011 Act. Following Royal Assent, if the polygraph measures are imposed, a TPIM subject will be required to undertake a polygraph test. Failure to do so would, to answer the question posed by the noble Lord, Lord Paddick, be a breach of the TPIM measure. We appreciate the spirit in which the amendment has been tabled, but we respectfully disagree about the necessity of it. Condition D in Section 3(4) of the TPIM Act 2011 requires,
“that the Secretary of State reasonably considers that it is necessary, for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity, for the specified terrorism prevention and investigation measures to be imposed on the individual”
under a TPIM notice. In addition, Section 12(1)(c) of the TPIM Act requires,
“the Secretary of State reasonably considers that the variation is necessary for purposes connected with preventing or restricting the individual’s involvement in terrorism-related activity.”
Therefore, all the measures imposed under a TPIM notice and any subsequent variation must be considered to be necessary for those purposes.
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Section 12 of the 2011 Act provides the only mechanism by which the Home Secretary may vary a TPIM subject’s notice and therefore all variations are made in accordance with that section. This is the case regardless of the provenance of the information considered when assessing whether a variation is necessary. Any other variation would, quite simply, be unlawful. If, however, the intention behind the amendment is to prohibit a TPIM subject’s measures from being varied on the basis of information derived from a polygraph, the Government cannot accept that either. We have already set out the potential benefits of adding the new polygraph measure to Schedule 1 to the TPIM Act so I will not repeat them other than simply to repeat that this is about supporting our operational partners to assess an individual’s compliance with their TPIM notice.
I turn now to Amendment 30D. As the noble Baroness, Lady Hamwee, has said, the drafting at this stage is not the critical thing. If I understand the amendment correctly, however, it appears to confuse and conflate the licence condition and the TPIM polygraph clauses. Again, we consider that to be unnecessary. On the TPIM clauses, Amendment 30D seeks to prohibit the extension or imposition of a TPIM notice on the basis of information derived from a polygraph test. That is
unnecessary because Clause 41 does not permit information from a polygraph test to be used to extend or impose a TPIM notice. The clause would allow the Home Secretary to impose a requirement on an individual who is subject to a TPIM notice to participate in polygraph sessions for the purposes of monitoring the individual’s compliance with other specified measures and assessing whether any variation of the specified measures is necessary for purposes connected with preventing or restricting their involvement in terrorism-related activity. These are the only purposes for which information derived from a polygraph measure imposed under a TPIM may be used. Variation of the specified measures means variation of the measures set out in Schedule 1 to the TPIM Act and the duration of the TPIM is not one of those measures. Extension of the TPIM for a further year can be done only by relying on the power in Section 5 of the Act, not by way of varying measures. Clause 41 does not therefore provide for information derived from a polygraph to be used to extend a TPIM notice, as the noble Baroness, Lady Hamwee, asked, and any attempt to do so would be unlawful.
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.