My Lords, in moving Amendment 19, I will speak also to Amendments 20 and 21. Clause 38 raises a rather different issue from the other clauses in Part 3, which deals with TPIMs. The clause introduces the use of polygraphs—so we are not affected here by nostalgia for 2011.
Amendment 19 requires the Secretary of State, after consultation, to publish a code of practice about polygraph sessions, both how they are conducted and how reports on them are used. New Section 10ZA, introduced by Clause 38, provides for regulations on limited matters, as set out in that clause. The requirement imposed is
“to participate … with a view to … monitoring … compliance with other … measures”
and
“assessing whether any variation of … measures is necessary”.
TPIM subjects are a different cohort from terrorism offenders, not having been convicted. Not everything, I would think, can be a direct read-across from the processes applied to terrorism offenders. In the case of an offender on licence, the tests are to assess compliance; in the event of a breach, the offender can be returned to custody. For a TPIM subject—of course there is no Parole Board here—it is not just about monitoring compliance but assessing necessity. This is a much less tight objective; in fact, if one were to use “objective” as an adjective, I am not sure that it would really meet that test. What if the subject’s reaction is ambiguous?
From the helpful briefings that we have had, as polygraph sessions are used currently and will be used in the case of terrorist offenders, the questions that are asked are closed questions: “Did you do such-and-such?”, or “Have you contacted so-and-so?” I had some difficulty thinking of the questions that might be asked, because so much of potential interest is likely to have been prohibited. I suppose that if there is a measure saying that a person will not visit whatever the nearest urban centre is, that is capable of a yes or no answer.
I wondered whether it is thought that polygraphs are an alternative to electronic monitoring, or a supplement. If there are to be polygraphs applied to TPIM subjects, it seems necessary that there should be a relevant code of practice—tailor-made, if you like—including a reminder that the subject is not an offender.
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Amendment 20 specifically addresses the extension of the term of the TPIM. The new section in the Bill contains a prohibition on using a statement made, or a reaction exhibited, during a session in evidence in proceedings for an offence. But what about activity that is not an offence? It should equally be the case that statements and reactions should not be the basis for an extension of a TPIM. I hope that the Minister can confirm that there is no intention to use polygraph sessions for such a purpose, and that he can confirm how the results and report of the session may be used; in other words, what might be the outcome?
We tabled these two amendments in order for the House to hear from the Minister some more of what the Government have in mind. I do not intend to put them to the House, unless of course the Minister says that he will accept them and asks us to do so. However, even were they to be accepted, Clause 38 is not a provision that we can accept. I come back to the basic point: TPIM subjects are not convicted offenders. The clause requires them to participate in sessions and comply with the operator’s instructions if they seek to maintain that most basic of positions, the right to silence. The subject lays themselves open to the variation
of the measures—in other words, further restrictions. I know that my noble friend Lord Paddick will say more about this, but we will test the opinion of the House on Clause 38. I hope this can be taken as my voice in that respect.
I anticipate withdrawing Amendment 19 at the end of the debate; I will not move Amendment 20, but we will move Amendment 21 when that point in the proceedings is reached. Let us see what the Government have to say.