Terrorist Offenders (Restriction of Early Release) Bill
Wednesday 12th February 2020
(4 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 12 February 2020 (revised) - (12 Feb 2020)
The Lord Chancellor and Secretary of State for Justice (Robert Buckland)
I beg to move, That the Bill be now read a Second time.
Twice in the past few months we have seen appalling and senseless attacks on members of the public by terrorist offenders. At Fishmongers’ Hall on 30 November last year, two bright and promising young lives were cut heartbreakingly short. The perpetrator, Usman Khan, had been released automatically halfway through a 16-year sentence for preparing terrorist acts. That tragedy was made so much more poignant by the fact that the victims were dedicated to the rehabilitation of offenders, and were helping people to get their lives back on track.
The attack in Streatham on 2 February this year came as a stark reminder of the risks when these sorts of offenders are let out automatically before they have served their full sentence in prison.
Michael Fabricant (Lichfield) (Con)
A number of people may question why we are rushing through this business in one day today, so may I ask my right hon. and learned Friend, if the business were not completed today and the Bill therefore not enabled as an Act, would it result in terrorists being released early in the immediate future?
Robert Buckland
The simple answer is yes; I am grateful to my hon. Friend for that intervention.
I was telling the House about the events in Streatham. Sudesh Amman had been released just one week before the attack, halfway through a sentence of three years and four months for offences related to distributing or promoting material intended to stir up religious hatred. The automatic nature of his release meant that there was no parole oversight and no decision as to whether he posed a risk to the public. No one could prevent his release. It is purely thanks to the swift intervention of our incredible police officers that he did not go on to commit even more harm before he was stopped with necessary force. The reality is that we face an unprecedented threat from terrorist offenders who are willing to commit random violence without any fear of the consequences.
Mr Tobias Ellwood (Bournemouth East) (Con)
I welcome the work that my right hon. and learned Friend has done in this area over the last few weeks, and that he is bringing the Bill before the House today. Will he concede that this form of jihadi extremism and the threat that it has posed has now been around us for almost 20 years, since the horrible attacks of 9/11 and, of course, Bali in 2002? I absolutely welcome the extra funding for our counter-terrorism police and rehabilitation and probation services—this is all very good news—but ultimately we have to ask ourselves why these people were indoctrinated in the first place. Does he agree that we need to do more to remove the harmful online content that is used so much to attract people to the dark place they go to?
Robert Buckland
My right hon. Friend speaks with particular personal experience of the Bali atrocity, and he is right to talk about the long-term nature of the threat, but it is a threat that changes and evolves, and this Government will be as fleet of foot as possible in responding to it. He will be glad to note that we are working at pace to deal with and remove inappropriate and hateful online content. The Home Secretary is by my side today to emphasise, in the most eloquent possible way, the joint approach that she and I, and our respective Departments—together with the security services and the police—are taking with regard to the first duty of Government: protecting the public. It is a grave responsibility from which we will not shirk, and we say that enough is enough.
Sir Desmond Swayne (New Forest West) (Con)
I am very glad about the tone my right hon. and learned Friend is taking. Were this measure to be challenged in our courts and the Government were to lose, that would be merely declaratory. But if it made its way to the European Court of Human Rights in Strasbourg and the Government were to lose there, the ministerial code would require him to abide by treaty law. Would he then entertain the prospect of a derogation from the convention on human rights?
Robert Buckland
I believe that the declaration that I make on the front of the Bill speaks for itself—
Sir Robert Neill (Bromley and Chislehurst) (Con)
Will my right hon. and learned Friend give way?
Robert Buckland
Well, I have not finished developing the point yet, but I will of course give way to my eager hon. Friend, the Chair of the Justice Committee, in time.
This is a Bill on which I have made the following statement:
“In my view the provisions of the…Bill are compatible with the Convention rights.”
I take the point made by my right hon. Friend the Member for New Forest West (Sir Desmond Swayne). I am not going to anticipate litigation in domestic courts or in Strasbourg, but I will repeat for the benefit of the record that it is my firm view that this Bill does not engage the provisions of article 7 of the European convention on human rights, because it relates to the way in which the sentence is administered, not a change in the nature of the penalty itself. I am grateful to him for allowing me to say that at this point.
Sir Robert Neill
I am grateful to my right hon. and learned Friend for giving way, because this is an important point. Will he confirm that, in coming to that conclusion and making that certification, he has taken the advice of senior Treasury counsel, and also that the case law has made it quite clear that the administration of a sentence is not part of the penalty? Finally, will he confirm that even were there to be successful litigation—which I do not believe will be the case—it would result only in a declaration of incompatibility, and could not strike down primary legislation?
Robert Buckland
My hon. Friend is right to remind the House that there is no power to strike down the primary legislation. I am afraid that I will not indulge him in a direct answer as to the nature of advice that may or may not have been tendered, and he knows the reasons why. However, I reassure him that all the proper mechanisms have been employed and engaged in the preparation of the Bill, and that on the basis of all the information received, I was able—with high certainty—to make the declaration on the frontispiece.
Sir John Hayes (South Holland and The Deepings) (Con)
My right hon. and learned Friend will remember that we worked together on these matters when I was in the Government. He is right to speak about the metamorphosis of terrorism. Will he confirm—indeed, these provisions underpin this—that we must never let the persistent and perverse advocacy of the rights of murderous individuals compromise either the work of our security services or public faith in the rule of law?
Robert Buckland
My right hon. Friend speaks with considerable experience, as we worked together on the Bill that became the Regulation of Investigatory Powers Act 2000, which rightly struck the balance between the need to protect the public and the need to make sure that the rule of law was respected.
That gives me a chance to warm to a theme that I make no apology—
Robert Buckland
I will give way in a moment. I am warming to a theme—let me warm!
The theme is this: in our fight against terrorism—in our determination to protect the public against those who spread hate, division, death and injury, irrespective of what might motivate them, because we know that we have a cohort of different types of terrorist—we are defending something of value. We are defending a democratic, free society. We are defending the rule of law. We are defending the values of this place and, indeed, the values of all the people we have the honour and privilege of representing. That is something worth defending. By using due process, we mark ourselves out as distinct from, better than and different from those who seek to divide us.
Sir William Cash (Stone) (Con)
Is my right hon. Friend in receipt of advice from the Law Officers on this question? I say that because whatever arguments he may address with regard to compatibility and his statement on the front of the Bill, the reality is that this could easily end up in the courts if they can possibly manufacture an argument. I want to be quite clear that his advice relates to action in the courts and not just to incompatibility.
Robert Buckland
I can assure my hon. Friend that all the usual processes were followed. I am not going to go into the weeds of what the Law Officers might have said. We know that they have a particular function when it comes to the necessary clearances for the introduction of a Bill. I can assure him that those processes have been followed and that the issues that he rightly outlines—and, indeed, presages through his amendments—are very much uppermost in our considerations.
Seema Malhotra
Recent events have indeed shown the need for a review through this legislation, which I certainly support, and which has the appropriate safeguards and implementation measures that will be debated today.
The Lord Chancellor made a point about the victims. Somebody who had done work experience in my office was a witness on that day as they were working at Fishmongers’ Hall. The impact not just on those who were injured or killed, but on those who were there and their families, has been tremendous, and continues.
The provisions in the Bill change the release point for offenders who have committed a relevant terrorism offence and refer those offenders to the Parole Board at the two-thirds point of the sentence. I think we can understand and acknowledge that the resources available to the police and probation are also a critical part of this. A change in legislation will not be enough. Is the Lord Chancellor also committed to making sure that the resources required through the justice system will be in place to make any change effective on the ground?
Robert Buckland
Indeed, I pay tribute to everybody who was not only involved with but witnessed those awful events at Fishmongers’ Hall.
The hon. Lady and I served together on the Justice Committee for some time, and I know that she has a long-term interest in these issues. She is right to ask about resources. Some weeks ago, when it was announced that we would be introducing a counter-terrorism Bill, extra resources of £90 million for counter-terrorism activity were announced, additional to the overall package of £900 million of support for counter-terrorism. With regard to what we are doing with probation and the interventions that she referred to, again we announced extra resources, with a doubling in the number of specialist probation officers and the introduction of more expert psychiatric and imam involvement. She can rest assured that whatever resources are needed in order to deal with this issue, we will devote them to this particular line of important, intensive work.
Theo Clarke (Stafford) (Con)
The Staffordshire-born convicted terrorist Usman Khan was let out of prison early on licence. Last November, less than a year after his release, he killed two young people near London Bridge. Does the Secretary of State agree that this illustrates why this Bill is so important to protect the public in my constituency and across the UK, and to ensure that the most dangerous criminals serve the prison time that they deserve?
Robert Buckland
My hon. Friend rightly points out the sad local connection to that appalling case last year. I know that she shares my—and indeed, I think, the whole House’s—commitment to maximum effort when it comes to protecting the public. It is clear that we must put a stop to the current arrangements whereby a dangerous terrorist can be released from prison by automatic process of law before the end of their sentence, so we must do so as quickly as possible.
Mrs Maria Miller (Basingstoke) (Con)
I warmly welcome the legislation that has been put before the House today. The Secretary of State is talking about resources. Will he outline any estimates he has made of the number of individuals who might be covered by this legislation so that we can perhaps understand the impact that it could have had on our police forces if those individuals had been released from prison early?
Robert Buckland
The number of offenders, either terrorist offenders or offenders who have committed offences with a terrorist link, is about 50. That does not sound like a large cohort, but in this particular situation of extreme gravity, we cannot afford to allow any further incidents to happen. I have spoken about the need to minimise risk; that does not mean that we can eliminate risk. That is why this emergency measure is, in my judgment and the judgment of the Government, absolutely necessary if we are to meet the concerns of my right hon. Friend and other hon. and right hon. Members.
Mrs Theresa May (Maidenhead) (Con)
My right hon. and learned Friend raises the issue of risk. He and the Government are absolutely right to be addressing the question of the automatic early release of terrorist offenders, but terrorist offenders will still be released at some point. That is why rehabilitation—the work that is done both in prison and when they are out of prison—is so important. There have been many efforts at this over the years, but, as recent incidents have shown, not always with success. Does he agree that we will never deal with the issue of terrorism until we deal with the ideology that drives it? Will he reassure me that the Government are making extra efforts to find new paths to ensure that we can turn people away from the extremism and terrorism that takes other people’s lives?
Robert Buckland
My right hon. Friend speaks with unparalleled experience of these issues, both as Home Secretary and as Prime Minister. I can assure her—I will develop these issues later in my speech—that there is a constant self-questioning among those responsible for these programmes to make sure that they are properly calibrated, that they understand the particular drivers that compel people to commit these acts, and that the distinctions between the different types of offender are fully understood; from her own case experience she will know of myriad motivations. Rather than taking a blanket approach, a case-by-case analysis is very much at the heart of how we approach these matters.
Henry Smith (Crawley) (Con)
My right hon. and learned Friend is absolutely right that this legislation ending the automatic halfway point of release is the correct thing to do. The Parole Board obviously still has a very important role in this process. What reform of the Parole Board does he envisage to make it more accountable, because that is a key aspect of ensuring that citizens are kept safe from those who would cause them harm?
Robert Buckland
My hon. Friend will be reassured that a lot of ongoing work continues with regard to the role of the Parole Board. Very recently, reforms were introduced that allow me to ask the Parole Board to reconsider important decisions that it makes with regard to the release, or early release, of offenders. A tailored review is currently being undertaken to make sure that its work is as practically effective as possible.
In our manifesto, we committed to a root-and-branch review, to ensure that victims are aware and as involved as possible from the outset and that the sharing of intelligence and information between the security services, the police and the Parole Board is as thorough and comprehensive as possible, so that the fullest and most appropriate assessment of risk can be made. In the area of counter-terrorism, nothing can be more important than ensuring that that intelligence is shared and that those who handle it have the appropriate clearances and expertise to make the necessary assessment.
Kate Green (Stretford and Urmston) (Lab)
The Lord Chancellor rightly mentions the need for resources to support this new legislation, because most of these offenders will eventually be released, albeit later, into the community. The issue is not just one of resources; it is also one of process and expertise, because the recall provisions that are in place now could have been of use in the cases that we have seen in recent months. Can he assure me that the Government are also looking at training and process and that any reforms needed—for example, to recall processes—will be properly put in place to support this legislation?
Robert Buckland
The hon. Lady, with whom I served on the Justice Committee, is right to talk about risk assessment and the recall process. She knows that the recall process can be triggered on arrest, and certainly on charge, and that is regularly done in the normal course of events. When it comes to multi-agency public protection arrangements, I think she will note with pleasure that, only three weeks ago, the Home Secretary and I ordered a review to be conducted by Jonathan Hall QC, the Government’s independent reviewer of terrorism legislation. He will look at MAPPA with regard to this high-risk, high-level sector of the cohort, to ensure that we are getting it right and that the appropriate expertise is deployed at the right time in order to make the finest judgment with regard to risk.
Bob Seely (Isle of Wight) (Con)
If I understand it correctly, there are about 220 people serving time for terrorist offences, 50 of whom will be affected by this legislation. Is that because those 50 are up for imminent release within the next few months? Does this legislation in principle apply to all 220 people in prison for terrorist-related offences?
Robert Buckland
The cohort of around 50 are due for automatic early release; the rest will be subject to Parole Board assessment. Different types of sentence are available. We are talking about people on standard determinate sentences. Other types of sentence include extended determinate sentences. Some may still be on the historical IPP—imprisonment for public protection—regime, and there are also sentences for offenders of particular concern, or SOPC. Forgive me for the alphabet soup, but I am afraid that criminal justice sentencing legislation has not been the easiest matter for us to deal with, either as legislators or when I was a practitioner in this area.
Dr Julian Lewis (New Forest East) (Con)
I am grateful to the Lord Chancellor for giving way; he is being hugely generous. Does he accept that, while a lot of these people are terrorists and criminals, a significant number of them are clearly insane? The people who were in jail with the latest perpetrator said that that individual was plainly off his head. He had a history of drug abuse, and mind-altering substances clearly played a role. Why is it that if people are secular and insane, they will be locked up indefinitely, but if they can ascribe this to some sort of religious motive, we feel we have to give them a finite sentence and release them, when they might run amok at any stage?
Robert Buckland
As ever, my right hon. Friend makes an interesting and thought-provoking point. While I will not go into the individual facts of this case, because it is subject to a police investigation and there is an ongoing inquiry, I will say this. The judgment as to a mental health disorder within the meaning set out in the Mental Health Act 1983 is a matter for two section 12 qualified clinicians—consultant psychiatrists—who will produce clinical evidence that will satisfy a court of the provisions of section 37 of the Act or, indeed, a restriction under section 41, which puts the power of release into my hands. That has to be satisfied on the basis of evidence.
It is important to make a distinction between that clinical approach and the risk assessment that we have to undertake when it comes to those who profess political motivation. It is thought-provoking in the sense that we need to think about a mechanism that would be robust and legally sound but would allow an objective assessment to be made about the risk posed by individuals, even after their sentence has been completed. Public protection has to come to the forefront of our thinking.
I will now describe what we have done operationally since the attack at Streatham. The Prison and Probation Service has taken immediate action to strengthen our operational grip of terrorist offenders and protect the public from any further attacks. The National Probation Service is working closely with counter-terrorism partners. Several offenders on licence have been recalled to prison since the attack, where officers identified concerning behaviour, which relates to the point made by the hon. Member for Stretford and Urmston (Kate Green). We have also instructed prison governors to report any concerns and take any action required. Several terrorist prisoners have subsequently been placed in segregation units as a result of concerns raised by prison staff. The Prison Service is managing the risk of incidents in prisons that may be inspired by, or in response to, the attack at Streatham.
I would like to put on record my thanks to Ian Acheson for his 2016 report on our response to extremism in prisons. In the intervening years, the operating context has changed, and our response has strengthened considerably, but we must go further. We will take all additional steps necessary, including keeping the full list of recommendations in Mr Acheson’s internal report under careful review.
However, we need to take further action urgently to ensure that the public are protected. As we saw in the Streatham attack, we cannot have a situation where an offender—a known risk to the public—is released without any oversight by the Parole Board. The Bill therefore sets out new release arrangements for prisoners serving a sentence for a terrorist offence or an offence with a terrorist connection. There are two main elements to that: first, to standardise the earliest point at which they may be considered for release at two thirds of the sentence imposed; and secondly, to require that the Parole Board assesses whether they are safe to release between that point and the end of their sentence. That will apply to all terrorist and terrorist-related offences where the maximum penalty is above two years, including those offences for which Sudesh Umman was sentenced. Only a very small number of low-level offences, such as failure to comply with a police cordon, are excluded by this threshold, and prosecution and conviction for those offences are rare.
The changes affect those who are serving sentences for a specified offence, whether the sentence was imposed before or after the new section comes into force. Applying this to serving prisoners reflects the unprecedented gravity of the situation we face and the danger posed to the public. The Bill will not achieve its intended effect unless it operates with retrospective effect, and therefore it will necessarily operate on both serving and future prisoners. That does not mean that the Bill will change retrospectively the sentence imposed by the court; release arrangements are part of the administration of a sentence, and the overall penalty remains unchanged. As I outlined earlier, domestic and ECHR case law supports our stance that article 7 is not engaged where the penalty imposed by the court is not altered. The measures in the Bill will also amend the release arrangements for terrorist offenders sentenced in Scotland, which will ensure a consistent approach where possible to the release of terrorist prisoners.
James Brokenshire (Old Bexley and Sidcup) (Con)
I commend my right hon. and learned Friend for the introduction of this legislation and dealing with the issue of early release. May I come back to him on a point I have raised previously about how we manage the risk of people who have offended once they have left prison, and about using the availability and enforceability of post-release conditions, and indeed the terrorism prevention and investigation measures regime and its potential application, to give a sense of assurance? Can he comment any further on the next steps and how this can be progressed, because this is clearly an issue that will need to be addressed?
Robert Buckland
I am hugely grateful to my right hon. Friend, who, as the House will know, was a distinguished Security Minister and Northern Ireland Secretary, and had to deal with these issues daily. I will say this to him: he will know that the counter-terrorism Bill, which was announced some weeks ago, will be coming before the House soon. There will be measures in it not only on the minimum term to be served for serious terror offences, but on the way in which licence periods will be applied as part of such a sentence. That is clearly one of the most effective ways to deal with this problem—through the criminal prosecution and conviction process.
My right hon. Friend makes a wider point. He will know from having navigated through the House the TPIMs legislation, which has been subsequently strengthened and amended, that there are other circumstances in which public protection will have to play a function in the absence of a conviction. It is on that particular cohort that the Government are placing a lot of attention and concentration. It would perhaps be idle of me to speculate by outlining what precise forms those will take, but it is a dialogue that I encourage him actively to take part in over the next few months and it is something I would want to develop with support from all parts of this House.
Sir William Cash
At this stage in the debate, and trying to avoid our having what might otherwise turn into an argument about the law in court, may I ask my right hon. and learned Friend whether the case of del Río Prada has actually been taken into account? Does he know if that has been taken into account, because it was about policy and administration?
Robert Buckland
My hon. Friend will be glad to know that not only has it been taken into account, but I have read it. It is a 2013 authority from the Strasbourg Court that relates to a particular set of circumstances involving the Kingdom of Spain. There have been subsequent cases both before that court and, indeed, domestically. In summary, we are satisfied, on the basis of all the information we have, that the provisions of article 7 are not engaged in this respect.
Sir Robert Neill
My right hon. and learned Friend is making a most compelling case for this legislation. For the sake of completeness, I am sure he will also have read and taken into account the subsequent cases in the Strasbourg Court of Abedin in the United Kingdom in 2016 and of the Supreme Court in Docherty in 2017—both subsequent to del Río Prada—which it seems to me support the Government’s contention.
Robert Buckland
I say to my hon. Friend, as I am sure he has heard many times in court, that his submissions find great force with the Government and we are persuaded by them.
Gavin Robinson (Belfast East) (DUP)
It is very clear that the Lord Chancellor is carrying the House with him this afternoon, and all of us are seized of the necessity of bringing forward this Bill at this time and as quickly as possible. However, it is acknowledged that there are serious concerns and issues about the engagement of article 7—I think he has an entirely justifiable position—and that we are bereft of the detailed pre-legislative scrutiny that we might otherwise have had; that is a consequence of the situation we find ourselves in. Given that, has the Lord Chancellor given any consideration to injecting a review mechanism into the Bill?
Robert Buckland
I am very grateful to the hon. Gentleman. In fact, I think it is right to say, in the context of Northern Ireland, that we have given such careful consideration to the engagement of article 7 that we have chosen not to extend the legislation to Northern Ireland. The way in which the sentence is calculated and put together by the Northern Ireland courts does cause potential issues with regard to engagement and therefore potential interference with the nature of the penalty itself. I think that is actually very important in this context: it is real evidence of the fact that the British Government have thought very carefully about the engagement of article 7, and have not sought to take a blanket approach to all the various jurisdictions within the United Kingdom.
I hear what the hon. Gentleman says about a review mechanism. He will be reassured to know that a counter-terrorism Bill is coming forward that will cover all parts of the United Kingdom. There will be an opportunity on that Bill to debate and analyse further long-term proposals. Inevitably, the status and provisions of this Bill—I hope, by then, an Act of Parliament—will be part of that ongoing debate. I am confident that, through the mechanisms of this House, we will be able to subject these provisions to post-legislative scrutiny in the way that he would expect.
Jeremy Wright (Kenilworth and Southam) (Con)
My right hon. and learned Friend has mentioned the effect of this legislation that will keep terrorist prisoners in custody for longer, and he has rightly paid tribute to prison imams, who maintain religious interventions for those whose motivation for their terrorist offending is at least claimed to be religious. Can he reassure us that, given the extra time in custody that many of these prisoners will now serve, such effective and in many cases very brave interventions by prison imams will be given the extra time available to take further effect?
Robert Buckland
My right hon. and learned Friend the former Attorney General speaks with great experience and knowledge of these matters. He is absolutely right to focus on the specialist intervention of our imams. I think I referred to the fact that we are going to increase resources and increase the number available within our prisons. Both the Home Secretary and I have seen at first hand the partnership working that goes on within the high-security estate when it comes to dealing with these particular challenges. It is precisely that type of specialist intervention that he and others can be confident we will be supporting in the years ahead.
I was going on to explain the extension of parole release to those who serve standard determinate sentences and other transitional cases currently subject to automatic release. In line with the normal arrangements for prisoners released by the Parole Board, the board will set the conditions of an offender’s licence for this cohort when they are released before the end of their sentence. The Parole Board, as I outlined earlier, has the necessary powers and indeed the expertise to make risk-based release decisions for terrorist offenders. The board currently deals with terrorists who serve indeterminate sentences, extended sentences and sentences for offenders of particular concern—the “SPOCs”, as they are colloquially referred to.
There is a cohort of specialist Parole Board members who are trained specifically to deal with terrorist and extremist offenders. They are, in effect, the specialised branch of the board that will be used to handle these additional cases. They include retired High Court judges, retired police officers and other experts in the field, all of whom have extensive experience of dealing with the most sensitive and difficult terrorist cases. Due to the nature of the emergency legislation, I have proposed that the provisions cover England, Wales and Scotland.
The justification for this emergency, retrospective legislation—out of the ordinary though I accept it is—is to prevent the automatic release of terrorist offenders in the coming weeks and months. Given the risk that this cohort has already shown they pose to the public, it is vital that we pass this legislation rapidly before any more terrorists are automatically released from custody at the halfway point. Therefore, we are aiming for this legislation to receive Royal Assent before the end of the month. With the support of this House, I am confident that we can do that. I commend the Bill to the House.
Nick Thomas-Symonds (Torfaen) (Lab)
I am grateful to the Justice Secretary for his briefing last week and for his opening remarks, and to the Under-Secretary of State for Justice, the hon. Member for Croydon South (Chris Philp), who has been keeping me updated in recent days.
This Bill follows the awful terrorist atrocities first at Fishmongers’ Hall on 30 November and more recently in Streatham. My thoughts, and I am sure those of all Members across the House, go out to the victims of these terrible attacks and to their families and friends, and we thank the emergency services who responded so quickly.
Labour Members support the Parole Board’s involvement in release decisions. If this Bill is not passed and rushed through its stages over the next couple of weeks, terrorist prisoners will be on our streets, without any assessment of risk or dangerousness by the Parole Board. That does not leave the House in the easiest of positions, but it is the reality of the situation before us. For the Bill to be durable and workable, it must not simply amount to a delay in confronting the problem; it will also require a relentless focus on, and investment in, the most effective de-radicalisation programmes in our prisons.
Sir Desmond Swayne
One of the most effective de-radicalisation programmes is that run by the Saudis, but it takes a long time. Is the hon. Gentleman satisfied that sentences are long enough to accommodate a successful programme?
Nick Thomas-Symonds
I took part in a long debate on sentencing in the last Parliament with the then Minister of State for Security and Economic Crime, now the Secretary of State for Defence, and a number of sentences were increased. In her intervention on the Justice Secretary, the former Prime Minister pointed out —very fairly, I thought—that there has been an issue with the success of de-radicalisation programmes in recent years. Length of a sentence is one matter, but, whatever the length, the programme must be targeted and effective—I will come on to that point in a moment.
We are here to discuss emergency legislation, but there is also an emergency in resources. The Leader of the House indicated yesterday that the Treasury has approved additional resources for the extra time that prisoners will spend in custody as a consequence of the Bill, as well as for the Parole Board. Clearly, however, there must also be a specific and dramatic increase in resources to tackle extremism in our prisons.
But this is not just about resources—my hon. Friend the Member for Stretford and Urmston (Kate Green) made a point about process and expertise, and she is absolutely right—and a strategic approach from the top will be required.
The Justice Secretary made it clear that there is no need for derogation from the European convention on human rights, and he set out the Government’s legal position on article 7. Labour Members firmly believe that we can tackle terrorism and proudly remain signatories to the European convention on human rights. In our view, to leave that convention and join Belarus as the only European non-signatory would send a terrible signal to the rest of the world. We should never sacrifice the values that we are defending in the fight against terrorism and hatred.
Those who perpetrate hatred and violence are responsible for their actions, but it is for the Government to do everything they can to keep our streets safe and minimise the risk of something like this ever happening again. The House is therefore entitled to ask why we have ended up requiring this Bill to be passed via emergency legislation. Automatic early release is hardly new. It has been part of our system for many years, and could already have been dealt with by a Government who took a more strategic approach.
There have been a number of warning signals over the past decade. In his opening remarks, the Justice Secretary mentioned Ian Acheson, a former prison governor who led a review of Islamist extremism in our prisons, probation and youth justice system, which was published in August 2016. Mr Acheson said:
“What we found was so shockingly bad that I had to agree to the language in the original report being toned down…There were serious deficiencies in almost every aspect of the management of terrorist offenders through the system…It was a shambles.”
Mr Acheson proposed 69 recommendations that, according to the Justice Secretary when speaking to the media over the weekend, have been consolidated into a total of 11, eight of which are being implemented. However, in a newspaper article last Thursday Mr Acheson said:
“As part of my review of prison extremism, I made a great number of recommendations that specifically related to a tactical response to a terrorist incident in prison where staff were targeted. I have no way of knowing if or how many were implemented as none made it into the response published by the Ministry of Justice.”
That was only days ago. I do not know whether the Justice Secretary has met Mr Acheson since last Thursday—[Interruption.] I am happy for him to intervene.
Robert Buckland
The hon. Gentleman makes an important point. I have not met Mr Acheson since last Thursday, but I have met him. Indeed, I took part in a documentary that he produced for Radio 4 a few weeks ago, before the latest attack. His engagement has been valued. I will not go into the precise circumstances in which the report was consolidated, because in essence it contained some sensitive matters that we all understood could not be published.
The hon. Gentleman is right to talk about 2016. We accepted what Mr Acheson said, but things have moved on a long way since then, and the problems that were identified are being tackled directly. We accept that there is still more to be done, but the hon. Gentleman will be glad to know that we have moved on in the four years since that report.
Nick Thomas-Symonds
I will come on to whether things have moved on in a moment when I explore what the Chief Inspector of Prisons says about that issue. Last Thursday, however—only days ago—Mr Acheson was clearly unsure of the Government’s position. I hear what the Justice Secretary says about what is in the public domain, which is entirely appropriate. One would hope, however, that someone who led a review for the Government would know four years later whether specific recommendations had been acted on. I also accept what the Justice Secretary says about appearing in a documentary, but I strongly suggest that he meet Mr Acheson fairly urgently, to discuss those matters about which Mr Acheson is not sure, so that they can be cleared up.
Robert Buckland
I should have added that I have offered Mr Acheson a full briefing from Her Majesty’s Prison and Probation Service on those issues, and it has been accepted.
Nick Thomas-Symonds
I am pleased to hear that, and I hope we will never again be in a situation where someone who led a review is not aware of what is going on years later. That simply cannot and should not happen, as I am sure the Justice Secretary would agree.
There are concerns about the Ministry of Justice listening, and the extent to which justice has been a priority for the Government over the past decade. The coalition Government chose not to make the Ministry of Justice a protected Department when they implemented spending cuts That led to 40% cuts over the past decade, including to the prisons that today we expect to play a vital role in offender management. We know that 21,000 police officers disappeared from our streets, and prison officer numbers have been slashed. There are currently 18,912 front-line prison officers, which is not yet back to 2010 levels. That loss of prison officers has not just reduced the capacity of prisons to deal with rehabilitation; it also means that years of experience of working in challenging environments in our prisons have been lost.
In 2019, 35% of prison officers had been in post for less than two years, compared with just 7% in 2010. I do not mean that those officers are not doing their best in difficult circumstances, but the Government needlessly threw away valuable experience in our prisons.
Mr Khalid Mahmood (Birmingham, Perry Barr) (Lab)
Does my hon. Friend agree that that lack of prison officers, the privatisation of some of our prisons, and having those young officers, has led to problems in Her Majesty’s Prison Birmingham, which has seen a number of riots over the past couple of years? It adds more to the Treasury’s costs if we have to take away people with experience and later bring them back.
Nick Thomas-Symonds
My hon. Friend speaks with great authority about HMP Birmingham, and he is right to identify that if prisons are run in such a way there will be consequences because the time available for meaningful activity is reduced.
The Justice Secretary talked in the media at the weekend about improvements in our justice system since Mr Acheson’s report. He repeated that in his speech and he has repeated it in an intervention a moment or two ago. I therefore thought I would compare what the Justice Secretary is saying with the views of the independent chief inspector of prisons. The latest annual report from Peter Clarke states that
“far too many of our jails have been plagued by drugs, violence, appalling living conditions and a lack of access to meaningful rehabilitative activity.”
That should be a wake-up call to the Government. Mr Clarke went on to say that
“levels of self-harm were disturbingly high and self-inflicted deaths tragically increased by nearly one-fifth on the previous year.”
That is no way for the Prison Service to be run and things must change.
There is also, if I may say so, an issue at the Ministry of Justice with the Government failing to provide it with stable leadership. The right hon. and learned Gentleman is the seventh Justice Secretary since 2010. Of those seven, five have served for 18 months or less. The role of Lord Chancellor should have been respected and not been subject to a revolving door. No wonder there is such a lack of direction and no wonder there is no long-term planning. Justice Secretaries are simply not in post long enough. There are even indications from 10 Downing Street that half the Cabinet could be out by Friday.
I say in all sincerity to the right hon. and learned Gentleman that I very much hope he survives in this role—I hope I have not jinxed him by saying that; I could have just ruined his Friday—because there is an enormous job to do. There are 224 terrorist prisoners in England and Wales, of whom 173 have been assessed as having extreme Islamist views. We also know that there is a growing threat from far-right terrorism. If we want properly to manage the risk of terrorist offenders, we need the most effective targeted de-radicalisation programmes to be delivered by staff working in the best conditions we can provide for them.
Karin Smyth (Bristol South) (Lab)
One area has not been mentioned. When I took part in the police service parliamentary scheme and spent some time with the counter-terrorism units, the one area they highlighted was working on the ground with mental health resources in our communities. That risk decision, the decision at community level about someone’s mental capacity and radicalisation, is really important when we look at resources. The cuts to our mental health services are having an impact on this area.
Nick Thomas-Symonds
My hon. Friend is absolutely right. I think we sometimes see things in isolation, but cuts to many other services have also had an impact, which the Government need to take into account. Indeed, when we talk about conditions for our prison officers to work in, a third of our prisons were built in the Victoria era. There is a £900 million maintenance backlog and a desperate need for new investment.
Sir William Cash
On mental disturbance, does the hon. Gentleman accept that there are circumstances in which the principle of mens rea may not apply simply because the person in question, for a variety of reasons, some of which may be drug-affected or intrinsic, is incapable of making an act within the framework of mens rea? In those circumstances, should we perhaps be thinking further down the line about what kind of containment people need to restrain them from performing such murderous acts?
Nick Thomas-Symonds
A number of issues about mens rea, which is an essential element of committing a criminal offence, have been decided before the courts. However, elements of our law can already deal with those who suffer from severe mental health problems, and they can be used and operated appropriately on a multi-agency basis.
Dr Julian Lewis
I take this opportunity to reiterate my previous intervention. The suspicion is that there are gravely mentally ill people who are in prison when they ought to be treated as if they are criminally insane and held in a secure psychiatric unit. The concern is that people are being treated as terrorists when they are clearly mad, simply because they have picked up some smattering of something that passes for a religious motivation.
Nick Thomas-Symonds
Where I can agree to a degree is that I certainly accept that there are people with mental health problems in prison who, frankly, should not be. The right hon. Gentleman refers, I think, to secure psychiatric units, where there is also a shortage of places. That is another issue that the Government need to accept on the basis of the past 10 years.
I heard what the Justice Secretary said about specialist officers, particularly those in de-radicalisation programmes, but we are tolerating a rise in physical attacks on our prison staff. That cannot be fair to them and it will not produce a constructive environment in our prisons. From September 2018-19, there were 33,222 assaults, including 23,592 prisoner-on-prisoner assaults and 10,059 assaults on staff. Levels of self-harm were also the highest ever recorded.
The Bill, I am sure the Justice Secretary will argue, will deal with the immediate crisis of the next few weeks, but he must plan ahead. The crisis in our criminal justice system does not end with our prisons. We also need the best possible probation services and the best possible supervision. In 2014, the Government part-privatised the probation service. I do not think it is unfair to say that it was an absolute disaster. The Government had more than 150,000 people supervised by private community rehabilitation companies and just left the high-risk offenders to be managed by the National Probation Service. The chief inspector of probation, Dame Glenys Stacey, said last year:
“The system which sees private firms monitor criminals serving community sentences is ‘irredeemably flawed’”.
She is right. No wonder the right hon. and learned Gentleman’s predecessor had to announce last year that the supervision of all offenders on probation in England and Wales was being put back into the public sector.
Sir John Hayes
The hon. Gentleman is making a point about capacity, and that seems to be reasonable. Early release—scores of convicted terrorists have been released early since 2013—adds to demand on capacity and he is making a case that we should address that. On that basis, I am sure he would want to support the Secretary of State in taking that pressure away, building morale and, as he described, allowing the police to exercise capacity more effectively.
Nick Thomas-Symonds
Well, yes. I have made absolutely clear my support for the measures before us today. My point is simply this: today we will deal with an immediate crisis. What the Bill will not do is deal with the broader and deeper problems we have that will need to be dealt with in the months and years ahead. The National Audit Office announced that the botched part-privatisation of probation cost the taxpayer nearly £500 million. Frankly, it is time for good sense and consistency in policy making at the Ministry of Justice.
The independent review of the Prevent programme, which I secured in the previous Parliament—I think I debated it with the right hon. Member for South Holland and The Deepings (Sir John Hayes)—has been announced, but there is no reviewer. We are now a year from the point at which the Bill that he and I debated received Royal Assent. Lord Carlile was appointed but resigned before Christmas, because he had already expressed views on the programme, and the Government have hardly shown urgency in appointing a replacement. It is high time that they did. I appreciate that that is not the responsibility of the Justice Secretary, but I am sure he will pass on the message to his Cabinet colleagues that the reviewer must be appointed and the review must begin, take place and make recommendations. Today really must be a day when that focus on rehabilitation comes and we turn the page away from a decade of problems in our criminal justice system.
One of the recommendations made by Mr Acheson was for an independent adviser on counter-terrorism in prisons. I would go further and press the Justice Secretary to provide external scrutiny and assessment of the deradicalisation programmes across our prison estate. In that way, this House can regularly assess the position, and we will not again be in a situation where we are taken by surprise or are responding on the hoof. We cannot tolerate our prisons becoming breeding grounds for extremism, and we need to ask searching questions.
I hope that this emergency legislation will pass without a Division. Alongside it, I hope that the Government will now invest in the very best expertise available in counter-extremism and tackle the crisis in our prisons. It is only by doing that that the Government can truly say they are doing all they can to keep our streets safe, and in that we will be holding them to account.
Sir Robert Neill (Bromley and Chislehurst) (Con)
The speeches from both Front Benchers have been very thoughtful and that matches the significance of this debate. My right hon. and learned Friend the Lord Chancellor made a very compelling case for this legislation. It is not the type of legislation that the House should undertake lightly, but protecting the public must ultimately trump all other considerations. It is always right that we should protect the public in a way that is commensurate with the rule of law. I believe that the Government and the Lord Chancellor have managed to achieve that balance and I am glad that the official Opposition recognise that, too. That is a fundamental duty for all of us, and reconciling the two is a considerable achievement, given the pressures we are under at this time.
The reason that I think it is necessary to move in this way has been well set out. I speak as somebody who represents a London constituency: many of my constituents work in and around the places where we have seen so many atrocities. That brings home to us profoundly the catastrophic risk that can come when an individual is released. Even though the index offence that caused them to go to prison may not have led to a very long sentence, the nature—I am sorry to say—of the type of terrorism that we see now, often based on perverted ideologies and the deep-seated hatred that that breeds, gives us the need to be particularly careful and cautious about all forms of release going forward. The automatic point of release will be moved to two thirds—in fact, that will no longer be automatic but will, in all cases, be considered by the Parole Board, and that is a worthwhile and important aspect of the Bill.
Sir William Cash
I am listening with great interest to everything that my hon. Friend says, as ever. Does he think that the question over the Bill is that it will have a limited effect, whereas the problems that we face have a much longer-term consequence? Does he believe, therefore, that we ought to have a more rigorous analysis in future—this is only emergency legislation—to make sure that human life in this country takes priority over the interpretation of law?
Sir Robert Neill
I certainly agree that we need a more detailed analysis of the best approach to a threat that continues to change and develop. My hon. Friend is right about that, and it is right that this is a discrete, emergency measure to deal with a specific and urgent problem. We certainly need to look at the way in which we deal with sentencing, the treatment of such individuals and the protection of the public in that context—that is absolutely right. I happen to believe, lest it be hinted otherwise, that that is perfectly capable of being achieved within our continuing adherence to the European convention on human rights and that a series of British court decisions would tend to support that, but my hon. Friend is absolutely right on the broader thrust that there is more work to do in this field. I got the sense that the Government and the Lord Chancellor recognise that, too.
It is right that we should consider the necessity of the Bill. I would have thought that that had been well laid out now. That is one of the principles of the rule of law. Lord Bingham famously set out a number of principles. One should not act in haste unless there is a compelling reason, but the reality of blood being shed on the streets of this country seems a compelling reason to me. The fact that people have been released and then have swiftly, and frequently, seized articles and used them to catastrophic effect seems to make this legislation both necessary and proportionate, so I hope that the House will have no hesitation in supporting it.
One issue that seems to have raised some concern, particularly in legal circles, is whether there is any risk of retrospectivity. I do not seek to see retrospective legislation, and for the reasons that the Lord Chancellor set out I do not believe that that is the case. When I was in practice at the Bar, it was very clear that the prospect of whether early release might occur was not a consideration that any judge should take into account in passing sentence. The principle was, and always has been, that the sentence passed should be commensurate with the gravity and seriousness of the offence and any other legitimate mitigating or aggravating circumstances that the Crown or the defence can put forward. Whether there may or may not be early release thereafter was never regarded as a consideration affecting the penalty.
That is important for the argument that the Bill retrospectively increases the penalty, which I think is a misguided argument in these circumstances. It was often said that the prospect of early release in effect ameliorates the penalty that was passed, rather than anything else. There is a string of authority in both the UK and Strasbourg courts to the effect that the total duration of the penalty is that which is laid down by the court at the time. That is the bit that cannot be changed retrospectively and the legislation does not seek to do that.
Sir John Hayes
From his long experience of these things, my hon. Friend is making a cogent argument about the character of penalties. He might want to go further. The problem with the assumption about automatic early release is that it is injurious to the very principle that he set out. Early release has always been part of judicial considerations but on the basis of an assessment of risk, merit and worthiness. Automatic early release runs against those principles.
Sir Robert Neill
I understand that point and we can debate it in broader terms when the larger piece of sentencing legislation is introduced, as I understand it will be later in the Session. The purpose of this legislation is effectively to deal with that—as well as moving the release point from half-way to two thirds, the Bill automatically states that there must be consideration by the Parole Board. It is very important that the Parole Board has the resource and expertise to carry out the additional and heavy burden that it must take on. There have been good reforms of the Parole Board since the Worboys case, for example, and in the last Parliament the Justice Committee looked at this and urged changes to the way in which parole operated, which have been acted on. There is movement in the right direction but we must be ever vigilant in making sure that the Parole Board has the resource, which may include more specialist resource.
Dr Julian Lewis
I am very interested in my hon. Friend’s lucid speech and particularly in the fact that he says the sentence imposed by judges is meant to reflect the gravity of the crime. It does explain why so many victims feel short-changed when people are let out early. When we come to consider the larger question of sentencing, would it not make more sense to have judges impose sentences that people will actually serve and to extend them if people misbehave in jail, rather than reducing them if they behave?
Sir Robert Neill
My right hon. Friend makes an interesting point. We will want to look at a number of issues when we debate the sentencing Bill. However, I say by way of caution that when we start extending the sentence—the penalty—we run the risk of falling foul of the principle against retrospectivity. With respect, I say to him that that is not something I would wish to see. That is different from remission of the sentence for earned good behaviour, which is the traditional system that we grew up with. There is an important distinction to be drawn.
Sir Robert Neill
That is an interesting point, but, with respect to my right hon. Friend, it is a wholly different consideration. There has been much debate on this point. The Select Committee has looked at it and urged that for certain offences, such as assaults on prison officers, there is often a compelling case, as a matter of public policy, for that to be charged as an additional offence, rather than be dealt with under the prison disciplinary rules, as is frequently the case. I am with him on that, but perhaps that is as far as we should take it today.
I have one final point about retrospectivity. Some learned commentators have raised concerns on the basis of the European Court decision in the case of Del Río Prada, but that case at most raises a tangential or speculative concern that there might be retrospectivity. The briefing from the Bingham Centre for the Rule of Law—I have a lot of respect for that centre, so it is right that I address it—says that arguably this could be regarded as falling foul of the principles; it does not come down hard and fast in that regard. The decision came after a particularly convoluted history of changes within the Spanish judicial system, which is utterly different from what we are doing. Subsequently, there have been decisions by the Strasbourg Court, in the case of the application of Abedin against the United Kingdom, and by the Supreme Court in the UK, in the case of Doherty, where the line of reasoning was much more consistent with the traditional stance we have taken ever since the House of Lords decision in the case of Uttley, which was that the changes to remission and early release provisions were part of the administration or execution of a sentence, not part of the penalty. That seems such a well-established principle that we ought to have confidence that we can act upon it in this case.
The Parliamentary Under-Secretary of State for Justice (Chris Philp)
I wholeheartedly concur with my hon. Friend’s analysis, but I just wanted to add one point. The Del Río Prada case touched on how concurrent sentences were calculated, which is wholly different from the matter before the House today.
Sir Robert Neill
My hon. Friend makes an important point. In legal parlance, I would say that is the most material consideration in distinguishing between those cases and the ones we are dealing with here. I hope that, having considered all those points, the House will be reassured on retrospectivity.
As other hon. Members have observed, it is important to recognise that this is a specific piece of legislation dealing with a specific and discrete problem; it does not mean we should not act urgently to deal with the broader issue of how we deal with this type of terrorism, which has developed in recent years; how we contain those who are deeply radicalised in prison; and how we prevent further radicalisation in prison—there is some concern that the Streatham attacker might still have been receiving radicalisation material while in prison. We need to look urgently at that and at the threat, which many of us have come across, of hard-line terrorist prisoners seeking to further radicalise more vulnerable inmates within the prison estate. That is an issue that Mr Acheson, who has been referred to favourably by many in this debate, addressed. I am glad to hear the Lord Chancellor has been in touch with Mr Acheson.
I share the view of the shadow Minister that Mr Acheson has a good deal more to give to this discussion. Things have moved on since his 2016 report, and he was a most compelling witness when he appeared before the Justice Committee in a previous Parliament, so it might be that we would like the benefit of his views again. I hope the Government will engage directly with him to see how, within the new context, we can continue to take on that and other expertise.
It is also right that we build upon the good work being done by the chaplaincy service in the form of the specialist imams. We have not perhaps given enough credit to the work of prison chaplaincy generally and of the specialist imams, who have a very difficult task to fulfil but do it most admirably. That is the impression I have got from those I have met. What more can we do to give them greater professional—pastoral, if you like—practical and professional support? This is an important area. I hope the Minister will confirm that we intend to continue that work and say what we can do to make sure that the many terrorist prisoners being held in high-security prisons like Belmarsh, near me in south-east London, are being held in a way that does not pose any further threat to staff, in terms of attacks—an issue that Mr Acheson dealt with—or any threat, either physically or in terms of further corruption, to other more vulnerable inmates with whom they might be serving.
In conclusion, this is an important Bill, and I hope the House will speed it through, but there is much more work to do. I will finish, though the Lord Chancellor is not now in the Chamber, by concurring with the shadow Minister on one final point: I, too, have been frustrated, as Chairman of the Select Committee, at the revolving door of Secretaries of State and Ministers who have appeared before us over the years, and I very much hope that the Lord Chancellor will stay in office very successfully and for many years. His handling of this delicate matter, including yesterday, has given him as good a claim as anyone to his office—and I, too, hope that that has not done too much damage to his career.
Kenny MacAskill (East Lothian) (SNP)
I concur with the Lord Chancellor’s comments that one of the primary duties of any Government, in any country, is to keep their population safe. I would go as far as to say that that applies to everybody elected to this institution and indeed to any democratic Chamber. Nobody seeks to make their constituency, let alone their country, unsafe. It is in that spirit that we come to this debate.
We understand the spirit of the Bill and the need for urgency—our party has had to deal, in another Chamber, with urgent and special procedures on severe matters that present a danger to the public—but we obviously have other duties, too, and there must be an element of proportionality. I think the Lord Chancellor used the word “cohorts”. It is important that we put it on the record that, despite what might be put across by some tabloid newspapers or by others, we are not dealing with thousands or hundreds; he said that we were dealing with 50 individuals, although some have suggested that it might be an even lower number. Equally, we recognise that, although they may be few in number, the danger and damage they can cause in our communities is significant, as we have sadly seen.
Dr Julian Lewis
Although I concur with what the hon. Gentleman has said, he will recognise that keeping even one of these people under close surveillance can involve up to 50 members of special branch or MI5. Therefore, even a handful of them will severely test the resources of the security services.
Kenny MacAskill
Absolutely. I was going to come to that point, given my involvement as a former Justice Secretary in Scotland. We on the Opposition Benches have a duty not only to ensure public safety, but to challenge and hold the Government to account on proportionality, practicality and operability. We will test and probe issues to ensure that public safety criteria, which are shared on both sides of the House, are met, but I assure the Minister that we do not oppose the general principles of the Bill.
That brings me to the question of retrospectivity, which has been commented on by many Members. It is unusual, it is rare, it is infrequently done, but we are open to it, although we have some caveats, the major one being that we have to get it right. We appreciate and welcome the extensive consideration given to this matter and the sharing with all Members of the logic and thinking, but this is an important point. I am conscious of the analogy of wasps in a jar: if you shake them all about and then let them out, you will get stung. We are, as I say, sympathetic to the point about retrospectivity, but we take on board the points made by the Bingham Centre for the Rule of Law, which Members will have seen today. We seek as much assurance as the Minister can give—we recognise that no absolute assurance can be given—that he is as certain as he can be that we will not face protracted litigation, a rewrite or further emergency legislation, and that we will avoid the potentially calamitous problems that may follow. I think again of the analogy of wasps in a jar.
That takes us on to the substantive issues that have been dealt with by many Members on both sides of the House, but in particular by the hon. Member for Torfaen (Nick Thomas-Symonds). The real issue here is radicalisation. Our primary concern on the Opposition Benches is not so much the nature of the legislation, but the action with prisoners, current or future, that has been taken and must be taken in the future. It is one thing to detain them for longer; it is quite another to do something constructive with them when you have them. That is the nub of the problem, and that is the underlying issue that we are seeking to test with the Government.
I think it was the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), who mentioned that all will ultimately be released. I had significant discussions with her when she was the Home Secretary and I was the Justice Secretary in the Scottish Parliament. The likelihood is that most will be released bar a very few, perhaps only a handful, and we must ensure that when that date comes, we are as safe as we can be. Although no Government can give every assurance that no one will reoffend, we must be as sure as we can be that the risk is limited, or, indeed, that the actions to protect the public have been taken.
That brings me back to why we are generally supportive of the thrust of the Opposition amendments, which were mentioned by the hon. Member for Torfaen. The real issue is not the legislation, but the action to deradicalise when people are within our prisons and monitor when they are without them. We also recognise that this is a relatively new phenomenon. Many Members have said that it has been with us for more years than they care to remember, but it is a challenge for those involved in criminal justice, because this is a new aspect. We have to think outside the box, which is why the input of imams, which was mentioned earlier, is so important. They are to be welcomed—and they sometimes face significant challenges, if not threats, themselves.
Aaron Bell (Newcastle-under-Lyme) (Con)
The point that the hon. Gentleman is making is absolutely correct, but there will be some who will not be deradicalised. In that circumstance, and when the time comes for their release, they are not mentally ill but they have a different view of the world. Might we not need to review the treason law, as was suggested at the weekend by my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat)?
Kenny MacAskill
I do not think that that would be required. I think that there are other ways in which we can deal with these people. The Chair of the Select Committee will know better than I, and the law in Scotland is somewhat different in relation to how we address psychopathy, but dealing with mental health issues always involves difficulties. It challenges the courts as it challenges those in the national health service who quite correctly deal with those issues. I think that this comes down to the fact that we are dealing with a new phenomenon. There are those who are mentally ill and who are set loose to cause havoc—either individually or encouraged by others—and the health service has to try to deal with them as best it can, but there are others who are simply malevolent. There are powers under current terrorism legislation, so I do not think there is any need for additional measures in that regard.
That returns me to the question of how we deal with them within and how we deal with them without. Let me start with the latter. Obviously monitoring is extremely resource-significant, as was mentioned by the right hon. Member for New Forest East (Dr Lewis). It is not a matter of someone in a rain jacket tailing an individual, even if that someone is accompanied by another. It takes dozens, and often significantly more, because there is back-office work and there are different shifts, and there are different ways of monitoring in the world in which we live. The resources needed just to deal with one individual, never mind the accompanying supply chain, are significant, and we need assurances that that will be provided. More police are required, particularly south of the border. The impact of terrorism on policing is significant, and that must be taken on board, given the other demands that the police rightly face in our communities.
I now come to the former issue. This is relevant to what has been said about the Acheson review, which was published back in 2016. It appears that little has been done since then. I gather from discussions I have had that one of Mr Acheson’s recommendations—which was, quite correctly, welcomed by the Government—was that prisons should have specialist separation units. I understand that some four were subsequently established, but only one—at, I think, HMP Frankland—is in operation. I am open to correction or challenge, but if that is indeed the position, it is simply not good enough. If an independent reviewer of the stature of Mr Acheson—on which we all agree—makes a recommendation, you are duty bound to implement it. If he makes a specific recommendation for units that you go to the trouble of establishing, it is mind-blowing that only one should be operating.
Joy Morrissey (Beaconsfield) (Con)
I agree with the hon. Gentleman about the separation units. We need to think about how we can increase the numbers. People who are already radicalised arrive in prison and then prey on vulnerable inmates to increase the level of radicalisation. It has been suggested that those who have already been convicted of terrorist crimes should be placed in separate units to prevent the spread of radicalisation. The hon. Gentleman has made a very good point.
Kenny MacAskill
I thank the hon. Lady. The same has been done in previous years in the case of other prisoners. Even during my tenure, we had special units for those involved in paramilitary activities in Northern Ireland. This is something deeply specialised, but it will require action both by those involved in the establishment of the units and by the Prison Service.
That brings me to the question of deradicalisation programmes. I recognise the difficulty of checking against delivery and ensuring that the programmes are working, but I think that we need to take steps. I have a special request for the Minister: I think that prison officers should have an input in these courses. Their input is currently very limited—indeed, almost nil—and they are outsourced, which is understandable. There are also the specialist resources such as imams, who were mentioned earlier. However, we should recognise that prison officers have remarkable skills. They are able to tell who is pulling the wool over their eyes. They may not be trained in this or qualified in that, but they know psychology and individuals within the prison institution. They can tell you why someone is applying for a course—in the main, because no one can always get it right. They are hugely skilful in distinguishing those who are signing up because they want to be able to tick the box and satisfy the Parole Board from those who are signing up for a course because they believe in it. They do not engage with the prisoners just on the course; they live with them 24/7, and they can see who prisoners are interacting with and what their behaviour is like. I think that we have been remiss in this regard, and I ask the Minister to take my suggestion on board.
Let me end by simply saying that we are satisfied about the need for the Bill. We are satisfied with the general principles. We wish to be assured that retrospectivity will be addressed, and that resources both within and without will be provided. If that is done—although we accept that no Government can give us an absolute, categorical assurance that these people will not reoffend —we can at least go back to our constituencies and say to our constituents that we are doing as much as we can to keep our communities safe.
Madam Deputy Speaker (Dame Rosie Winterton)
It is a pleasure to call Dr Kieran Mullan to make his maiden speech.
Dr Kieran Mullan (Crewe and Nantwich) (Con)
Thank you, Madam Deputy Speaker, for this opportunity to make my maiden speech. I am conscious of the seriousness of the topic with which we are dealing today as I embark on the traditional features of a maiden speech, but we know that the positive community stories that I will be sharing are exactly what the terrorists seek to destroy, and what the Bill seeks to prevent them from destroying.
Let me begin by paying tribute to my predecessor, Laura Smith. Laura was vociferous in her advocacy, and, like me, has frontline experience of public services. Before becoming a politician, she was a primary school teacher and a private tutor. It is a good thing to have diverse backgrounds and experiences in this place.
Crewe and Nantwich is a true melting pot of northern Britain, and I could not possibly do all its diversity justice in this short speech. I represent a large number of villages and parishes including Haslington, Willaston, Wistaston, Rope, Hough, Basford, Shavington, Barthomley, Weston, Leighton and Wybunbury. Across the constituency can be seen a host of community activities that embed each of those places in my mind. Hough Village will always be best known to me as the home of a monthly charity bingo club set up by village resident Celia Brown, which has raised thousands of pounds over the years. I pay tribute to the amazing contribution that Celia and her family have made to charity fundraising. Willaston hosts the annual world worm-charming championship, which sees competitors travel from as far afield as New Zealand and Australia. I will ensure that the upcoming reform of the immigration system makes the necessary visas available to those who wish to compete in this important global competition.
We have a host of fantastic local sports teams, including Crewe and Nantwich rugby club, which I play for. There is no better way of keeping your feet firmly on the ground than running around on the rugby pitch on a Saturday with team-mates and an opposition who could not care less about my being an MP: the bruise on my cheek testifies to that. The second team that I play for has a two-part team motto, the first part of which is “Win or Lose”; the second part contains unparliamentary language which I cannot repeat in this place.
Inevitably, however, the constituency is best known for its two towns of Crewe and Nantwich. Nantwich is a true gem in the Cheshire tourism crown, attracting streams of visitors every year, whether it be to the regular farmers markets or the famous food festival, or just to enjoy a stroll around the cobbled pavements with a view of St Mary’s church and the beautiful floral displays of Nantwich In Bloom. It is home to Barony Park, which is championed by the Friends of Barony Park and their irrepressible cheerleader, Rachel Wright.
Crewe is a town with a proud history, and there can be no better example of the kind of town this Government have pledged to support. Everywhere you look, there are people fighting to make a difference: people such as David McDonald and Margaret Smith, who are working hard to improve Crewe as part of the Crewe Clean Team. When the Beechmere residential home burned down last year, the whole community rallied round.
However, Crewe faces a declining high street and an ongoing struggle to return once again to the high point of its enormous contribution to our national economy as home to Crewe Works, which at one point employed 20,000 people designing and building world-famous trains. The site’s famous 11-metre tall wall that had stood for more than a century was finally knocked down last year to make way for development. I grudgingly understand why that might have been the right decision, but it serves as a symbol of what we must get right for all of Crewe. Yes, let’s see progress—as we soon will with the arrival of HS2 and with the Towns Fund investment—but we must ensure that the reward is worth the cost, and losing the wall and the legacy it represented has been a blow for many local residents. Bombardier has allowed me to have a brick from that wall, and it has pride of place in my office to serve as a constant reminder to me of what has passed and what must come next. Why do things such as that wall matter to people? They matter because they help us to tell a story of our lives and our history.
Seven years ago, as a junior doctor, I had the privilege to look after Jan Krasnodebski, a Polish man of quiet dignity, who was admitted to hospital towards the end of his life. His family were deported from Poland to Russia during the war, then allowed by Stalin to join the British Army training camps in Persia. Jan eventually joined the Polish army cadet school in Palestine, and when the British mandate ended, he came to Britain. He went on to live a rich life, but he had no wife or children. We would sometimes talk in the evenings, and he told me of his worry that without children of his own, his life would not be as vividly remembered as it deserved to be. I know, as a gay man, that the question of whether I would have children and how I would be remembered sometimes crossed my mind at the time, so I felt an affinity with him.
We agreed that I would write the story of Jan’s life, so that he could share it with others and ensure that he would be remembered. For a week after I finished work, I sat with him as he quietly and studiously sketched it out for me. It was the story of two generations, his and his parents’, who lived in a world more precarious than most of us can imagine, and full of hardship but also of dignity. What we wrote together was read at his funeral following his death a couple of months after he left hospital. In preparing this speech, I revisited the story. In it, I think we can find some clues as to why, despite the hardship and upheaval that they faced, families such as Jan’s and their communities still lived contented lives. As I share Jan’s words now, they enter Hansard, so he can be sure that his story is preserved forever. Jan told me:
“You can have a happy fulfilled life as long as you do something that you think is important.”
When we get home from this place in the evenings, we climb into bed and all the pomp and ceremony and the expectations on us fall away, and we are no different to Jan in his hospital bed wanting to reflect on his life and feel that it had meaning. Our constituents are no different either. Listening to the maiden speeches of many new Members, I have been struck by how many have spoken about what is increasingly missing from people’s lives: that sense of how they fit in with this ever-changing complicated world we live in. People want meaning and a sense of where they belong. Too often, we forget that that comes in the form of expectations and obligations on us. Delivering on what we must give to others and what is expected of us helps to create our own sense of worth.
There are no simple solutions to this challenge of people struggling with their identity and place in the world. If you have a low-paid skilled job but every week you help to run a women’s refuge, you can feel important. On the other hand, you can have a high-paid, high-skilled job but get lost in the world of addiction, because what you earn has, on its own, given you no sense of meaning. You can live on a deprived housing estate surrounded by drug-dealing gangs but feel no temptation to join them, because your loving family is all the community you need. And you can hold enormous talent in your hands but not feel valued, because society has decided that grafting all day for a great wage is not as important or worthy as going to university.
Today we are talking about the evils of terrorism, but at the heart of any successful terrorist recruitment campaign are people who have lost that sense of meaning in their own lives, leaving them vulnerable to the simple narratives of victimhood and betrayal. We can build infrastructure and create jobs, but all of this sits in a vacuum if it is not part of a broader story of a nation and a community that people feel part of. Of course, I will always believe that it is our families—the very first community we are part of—that ensure we grow to become part of the wider world with confidence, ambition and a sense of right and wrong. People lacking that foundation need our help most of all.
Modern culture holds up as important the people whose stories are being told loudest, on radio and television, in newspapers and on Facebook and Instagram, and whether a story is being told by admirers or detractors, we are made to feel that it is volume that counts. That is something that modern terrorist groups understand very well. Let us make sure that our constituents feel their story is important, however quietly told it is. I finish by returning to Jan’s words. He reflected:
“Though I have written about some of the more memorable events in my life, I would say most of my enjoyment of life has been from the day to day involvement in smaller ways with the Polish community”.
Whether we are addressing terrorism, loneliness, addiction or family breakdown, it is with community, belonging and importance that we need to start if we really want to level up this country. Many people have forgotten that the community right outside their door—in community bingo clubs, world worm-charming championships, parks groups, litter-pick groups and rugby teams—is where they will find that fulfilment, belonging and a sense of importance. Let us work hard in this place to remind them of that, to ensure that our society is one in which no terrorist ideology will ever find a home.
Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)
I should like to start by congratulating the hon. Member for Crewe and Nantwich (Dr Mullan) on his thoughtful and beautiful speech. To give his maiden speech in that spirit shows the way in which he will work hard for his constituents to tell the stories not just of the two towns he represents but of the people within the towns, and also of the search for meaning and the search for purpose in politics. I really must congratulate him on making such a poignant and powerful maiden speech.
I rise to support this legislation. The purpose behind the Bill is the right one. It is to ensure that those convicted of terrorist offences are not released early without a Parole Board assessment of whether they still pose a danger to the public. In the past few months, we have seen two awful terror attacks—one on London Bridge and one in Streatham—and our hearts go out to those who were killed or hurt, and also to their families and to those who were there and witnessed the awful events. We owe our thanks and tributes to brave members of the public as well as to the police, the security services and the emergency services, and to those such as Jack Merritt and Saskia Jones, who worked so hard on the rehabilitation of offenders in the community, and who worked every day to help keep others safe. They tragically lost their lives in the London Bridge attack.
I agree with the Lord Chancellor and with my hon. Friend the Member for Torfaen (Nick Thomas-Symonds) that we should come together on this, because terrorists seek to undermine our way of life and to divide us, and we cannot let them so do. We have faced terrorist and extremist attacks for many years in this country. We have seen an increase in Islamist extremism and, more recently, an increase in far right extremism. The changing patterns of those threats include an increase in lone attacks by those who have been radicalised, either online or in prison. In those attacks, by extremists on all sides in pursuit of poisonous ideologies, people are hoping not just to hurt and harm us but to provoke fear and reactions that they can further feed upon. So it is a sign of our strength and resilience as a country that most people have always been determined to come together in the face of such extremism and attacks and not to let them divide us.
The Streatham attack highlights a problem. The police, the courts, the security services, the prisons, the rehabilitation and prevention services and the affected communities all need our support and also Government support to keep communities safe. That is why this Bill is justified and needed. When someone has been convicted of terrorism and they are still dangerous to the public, they should not be released early from prison. That means that, before they are released, they must be subjected to a proper Parole Board assessment of whether they still pose a threat. The seriousness of terror events and the dangers of radicalisation mean that the police often rightly intervene before an appalling attack takes place and charge people with preparatory offences, but in some of those cases the police, the security services, the courts, and the prison and probation service are all aware that they are dealing with people who are capable of something even more serious.
People have raised concerns about applying these new rules to those currently serving their sentences, and I accept the Government’s legal advice on the fact that the proposal does not change the length of sentences. We have always had administrative rules about the way in which sentences are served. For example, people are out on licence for the bit of the sentence that is served in the community. However, if licence terms are breached, people can be returned to prison to continue their sentence in custody, so that concept of risk is built into the criminal justice system, the system of custody and the system of sentencing. That is why it is right that the Parole Board should be able to assess the risk in such cases, just as they do in many other cases. It is sensible and proportionate.
I have already said to Ministers that it is important that this legislation is drawn up in a way that is robust against legal challenge, particularly to ensure that Parole Board assessments can take place. I agree with both the Lord Chancellor and my hon. Friend the shadow Minister that we must ensure that we keep our communities safe and do what is right while defending the British values of the rule of law and supporting the European convention on human rights—all the very things that terrorists try to undermine and threaten.
I also accept the need for emergency legislation and accept the Government’s warnings that they, the police and security services are concerned about other individuals who might otherwise be released without parole assessment and who they believe are a danger to the public and should not be released early without any kind of assessment. However, it is right to raise a concern that it is not ideal to be making this kind of legislation in a day. It is right that we do so in these circumstances, but the Government must recognise that it is not ideal to rush through legislation breathlessly.
To be honest, there have been many warnings that such an issue was coming down the track, because the Government have known about the problem for some time. The Home Affairs Committee took evidence from Neil Basu in October 2018 during the course of its consideration of what became the Counter-Terrorism and Border Security Act 2019, and he told us:
“The point that some of our radicalisers are getting short sentences, coming out early, and being able to continue is a problem, as is not having sufficient resources in place to use desistence or disengagement programmes.”
Steve McCabe (Birmingham, Selly Oak) (Lab)
I support the legislation, but I agree with my right hon. Friend that it feels a bit like a sticking plaster. The unanswered questions are the danger here. What happens to the people who we keep in prison longer unless there is effective intervention? What confidence can we have that MAPPA levels 2 and 3 are stringently managed and enforced? That is always the issue that must be addressed when such people come out of prison.
Yvette Cooper
My hon. Friend is exactly right. There is a danger that we are simply reacting to this situation in a hand-to-mouth way, rather than in a more strategic way that recognises some of the underlying issues that need to be dealt with over a long time. We may need further legislation, but that should be done in a thoughtful way, with proper scrutiny, not left until the last minute and, as a result, done in a breathless rush.
Alicia Kearns (Rutland and Melton) (Con)
The MAPPA review provides exactly that opportunity. We need this emergency legislation to go through, but it is by reviewing the MAPPA process that we will see results. One of the most crucial changes that I would like to the MAPPA process is to include Prevent co-ordinators in MAPPA meetings, because Prevent co-ordinators can understand that someone newly released has come to their community and say, “That individual is still a threat for the following reasons. I can map this individual against the communities and groups that they might be a risk to.” This emergency legislation is important because, for example, if we had had it in place, Anjem Choudary would still be in prison, but the crucial change will be to MAPPA so that Prevent co-ordinators can know where Anjem Choudary has gone and can therefore provide a relevant analysis of what he will do.
Yvette Cooper
I completely agree. Having a link between Prevent programmes and the MAPPA process is extremely important. There is a question here for the Government about how the MAPPA review and the Prevent review are going to link together. The problem is that we do not have a chair in place for the Prevent review, and I am unsure of the Government’s plans for the timetable for the two different reviews. It might be helpful, in fact, if the Minister were able to say something in his winding-up speech about how the two reviews will interact and how the Prevent review will be put back on track with somebody in place.
What happens before a terrorist incident happens and what happens afterwards—whether that be in prison or probation or in assessment—need to be properly integrated, and the expertise in different parts of the system needs to be pulled together and effectively co-ordinated. We have known for some time that Sudesh Amman was due to be released this January, for example, so we need a more effective system to anticipate the challenges, because there have been previous opportunities to change the legislation.
We also need to address what happens at the end of the sentence, because my hon. Friend the Member for Birmingham, Selly Oak (Steve McCabe) is right to describe this legislation as a sticking plaster if we do not look more widely. When the Parole Board decides that somebody still poses a serious risk, that person will still, however, have served their time after, say, another couple of years. If they still pose a threat to the public at that point, we still will not have addressed the heart of the problem. The former independent reviewer of terrorism legislation, Lord Anderson, pointed out that if they are sufficiently dangerous to end up serving their whole sentence in custody, they will not have any further licensing conditions attached at the end of their sentence, nor will they be subject to further supervision.
In the past, we had control orders and imprisonment for public protection sentences to address such circumstances. The Minister will know that I opposed the removal of control orders, and we have had debates about the decision to end rather than just to reform IPPs. However, in their absence, the question for the Government is whether the existing arrangements with TPIMs, for example, are sufficient to address the circumstances for individuals coming out at the end of their sentence, having served the full sentence in custody, with no licence conditions attached. Do the Government have plans to address those individuals should they still prove to be a danger?
There is also a massive problem with what is happening in our prisons. The Chair of the Justice Committee has already raised this, but we do not yet have effective enough de-radicalisation programmes in prison. Former public prosecutors have warned that they have been underfunded. Academics point out that some prisoners who are willing to go on de-radicalisation programmes wait so long to get on them that they are released before they are able to do so. There are, of course, concerns about the effectiveness of the assessment of de-radicalisation programmes, the interaction between programmes that may work in the community but not in prison, and the best way to do this.
Nobody should ever pretend that this is easy or that there is a magical response to solve the problems. However, there are real worries that we are not doing everything we could in prisons. The concerns raised by Ian Acheson, who conducted an independent review of Islamist extremism in the prison and probation service, are really serious. He said that frontline prison staff were ill-equipped to handle the situation, prison imams did not possess the tools or the will to tackle extreme ideology, the intelligence gathering system was not working, and there were serious problems of lack of leadership and management and a lack of end-to-end systems. He concluded by saying that, frankly, the prisons are struggling to cope.
I heard what the Lord Chancellor said about things having moved on, but there is a problem in that we cannot judge whether that is right because the Government have refused to publish the entire Acheson report. I understand that there are sensitivities around radicalisation, but even Ian Acheson is not able to say, “Yes, all the problems are being addressed.”
There are continual reports of people being further radicalised in prison. These are cases not where de-radicalisation fails but where, in fact, there is greater radicalisation. Non-radicalised people who go into prison end up being converted not just to Islam but to extreme perversions of the religion that are, in fact, an ideology, not a religion.
A Wigan man was convicted of far-right extremism, but the judge concluded that this person would be vulnerable to further radicalisation and chose not to give him a prison sentence on that basis. We are in a very uneasy situation if our courts are reluctant to give prison sentences because they fear greater radicalisation. The prison system, which is supposed to be keeping us and our communities safe from extremism and terrorist threats, may instead be contributing to the problem and, in some cases, making matters worse.
I do not doubt the huge commitment and hard work of many people across our prison system to try to tackle radicalisation and extremism. However, the evidence we have seen from the outside is that the system simply is not working. It is not enough for the Lord Chancellor simply to give us his word that things have improved if there is no proper system of oversight or checks and balances to ensure that progress is being made. I urge the Lord Chancellor and the Minister to talk to the Justice Committee about what more can be done to ensure proper oversight so that we can be sure we are making progress on what is happening both inside and outside prisons.
We all have a shared interest in ensuring that extremists and terrorists are not able to threaten our way of life, to put people’s lives at risk or to threaten our communities and our democracy. There has often been cross-party consensus on the need to take a sensible approach to ensuring we protect both people’s safety and the values that terrorists challenge—the values of the rule of law and our democratic institutions. We need to challenge their ideology and work ever harder to make sure the systems that are supposed to address this can properly do so.
It is therefore not a surprise that we have cross-party consensus in support of the Bill today. This is a sensible and proportionate response to keep people safe and to address a genuine problem to which the criminal system has to adjust and adapt. It is also imperative on all of us to work further across parties to address some of the deeper, longer-term problems, on which the Government need to do more. I hope we will be able to work across parties on addressing those longer-term challenges so that we can do a better job of keeping us safe.
Sir William Cash (Stone) (Con)
I follow the line taken by the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) on the cross-party consensus that is needed in passing this Bill.
However, as I have already indicated in a number of interventions, I am concerned about the restrictive and restricted nature of this Bill. We should get the Justice Committee to look at the longer-term issues raised by these incidents, murders and terrorist offences. I entirely understand why this Bill has been introduced, and I support it. I am glad the House, as a whole, has clearly indicated the same.
We have to take these problems seriously, as they are deeply entrenched in parts of our society, and they will continue. They will not change just because this emergency legislation has been passed. The Bill will have a limited effect, so we need a longer-term assessment of the real problems that underpin it.
In response to the intervention by my right hon. Friend the Member for New Forest East (Dr Lewis), I mentioned the state of mind of some of the people concerned and the question of whether, in certain cases, it is evidence of some degree of insanity, of a drug-affected mind or of mental disturbance on such a scale as to impinge on the question of mens rea. We do not have time to go into all of it this afternoon, but I want such longer-term assessments because some of these people, from whatever part of society, have had to be confined to Broadmoor and other similar secure places because of their mental state. I put that on the record as a suggestion that needs to be taken up by the Justice Committee and, indeed, other Committees.
I also raised in an intervention that, for me, this Bill does not answer the question of why automatic early release, with the agreement of the Parole Board, should be moved from halfway to two thirds of a sentence. In circumstances where we are dealing with public safety and human life, I do not see why two thirds should be chosen as a boundary line. There are circumstances in very severe cases where I do not believe there should be any release at all, for the reasons I have already touched on in relation to certain people’s instability of mind.
Alicia Kearns
Does my hon. Friend agree that terrorists are traitors? They have declared this country their enemy, and they have declared he and I, and civilians, as legitimate targets to be murdered and assaulted on our streets. I therefore agree entirely that they should serve at least their full sentence. We should be looking at far longer sentences than just 14 years.
Sir William Cash
My hon. Friend touches on a point that I raised several years ago, shortly after the infamous, terrible murder of Lee Rigby. On the question of persons returning to this country from ISIS, I told the House that, as far as I was concerned, the issue of their return should be evaluated in accordance with article 8 of the convention on the reduction of statelessness, which makes it clear that a person can be made stateless if they give allegiance to another country—the caliphate could be regarded as such in this context. I accept this is controversial, but the United States, for example, already applies article 8 in that way. If the person in question gives allegiance to another country, by definition they have moved into the zone of treason and have deliberately and voluntarily abdicated their allegiance to this country. I put that on the record because we have to take these matters extremely seriously, and I attempted to make such an amendment to the Counter-Terrorism and Security Act 2015. This is about not just external activities, but internal ones, within our domestic law, so we need to take this incredibly seriously. That is why I am appealing for this longer term assessment of all these questions, including the one my hon. Friend has raised, because it is so important and cannot just be put into a category of “rather extravagant thinking”. This is really serious.
As I said earlier, human life and public safety are much more important than the question of whether the courts may or may not interpret a particular provision in a more “fashionable” judicial interpretation than we ought to expect of our courts. I go further and say that human life is more important than any legal interpretation of human rights, which is why I have tabled my amendments. I imagine that the Committee stage will be pretty truncated, so I am not going to go into this in Committee in the detail that I will now. As this is a Second Reading issue and a matter of principle, let me say that we should include in the Bill, in clause 1, the exclusion of the Human Rights Act 1998. I have something of a history in that respect, but so do the Foreign Secretary and many others, such as the distinguished Martin Howe, QC. We were regarded as highly unfashionable some years ago, but issues of the kind that gravitate around the Bill have drawn attention to the fact that we have to take these matters really seriously. I understand that the Bingham Centre has made a number of representations on the matter, and there are clear indications that there are lawyers of some notoriety, if not distinction, who will seek to overturn the provisions of this Bill by going to the courts. I deplore the fact that they would seek to do so.
I am looking forward to the discussion in the House of Lords on this matter, because there are distinguished lawyers on all sides of the debate in that House, who, with the greatest respect to all of us here in the House of Commons, have been practising at the Bar, have been in the Supreme Court and so on. They will be able to bring to bear the right degree of analysis of the case law, which needs to be looked at carefully in this context.
Sir John Hayes
As ever, my hon. Friend is making a compelling case. I suggest to him that this requires a more fundamental review of the characteristic and extent of rights, and how they relate to citizenship, duty, responsibility and the public good. I wonder what he thinks of that.
Sir William Cash
That is an extremely important point. As my right hon. Friend knows, I have the greatest respect for his analysis when it moves from not just the law into the broader societal and philosophical questions, which ought to inform opinions made in this House; we should not just treat issues of this kind as if they are somehow matters of semantics. We are dealing with the kind of society that we want, and the impact of the terrorism, and murderous and dangerous behaviour, of the perpetrators of these crimes our own constituents. A most recent case involved somebody who travelled from Stafford down to London, and therefore was a matter of immediate concern to my constituents, because he had been living there for some time. The manner in which he was allowed to leave to come down to London and commit murder in Fishmongers’ Hall and in the vicinity is a lesson for us all.
I now want to deal with the retrospectivity elements of this Bill, which relate to my general concern to tie down this issue in the longer term. The Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), and I had an exchange about a number of cases. I am well aware that this is not the place for us to attempt to make an assumption that we are able to treat this Chamber as though it is a court of law, although we are, of course, the High Court of Parliament, but that is to miss the point; the fact is that proper analysis of the case law has to be conducted. Some of that has already been done in blogging and in some pamphlets, and I am expecting the House of Lords to home in on it effectively when the Bill gets to that House, although it will not have much time.
We know that Ministers have been warned about the likelihood of a legal battle; despite the assertions of the Government that the Bill is compatible with article 7 of the European convention on human rights—for reasons that I will explain, I am sympathetic to their view—there are those who will argue that it is not. I can see this coming, so my amendment would remove any chance that there could be that kind of legal battle on the applicability of the Human Rights Act to this Bill. My amendment would insert the words
“notwithstanding the Human Rights Act 1998”.
That is a belt-and-braces approach, and it is what I am seeking. I am not going to move this amendment in Committee with any intention of dividing the Committee of the whole House on it; I think the matter needs further consideration outside this House, and I look to the House of Lords for some indication of views.
My argument goes like this: this Bill is compatible with article 7. No one has read it out so far, so I will do so. It states:
“No one shall be held guilty of any criminal offence”—
for conduct —
“which did not constitute a criminal offence…at the time when it was committed.”
This Bill does not purport to create a new criminal offence. Rather, it seeks to prevent terrorists convicted by UK courts on the basis of offences that existed prior to the Bill from having automatic early release. I have already made my point about the length of time indicated. Furthermore, the explanatory notes state:
“The Bill does not retrospectively alter a serving offender’s sentence as imposed by the court, or alter the maximum penalties for offences.”
They state that the Bill is concerned with the “administration of a sentence”. I still believe, despite the exchanges I had with the Chairman of the Justice Committee, that the del Río Prada case could well still come into play there. I fear that it might be used effectively against the Bill. So my conclusion on the question of a textual interpretation of article 7 of the ECHR indicates that is not incompatible with this Bill. However, Parliament does have the power to legislate retrospectively—
Madam Deputy Speaker (Dame Rosie Winterton)
Order. I just want to let the hon. Gentleman know that I am sure he will have the opportunity in Committee to address his amendment. I am sure he will be aware that there are quite a few people who wish to speak on Second Reading; I just want to assure him that he will be able to address his amendment during the Committee stage.
Sir William Cash
I do understand that, but I also anticipate that there may be a need for brevity at that point. That is how these things go, from my experience, which goes back some time. I am talking about matters of principle. I repeat: I am talking about matters of principle.
As established by Willes J in Phillips v. Eyre, courts ascribe retrospective force to new laws that affect rights only if
“by express words or necessary implication that such was the intention of the legislature”.
Clause 1 will amend the Criminal Justice Act 2003 and expressly restrict eligibility for the release of prisoners who have been sentenced for a terrorist offence
“whether before or after this section comes into force”.
My conclusion on this point is simple: the courts would be expected to give retrospective effect to the Bill.
The principle I wish to address is that I am concerned that the courts have a disinclination and reluctance to give effect to retrospective legislation, particularly when it deals with criminal acts. That is well established, and I could quote Bradley and Ewing, page 56, which explains that. Although I do not think that article 7 applies to the Bill, to ensure that the courts do not find a way around the Bill or a misguided interpretation that would frustrate its real purpose, I shall move my amendment in Committee, for the purposes of legislative clarity and for the avoidance of doubt in relation to the power of Parliament to legislate retrospectively. That is the principle that I am addressing at this moment.
I have no further comment to make for the purposes of this debate, but this matter has to be taken seriously. The wording that I intend to introduce in Committee will be taken as a serious attempt to make sure that no way around the provisions is found by the courts or by some ingenious lawyers, who would avoid and frustrate the purposes and principle of the Bill, as expressed on Second Reading, which we are debating.
Gavin Robinson (Belfast East) (DUP)
It is always a pleasure to follow the hon. Member for Stone (Sir William Cash). He referred to lawyers of some “notoriety” rather than, perhaps, remarkable lawyers; he is not the former. He has raised in the House the considerations relating to his amendment, so should this matter ever reach the courts for adjudication, the courts may, having been served with notice that the wording he proposes in his amendment should have been in the Bill, be even more inclined to accept the argument, knowing that Parliament was fully apprised of the considerations and had the opportunity so to heed the advice. That said, it was pragmatic of the hon. Member to indicate that although he may move his amendment, he may not force it to a vote, hoping instead that it is considered in the other place. I understand why he did that.
I appreciate the opportunity to participate in this debate, which has been incredibly positive so far. We have been considering a serious issue, but every Member who has spoken so far has done so with a determination— in recognition of the difficulties that we have faced as a society from terrorism in responding appropriately, pragmatically, sensibly and swiftly—that this debate should add to the response that we as a Parliament should bring.
It was of benefit to hear from the hon. Member for East Lothian (Kenny MacAskill), if I may mention him specifically. He is new to the House, but he has incredible knowledge of a parliamentary approach to early release. He did not refer to any individual cases in his remarks, but Members should know that the hon. Member has been through the political, practical, public and moral rigours of early release for those engaged in terrorist offences. We have benefited from his insight.
Reference has been made already to the contributions from the former reviewers of terrorism and terrorist legislation, Lord Anderson and Lord Carlile, the latter of whom has indicated that he believes that the Bill will be subject to legal challenge. Of course, that may be right, but I do not think that ultimately the House should fear that. It is appropriate that if people feel this legislation is incompatible with the European convention on human rights they get the opportunity to challenge it in the courts, but the Lord Chancellor expertly took the House through all the implications as to whether article 7 is engaged. It is surely engaged, but not in a fundamentally flawed way. It is fair for us to say that, yes, there are the considerations that we have discussed this afternoon and that will be discussed in another place and in the courts, but I believe that ultimately this Bill is the right approach for Parliament to take.
The right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) rightly referred to the comments of Lord Anderson QC. It was entirely appropriate for Lord Anderson to say that should this process, through this Bill, exhaust the opportunity for licence, compliance and control within the public sector and society at large, that would be a missed opportunity. We need to be alive to that in this debate. I think the Lord Chancellor nodded when he was considering TPIMs and the protective measures that have been in place and that could be put to good use. Licensing and rehabilitation are important parts of the criminal justice process, so the retention of someone in custody, without giving them the opportunity under control orders, is something that we should think about. We should recognise that if somebody spends the entirety of their sentence in custody without any control on release, that places an even bigger burden on our security services, when other aspects of the criminal justice system should be more appropriately engaged in monitoring, surveying and ensuring compliance and the rehabilitation of offenders who have been brought before the courts previously.
As a representative from Northern Ireland, I must focus on the fact that the Bill does not apply to our jurisdiction. The Lord Chancellor did proffer a view—I think this fairly reflects his comments—that the way we calculate sentences in Northern Ireland means that although the Bill does not fundamentally or injuriously engage article 7 considerations in England and Wales or Scotland, it would in Northern Ireland. I would be keen to explore that in greater detail with the Minister somewhere else. I do not think it would be appropriate to do that on the Floor of the House this afternoon, but it is worthy of further interrogation. I do not challenge what the Lord Chancellor said on the Floor of the House, believing what he said to be true, but I am not sure that what was indicated is right, nor indeed do I believe that it was the totality of the issues that may have been under consideration in connection with the Bill and its application to Northern Ireland. I say that as somebody who has contributed to many debates on terrorism and who lamented the fact that the counter-extremism strategy was introduced in this place and similarly did not apply to Northern Ireland.
The House knows the history that we in Northern Ireland have had in respect of both terrorism and extremism. I have made the point in the Chamber before that as a Member of Parliament for four and a half years I have seen a member of my own constituency murdered by the Provisional IRA, an organisation that most in the Chamber would believe does not exist any more; I have had a prison officer in my constituency murdered by dissident republicans through an under-car booby-trap bomb; and in January last year I had a father murdered by loyalist paramilitaries in my constituency. In four and a half years, we have had three individual murders by three different paramilitary terrorist organisations, at a time of peace. So it does jar, whenever we lend our weight—give our support—to counter-terrorism measures in this place, that we are not incorporated.
Members who have an interest in Northern Ireland affairs will be aware that the political process and the Good Friday agreement led to the early release of terrorist prisoners in Northern Ireland, and that there were two protections. Everyone was released on licence, and legislative provision was made for those licences to be revoked if it was the view of the Secretary of State that the person had engaged in activity that was leaning towards paramilitary or terrorist activity yet again: the Northern Ireland (Sentences) Act 1998 and the Life Sentences (Northern Ireland) Order 2001.
In preparation for the introduction of this Bill, I tabled questions to the Northern Ireland Office to ask how many people who had been jailed in Northern Ireland as a result of terrorist activity had been released and had their licence subsequently revoked because of their activity. One answer, on the 1998 Act, was that two licences had been revoked since 1998, but I got the most obtuse answer on those who had licences revoked under the Life Sentences (Northern Ireland) Order.
When you are trying to paint a picture, Madam Deputy Speaker, and you are trying to do research to understand where we have had parallel experiences in the past, and where people have been released for altogether different political reasons and under a different political settlement but have had licences revoked because they re-engaged in terrorist activity, it is important that this House has those figures. The answer, from 2001 to 2020, was that policing and justice was devolved in 2010.
That answer tells us nothing. I think it entirely discourteous to me, as a Member of Parliament seeking information, and to the House. It does not answer the question about 2001 to 2010 and it does not answer the question about licences revoked under national security considerations—information that would have been appropriate and important to inform us during the passage of the Bill.
Sir William Cash
I am very interested in what the hon. Gentleman is saying. I wonder whether steps are being taken to raise these matters, not only as he is doing in Westminster, but also now in Stormont. Is that now under consideration in the context of the Bill?
Gavin Robinson
That is a very fair question. When national security considerations are engaged—so that relates to terrorism—the devolved institutions at Stormont do not have a role; that remains the competence of the Secretary of State for Northern Ireland. But there are issues that I want to pursue, and I hope the Minister will give a commitment that we can have a discussion about article 7 and how it is engaged differently, in a way that makes the Bill incompatible with the European convention on human rights but not in England, Scotland or Wales.
Madam Deputy Speaker, I think you know our position when it comes to legislation to protect society and curtail the excesses of those who want to frustrate everything we value in the United Kingdom—the positive values and principles that we hold dear in this Parliament and in this place. We will support this Bill and I am grateful for the opportunity to make those ancillary comments about Northern Ireland, which I hope help to set this debate in context.
Sir John Hayes (South Holland and The Deepings) (Con)
Except for love infused by hope, fear is the most vivid of emotions. Love is perhaps more readily remembered, but fear is more easily envisaged, because fear in itself is the imagining of horror that might happen. That is why provoking fear has been the instrument of bullies, thugs, despots and torturers through the ages—to terrorise, hurt, harm, maim and murder is designed to intimidate each and all of us, and to undermine the certainty of order that underpins social solidarity.
Today the provisions we debate are designed to revisit the means of re-establishing order, and to reassure the virtuous that the wicked will not succeed. The Secretary of State described in his opening remarks the metamorphosis of terrorism—the fact that it is constantly changing, and so becoming harder to counter. There are obvious changes: the adaptability—the flexibility—of terrorists, and the instruments used to terrorise are altering. The spontaneity of terrorism is altering, too. The business of the security services and the police, and the legislation that underpins their business, must be just as flexible—must adapt to meet the changing character of terrorism.
The security services and the police, as I learned when I was the Security Minister, constantly refine what they do to anticipate and counter fanaticism, but early release is bound to undermine their morale, as well as to stretch their capacity. The number of subjects of interest, leaving aside those that have been released from prison early, already presents an extraordinary challenge to our security services and police, as we know from various debates that we have had and various reports on this matter, about which time prevents me from going into detail. Simultaneously, public faith in the rule of law is critical, and I suspect that most of our constituents would be amazed that we have released so many terrorist convicts early. I think they would regard that with disbelief. That we have allowed formulaic leniency to characterise the treatment of convicted terrorists is extraordinary, and in my judgment unacceptable.
It is not as if there had not been warnings, as the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) said. In 2018, signals were sent that this would have the kind of consequences that we have now met with horror. The Government are acting decisively in response, to reinforce the legislative powers necessary to allow the police and the security services to protect the public. Public safety, as has been said repeatedly, is the heart of this business.
I suspect that, as the Chair of the Justice Committee said, the enhanced role for parole boards will require greater expertise. The measurement of risk will also change, as the character of terrorism and our response to it changes. We need to be able to assess risk, as we always have, in respect of early release, for parole is about measurement of risk—it always has been—but it is also rooted in the idea that someone who is going to be released early deserves to be released, and will not create further harm and danger. I believe that the rehabilitative aspect of criminal justice is accepted across the Chamber, but the retributive aspect of justice should be accepted too. This is also about punishment—about punishing guilty people who have, through due process, been found to have done the most awful, horrendous, things, and we should not be ashamed to say that.
As you know, Madam Deputy Speaker, I was pleased and proud, as Security Minister, to guide the Investigatory Powers Bill—the 2016 Act—through the House. That Bill struck a balance between the protection of the public and the necessary safeguards that should always be applied when we are limiting people’s freedoms—maintaining the tenets of a free society and defending those freedoms from the anarchy of fear and disorder.
Since that time, many people have been released early. I shall be brief because I am anxious to allow others to contribute, but before I conclude I shall look at the numbers. I consulted the Library, as good Members of this House do, and was surprised and disappointed to find that since 2013 something like 163 convicted terrorists had been released early. By the way, I excluded from my considerations anyone who had been serving a sentence of less than a year, so those are just the people serving a sentence of somewhere between 12 months and more than four years. Therefore, leaving aside short sentences, the more serious terrorist prisoners had been released in significant numbers. Just imagine the effect on our Security Service and police of having to deal with the consequences of those releases.
Some of those released will have been rehabilitated and deradicalised, but we know that that does not always happen. I strongly support the legislation, which strikes the right balance. Ordered societies are built on the protection and promotion of shared public interest and the defence of the common good. To face down terrorism and the fear that it spawns, and to face up to our responsibility to protect the people we serve, we should support this legislation as it progresses through the House. I anticipate that it will be necessary to challenge those who seek to undermine it on the grounds of advocating the rights of certain people. We in the House of Commons must stand together to defend the common good and promote the national interest.
Mr Khalid Mahmood (Birmingham, Perry Barr) (Lab)
It is always a privilege to follow the right hon. Member for South Holland and The Deepings (Sir John Hayes). I was privileged to work with him when he was Minister for Security—a time he mentioned in his speech.
My thoughts are with the victims of all terrorist attacks and their families, and I recognise the hardship that they have all gone through. It is important, in this debate and in any debate on the subject, that we remember those who have suffered incredibly because of our failures as parliamentarians, failures of our legislation, and failures in the support with which we provide people.
There are two issues to consider: resources for our Prison Service, and the things behind that—the soft power, which we need to get right. It is not enough to extend sentences; we have to put right the things behind that. That is what I want to concentrate on. Of course we should look at the number of prison officers and the support they get—a point my hon. Friend the Member for Torfaen (Nick Thomas-Symonds) rightly made. It is important to ensure the right corrective controls in the prison framework. At the moment, we are failing on that. We need to get that right, get proper resourcing, and move forward.
A lot of Members spoke about imams coming into prisons. The issue is twofold; there is the question of psychotherapy and counselling for the people they are visiting, and the need to tackle those people’s misguided version of Islam. They do not practise Islam; they practise what they believe is Islam. Islam in itself is a peaceful religion.
Jonathan Gullis (Stoke-on-Trent North) (Con)
As a religious education teacher, I concur with the hon. Member’s viewpoint. In no way do the radical views of this small minority reflect the views of Islam. I am glad he raised this point; it is important that we ensure that it comes across in our national media, and in national debates.
Mr Mahmood
I thank the hon. Member for his contribution.
How do we assess and work with these radicalised people? A lot has been made of deradicalisation, but we need the right people, theologically speaking, to do it. We do not have a principal education facility to train imams who go into prisons. I had a friend who was deputy governor at HMP Birmingham. The prison brought in an imam to try to speak to somebody who was radicalising the rest of the inmates. After a two-hour one-to-one, the imam came out saying, “I think I agree with the inmate.” That was due to the so-called imam’s lack of knowledge. Just because someone calls themselves an imam, it does not mean that they are able to deal with this important issue.
Dr Julian Lewis
Is the situation not even a little worse than that? There have been reports of imams from the Deobandi sect of Salafists being allowed access to prisoners.
Mr Mahmood
The right hon. Member speaks from experience of these issues. He is quite right to say that. It is very difficult for those who do not understand religion to put people into places of religious control and support. That is my clear point. We should have proper registration of people who go into these institutions. Anybody who goes into them should be required to have the proper qualifications and certifications, yet we let most people walk in, and we say that they can do this job. We have heard stories of radicalisation being perpetuated in certain prisons by some of the people who have gone into them. It is important that we look at how we move forward.
Sir John Hayes
I intervene partly to pay tribute to the hon. Gentleman for the good work that he has done in this field over a considerable time. He points out the difference between Islamism and Islam—a difference too rarely identified by our media, as he says. Perhaps a review of all the Prison Service’s work on the appointment of imams and their work in prisons should be part of the Government’s ongoing plans to address the issue.
Mr Mahmood
Again, I concur with the right hon. Member. As for the Government moving forward on this, for the past 10 years we have not paid enough attention to what has gone on. We need to look at this seriously. The two incidents we are considering, as well as others, and the potential release of other prisoners have brought the issue to our attention.
A big functional issue in prison is how we position inmates. The Acheson report looks at segregating these prisoners. How to deradicalise is a really big issue. If we put these prisoners all together, they become a group. If we put them with other prisoners, they radicalise them. We cannot keep prisoners on their own, because human rights law does not allow that. There is no magic wand of deradicalisation. We have to take the issue very seriously. We have to get the right people, with the right understanding. Good work has been done in Indonesia, the United Arab Emirates and Saudi Arabia on ways of deradicalising. We have to learn lessons from how those countries are proceeding, in order to address these issues. We have to go further in looking at those methods, whether they are relevant, and how they relate to what the community wants to do.
We have to look not just at prisons, but at external departments that deal with the issue. We have to consider education, under what licences we allow madrassahs to operate—if they have a licence at all. The only consideration for a local authority in granting permission for a madrassah is whether it would cause traffic congestion. If an applicant clears that hurdle, they can have one. No heed is given to the qualifications of the imam, there is no proper scrutiny of their past, and there are no security checks. Those are very important issues for us to look at in deciding how we move forward.
As for the people we know of, they are the tip of the iceberg. There is still significant radicalisation taking place, and we need to address that in the community. Radicalisation is progressing in prisons because there is a captive audience there. We need to move forward. We need to look at the availability of resources in prisons, because the resources that are required to deal with this problem are quite significant
While we are looking at Islamic extremism, we also need to look at far-right extremism. If this Bill is to apply to terrorists, it must also apply to far-right extremists —it is important that that is said. The contribution of my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) made a lot of sense. I pay tribute to her for the great work that she has done on these issues, including as Chair of the Home Affairs Committee. She deserves commendation for the great balance with which she has worked on these matters. It is important for that work to move forward.
It is also important to look at how we police these issues. As my right hon. Friend said, we need to look again at control orders for when people come out of prison. In the past 10 years, we have forgotten about control orders. We need to get back to that issue, look at what is valid and appropriate, and see how we can move forward. That is hugely important.
I support the Bill because it is necessary for us to move forward with the resources currently available to us, but we need to have a much deeper look at how to resolve this issue for all our communities in the long term.
Paul Holmes (Eastleigh) (Con)
I will speak briefly about why I welcome the Bill and why I believe it is necessary to tackle the issues on which many hon. Members have made very good speeches this afternoon. May I first congratulate the Prime Minister, the Lord Chancellor and Ministers from the Department on the constructive and decisive action that they have taken? I pay particular tribute to the Labour party and the shadow Solicitor General for supporting this measure, which I think shows the importance of the subject.
As the Lord Chancellor said, the first duty of any Government is to keep their people safe, and this Bill goes some way to increasing the likelihood that that will happen. It increases the likelihood of ending the uncertainty for victims, their families and those who have been affected by these atrocities, and it will go some way to restoring the confidence of my constituents and people across the country in the sentencing guidelines for people who commit these most hideous crimes.
I want briefly to talk about how terrorism affects everybody, directly or indirectly. There are two occasions in particular that stick in my mind. The first was 7/7. I was 15 years old at the time and—I hope hon. Members do not tell me off—I chose that day not to go into school. I remember the breaking news coming through on the television. My father was working in London at that time. In fact, my family were all working in London; I am a Londoner. I remember trying to make some phone calls to see whether they were okay. For some reason, I got a crossed line and got through to a lady when I called my father’s phone. This woman was trying to find out where her daughter was because she was using the tube that morning. She was terrified, fearful and concerned about where her daughter was. We spoke for just two minutes, but I tried to reassure her and she reassured me.
The other occasion was the Westminster Bridge attack, which happened while I was a special adviser to Sir Patrick McLoughlin. I was walking up Whitehall when the shots were fired, and was locked down in the Cabinet Office. Sir Patrick was locked down in here. Members of my family were desperately trying to find out whether I was okay, and I was trying to find out whether friends in this House and around the Chamber were okay. I mention both those occasions to show that we are all affected by terrorism.
Terrorism spreads fear, harms lives and, most importantly, costs lives. But this Bill goes some way to giving some reassurance to the victims, families and people who are affected by terrorism that those who commit these crimes will go to prison and stay there. Sadly, we cannot say with certainty that attacks such as the ones I have mentioned will not happen again. We all know that; I am afraid that it is the nature of the beast.
Chris Clarkson (Heywood and Middleton) (Con)
My hon. Friend spoke extremely eloquently about his own experiences in London. Greater Manchester has certainly experienced its fair share of terrorism, including the 1996 bombing and the atrocity at Manchester Arena just three years ago. Does he agree that the terror does not just stop with the initial act, and that by restricting early release we are at least giving the family some comfort, some measure of protection from the damaging effects of the attacks and a chance to heal?
Paul Holmes
I absolutely agree. As he represents a constituency from that region, he will have seen the concern and fear that went across the region at the time of those attacks. That is absolutely why the Bill is necessary. May I pay tribute—as I should have done at the beginning of my speech—to the security services, the police and all those in the emergency services across the country who have to deal with these incidents? I also pay tribute and my respects to the victims and their families.
As I said, we cannot say with certainty that something like this will not happen again, but we can give certainty to people across the country that the perpetrators of these crimes are put away and kept away, with the reassurance that if they are, in consultation with the Parole Board, released two thirds of the way through their sentence, they will be monitored properly and in conjunction with the Parole Board.
Colleagues in all parts of the House will have their own memories of attacks like these, as do so many of us who live or work in London. We must never forget those who have lost their lives due to the barbaric actions of terrorists. We must also never let the spectre of terrorism stop us from living well. The aim of terrorism, as I have outlined, is to spread fear. I am enormously proud that the people of London—I am originally a Londoner—are not allowing these attacks to succeed by making us too afraid to go about our daily lives. This Bill goes some way towards removing the fear of victims, because the killers in these cases will serve their sentences and be monitored properly. The involvement of the Parole Board is absolutely essential, and I am grateful to the Lord Chancellor for outlining that.
We must question why these attacks happen. The perpetrators of the attack at London Bridge in November and of this month’s attack in Streatham were both released from prison automatically at the halfway point of their sentence, with no involvement from the Parole Board, to serve the rest of their sentence on licence. The fact that they were able to commit these atrocities shows that this approach must be changed, and that is why I am glad that the Government are doing so with this Bill. It is vital that automatic release is not applied to those convicted of terrorism offences and that the Parole Board is involved in each of these cases to assess whether or not these people should be released.
However, I do ask for some reassurance from the Minister on the point raised by my right hon. Friend the Member for Maidenhead (Mrs May). If the perpetrators of these attacks serve a full sentence or go through release in consultation with the Parole Board, we must not see that as the end of the journey. Rehabilitation, and a reassurance to people across this country that these people are being watched and monitored, is absolutely vital. We do not want another Streatham to happen. We know that this guy was on the records of the security services. Despite these actions being taken, it is absolutely vital that we have some reassurance that we will go further to make sure that these people are being monitored adequately.
These changes will not only make us safer but give the public more confidence in the ability of our criminal justice system to deal with terrorists. This is a valuable and much-needed piece of legislation. Moreover, it is the right thing to do. The Lord Chancellor is right to take action and should be congratulated on doing so swiftly. That is why I will support the Bill this evening.
Daisy Cooper (St Albans) (LD)
I, too, put on record my thanks to the Under-Secretary of State for Justice, the hon. Member for Croydon South (Chris Philp), who has kept me updated in recent days.
In the wake of the two recent terrorist attacks, it is absolutely right that the Government look at the legal framework to decide whether it is adequate. Like the hon. Member for Eastleigh (Paul Holmes), I was caught up in the 7/7 bombing. I was on one of the tube trains behind the one that was blown up at Russell Square, and I remember the unbearable heat that came from the blast. I was also in this place during the Westminster lockdown. The hon. Gentleman is right that many of us have been affected by acts of terrorism, but with respect, many of us nevertheless come to this debate with slightly different views.
This Bill does three things. First, it brings about an end to automatic release and applies that retrospectively. That is overdue, but very welcome. Liberal Democrats have said before, and we say again, that this part of the law is currently wrong, and it is right that this House seeks to change it. The Government are rushing this Bill through to get to Royal Assent before the end of the month and before the scheduled release of other terrorists. However, this part of the Bill alone, on ending automatic release and applying that retrospectively, would achieve the Government’s goal—and, indeed, the priority of all of us to keep the public safe. This part of the Bill alone would stop the release of terrorists without Parole Board agreement. It would be possible to adopt just that part of the Bill for it to be a change in the administration of a sentence in a way that is compatible with the rule of law.
However, the Bill tries to do two other things that, I think it is fair to say, are problematic. The second thing it tries to do is move the point of release from the halfway point to the two-thirds point for future offences. Of course, it is the natural instinct of all of us to have bad people locked up for longer, but who would want somebody locked up for longer if there was evidence that that could in fact make them more radicalised and more dangerous at the point that they are released?
Sir John Hayes
That is not an argument about the length of the sentence; that is an argument about how people are dealt with when they are incarcerated.
Daisy Cooper
I thank the right hon. Gentleman for that point. Much of the evidence suggests that what helps the deradicalisation process is not only how people are treated when they are incarcerated, but the amount of time they have on licence in order to find a home, rebuild family connections and do all the activity outside prison. There is evidence to suggest that the time on licence can make more of a difference to reducing reoffending rates and deradicalising people.
Dr Julian Lewis
Can we think about specifics? The last two attacks were very different. As I said in an earlier intervention, the second of the two attacks was by someone who was clearly mentally deranged. The earlier attack was by someone who appeared to have taken all the deradicalisation on board and to be a model prisoner. We have to recognise that we are dealing with a kaleidoscope of personalities, not necessarily people who have been fooled by something and who can reasonably be brought out of that situation.
Daisy Cooper
I thank the right hon. Gentleman for making that point, which relates to both capacity and what can be done in prisons and while prisoners are on licence to ensure that they are deradicalised and to assess their behaviours.
As I was saying, there is currently no evidence that longer periods in prison have any rehabilitative effect, and there is some evidence to suggest that they might be counterproductive. For all of us who put national and public safety first, that should be very worrying.
The third element of the Bill is retrospectivity. Retrospectively applying the first part of the Bill, to end automatic release, is fine, but retrospectively moving the release point is problematic. The Government and some Members today have pointed to individual parts of case law, but there is a long-established principle against the retrospectivity of criminal laws. The Government have suggested that this is only about changing the administration of a sentence, whereas legal commentators have pointed out that the Bill arguably also changes the scope of the penalty. The Bingham Centre for the Rule of Law said in its briefing circulated to Members this morning:
“By effectively overturning judicial decisions about sentencing the Bill also comes uncomfortably close to legislative interference with the judicial function.”
The last point that I wish to address is the speed with which the Bill moves forward and the reasons for it. As I said, nobody wants these prisoners to be automatically released, and the first part of the Bill would tackle that and keep the public safe, but there is a reason why we debate and scrutinise laws in both Houses and have specialist Committees to look at our laws. We know that fast law can make bad law, and there is an even greater risk of that happening when four of the parliamentary Committees that would have scrutinised the Bill—the Joint Committee on Human Rights, the Home Affairs Committee, the Justice Committee and the Intelligence and Security Committee—have not yet been appointed.
Imran Ahmad Khan (Wakefield) (Con)
Does the hon. Lady recognise that, although policy should be based on evidence and research, that is not necessarily a good thing in the context of terrorism, where we have an evolving set of threats? With evidence-based research, it can be four years before we formulate and implement policy, by which time the threat has invariably moved on. We therefore need to employ a broader range of measures, including the use of specialists in interrogation of those who deceive, to bolster the ability of the Parole Board, and training material for prison officers and those involved in deradicalisation. Speed is required in order to adapt, so I support the Government’s position, because an evidence-based approach is not appropriate in this context.
Daisy Cooper
The hon. Gentleman will recall that, in my opening remarks, I made the point that this was a very overdue change. In fact, we have had many years where we have seen the effects of increased radicalisation in prison simply because of a lack of resources both for our prisons and for our parole service, so he is right to point to that element.
That leads me very nicely to my next point: because of the speed of the passage of the Bill, there is not sufficient opportunity for pre-legislative scrutiny. I would argue that, in the absence of adequate pre-legislative scrutiny, hon. Members should all sign up to a system of post-legislative scrutiny. Others in this debate have called for a review mechanism. The Government say there is other legislation coming down the line, but we know that legislation can slip, so I will finish by asking the Government to think again about this particular point to make sure that we have sufficient post-legislative scrutiny and that this law—
Sir John Hayes
I waited to intervene until a point at which I agreed with the hon. Lady, because I thought that was in the spirit of this debate. She is right about the need to review these provisions, but as she said a moment ago, any number of Committees will be able to do that in the course of time. We can move ahead with rapidity to defend the public, and then look at these matters in the round through the processes she has set out.
Daisy Cooper
The right hon. Gentleman is right that this legislation will of course be scrutinised in due course, but it is vital and right, because we are moving on with it so quickly, that we write into law a statutory review in one year’s time.
I conclude by saying that there is a danger that Bill will become a law of unintended consequences. In summary, we welcome the end to automatic release and doing so retrospectively—that is a good move—but we have concerns about changing the release point, particularly if that ends up allowing people to be released who are more dangerous than before. There are also questions to answer about the impact on the rule of law in applying retrospectivity to the release point.
Duncan Baker (North Norfolk) (Con)
This Government are putting their money where their mouth is and doing exactly what they said they would do to deal with this urgent and specific problem, and I want to thank everybody who has helped put this Bill together.
Following the attack in Streatham, the Government committed to introducing emergency legislation to ensure that terrorist offenders, including those currently serving, will no longer be released early and automatically. The House would not think that, back in my home of North Norfolk, terrorism is much of a problem. I still remember, many years ago, when we were the first business in the community to take out terrorism insurance, and we wondered at the time why we were doing it. Look how times have changed. It is exactly why we need this Bill today.
Sadly, terrorism continues to be a sickening and cowardly set of acts that ruins lives, killing innocent people and devastating communities in our incredible country. We will not let the terrorists win; nor will we allow extremist behaviour to divide our nation. Many Conservatives are here, and we all stood on a manifesto in which we pledged a raft of measures to crack down on crime and to introduce tougher sentences. I guess I speak for everybody here when I say that we are pleased that these are well on their way.
This Bill is needed to do just that—to ensure our country feels safe. It is a fundamental job of Government to help to protect their citizens. Those who wish to hurt us must not be released early, so I welcome the end of halfway release for terrorist offenders and that offenders cannot be released without serving a minimum of two thirds of their sentence. Indeed, no terrorist offender will be released before the end of the full custodial term unless the Parole Board agrees, and that is absolutely right. I also welcome measures to rehabilitate and deradicalise. Society must always have measures in place to help eradicate ideologies. Education will play a vital role in that, and we need the resources to enable that properly, as well as work on the root causes of terrorism.
For some people, however, there is no way back, and it is right that those terrorists who are considered to be a continuing threat to public safety spend the rest of their time in prison. As we invest in prison capacity, I welcome tougher sentences, and a new minimum sentence of 14 years for the worst terrorist offenders. Sadly, terrorism is still prevalent in the world today, but it must not prevail. The Government must show, not just to the public, but to the terrorists, that we will not tolerate such despicable acts, and that radicals who are prepared to commit such acts will pay for them with longer, tougher sentences, and with the loss of that basic right to freedom that they took away from the people they harmed.
I welcome the fact that the Government will increase counter-terrorism funding to £906 million, which represents a £90 million year-on-year increase. Victims must also be supported, and the immediate investment of £500,000 to increase the support provided by the victims of terrorism unit shows the Government’s determination to ensure that more victims receive the support and advice they deserve. I am always proud of the way that the British people bravely come together in the face of such attacks, and show beyond doubt that terrorism will never defeat the British spirit. I also pay an enormous tribute to the policing forces who look after us day after day, and who risk their lives to protect us—not least those who serve in this building—and I commend the Bill to the House.
Bob Seely (Isle of Wight) (Con)
For several years now, people in the security world have been privately warning that we face the release of a bulge of extremist prisoners, after the first wave, 10 or 15 years ago, of significant and serious terror attacks in our country. Of those who committed the two recent attacks, one terrorist had a short-term sentence and may not have been part of that group, but one certainly was, and had been through a rehabilitation process.
I wish to raise some issues, and I hope that the Minister will either write to me or respond to them at the end of the debate. I will also refer to recent articles by Ian Acheson, who has pertinent things to say—he has been referred to by a number of Members across the House.
Ian Acheson recently argued that the system for managing extremist prisoners—there are about 220 in our system overall—is still flawed. Indeed, he described it as “broken”, and argued that evidence for that came out at the trial of Mohiussannath Chowdhury, who was recently convicted of preparing acts of terrorism.
Acheson described Chowdhury’s time at Belmarsh as a form of finishing school where he freely associated with other jihadis, including people who were serving a minimum of 30 or 34 years in prison. He said that Chowdhury regarded what he considered to be a crude, de-radicalisation programme as “laughable”, and that within days of his release he was planning new attacks and waiting for others to be released from prison. What reassurance can the Lord Chancellor provide to show that we are moving on from that position?
This issue has been of significant concern to people in the police and other security agencies for some time. Indeed, we know about the remarkable amount of police time that goes into monitoring highly dangerous people when they leave prison, because in the most recent attack that individual was being monitored. Such monitoring is not done just by a single individual; it is done by groups and teams of police officers, and others.
In the past two weeks, I asked the Lord Chancellor—I very much hope he will remain in his job; he is doing a cracking job and he is a superb Lord Chancellor—about separation units. He said that he hoped that although the Government were reviewing the situation, we had got the balance about right. I respectfully ask whether that is still the case, because the separation units we have are not the units that Ian Acheson recommended. He recommended separation units that would take prisoners out of the general prison population to ensure they were completely incapacitated from radicalising others over a significant and sustained period of time, around which individual responses to those individuals would be built. As other Conservative Members have said, the range of psychological conditions of extremists ranges from people who are probably just very mentally ill, to people who are very bad but in absolute, coherent control of their actions and are very good at radicalising and proselytising others. What Acheson describes as a sheep dip approach and generic psycho-social interventions from secular people—people trained in a secular approach to psychology—will not work for people whose universe is extremely different and built on a warped but theological basis.
Acheson said specifically that the Prison Service had unwillingly adopted some of his recommendations. The Lord Chancellor was good enough to say that we were adopting them, but apparently at a lower level there has been some resistance. Out of our three separation units, one was mothballed before it began, one lies or was lying empty, and the third has barely a handful of residents. I would be very grateful if the Lord Chancellor or other Ministers talked to us about the day-to-day life of separation units. Perhaps MPs should visit them. I am visiting one of my prisons next week and I will be talking about the culture in prisons, both in my constituency and more broadly, because this is probably an issue on which we do not spend enough time. Clearly, there are significant problems. If people are coming out of prison and killing our fellow countrymen, we must prioritise this situation and we probably have not been doing so.
Acheson warned of a fear of litigation driving some decision-making. We all have to be mindful of the law, but a fear of the human rights lobby should not be a reason for forcing or allowing people out who then go on to kill and maim their fellow countrymen.
The final point, which I think is valid, relates to the safeguarding of vulnerable prisoners—the vulnerable prisoners being the terrorist prisoners. I sort of get that at a certain level. In the hostage and crisis negotiators course, the police teach that the person trying to kill other people or take hostages is in a state of crisis and in a vulnerable state. Morality aside, that is clearly true. However, in practical and moral terms, treating the person who is sticking a knife to somebody’s throat or walking on to the tube with a bomb as someone in need of safeguarding is, frankly, not as important as treating the people that that person is going to kill. They are the ones in need of safeguarding from that person. When we talk about safeguarding extremist prisoners, I am wary of using that language—I understand why it is being done—because I think it goes down a morally and ethically dangerous route. We are not making a moral distinction between innocence, which is what the term safeguarding should be used for, and people who want to do considerable harm to other people. Indeed, they see it as a perverted and twisted religious duty, as part of a holy jihad, to slaughter other people. As my right hon. Friend the Member for New Forest East (Dr Lewis) said, that can be a part of the mindset. It is on the spectrum of that mindset.
I know that other Members wish to speak, so I will wrap up on this point. I would very much like to be reassured on some of the questions and issues I have raised, because they are concerns felt by the people who are directly responsible for trying to protect the British public, as well as by Members of this House.
Several hon. Members rose—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. We have had plenty of time for this debate but there have been some very long speeches. We need to leave time for proper wind-up speeches from Front Benchers—many people have asked questions of the Minister that ought to be answered in here, so there should be time for him—so I will have to ask Members to make very short speeches of three minutes.
Jonathan Gullis (Stoke-on-Trent North) (Con)
We in this place exercise our duty to protect the people we represent, amend the law where appropriate and ensure the highest standard of living and safety for everyone in this country. I wholeheartedly welcome the Bill, which will implement more stringent, preventive measures, ending the automatic half-way release. Increasing the threshold so that two thirds of a sentence is served, as a minimum, provides more justice for victims and helps to protect wider society. I also hugely welcome the fact that the Lord Chancellor outlined the role that the Parole Board will further play in such decisions.
A big part of tackling radicalisation and decreasing the frequency and severity of crimes of this nature must be community-led. We need to empower people to report suspicious activity, however great or small the suspicions may seem, and for those reports to be received with the utmost seriousness and investigated thoroughly. The attack on Westminster bridge, in particular, hit close to home.
The terrorist who stole two bright lives on London bridge in November was raised in my constituency. I will not name him and hope that his name is forgotten alongside his hatred. This individual deserves no recognition. I have spoken to faith leaders in my community and they have unequivocally condemned this individual’s actions. As a former religious education teacher, I know that such viciousness and violence is born through extremism, not through religion. Islam is a peaceful religion and the actions of this man in no way reflect on the many millions of loving, law-abiding citizens who also worship Islam.
We cannot and must not be lenient with those who attack the core values of this nation and all that it stands for. One of the victims of the attack in November last year was Saskia Jones. She was from Stratford-upon-Avon, my childhood home. I did not have the pleasure of knowing her but we were raised in the same community. The impact of her death and the grief felt by such a small, close-knit community is virtually unimaginable. My deepest condolences go to Jack and Saskia’s loved ones, and those who were harmed in Streatham.
The best way to honour the memories of all those who have lost their lives as a result of extremist violence is two-pronged: first, we must implement protections on the ground through measures such as this Bill; and, secondly, we must focus on institutional protections to ensure that the time that offenders of this nature spend in prison is used to rehabilitate and reform in a meaningful way, so that prison sentences stop serving solely as a delay of the inevitable.
James Daly (Bury North) (Con)
I support the Bill because from my perspective it is a matter of complete common sense. When I was a criminal lawyer and I stood up and mitigated on behalf of defendants, they would get credit for the guilty plea, for showing remorse and for various other factors. It is complete anathema that if somebody gets a 16-year sentence, they serve eight. I have been able to see no evidence to show that having a prolonged period under the supervision of the probation service makes any substantive difference to rehabilitation. My constituents would expect somebody who receives a lengthy custodial sentence to serve that time, or as close as possible to that time. If any Member can give me an argument against that, I would be very interested to hear it.
The Bill is sensible, practical, reasonable and proportionate and it must come into law now. We here, if we have no other duty, must protect members of the public. This must come into law so that no further terrorists are released. How can we as a House possibly continue with the position whereby terrorists are released automatically 50% of the way through their sentences? It is preposterous. Anybody watching this debate would see how preposterous it is, so I warmly welcome the Bill.
I will make two other, brief points. A lot of Members say, with the best of intentions, let us support de-radicalisation work. I have not heard one practical suggestion as to how that is going to work. We use words all the time to describe what we want to happen, but putting it into practice on the ground is totally different.
Alicia Kearns
Does my hon. Friend believe that terrorists can never truly be de-radicalised? Having worked in counter-terrorism, I believe that the attributes that make someone vulnerable to extremism and radicalisation never go away; those attributes always remain and that person is always vulnerable, in some way, to some form of extremism or radicalisation, or to membership of groups that would seek to benefit from those attributes.
James Daly
I do not know if I would go that far, but I would say that the present programmes being used by the criminal justice system to tackle radicalisation simply do not work. I ask the Minister to look at other options if we are to pursue this.
I have one final point that I feel I have a duty to make, as a constituent and dear friend of mine, Rachel Wheeler, is a probation officer. I have known her and many of her colleagues for many years. The probation service provides a tireless service to the public, but it is not working as it should do, as I think everyone in the House understands. There are issues with staffing shortages and various other matters. We need a probation service that is fit for purpose. I could just say: let’s put more money into it. Money is one thing; let’s get services that work and deliver on the ground, and then we may have rehabilitation successes. As I said yesterday, the success of rehabilitative programmes and sentences in our criminal justice system is negligible. Whatever we have been doing does not work.
Ben Everitt (Milton Keynes North) (Con)
Streatham is a place that is very close to my heart. I lived there for many years and had the privilege of being the chairman of Streatham Conservatives and working closely with community groups and the police. I pay tribute to the professionalism of the police and the community groups. We know that the people of Streatham will be coming together at this dark hour to support each other. The incident on Streatham high road was especially tragic because it came so soon after a similar incident at London bridge.
That brings us to why we are here. We have been put here by our electors with an understanding, which is both explicit and implicit, that we will keep them safe. We have a duty to keep our constituents safe—I have a duty to keep the people of Milton Keynes North safe—and we have the power to act on this matter. It is our duty as public servants and human beings to act. Let us be quite clear: those who have been proven to have committed or to have conspired to commit acts of terrorism are enemies of the Crown. As my hon. Friend the Member for Rutland and Melton (Alicia Kearns) put it, they are traitors, and people expect the full application of the law, of justice and of sentences.
Dehenna Davison (Bishop Auckland) (Con)
We have heard some incredible speeches from right across the House today, and I am pleased by the cross-party consensus that this is the right thing to do for the security of our country.
Her Majesty, back in 2001, spoke words that still resonate today:
“nothing that can be said can begin to take away the anguish and the pain of these moments. Grief is the price we pay for love”.
Our nation has grieved on multiple occasions, not least following the horrific attack in Manchester, which was referenced by my hon. Friend the Member for Heywood and Middleton (Chris Clarkson), in which innocent children lost their lives through terrorism, and more recently—and more relevant to today’s debate—we grieve as a nation following the London Bridge and Streatham terror attacks. Both the offenders had been convicted of terror offences and both had been released early.
In this place, we have a duty to the innocent victims of terrorism. We have a duty to ensure that justice is done through the courts. That is why I welcome the upcoming counter-terrorism Bill, which will help to ensure that sentences really do reflect the severity of crimes, with a minimum sentence of 14 years—although I hope that we will go further still in the case of those who have, to all in intents and purposes, declared themselves enemies of our very way of life. These are not petty criminals; these are people committing some of the most evil, atrocious offences, and it is right that they should receive the very harshest of sentences.
We also have a duty to ensure that the public are protected, and that means ensuring that those sentenced for terror offences are not automatically released early from prison. It is not right that convicted terrorists should be allowed to roam our streets freely before the end of their sentences. This emergency legislation seeks to address that by ending automatic early release, and I support it wholeheartedly.
Some Members have expressed concerns about the swift timetable, but, as the Lord Chancellor rightly pointed out, there are about 50 terror convicts who, under the current rules, would be due for automatic release before the end of this month. That is unacceptable, which is why it is right for us to support the Government’s changes and use our power to keep our streets and people safe, and why we must act now.
Under the Bill, terrorist offenders will only be eligible for early release if they pass a thorough risk assessment by the Parole Board. If they are considered still to pose any threat to public safety, they will rightfully be forced to serve the remainder of their time in prison. The Parole Board makes its decisions on the basis of a variety of factors, including behaviour displayed in prison. I am pleased to see the Government increasing counter-terrorism resources in prisons, ensuring that frontline staff are trained in identifying the behaviour of those who still pose a threat to society, and ensuring that those who do still pose dangers to the public are not able to leave prison early.
However, our duty does not end at the point of release: we must ensure that sufficient monitoring takes place after release. I am pleased that we are introducing measures to strengthen supervision on licence for terrorist offenders, which will be bolstered by a doubling of the number of specialist counter-terrorism probation officers. That means that, on release, terrorists could be subjected to measures such as notification requirements, restrictions on travel and communications, and imposed curfews. All that will help to prevent further offences.
In this place, public safety is our number one duty, but we also have a duty to do all we can to defend the memories of the victims, and ensure that terror never wins. That is why we must pass the Bill today.
Nick Thomas-Symonds
With the leave of the House, Madam Deputy Speaker, I shall wind up the debate, having also opened it.
This has been a wide-ranging debate on the most serious of issues. We have a duty, across the House, to reduce the risk of incidents such as the one in Streatham happening again in the future. We can never eliminate that risk, but we must certainly put in place all reasonable and proportionate measures to reduce it. We must never sacrifice our values—the very values that this Parliament seeks to protect—in tackling these issues. The European convention on human rights and our own country’s common law, which has evolved over centuries, form the framework in which we must act.
I am grateful to Members in all parts of the House for their contributions to the debate, including the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who chairs the Justice Committee, and the hon. Member for East Lothian (Kenny MacAskill), who, as a former Minister north of the border, brought his own expertise to the debate. I also commend the hon. Member for Crewe and Nantwich (Dr Mullan) for his maiden speech. He paid tribute, appropriately, to his predecessor, Laura Smith—who was certainly a great champion for the constituency during her time here—and mentioned the experience on which she drew as a primary school teacher. I think that, as a true Welsh valleys man, given the choice between the worm-charming championship and watching Crew and Nantwich rugby club, I would go for the rugby club every time, but I do wish the worm-charmers well in their competition. I also thought that the hon. Gentleman spoke very movingly about the struggle that many people have with identity, and I look forward to hearing more contributions from him during the time that he will have in the House in the current Parliament.
I thank my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), who spoke with her usual authority, including on the oversight of deradicalisation programmes, which will be vital in the years ahead. I also thank the hon. Members for Stone (Sir William Cash) and for Belfast East (Gavin Robinson) and the right hon. Member for South Holland and The Deepings (Sir John Hayes) for their contributions. My hon. Friend the Member for Birmingham, Perry Barr (Mr Mahmood) spoke powerfully about the need for training and expertise for those who are going into prisons and providing the deradicalisation programmes. I also pay tribute to his extraordinary work in this area. I was grateful, too, for the contributions from the hon. Members for Eastleigh (Paul Holmes), for St Albans (Daisy Cooper), for North Norfolk (Duncan Baker), for Isle of Wight (Bob Seely), for Stoke-on-Trent North (Jonathan Gullis), for Bury North (James Daly), for Milton Keynes North (Ben Everitt) and for Bishop Auckland (Dehenna Davison). We have had a good-natured and constructive debate in the Chamber this afternoon.
As I said in my opening remarks, we really need a relentless focus on the treatment of extremism in our jails. I am sure that, in a few minutes’ time, this particular piece of legislation will have its Second Reading in this House, but we also need to get the wider issues around this right. We need sufficient numbers of prison officers who are properly paid and supported to work in a constructive environment. We need a prison estate that is fit for purpose. We also have to tackle the problem of increased violence against our prison staff. We cannot continue to tolerate the current level of attacks on them. Many Members have spoken about the awful atrocities at Fishmongers’ Hall and in Streatham, but if there is any doubt about the issue of prison staff, let us not forget that on 9 January this year there was an attack on prison staff at HMP Whitemoor by two inmates with bladed articles. That is a reminder of the extent to which we ask our prison staff to take risks on a daily basis.
We need the very best regime to tackle extremism in our prisons. The best expertise, appropriate resources and trained staff are all required. We need a programme to prevent people from falling into a life of terror and hatred in the first place. It must be as effective as it can be, and the Government need, in speedy fashion, to get the independent review of the Prevent programme under way with a reviewer in place. We need stable leadership and a Justice Secretary who remains in place long enough to make a lasting mark on the Department. I hope this Prime Minister will not be chopping and changing his Justice Secretary at every opportunity, so that we can put in place the strategy and long-term planning that are absolutely required in the Department at the moment.
Keeping the public safe is the central duty of Government. We need consistent evidence-based policy making, and even in a fast changing situation we should never lose sight of the evidence before us. What counts in this sphere has to be what works. I hope that this emergency legislation will now reach the statute book in a timely fashion to avert the immediate crisis, but it should mark a beginning, not an end. This should be the beginning of a wider debate on how we tackle extremism in our prisons, and of a real commitment of resources from the Government to secure the very best expertise available in counter-extremism. That is what we must see in the months ahead. The public deserve no less.
The Parliamentary Under-Secretary of State for Justice (Chris Philp)
It has been a great privilege to listen to so many extremely fine speeches this afternoon, but I would particularly like to pay tribute to my hon. Friend the newly elected Member for Crewe and Nantwich (Dr Mullan) for his excellent maiden speech. There was a great deal in it to think about. He touched on issues of identity, as the shadow Minister, the hon. Member for Torfaen (Nick Thomas-Symonds) has just said, but I was especially interested to hear about the worm-charming competition. I am looking forward to my hon. Friend the Member for Crewe and Nantwich demonstrating his worm-charming skills, whatever form they may take, in the Tea Room later.
However, we are clearly here to consider an extremely serious matter touching on national security and public safety, prompted by two terrible recent cases: the murders committed at Fishmongers’ Hall by Usman Khan on 30 November last year, and the attack by Sudesh Amman in Streatham on 2 February—a little over a week ago. It has become clear to the Government that the automatic release of some terrorist offenders after serving only half their sentence poses an unacceptable risk to the public, and that is why we are acting with urgency with this emergency legislation to end that happening.
The circumstances are, of course, exceptional. Many Members, including the Chairman of the Justice Committee and the hon. Member for East Lothian (Kenny MacAskill), a former Justice Secretary in Scotland, have said that this is not something that any Government would undertake lightly, but where we believe we have to act quickly and decisively to protect the public, we will do so.
Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)
The Minister is making an excellent speech on this important issue. I refer the House to the fact that I am a risk assessor with the Risk Management Authority in Scotland. Has he considered, or might he consider, the order for lifelong restriction? It is in place in Scotland for offenders who continue to exhibit a significant risk throughout their lifetime, and offenders can be recalled at any point.
Chris Philp
I thank the hon. Lady for raising such a thoughtful point. That certainly is something we would be prepared to study and consider, because we are always keen to learn from other jurisdictions. We will be bringing forward wider measures as part of a counter-terrorism Bill in the next few months. One provision we have in mind is greatly extending licence periods following release, which is in the spirit of what she suggested, so I thank her for her constructive proposal.
Bell Ribeiro-Addy (Streatham) (Lab)
I have heard Members throughout the debate talking about ending automatic release as if it was a new thing, but the Minister will be aware that the measure already exists in section 9 of the Counter-Terrorism and Border Security Act 2019. Is he confused, like me, as to why the change was not made retrospective then, because that legislation came in direct response to the terror attacks that happened throughout 2017? The Government could have made the change then, which Labour Members would have supported, as we did when they set up the Prevent review.
Chris Philp
Of course, the Government and Parliament think carefully about retrospection and rightly take a circumspect view. Several changes to sentencing have been made over the past five or 10 years, including the introduction of extended determinate sentences, whereby release at two thirds of the way through a sentence is a matter for the Parole Board following an assessment of dangerousness by the sentencing judge. Sentences for offenders of particular concern were extended a short time ago to include terrorist offenders who do not have an EDS or life sentence, and SOPCs include a Parole Board assessment at the halfway point. A great deal has been done in the past few years in this area, but the two recent cases, including, of course, the one in Streatham just a week and a half ago, underline the need to go even further than before, which is why this Bill is before the House today.
The number of offenders affected is small. As the Lord Chancellor said in his excellent introduction, only 50 offenders are involved, because all the rest are covered by other sentencing types. Even a small number of offenders, however, can cause a high level of harm, as we have seen, which is why it is important that we go further with today’s Bill. The next such offender is due for release by the end of the month, and that is why we are acting so quickly to ensure that legislation is in place prior to that release.
I thank Members from across the House, including the Labour spokesman, the hon. Member for Torfaen (Nick Thomas-Symonds), and the SNP spokesman, for the constructive and supportive tone of their speeches. This is a good example of Parliament working in a cross-party way in the national interest, and I am grateful for the approach they have taken today.
Some of the questions raised today touch on wider issues in this area, one of which is the question of resources, raised by the hon. Member for Torfaen in his opening speech. I confirm to the House once again that another £90 million will be spent on counter-terrorism policing next year, bringing the budget to £900 million. That very significant increase in resources was announced just a short time ago.
We clearly need to do more on the prison estate. Between 2017-18 and 2019-20, the prisons budget has increased from £2.55 billion to £2.9 billion, a 15% increase, and over the last three years there has been a welcome increase in the number of prison officers serving in our prison estate from 18,003 to 22,536.
Of course, we are also investing in the quality of the prison estate. The next financial year, which starts shortly, will see an extra £156 million invested in the prison estate’s physical condition, in addition to a £2.5 billion programme to build 10,000 additional prison places over and above the 3,500 currently under construction at Glen Parva, Wellingborough and Stocken.
Sir Robert Neill
The Minister is making a good speech, and I recognise the various measures the Government are taking to invest in the prison estate and in staffing. On the point made by the hon. Member for East Lothian (Kenny MacAskill), does the Minister also recognise the importance of a comprehensive policy to ensure the retention of experienced prison staff, as well as the recruitment of others, because they have particular skills and knowledge that are valuable in this field?
Chris Philp
The Chair of the Justice Committee makes a good point. It is important to retain experience in the prison officer establishment. Prison staff have long expertise and long experience, and the Prisons Minister, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), is acutely aware of the importance of retention.
Many hon. and right hon. Members, including the hon. Member for East Lothian (Kenny MacAskill) and the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), have drawn attention to the importance of a comprehensive deradicalisation programme in prisons—the hon. Member for Birmingham, Perry Barr (Mr Mahmood) also made that point in his excellent speech. We are acutely conscious of the importance of that and of the need to do more. We have the theological and ideological intervention programme, the healthy identities programme and the deradicalisation programme in place, and I am sure there is more that needs to be done in those areas. My hon. Friend the Member for Isle of Wight (Bob Seely) touched on that in his speech, and I know the Prisons Minister would like shortly to take up his offer of a meeting to discuss exactly these issues.
Of course, it is equally important to make sure these offenders are properly monitored after release, whether on licence or otherwise. The TPIM regime was strengthened in 2015, and we always have multi-agency public protection arrangements where necessary. As we saw, those arrangements were effective in the case of Sudesh Amman. After he began his behaviour, it was a matter of seconds before the police were able to intervene, which is an example of MAPPA working well in practice.
In the few minutes remaining to me, I will address the question of retrospection, touched on by a number of hon. Members, including the hon. Member for St Albans (Daisy Cooper). It is our very firm belief, based on legal advice, that these measures do not contravene article 7. They do not constitute a retrospective change of the penalty, because the penalty is the total sentence. The penalty is the sentence handed down by the judge at the point of sentencing and, as my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) elaborated, a wide body of case law says that changing the early release point does not change the penalty. In fact, early release ameliorates the penalty—it reduces the penalty—so changing the early release point does not add to it. The Uttley case makes that clear, as do other cases that have come before the UK Supreme Court and the European Court of Human Rights.
I do not think the Del Río Prada case, in which the Kingdom of Spain was a respondent, is directly germane because it concerns the calculation of concurrent sentences and a change in how concurrent sentences are handled, which is obviously not the matter before the House today. The Government are clear that the Bill does not contravene article 7 and does not constitute a retrospective change to the penalty; it simply constitutes a change to how the sentence is administered.
Let me touch briefly on the point raised by my hon. Friend the Member for Stone (Sir William Cash), which I suspect we may debate more fully in Committee shortly. We do not believe that a “notwithstanding” clause is necessary, because we do not believe article 7 is contravened by this legislation—we can debate this more. We are also not wholly convinced that a “notwithstanding” clause would derogate our treaty obligations under the ECHR.
Chris Philp
I am conscious of time. I would be happy to give way in Committee to debate this at greater length. I very much look forward to hearing my hon. Friend’s further views on this and I would be happy to take an intervention in Committee, but I must wrap up in a minute or so.
The right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) asked about the MAPPA review and the Prevent review. The MAPPA review is under way and is being led by Jonathan Hall, QC. The Prevent review has a statutory deadline of August 2020, which we intend to abide by. We will make further announcements about its progress—this will include appointing a new reviewer—as soon as possible.
Chris Philp
It is a Home Office matter, but I do not think work has stopped simply because of the issue with the reviewer.
In conclusion—
Madam Deputy Speaker (Dame Eleanor Laing)
Order. The hon. Gentleman has one and a half minutes, so it is alright.
Chris Philp
Madam Deputy Speaker, you are extremely kind. I thought I had about 10 seconds left.
I would like to use up my remaining one minute and 10 seconds, as it is now, by saying that although these are emergency measures designed to address a specific problem, we will of course be coming back with a much wider and more considered set of proposals in our counter-terrorism Bill in the next few months and in the sentencing White Paper. Many Members have spoken of the need to think widely and thoughtfully about these issues, and we will of course be doing so. Members will be pleased to hear that in the counter-terrorism Bill we will be seeking to impose a 14-year minimum sentence, with no prospect of early release, for the most serious terrorist offenders. We will also be thoughtful and considered about issues of deradicalisation. Of course, more resources are going into the system: 20,000 extra police officers; £85 million extra for the Crown Prosecution Service; and more Crown court sitting days in the coming year. This is an important emergency measure designed for public protection, and I am pleased to see that it commands support across the House.
Question put and agreed to.
Bill accordingly read a Second time; to stand committed to a Committee of the whole House (Order, this day).
Terrorist Offenders (Restriction of Early Release) Bill
Wednesday 12th February 2020
(4 years, 9 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 12 February 2020 (revised) - (12 Feb 2020)
Sir William Cash (Stone) (Con)
I beg to move amendment 3, page 1, line 8, after “force”, insert
“and notwithstanding the Human Rights Act 1998”
The intention of this Amendment is to ensure that the Bill meets the rule established by Willes J in Phillips v Eyre (1870) LR 6 QB 1 that the courts will ascribe retrospective force to new laws affecting rights if by express words or necessary implication it appears that such was the intention of the legislature.
The Chairman of Ways and Means (Dame Eleanor Laing)
With this it will be convenient to consider:
Amendment 4, in page 1, line 12, after “force”, insert
“and notwithstanding the Human Rights Act 1998”
The intention of this Amendment is to ensure that the Bill meets the rule established by Willes J in Phillips v Eyre (1870) LR 6 QB 1 that the courts will ascribe retrospective force to new laws affecting rights if by express words or necessary implication it appears that such was the intention of the legislature.
Amendment 1, page 2, line 34, leave out “two-thirds” and insert “nine-tenths”.
Amendment 2, page 2, line 37, leave out “two-thirds” and insert “nine-tenths”.
Clauses 1 and 2 stand part.
Amendment 5, in clause 3, page 4, line 2, after “force”, insert
“and notwithstanding the Human Rights Act 1998”.
The intention of this Amendment is to ensure that the Bill meets the rule established by Willes J in Phillips v Eyre (1870) LR 6 QB 1 that the courts will ascribe retrospective force to new laws affecting rights if by express words or necessary implication it appears that such was the intention of the legislature.
Amendment 6, page 4, line 6, after “force”, insert
“and notwithstanding the Human Rights Act 1998”.
The intention of this Amendment is to ensure that the Bill meets the rule established by Willes J in Phillips v Eyre (1870) LR 6 QB 1 that the courts will ascribe retrospective force to new laws affecting rights if by express words or necessary implication it appears that such was the intention of the legislature.
Clause 3 and 4 to 10 stand part.
That schedules 1 and 2 be the First and Second schedules to the Bill.
New clause 1—Review of prison deradicalisation programme—
“(1) The Secretary of State must appoint a person to review the operation of the provisions of the prison deradicalisation programme.
(2) The person appointed under subsection (1) may enter any prison premises in order to scrutinise the operation of the prison deradicalisation programme.
(3) The person appointed under subsection (1) must make a report to the Secretary of State on the operation of the provisions of the prison deradicalisation programme before the end of the period of 6 months after the date on which this Act is passed.
(4) The person appointed must make further reports at intervals of not more than three months to the Secretary of State on the operation of the provisions of the prison deradicalisation programme.
(5) The person appointed under subsection (1) may include in any review or report under this section consideration of the adequacy of resources made available to the prison deradicalisation programme, including resources made available for the supervision of probation and rehabilitation work.
(6) On receiving a report under this section, the Secretary of State must make arrangements to lay a copy of it before each House of Parliament as soon as the Secretary of State is satisfied that doing so will not prejudice any criminal proceedings.
(7) The Secretary of State may, out of money provided by Parliament, pay a person appointed under subsection (1), such expenses and allowances as the Secretary of State determines.”
This new clause would require the appointment of an independent reviewer of the prison deradicalisation programme.
New clause 3—Review—
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 9 to be carried out in relation to the initial one-year period.
(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to the imprisonment for offences of terrorism to conduct the review.
(3) The review must be completed as soon as practicable after the end of the initial one-year period.
(4) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—
(a) produce a report of the outcome of the review, and
(b) send a copy of the report to the Secretary of State.
(5) The Secretary of State must lay before each House of Parliament a copy of the report sent under subsection (4)(b) within one month of receiving the report.
(6) The Secretary of State may—
(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of the review, and
(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of the review (including arrangements for the provision of staff, other resources and facilities).
(7) In this section, “initial one-year period” means the period of one year beginning with the day when this Act comes into force.”
Sir William Cash
I have already canvassed some parts of what I am about to say, but there is more to say, for a very sound reason. Parliament is full of opinions and Ministers are full of opinions. Two Ministers are sitting on the Front Bench at the moment, no doubt debating the issue before the Committee, but their opinions are not the law, and nor are those of leading counsel, whether senior Treasury counsel or those involved in academic discussion. I say that really seriously. I have been practising the law since 1967 and I know a little about how the law is interpreted. We saw the Gina Miller case the other day. How many times were we told that there was absolutely no question but that the Government were right in their interpretation? I served as the shadow Attorney General and saw the whole of the Iraq and Peter Goldsmith exercise. We were told over and over again in the House this, that and the other about interpretation—“This is what will happen. This is the way it will go.” That is no way to make decisions on matters of this kind of critical importance.
There are occasions on which the question of interpretation may merely be about a modification of policy; this is actually about saving human life. I repeat that: saving human life. Where it is possible for the House to ensure that human life cannot be unreasonably and wilfully disposed of by people who are intent on murdering for no reason at all, we need to take seriously the question of whether or not we can exclude the courts —because this is Parliament, not the judiciary—from making wrong decisions when matters come before them.
I heard with interest the Chairman of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), and the various cases he mentioned, and I have just heard the Minister refer to the Uttley case. There is also the Hogben case, which was of course in 1985, before the Human Rights Act 1998. Reference was also made to the del Río Prada case. As a matter of fact, the legislation does not depend on an interpretation of those individual cases by way of precedent, and that is not what we should be worried about; we should be thinking about the purpose and scope of the Bill and its objective, which is to do everything that we can to ensure that human life and public safety come first. I do not want this to become an argument about the interpretation of law, which is why I tabled amendment 3 to clause 1.
Sir Greg Knight (East Yorkshire) (Con)
On the subject of opinions, does my hon. Friend intend to test the opinion of the Committee, or merely the opinion of the Minister?
Sir William Cash
That is an extremely good question on which I have already given an indication. Being a realist, I know perfectly well that this is not a Bill to which an amendment is going to be passed—certainly not today—but I did say that the House of Lords, which is where the Bill is going, is full of lawyers, some of whom I will disagree with and have disagreed with for as many years as I have been in the House, but there are others who will take a different view.
I am interested to hear the views of the House of Lords on the question of my proposal to amend clause 1. The wording of clause 1 currently refers to an offence “within subsection (2)” and a sentence imposed
“whether before or after this section comes into force”,
at which point I propose to insert the words
“and notwithstanding the Human Rights Act 1998”.
The effect of that would be to put a complete bar on the use of the Human Rights Act, by interpretation of the courts, in any attempt, whether it is regarded as misguided or is a matter of culture—there is currently a load of culture in the courts relating to human rights questions that have built up over the whole of my lifetime in the law.
I am deeply concerned that we could allow legislation to go through that could be interpreted in a way that would result in human life being lost and public safety being infringed. That is my concern. [Interruption.] I see the Minister looking at me either apprehensively or with anticipation; I am not sure which it is and I do not really care. What I am saying is that I want certainty. I know that if the words “notwithstanding the Human Rights Act” are brought into the Bill, the effect will be to exclude completely, for reasons that I am about to give, any attempt by the courts to modify the effect that the Bill otherwise would have.
I have other concerns about the Bill that I have already made clear. I do not think that offenders should be considered for release after half or two thirds of their sentence. I have a lot of sympathy for what my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) proposes in amendment 1; he says it should be nine tenths. I do not know whether he will address that point later.
The bottom line is that we should not allow this situation if we can avoid it—and we can avoid it, because we are the Houses of Parliament, and as a result of Brexit, we have just regained an awful lot of our sovereignty. This is more a matter of the European convention on human rights than of the charter of fundamental rights—or, for that matter, of Brexit—but the amendment is an indication of the House’s determination to use our sovereignty to make law that will guarantee that we do not face people losing their life, or public safety being undermined.
If we do not include in the Bill the words that I propose in my amendment 3, I believe—as I said before with respect to the Lee Rigby case—that it is not a matter of if such a thing happens again; it is a matter of when. I concede that this is emergency legislation; that is why I support it, but it requires a full, thorough review, perhaps by the Justice Committee, to ensure that we deal with the issue properly and fully.
I applaud the Government for bringing in this Bill on an emergency basis, but I criticise the fact that the Bill does not go far enough. The Minister is, if I might say so, not a lawyer; he can only have received his information from others who are. He is taking a bit of a punt in saying that the words
“and notwithstanding the Human Rights Act 1998”
are not needed. He does not know that. I say that with not only respect, but knowledge and certainty. It is very difficult even for lawyers to be sure what the impact would be of allowing the Bill through without excluding the Human Rights Act 1998 from it.
The Parliamentary Under-Secretary of State for Justice (Chris Philp)
I thank the hon. Member for giving way, despite my non-lawyer background. I am of course interested in what he says, and have been listening extremely carefully, as he has seen. How does he think his amendment would operate? In particular, does he think it would in any way disapply our ECHR treaty obligations? Even if we passed his “notwithstanding” amendment, could applicants not still go directly to the European Court in Strasbourg? We cannot disapply that route through this amendment.
Sir William Cash
I notice that the Minister is reading very carefully from the notes with which he has been provided, and I agree with the sentiment behind them, but I am putting the case in a different way. We are talking about serious questions of human life, and every step should be taken to preserve it. I was originally minded to use the amendment to exclude the European convention on human rights, too. I describe amendment 3 as a probing amendment, but I want proper consideration of it, not just someone saying, “I don’t think the wording would achieve the total effect that the hon. Gentleman would wish it to.”
The risk to human life is serious; we have to take every step to ensure no repetition of the instances of murder and terrorism that we have witnessed, and which, in recent times, from Lee Rigby onwards, have become more and more prevalent. We know that people are prepared to take such steps; it may be that some of them are mentally disturbed. Perhaps people do not think that these things will happen again, but as I said in debate on another counter-terrorism Bill four or five years ago, the question is not whether we have another Lee Rigby, but when. We have had one after another, at regular intervals. They are becoming more and more imminent, and more and more serious. I doubt whether this Bill, however worthy its objectives, will deal with the problem in the manner in which I am setting out and which is necessary.
Adam Afriyie (Windsor) (Con)
I am another layperson —a non-lawyer. Can my hon. Friend see any downside to including the set of words that he is suggesting in his amendment? Would they limit something that might otherwise not be limited? I hear very clearly his arguments about its possibly being superfluous and the legislation being subject to interpretation, but is there any downside other than it being an additional safeguard that might not have been required?
Sir William Cash
Indeed. As usual, my hon. Friend is very perceptive. This is really the main purpose of my words on the subject, because there is no downside at all in this context. I can think of circumstances where it might be arguable that there could be, because somehow or other one might be infringing some genuine human right. However, given that we are dealing with this issue for the sole purpose of preventing people from being murdered in the circumstances and in the manner of these heinous acts, and for the purposes for which people indulge in them, there can be no downside in making this absolutely crystal clear, subject to comments that may be made by other lawyers as a result of what I am saying now and, for that matter, what is said in the House of Lords.
I am not pretending that I have all the answers to every question in matters of this kind, but I do think it is our duty, in the context of what we are seeking to prevent, to ensure that we are as crystal clear as we can be in our direction to the courts that they should not and must not allow human rights considerations to allow murder to take place. That is the problem and that is why I am so emphatic about it. I have noted from the Minister’s remarks and from other conversations I have had with senior Ministers that they are perhaps more interested in questions of interpretation than I am. I do not want any interpretation in this context.
The sole purpose of this Bill is to deal with people who are going to commit murder. Let us be under no misapprehension: this Bill has not been brought forward to deal with some questions relating to the whole generality of human rights law; it is specifically emergency legislation to deal specifically with preventing people who, for a variety of reasons or without reasons, intend to perpetrate murder from doing so. Human life is at risk. That is why this is such a good move on the part of the Government. There is nothing negative in my approach; it is entirely belt and braces. If the opportunity is to be given to Parliament to make sure that we have both the belt and the braces, then for heaven’s sake let us take it and not leave it to the vagaries and the uncertainties of judicial interpretation.
I have already referred to the Hogben case. I am not going to go through the analysis, because this is not something that depends on compiling a judgment about the interpretation of law based on precedents. I do not think that any case we put forward, coming back to what my hon. Friend the Member for Windsor (Adam Afriyie) said, could generate an upside or a downside. I just want clarity; that is the whole point. The words that I have used adopt the “notwithstanding” formula in section 38 of the European Union (Withdrawal Agreement) Act 2020, relating to the sovereignty of Parliament. I argued this in No. 10, and the Prime Minister, to his enormous credit, completely backed me. I said, “You have to include the words ‘notwithstanding the European Communities Act 1972’.” By doing this in a certain manner, one ensures that one achieves one’s objective, without the uncertainty that can arise in the circumstances that I have described.
We need to bear in mind that the Del Rio Prada case was a decision by the European Court of Human Rights. The Minister referred to the other cases. In the case of Uttley, there was an appeal on which the House of Lords concluded that article 7 would be infringed only if a sentence was imposed on a defendant that constituted a heavier penalty than that which would have been imposed at the time the offence was committed. The ECHR then declared that his application was inadmissible. The Del Rio Prada case was to do with Spanish policy, but there is no doubt that part of the argument put forward by the Government today has depended on administration, rather than the object of the Bill. That is another area that needs to be carefully considered, because the question of administration should not be the basis on which we make these decisions.
There we are—I have made my case. The Government could review the situation when the Bill goes to the House of Lords, and I will be interested to see how people develop this argument from now on.
Nick Thomas-Symonds (Torfaen) (Lab)
I rise to speak to new clause 1, in my name and that of my hon. and right hon. Friends, but before I do I want to commend my hon. Friend the Member for Streatham (Bell Ribeiro-Addy), who has had to deal with the awful incident that happened on the high street in Streatham shortly after coming into the House. On her intervention on the Minister on Second Reading, the issue of various sentencing decisions over the last 10 years was touched on in a new clause that was not selected, but more broadly I commend the idea of strategically reviewing the sentencing regime, and I hope that the Ministry of Justice will consider that.
I made clear to the Minister previously that it is not my intention to divide the Committee on new clause 1, but scrutiny of the de-radicalisation programme and giving Parliament confidence that the programme is being monitored is very important, and I hope he will address that when he responds.
The new clause specifically requires the appointment of an independent reviewer of the prison de-radicalisation programme. On Second Reading, the Minister mentioned some figures with regard to resources, including £90 million on counter-terror policing and an uplift in the prison budget from £2.55 billion to £2.9 billion, but that does not tell us specifically how much is being spent on the de-radicalisation programme. That is the sort of information that an independent reviewer would be able to discover and then put in a format that the House could consider.
We have already discussed Mr Ian Acheson’s review of Islamist extremism in prisons, probation and youth justice. One of his recommendations was to have an independent adviser on counter-terrorism in prisons who is accountable to the Secretary of State. My new clause goes slightly further than that recommendation. It would require the Secretary of State for Justice to appoint a person to review the operation of the prison de-radicalisation programme, with the power to enter prison premises both to gather evidence and provide scrutiny. There would be a statutory requirement for a report to be laid before Parliament every three months on the programme. That could be regarded as too often, but the general point stands—this House would be in a position to properly judge the effectiveness of rehabilitation work in our prisons.
Subsection (5) of the new clause gives the independent reviewer the power to look into the resources available to the programme, including for probation and rehabilitation work. That proposal of an independent reviewer would give the opportunity for proper scrutiny of this very important programme. The Minister will be aware of the healthy identity intervention and other such programmes that currently exist. Through new clause 1, we seek to build on that and give real confidence in the Government’s work in the rehabilitation and de-radicalisation space. I am not absolutely clear of the extent to which those who have perpetrated these awful atrocities in recent months took part in de-radicalisation programmes, but I hope that will be considered and that the Minister will learn the lessons from that. It is vital that we use the time in prison of whatever length—I had a debate about that earlier with the right hon. Member for New Forest West (Sir Desmond Swayne)—in a constructive way to protect the public.
Sir William Cash
Before the shadow Minister sits down, may I ask him a question? I am engaged in a probing exercise—I am not going to push amendment 3 to a vote—and I would like to know what the Opposition think about excluding the Human Rights Act 1998 and what reason he would give for saying that it was unnecessary.
Nick Thomas-Symonds
I am delighted to have a chance to respond. I will do so in a moment, but the first thing I would say is that I remember the criticism of me and my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) in the last Parliament when we were seeking disclosure of legal advice—not from the hon. Gentleman, but perhaps from others. It strikes me that Members are now discussing case law across the Floor of the House and Ministers are referring to legal advice, which perhaps shows that there is a change.
I do not support the hon. Gentleman’s amendment. First, the point made by the Minister is correct, and even if we put this into the legislation, the right to go to Strasbourg would still exist. The second reason why I am uncomfortable with what the hon. Gentleman is saying—I am quite happy to give way to him again if I am wrong in my interpretation—is that he, as I understand it, wants the House to pass legislation and then somehow prevent courts from being able to adjudicate on it, which surely is not what is meant by having a sovereign Parliament that is accountable to judges.
Sir William Cash
I can respond to that very simply by referring the hon. Gentleman to the speeches made on the introduction of the Human Rights Act 1998. I was in the House at the time, and it was made absolutely clear that this Act would not in itself impinge on the sovereignty of Parliament. That was made clear, and therefore as far as I am concerned—I understand where he is coming from, but I am afraid that his point is erroneous—it is implicit in the passing of the 1998 Act that we are able, if we wish to do so, to take the legislation that we pass in this House as the final word, and the courts are obliged to obey that.
With respect to the European convention on human rights, I would simply make the point that I made just now, which is that I could have included such words—yet again, that is another part of my probing amendment—and they could have been “notwithstanding the charter of fundamental rights” as a matter of fact, but that would have been destroyed by the existence at that time of the European Communities Act 1972, which was binding on us by Act of Parliament.
Nick Thomas-Symonds
With the greatest of respect to the hon. Gentleman, it is not an erroneous point. I taught the Human Rights Act for the best part of 11 or 12 years, but I will resist the temptation to give his contribution a grade. Yes, the Human Rights Act contains the power to make a declaration of incompatibility, thus preserving the concept of parliamentary sovereignty —it is absolutely right that Parliament does not have a strike-down power as, for example, the US Supreme Court does—but I have two fundamental problems with his amendment. The first problem is the one I have set out: this House passing legislation that essentially tells the courts, “Well, you can move aside: this is absolutely what we say”, without any scrutiny.
Nick Thomas-Symonds
I know the hon. Gentleman nods his head, but I am not comfortable with that position.
The second point is that I firmly believe we can tackle this issue of terrorism and remain signatories to the European convention on human rights. That is essentially the Government’s position here today, and I really do not think that we need to get into this debate because the Government have clearly stated that the Act—or the Bill, as it currently is—is compliant with article 7. If people wish to challenge that in the courts, that is a matter for them, but the Government must be confident in their legal position.
Under the Human Rights Act, each Bill that comes before the House contains a sentence on its front page to show that Ministers have considered whether it is compatible with that Act. If they had wished, the Government could have stated in the Bill that they did not think it compatible with the Human Rights Act, but they wanted us to proceed regardless. They did not do that, however, and they clearly state on the Bill their belief that it is compatible with the Act. We have heard a case law of history from the hon. Member for Stone (Sir William Cash), and others, but that is the Government’s position, and for those reasons I cannot support the amendment. I understand that he will not push it to a vote, and the debate will continue in the other place, but this is not an amendment that would have found favour on the Labour Benches.
Let me return to new clause 1. I will not push the idea of an independent reviewer to the vote—I will not frustrate the passage of the Bill in that way. However, it would assist the Committee if the Minister set out how Members will be able to scrutinise the programme of de-radicalisation over the next few years, and how we can have the information before us—whether from the Ministry of Justice directly or in another way—to assess how it is working.
The former Prime Minister, the right hon. Member for Maidenhead (Mrs May), intervened on the Justice Secretary during his opening speech, and said that she felt there had been a lack of success in the de-radicalisation programmes. She is right, and we need to see some success in the years ahead. I will not push new clause 1 to the vote, but I hope the Minister will provide some assurances about how such scrutiny could take place.
Sir Desmond Swayne (New Forest West) (Con)
I do not intend to detain the Committee long, Dame Eleanor, and the Minister should consider this not so much a probing amendment as a prodding amendment—it is my intention to prod the Minister.
The purpose of my amendments is stunningly obvious. At lines 34 and 37 I wish to remove “two-thirds”, and insert the words “nine-tenths”. In reality, many sentences, even for acts of terrorism such as the possession of terrorist promotional material with intent, give rise to a surprisingly short sentence, such as four years. In such a case, the difference between half the sentence, as currently served, and two-thirds, is a mere six months. Admittedly, extending that to nine-tenths of the sentence does not address the nature of the problem—that is why this is a prodding amendment—but the fact is that sentences are too short.
There is a general problem of honesty in sentencing. When a judge hands down a sentence in court, all those in the know work out on the back of a fag packet what it means in terms of imprisonment, but the public, who are generally not in the know, do not understand that the sentence is not that at all. They would be scandalised if they knew.
Sir William Cash
Does my right hon. Friend remember a recent case of two treasure hunters who I think got as much as 10 years because they had not declared a treasure trove? Compare that with somebody who is intent on murdering people on the streets of London, or anywhere else.
Sir Desmond Swayne
That is the random caprice of the judiciary! Returning to the issue before us, on the specific point of sentencing for terrorist acts, we must be clear in our minds about what intention lies behind our whole sentencing policy. I believe that fundamentally it must be to secure the reformation of the offender before he is released. The problem is that existing strategies for reforming offenders, and de-programming them from their ideology, are somewhat untested. Those that are tested—such as the programme run in Saudi Arabia, which has been shown to be effective—take a relatively long time. I suggest, therefore, that that lends itself to an indeterminate sentence to detainment at Her Majesty’s pleasure until a licensing authority, the Parole Board, has decided that the offender is safe to be released. That is the purpose of my amendment: merely to contribute to that debate.
Daisy Cooper (St Albans) (LD)
I am not seeking to press new clause 3, but I am seeking reassurances from the Minister relating to the purpose behind it and a commitment to post-legislative scrutiny.
In my earlier remarks, I made the point that fast law can be bad law. In the absence of an opportunity for thorough pre-legislative scrutiny, we absolutely must have post-legislative scrutiny. There are relevant examples of where this has happened: the Immigration Act 2014 was controversial, so it contained the same requirement as exists in new clause 3; and the Data Retention and Investigatory Powers Act 2014, which was rushed in in response to a court ruling, included a sunset clause of 18 months. I am not asking for a sunset clause, but new clause 3 sets out clearly that we would like the opportunity for a statutory review after one year. The person conducting that review should be appointed after consultation with the independent reviewer of terrorism legislation and they should have professional experience relating to imprisonment for offences of terrorism.
New clause 3 does not seek to outline the scope of such a statutory review, but I would like to give the Committee some examples of the kind of matters that could be covered by it. Such a statutory review could ask whether the extra time the terrorists spend in prison is being used to de-radicalise them. Are they actually receiving an effective de-radicalisation programme or, on the contrary, are they potentially becoming more dangerous? It could look at whether the Parole Board has the resources to cope with the extra demands put on it. It could look at whether terrorist prisoners are being failed by the Parole Board and whether they are being released at the end of their sentence without any supervision on licence. It could look at whether the probation service has the staff and resources it needs to ensure effective supervision during the shorter period that offenders spend on licence. It could also perhaps look at whether the change in the release point affects the sentencing decisions made by judges.
As I said earlier, there is a risk that because of the lack of opportunity for pre-legislative scrutiny there is the possibility that this becomes a law of unintended consequences. I know there are proposals for legislation down the line, but we also know that legislation can get delayed. It would be absolutely right for the House to insist on post-legislative scrutiny by virtue of a one-year statutory review. Who knows, the review might even identify things that could be included in future legislation.
Sir John Hayes (South Holland and The Deepings) (Con)
I speak in sympathy with all the amendments for the reasons I shall give. In respect of the amendment tabled by my hon. Friend the Member for Stone (Sir William Cash), it is important that we anticipate the likely counters to this proposed legislation that will perhaps come from malign forces in the other place and outside it. There are people who will seek to frustrate the Government in their attempt to the right thing.
Daisy Cooper
I note that the right hon. Gentleman says there are malign forces. I ask him to recognise that there are those of us who hold public and national security front and centre in our roles in the House, and that some people may be looking not to frustrate but improve the Bill by ensuring it complies with human rights law.
Sir John Hayes
We do not have time, and you would not permit us, Dame Eleanor, to have a broader debate about the character of rights and human rights law, but I welcome the opportunity to do so with the hon. Lady at a place and time of her choosing. I have profound doubts about that law and the root of it, which is, essentially, the acceptance of natural rights that I do not believe in. I believe in the lawful entitlements that we call rights, of course. How they should be dealt with legally is an entirely different matter and not one pertinent to these considerations, but I look forward happily to that broader debate. Given that there will be challenges to the Government, malign and otherwise, given what she said, it seems that there is a good case for a belt-and-braces approach, as my hon. Friend the Member for Stone described it.
Sir William Cash
In the context of what is developing into a very interesting speech, I refer to Edmund Burke’s famous attack on Thomas Paine in respect of what he really thought about human rights. It was a brilliantly expressed metaphor—that we would not be “trussed” like chickens, or something of that kind, by the human rights proposals of Thomas Paine.
Sir John Hayes
Now I might really test your patience, Dame Eleanor, because my hon. Friend invites me to articulate a Burkean case against natural rights, which I will be happy to do, but perhaps on another occasion. Given that I offered the hon. Member for St Albans (Daisy Cooper) the opportunity to have a debate about this, that might be the very occasion. Perhaps my hon. Friend will agree to be my seconder in such a debate—what a humbling experience that would be for me and an elevating one for him. I hope we will do that on another occasion and we can indeed explore why so many people take for granted the existence of natural rights, as though they spring from the ether. As a Christian, of course I could not possibly take that view, but now is not the time to get into that discussion.
On the specifics of the amendment, my hon. Friend makes a belt-and-braces case, as I said, for a notwithstanding clause. The shadow Minister made the point that that was fundamentally disagreeable and made a constitutional argument against the notwithstanding clause per se. However, he also went on to say that he believed the Government were right, or were likely to be right, in asserting that they were clear that, in any case, this legislation did not contradict any existing rights legislation. We heard that today from the Secretary of State and again subsequently in the debate: the Government do not feel that the proposed legislation is likely to be successfully challenged, as my hon. Friend suggested it might. We have to assume that the Government have taken legal advice to make that claim.
Nick Thomas-Symonds
I should make one thing clear: obviously, I have not seen the legal advice the Government are relying on, which I am sure they have sought, quite appropriately. I merely point out that that is the Government’s view and that is what the Secretary of State has put in the Bill. On that basis, article 7 was not engaged—I want to make that point clear to the right hon. Member for South Holland and The Deepings (Sir John Hayes).
Sir John Hayes
I would not have wanted to suggest anything other than that. The hon. Gentleman was very clear that he had heard what the Government said about having taken that advice and their confidence that a legal challenge would not succeed on that basis. My hon. Friend the Member for Stone may be more sceptical than others about that, but it is important to point out that the Government have made it clear that further legislation on counter-terrorism will be forthcoming. That legislation might in itself, on a primary basis, revisit the issue of how counter-terrorism measures interface with and may be contradicted by existing legislation. That would be a very fundamental debate, because of course it will oblige the consideration of exactly the kinds of points that he made. On that basis, I am happy to go with the Minister. Notwithstanding my temptation to follow the example of my esteemed hon. Friend the Member for Stone, I am happy, like the shadow Minister, to err on the side of the Government and to say that if they have taken legal advice, with the further opportunity to revisit these matters in the primary legislation that we hear will be speeding its way to the House, I am prepared to concede the argument about rights.
Sir William Cash
My right hon. Friend will accept that this is primary legislation and furthermore that I have already said I am looking forward to a proper discussion about this in the future, with a view to getting it right, because the object of the Bill is to prevent people from being killed on the streets of this country.
Sir John Hayes
I am talking about the murderous intent of people I described earlier as wicked. I use that word advisedly: not all these people are mentally disturbed. Some may be, and we know from evidence that some are, but not all. Crime is not an illness to be treated; it is a malevolent choice, an act of wickedness, and wickedness is entirely different from mental illness. I know it is difficult for some to grasp that, but it is important to emphasise it.
Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)
The right hon. Gentleman is making a very good point. Of course, if an individual were mentally disordered, the pathway for their rehabilitation and punishment would be through a secure hospital, rather than prison, which would deal with that matter.
Sir John Hayes
There are well-established ways of differentiating people in those terms, different ways of dealing with them in law, different ways of dealing with them once convicted, and different ways of dealing with them in the community. The psychologists and psychiatrists associated with the probation service and the Prison Service are well-accustomed to that differentiation, but in the public debate we need to be bold and brave enough to say that there are some very wicked people who want to do wicked things, and it is our job not only to deal with those things by anticipating, deterring and punishing them, but to reinforce public faith in the rule of law by saying so. This is an opportunity to do so as the Bill gives that life.
The second amendment is the one proposed by the shadow Minister. Again, I have great sympathy with it. All legislation relating to such matters benefits from pre and post-legislative scrutiny, both because we need to get it right, for the obvious reasons we have debated—its salience, its significance, its importance—and because, in order to build the consensus necessary across the House to proceed in a way that maintains public faith, pre and post-legislative scrutiny is important. As recognised by all the contributors to this debate, the emergency we face is such that that has not been possible on this occasion. I would resist the shadow Minister’s amendment, not because I do not believe in the principle or the sentiments behind it but because there is a very good case for the Select Committees—notably the Home Affairs Select Committee and the Intelligence and Security Committee—to look at this matter once the Bill has become an Act. I would be surprised if they did not. I know the Minister in his winding-up speech will—I will not say “invite that kind of scrutiny”, as I am not sure it is appropriate for a Minister to ask a Select Committee to investigate or scrutinise the Government—want to say that he would be surprised if they did not. That kind of reassurance would give great comfort to the House in measuring the effect of this important legislation.
Wera Hobhouse (Bath) (LD)
We are having a very interesting and mature debate about getting this right, and of course it is paramount that we make sure the public are safe, but I do not understand what speaks against a review to make sure we get it right. Even if other legislation comes further down the line, why not have that double security?
Sir John Hayes
We have well-established mechanisms, of the kind I have just described, for doing exactly that. Sometimes the Government build a review mechanism into legislation, but much more often the Committees of this House designed for that purpose consider the effectiveness of what the Government do and how legislation is working. Our Select Committee structure is now long established in the House—even longer established than my hon. Friend the Member for Stone—and fulfils that function well. Particularly in respect of legislation relating to terrorism, the Intelligence and Security Committee has, time and again, played an important role in considering these matters, reflecting, reporting, and influencing Government policy, as I know from my time in the Home Office. So I think that there is well-established practice. If it ain’t broke, why fix it?
Daisy Cooper
The issue is not just that there should be a review, but who should conduct that review. The right hon. Gentleman has talked about various Select Committees, which, as we know, have a very broad workload. Does he agree that it is important to ensure that there is an independent review, conducted on our behalf by someone who is independent of the House and has experience in relation to the sentencing of terrorists?
Sir John Hayes
We do, in fact, have an independent reviewer of terrorism legislation. In that context, I was privileged to work with Lord Carlile—a former Liberal Democrat Member of this House, by the way. So that role exists, but I do not want to underestimate the significance or value of the Committees of this House in doing their job. The ISC in particular is a well-respected Committee of the House, which has a very strong track record of looking at these matters empirically and advising accordingly. My argument is not that we should not have that kind of scrutiny; ideally, it would have been a precursor to this legislation, but we should indeed consider allowing it through the mechanisms that I have described. I invite the Minister to embrace the spirit in which I have advanced my argument.
The third and final amendment that we have heard ably articulated during our considerations this afternoon is the one in the name of my right hon. Friend the Member for New Forest West (Sir Desmond Swayne). Again, I am extremely sympathetic to the purpose of the amendment. Indeed, I might even go further, and say that “nine-tenths” is too modest. However, while my right hon. Friend’s amendment is welcome and adds pressure, if I might put it that way—he said “prodding” rather than “probing”, and I have added a third “p”, “pressure”, because I know that alliteration is dear to his heart—given that the Government have made crystal clear that in forthcoming legislation they will look at three matters, minimum sentences, maximum sentences and mandatory sentences, much of what he desires should form part of that further Government policy and practice. I hope that we can increase minimum sentences, that we can increase maximum sentences, and that we can tie to that—as the Government have said they will, as I note from comments made in the statement by the Secretary of State following the recent terrorist outrage—
Sir John Hayes
I will just finish my sentence, and then I will give way happily to my right hon. and distinguished Friend.
The Government have said, and the Secretary of State was clear about it in the statement a few days ago, that tied to those three provisions will be the end of early release for certain kinds of prisoner. I now happily give way to my right hon. Friend before I move to my exciting peroration.
Sir Greg Knight
I am grateful to my right hon. Friend. Does he not think that whatever scheme is ultimately settled upon, there needs to remain some incentive for someone who is in prison to behave him or herself?
Sir John Hayes
I note that my right hon. Friend was preoccupied with urgent meetings when I spoke earlier, but if he reads the Hansard report of my earlier contribution, he will see that I am on exactly the same page as him, not for the first time. He is absolutely right that parole has historically always been considered on the basis of an assessment of both risk and worthiness. “Good behaviour” is the term that was once routinely used in respect of parole. When people have proved, through how they behave in prison, that they no longer pose a risk to the public and that they deserve to be released early, they should be. The problem with the current arrangement is the automatic nature of early release, and I resist that per se, not just in respect of terrorist prisoners but more widely. The public would be outraged if they knew just how many people have been released early, including terrorists. Enough is enough; now the time to put an end to that. This is the beginning of it, and I happily support this legislation.
Nick Thomas-Symonds
I am grateful, Mr Deputy Speaker, but I have already spoken in favour of my amendment. I have said that I do not wish to press it to a Division, but I would like to hear the Minister’s response to my suggestion about external scrutiny of the deradicalisation programme in our prisons.
Chris Philp
I would like to respond briefly to some of the points made in Committee, as well as speaking in support of clauses 1 to 10 and schedules 1 and 2 standing part of the Bill. Perhaps I could start with the speech by my hon. Friend the Member for Stone (Sir William Cash) concerning his proposed “notwithstanding” amendment. I repeat the point I made earlier, which the shadow Minister also made, that the Government have received categorical advice that these proposals are article 7 compliant. Of course there may well be challenges, and I cannot guarantee what the outcome of any litigation might be, but we are confident that the proposals are compliant.
My hon. Friend said that nothing less than certainty would do in cases of public safety, and I entirely understand that sentiment. Perhaps this would best be debated at another time, but I wonder whether his amendment as written would have the effect that he intends, because I do not think that simply writing a “notwithstanding” clause into a piece of primary legislation would abrogate our obligations under a treaty that we have entered into or preclude an applicant or litigant going directly to the European Court of Human Rights—they might go straight to Strasbourg—even if we could somehow prevent the use of the English and Welsh courts. I do not think the amendment as drafted would actually have the legal effect intended. However, my hon. Friend has, as always, raised some interesting constitutional questions, and I am sure they will be debated in the other place in due course. In our manifesto, we said that we would have a think about the operation of the Human Rights Act 1998 and some of the issues that he referred to in his speech. There will be plenty of opportunities in due course to consider at greater length the issues that he raised. I am grateful for his undertaking not to press his amendment to a vote today, but the whole House has certainly heard what he had to say and will carefully reflect on it.
My right hon. Friend the Member for New Forest West (Sir Desmond Swayne) gave me, in his words, a prod. Let me confirm that I am duly prodded on the questions of longer sentences for serious terrorist offenders and of their serving more of their sentence in prison. As a number of Members have said, is our intention to bring forward a counter-terrorism, sentencing and release Bill in the relatively near future. It is also the Government’s intention to define a cohort of the most serious terrorist offenders and to seek a minimum sentence of 14 years for those serious offenders and ensure that all of the sentence handed down by the judge is served in prison. I think that that will respond to the point that my right hon. Friend was making.
Alex Chalk (Cheltenham) (Con)
I am grateful to the Minister for those indications about sentencing. Does he agree that the review needs to consider all terrorist offences, including relatively minor ones—such as offences under sections 57 and 58 of the Terrorism Act 2000 relating to possession of materials—that might in and of themselves not attract a particularly long sentence? Given that they are responsible for almost half of all terrorist sentences handed out, does he agree that they need to be considered as part of the review?
Chris Philp
We will consider all terrorist offenders as part of the review. Of course, the sentencing provisions I just described would not be appropriate for all terror offenders—just the most serious—but I assure my hon. Friend that we will be considering the totality of terror offending. Of course, the Streatham offender had committed one of the offences that my hon. Friend just described—possession of terrorist material—so we must be mindful that even when someone commits an offence that, on the face of it, is at the less serious end of the offending spectrum, they can none the less go on to do quite serious things. The Government are extremely mindful of that.
Sir John Hayes
There are two points to be made in respect of what the Minister has just said. First, the vast majority of people convicted under terrorism legislation are sentenced to between one and 20 years. Now, he is talking about “the most serious”. What does he mean by “the most serious”? Secondly, a large number of people are convicted for terrorism-related offences under non-terrorism legislation—hundreds, actually, over the years. Will they be included in these considerations?
Chris Philp
I thank my right hon. Friend for his question. In relation to the second part of it, terrorist-related offences do form part of this Bill. Part 2 of proposed new schedule 19ZA to the Criminal Justice Act 2003, which is found in schedule 1 to this Bill, covers terrorist-related offences under the Counter-Terrorism Act 2008 and lists the various direct offences, including manslaughter, culpable homicide and kidnapping, that are terrorist-related offences. Such offences are, therefore, in the scope of this Bill, and we will carefully consider the implications for the counter-terrorism Bill that we will bring forward in due course.
Turning to the level of the severity of offending, as I said to my hon. Friend the Member for Cheltenham (Alex Chalk), we will review all types of offending, so the whole spectrum will be in scope. As for how we define that “most serious” cohort, the Government are currently thinking quite carefully about the definition. I do not want to give my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) a definition today, because that will be a matter for the counter-terrorism Bill, but we are thinking about question extremely carefully, and the House will be able to debate it fully in due course.
The shadow Minister, the hon. Member for Torfaen (Nick Thomas-Symonds), asked about a review of the effectiveness of the deradicalisation agenda. I agree that the review is critical, and several Members raised it on Second Reading. We are setting up a new counter-terrorism programmes and interventions centre within the prisons and probation service that will look specifically at the de-radicalisation problem. We intend to publish further research and reports in the usual way, and I expect full scrutiny from Members. As my right hon. Friend the Member for South Holland and The Deepings said in his speech, we will fully embrace scrutiny of that description, and I would be surprised—my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) is not in his place—if the Justice Committee did not look at this area in due course. I accept the point made by my right hon. Friend the Member for South Holland and The Deepings that proper and deep scrutiny of this area is needed, because the de-radicalisation question is so important.
Dr Cameron
The Minister is making some good points. Is there any scope to look at additional types of charges that could be laid against those who actively radicalise others in prison?
Chris Philp
I thank the hon. Lady for her important intervention. The radicalisation of one prisoner by another is a deeply invidious phenomenon, and she is right to highlight it. The normal offences that would apply to any member of the public, including things like incitement to racial hatred, would apply to prisoners just as much. I encourage the authorities to use those laws where applicable regardless of whether the person doing the inciting, which is a criminal offence in itself, is in prison.
The hon. Member for St Albans (Daisy Cooper), in the same vein as the hon. Member for Torfaen, talked about the need to scrutinise the effect of this legislation after it has passed. Once again, I accept the thrust of what she says. It is important that we keep the effect of legislation under review, particularly where it is passed in such a necessarily expeditious fashion. I would expect the Justice Committee to take an interest in this, and the House will have a chance to take a great interest when we come to debate the counter-terrorism Bill in a few months’ time. There will then be a lot more time available for us to debate these matters and, indeed, to review the operation of this Bill, which by then will have been in effect for a few months.
In terms of an independent review that goes beyond Parliament’s Committees and, indeed, this House—as my right hon. Friend the Member for South Holland and The Deepings said in reply to an intervention by the hon. Member for St Albans—I expect that Jonathan Hall, QC, the independent reviewer of terrorism legislation, will be conducting independent reviews of exactly the kind the hon. Member for St Albans described.
I think that covers many of the points raised on the various amendments and new clauses. On the substance of the Bill, it is worth briefly highlighting that clause 1 specifies the release provisions we have been talking about and the two thirds release point for prisoners in England and Wales, at which point the Parole Board’s discretion will be applied.
Clause 1 also references schedule 1, which specifies the kinds of offences that are in scope. Part 1 of proposed new schedule 19ZA to the Criminal Justice Act 2003 defines the terrorist offences that are in scope, and part 2 defines the offences that may be determined to have a terrorist connection.
Clause 2 disapplies some historical transitional provisions dating back to the Criminal Justice Act 2003. Those are essentially technical amendments to make sure this legislation works in a way that is consistent with the Act.
Clauses 3 and 4 apply these provisions to Scotland. We are keen to make sure that the public in Scotland are protected as much as the public in England and Wales. In that context, I am grateful to the hon. Member for East Lothian (Kenny MacAskill) for his supportive remarks. I hope I can infer from his remarks that our colleagues in the Scottish Government in Holyrood are supportive of the proposals.
Chris Philp
I am grateful for the hon. Gentleman’s confirmation that the Scottish Government support these provisions.
Clause 5 relates to the setting of licence conditions. Clause 6 makes further consequential amendments relating to transitional cases. Clause 7 makes further consequential amendments that apply to England and Wales. Clause 8 makes transitional provisions in relation to offenders in Scotland and, again, clause 9 makes further consequential amendments that apply to Scotland.
Finally, clause 10 specifies the Bill’s territorial extent and commencement. It is worth saying that commencement will be upon Royal Assent, and we therefore hope the Bill takes effect from 27 February, which is important from the perspective of the release of certain dangerous offenders.
I hope that covers the clauses and schedules, and that they will stand part of the Bill.
Sir William Cash
As I have already made clear, I am happy to ask leave to withdraw the amendment with the restrictions and conditions that I have already imposed with regard to the House of Lords.
Amendment, by leave, withdrawn.
Clauses 1 to 10 ordered to stand part of the Bill.
Schedules 1 and 2 agreed to.
The Deputy Speaker resumed the Chair.
Bill reported, without amendment.
Third Reading
The Lord Chancellor and Secretary of State for Justice (Robert Buckland)
I beg to move, That the Bill be now read the Third time.
May I thank all Members for taking part in this important debate, on a Bill that, as Members on both sides of the House have demonstrated comprehensively, was timely and necessary? We have a proud history of coming together in times of adversity against people who seek to divide us. Together, we can make sure that the terrorists who seek to threaten our way of life will never win.
I readily acknowledge that we are passing this Bill to a very tight timescale, but the appalling attacks we witnessed at Streatham and at Fishmongers’ Hall made it plain that the time for action was now, which is why I welcome the sense of urgency that has been shared in all parts of the House. That has necessarily shortened the time available to debate these issues, but I will of course continue to engage with Members across the House on these matters. There will be further opportunities to legislate on these issues, both in our forthcoming counter-terrorism, sentencing and release Bill and, more broadly, in the sentencing Bill that we will introduce following our sentencing White Paper later this year.
We will also review the current maximum penalties and sentencing framework for terrorist offences to ensure that they are sufficient and comprehensive. Our underlying principle is this: terrorist offenders should no longer be released before the end of their custodial sentence unless the Parole Board is satisfied that they are no longer a risk to the public.
I take this opportunity to thank all the officials, not only those who have assisted us in the Box today, but all the team at the Ministry of Justice, who have worked at pace and in great detail on complex issues of national importance, to a timescale that is perhaps unusual and almost unprecedented. We do owe them a deep debt of gratitude, and I am honoured to place that formally on the record.
For now, passing this Bill will take a significant step to ensuring that the British public, whom we serve, are being given the protection they need, by ensuring that terrorist offenders spend longer in prison in all cases and are not automatically released without being fully and properly assessed.
Nick Thomas-Symonds
I agree with the Secretary of State that we have had a constructive debate in the Chamber on this Bill. As I indicated at the outset, the Opposition support the idea of Parole Board involvement and, indeed, risk assessment for terrorist prisoners across the board.
Clearly, we will need to address an issue of investment in deradicalisation programmes and proper mechanisms to be able to assess how effective they are. We will be holding the Government to account on those issues in the months and years ahead. There is also a wider issue to address on sentencing. As I indicated in my earlier remarks, this of course became an emergency because of the incidents we have seen in recent months, but there does need to be greater long-term planning, which I hope the Secretary of State will be able to provide to the Department in the years ahead.
I also echo what the Secretary of State said about the officials, who obviously had to produce this Bill very quickly. I would like to thank him for his work with me on this over the past week. I also thank the Under-Secretary of State for Justice, the hon. Member for Croydon South (Chris Philp), and all those right hon. and hon. Members who have contributed to the debate today.
I should also put on record in Hansard my thanks to Robert Keenan in my office: he has had very quickly to turn around work on the Bill on a very short-term basis since it was first published.
On that basis, I hope that the Bill will pass its Third Reading without a Division.
Kenny MacAskill (East Lothian) (SNP)
I echo the comments of both the Opposition spokesman and the Lord Chancellor. We have put on record the requirement for unity on this issue. I thank the Lord Chancellor and his staff for the manner in which they introduced the Bill. Legislation is never easy, and this Bill was particularly difficult with regard to the retrospectivity, but as much information as could be provided was provided. As others have done correctly, I put on record our tribute not only to those in the Government offices who have drafted the legislation, but to those involved here at Parliament, because they must have been working long into the night to make sure that information was provided for Members.
With those tributes appropriately made, I simply concur with the thanks to all involved.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Terrorist Offenders (Restriction of Early Release) Bill
Thursday 13th February 2020
(4 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Amendment Paper: HL Bill 99(a) Amendments for Committee - (13 Feb 2020)
Terrorist Offenders (Restriction of Early Release) Bill
Monday 24th February 2020
(4 years, 9 months ago)
Lords ChamberRead Full debate Terrorist Offenders (Restriction of Early Release) Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 99-I Marshalled list for Committee - (21 Feb 2020)
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the purpose of this Bill is to end the automatic early release of terrorist offenders, moving the earliest point at which they can be released and making their release contingent on approval by the Parole Board. Noble Lords will be all too aware that twice in the last few months we have seen appalling attacks on members of the public by terrorist offenders. In each case, these known terrorists were released automatically at the halfway point of their sentence without any oversight by the Parole Board.
It is clear that we must put a stop to the current arrangements, whereby a dangerous terrorist can be released from prison by automatic process of law before the end of their sentence. It is clear that automatic halfway release is simply not right in all cases. We must now respond as quickly as possible. Further releases of prisoners serving relevant sentences are due by the end of February, and if the Bill is to achieve its desired effect then emergency legislative procedure and early commencement is required.
The Bill sets out new release arrangements for prisoners serving a sentence for a terrorist offence or an offence with a terrorist connection. There are two main elements to this: first, to standardise the earliest point at which they may be considered for release, at two-thirds of the sentence imposed; secondly, to require that the Parole Board assess whether they are safe to be released between that point and the end of their sentence. This will apply to all terrorist and terrorist-related offences where the maximum penalty is above two years, including those offences for which the Streatham attacker, Sudesh Amman, was sentenced. Only a very small number of low-level offences, such as failure to comply with a police cordon, are excluded by this threshold, and prosecution and conviction for these offences are rare. The changes affect those serving sentences for a specified offence, whether the sentence was imposed before or after the new section comes into force.
The emergency provisions will extend parole release to those serving standard determinate sentences and other transitional cases subject to automatic release before the end of the custodial term. In line with the normal arrangements for prisoners released by the Parole Board, for this cohort of offenders the board will set the conditions of an offender’s licence when they are released before the end of their sentence. The Parole Board has the necessary powers and expertise to make risk-based release decisions for terrorist offenders. The board currently deals with terrorists serving indeterminate sentences, extended sentences and sentences for offenders of particular concern.
Viscount Hailsham (Con)
Will my noble and learned friend remind the House whether the Parole Board has to consider any burden or standard of proof? Is there any provision, statutory or otherwise, for the Parole Board to obtain a letter or opinion from the trial judge as to the dangerousness of the prisoner concerned?
Lord Keen of Elie
I am not aware of any statutory provision whereby the Parole Board can secure a letter from the trial judge. Regarding release, the Parole Board has to be satisfied that the prisoner does not represent a threat of harm if released under licence.
There is a cohort of specialist Parole Board members trained specifically to deal with terrorist and extremist offenders. This is, in effect, the specialised branch of the Parole Board that will be used to handle the additional cases. This cohort includes retired High Court judges, retired police officers and other experts in the field, all with extensive experience of dealing with the most sensitive terrorist cases.
We acknowledge that applying these measures retrospectively is an unusual step. However, this reflects the unprecedented gravity of the situation we face, and the danger posed to the public. The Bill simply will not achieve its intended effect unless it operates with retrospective effect, necessarily operating on both serving and future prisoners. The provisions do not, however, alter the length of the sentence, and therefore the penalty already imposed by the court. The Government are confident that the Bill is compatible with Article 7 of the European Convention on Human Rights, as both European and domestic case law have held that release provisions relate to the administration of a pre-existing sentence and do not form part of the penalty.
Due to the nature of this emergency legislation, the Government are proposing that the provisions in the Bill apply only to England, Wales and Scotland. The justification for emergency, retrospective legislation is to prevent the automatic release of terrorist offenders in the coming weeks and months, and such immediate measures are not currently required in Northern Ireland. However, we intend to make provision as appropriate for Northern Ireland via the upcoming counterterrorism Bill, which will deal with sentencing and release.
It is of course crucial that we continue to do our utmost to rehabilitate terrorist offenders when they are in custody. In prison and on probation, all terrorist offenders are closely managed by specialist counterterrorism personnel, and we have a range of capabilities to manage the risk posed by terrorist offenders, and to support their disengagement and rehabilitation, including tailored interventions. The time an offender spends in prison is an opportunity for us to do our best to rehabilitate them, while recognising that this is no simple challenge. Psychological, theological and mental health interventions are all used, and Her Majesty’s Prison and Probation Service has psychologists and specialists to supply formal counter-radicalisation programmes, both in custody and in the community.
The desistance and disengagement programme provides a range of intensive tailored interventions and practical support for terrorist offenders to tackle the drivers of extremism. This can include mentoring, psychological support, and theological and ideological advice. The programme draws on the expertise of academics both from the United Kingdom and internationally through its academic advisory group, ensuring that it is under- pinned by the latest research on desistance, disengagement and deradicalisation to provide constructive challenge and evidence on good practice in an innovative field.
Lord Carlile of Berriew (CB)
Can the noble and learned Lord tell the House what opinions have been expressed by prison staff, including chaplaincy services—for example, in Whitemoor prison—about the effectiveness or ineffectiveness of the programme he is describing?
Lord Keen of Elie
My Lords, I am not in a position to give a specific answer to that focused point with regard to the institution in question, but I will take advice and seek to revert to the noble Lord during the debate.
Beyond the work I have outlined, following the events at Fishmongers’ Hall in November 2019, we have also announced a set of measures to overhaul the sentencing and release arrangements for terrorist offenders. These include: introducing longer sentences for the most serious dangerous terrorist offenders and ending early release for other serious dangerous terrorist offenders; an overhaul of prisons and probation, to include tougher monitoring conditions and a doubling of counterterrorism probation officers; increasing counter- terrorism police funding by £90 million for 2020-21; and a review of support for victims of terrorism, including an immediate £500,000 to the Victims of Terrorism Unit.
The Government have also launched an independent review of the way different agencies, including police, probation services and the security services investigate, monitor and manage terrorist offenders. This is referred to as the Multi-Agency Public Protection Arrangements, and is being conducted by Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation. Many of these measures are under way, and the legislation to ensure that the most serious and dangerous terrorist offenders spend longer in prison, with strengthened licence periods, will be included in a new counterterrorism Bill dealing with sentencing and release, to be introduced later this Session.
We must acknowledge that while all efforts must be made to rehabilitate and deradicalise terrorist offenders, there will be times when these efforts do not succeed. Therefore we must have in place robust safeguards which mean that these offenders are not released automatically. The Bill’s objective is clear: to take the necessarily urgent steps required to protect the public from terrorist offenders who are still considered dangerous. This is a sensible safeguard against the early release of offenders who continue to pose a significant threat to the safety of the public. I commend the Bill to the House, and I beg to move.
Lord Marks of Henley-on-Thames
At end insert “but that this House regrets that the bill fails to propose measures to deradicalise and rehabilitate offenders and to provide adequate resources to that end; and that the bill offends against the common law principle that new law should not be made to have retrospective effect.”
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful to the Minister for the careful way in which he has opened this debate. No one who considers the recent attacks at London Bridge and Streatham High Road can fail to understand the Government’s concern to prevent further such events. At Fishmongers’ Hall on 29 November, Usman Khan, released at the end of 2018 after serving eight years of a 16-year sentence, brutally killed two people and injured three others near London Bridge, ironically and cynically while attending an event on prisoner rehabilitation. On 2 February, just over three weeks ago, on Streatham High Road, Sudesh Amman, released less than a fortnight earlier after serving half of his three and one-third year sentence for possessing and disseminating terrorist documents, stabbed two innocent members of the public.
So it is not surprising that public attention has focused on the fact that these two terrorist offenders had been so recently released from prison at the time of their offences and that the Government are clearly committed to preventing a recurrence of such offences by recently released offenders. And there is much in this Bill that we welcome. For example, it is clear to us that the Parole Board should be involved in assessing whether prisoners can be safely released before their early release on licence.
But there are two aspects of the Bill which cause us particular concern. First, the Bill alters release dates and defers release from prison for all offenders to whom it relates but contains or presages no new measures to improve the chances of deradicalising and rehabilitating such offenders. Secondly, the Bill offends against the common-law principle of retrospectivity: new criminal legislation should not have the effect of increasing the length of a prison sentence imposed on an offender who was sentenced before the new legislation was passed. By “length of the prison sentence” I include the time the offender is statutorily bound to spend in prison.
Taking the first point on rehabilitation and deradicalisation, it is worth noting that the Bill affects all offenders within its ambit, not only those who present a particular danger. For all those offenders, it reduces their time on licence when, for many, it is time spent under supervision, on licence after release, that offers the best chance of deradicalisation and rehabilitation.
We know that the probation service is in crisis, underresourced and demoralised, but we should aim to have an improved and well-resourced probation service with more time to work with prisoners following release, not less. Furthermore, there is real concern that spending longer in prison risks further radicalising not only those terrorist offenders but others they meet in prison. Only last Wednesday, the Times devoted its lead article and its first leader to radicalisation in prisons, and in particular a jihadist knife attack on prison staff by a prisoner in HMP Winchester who was there for non-terrorist offences. As the leader writer put it:
“Prisons are not only failing to deradicalise terrorists; in some cases they risk creating them.”
At Second Reading in the House of Commons, Theresa May, with all her experience, pointed out that the Lord Chancellor and the Government were
“absolutely right to be addressing the question of the automatic early release of terrorist offenders, but terrorist offenders will still be released at some point. That is why rehabilitation—the work that is done both in prison and when they are out of prison—is so important. There have been many efforts at this over the years, but, as recent incidents have shown, not always with success.”—[Official Report, Commons, 12/2/20; col. 867.]
In 2015, the Lord Chancellor commissioned former prison governor Ian Acheson to write a review of Islamist extremism in prisons, probation and youth justice. He reported in March 2016, making 69 recommendations, including the appointment of
“an independent adviser on counterterrorism in prisons … responsible for an overarching counterextremism strategy”,
special enlightened separation units, as he called them, for high-risk extremists, greater training for staff in cultural and religious traditions, tighter vetting of prison chaplains, tackling extremist literature, a focus on the safe management of Friday prayers to prevent their abuse, improving the speed of response to serious violence within prisons, and more involvement of specialist police from outside.
On 29 January this year, more than two years after his report, Mr Acheson presented a BBC documentary called “The Crisis Inside”, in which he said that he was appalled that his 69 recommendations had been distilled to 11, of which the Government had recommended the implementation of eight. There would be a new directorate but no new independent adviser.
On separation units, planning at this stage was apparently under way. But just three had been recommended, and of those only one had been opened, at HMP Frankland. In the programme Mr Acheson interviewed Fiyaz Mughal, the founder of Faith Matters, who said that the imams relied on by the Government lacked the strength or the skills to mount a credible challenge to the theological base of extremism that motivated the terrorists. He was also clear that the Government’s Healthy Identity Intervention programme was far too easy for prisoners to game and manipulate.
The probation service feels undervalued and largely ignored. It is significant that Usman Khan’s mentor following his release warned the Government of the danger he presented eight months before the London Bridge attack, but no notice was taken of his warning.
We are not handling this crisis well. In the Netherlands, France and Spain, serious terrorist and Islamic extremist prisoners are separated from others, with improvements in prison safety and order, and more chance of targeted counter-radicalisation interventions working. We have 220-odd terrorists in custody and we must do more to reduce the threat from them, all the way from the period before they are taken into custody to the period following their release.
I turn now more briefly to our second concern with retrospectivity. I shall try not to get bogged down in the detailed legal question of whether altering prisoners’ release dates part way through their sentence is a breach of Article 7 of the European Convention on Human Rights. The noble and learned Lord repeated the view of the Government that it is not such a breach, but there are many who disagree. However, the question cannot be entirely avoided in this debate. On the question of penalties, Article 7.1 provides:
“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
In the case of Uttley in 2004, the House of Lords considered whether Article 7.1 had been infringed when statutory automatic release at the two-thirds point was changed to release on licence at the same point, because release on licence would involve the imposition of supervision and restrictions on Mr Uttley’s freedom under the terms of the licence. The House decided that the sentence that was “applicable”, to use the terms of the article, was the maximum sentence that could have been passed for the offence for which the defendant was originally convicted. It followed that Article 7.1 would be infringed only if a sentence imposed on a defendant constituted a heavier penalty than that which could have been imposed on him under the law in force when his offence was committed. Since Mr Uttley’s multiple sexual offences included three rapes, for which he could have been sentenced to life imprisonment, and since he was sentenced to only 12 years’ imprisonment, he could not complain that his 12-year sentence was not applicable when his offences were committed. It was also said that altering his release conditions was an act of administration of his sentence, not an increase in that sentence.
However, I would suggest that the decision in Uttley arguably has no application to the changes to the statutory automatic release date proposed in this Bill, because all relevant offenders will spend longer in prison than they were statutorily bound to serve under the terms of the 2003 Act when sentence was passed on them. Furthermore, in a Spanish case in the European Court of Human Rights, Ms Del Río Prada had been sentenced prior to 2000 to a total of more than 3,000 years of imprisonment for serious terrorist offences for the ETA. Under Spanish law, these sentences were subject to a statutory maximum of 30 years. In 2006, the Spanish supreme court decided that remission for work carried out in custody would be deducted not from that 30-year maximum but from the overall sentences, so that her release date was deferred by nine years from 2008 to 2017 and thus she would serve the full 30-year maximum. The Strasbourg court decided that the change in the treatment of remissions had not merely altered the manner of the execution of the penalty but had redefined its scope. Furthermore, when Ms Del Río Prada was sentenced, she was entitled to expect, as a matter of law, that her remissions would be deductible from the 30-year maximum. It followed that there was an infringement of Article 7.1.
For my part, I find it difficult to see how the decision in Uttley could enable this Bill to withstand a challenge under Article 7 on the basis of the Del Río Prada case, where every sentence passed on a relevant offender means that the offender will spend a third longer in prison than he would have done under the 2003 Act. The case of Uttley has been further considered in the UK courts, but I would not wish to predict that the view taken in Uttley could still prevail in Strasbourg.
However, I prefer to rest this regret Motion on the long-held—
Lord Pannick (CB)
Is the noble Lord aware of the recent judgment of the European Court of Human Rights in Abedin v the United Kingdom on 12 November 2019? This dealt with the change to the statutory regime and said:
“Nothing in the Court’s judgment in Del Río Prada”—
which the noble Lord is relying upon—
“called into question the central proposition outlined in Uttley that where the nature and purpose of the measure relate exclusively to a change in the regime for early release, this does not fall part of the ‘penalty’ within the meaning of Article 7”.
Therefore, the complaint was dismissed. That case would suggest that there is no basis for a complaint about this Bill.
Lord Marks of Henley-on-Thames
My Lords, I am familiar with the case of Abedin. I do not accept, however, that that involves or considers the position here, where the length of time spent in custody is changed by statute from the automatic release that prevailed under the 2003 Act to the prohibition on release before the two-thirds point that would prevail once this Act was passed. Abedin did not answer that point. It concerned the mechanism for release; it did not concern the overall time that was necessary by statute to be spent in custody. That is the answer to the direct point of the noble Lord, Lord Pannick, on the ECHR jurisprudence.
I was saying that I prefer to rest this regret Motion on the traditional common-law principle against retrospectivity. When we debated before the recess the Sentencing (Pre-consolidation Amendments) Bill, the noble and learned Lord rightly described the Bill as ensuring that it did not,
“contravene the general common law presumption against retroactivity.”—[Official Report, 11/2/20; col. 2253.]
The noble and learned Lord, Lord Hope of Craighead, described the principle as being,
“that the convicted person is not dealt with by the imposition of a penalty of any kind that is more onerous than that which applied when the offence was committed.”—[Official Report, 11/2/20; col. 2249.]
The penalty that applied when the 2003 Act was being applied meant automatic release at the one-half point. This Bill requires consideration of—not automatic —release only at the two-thirds point. That is one-third longer, and that is the point that I make. The noble and learned Lord, Lord Falconer of Thoroton, expressed anxieties on this point during the course of that debate, and I share them.
My concern, therefore, is simply that an offender convicted before this Bill is statutorily entitled to release at one half, under an automatic response. If this Bill is passed unamended, his release will be deferred until after the two-thirds point, and then only on a Parole Board assessment.
At Second Reading in the House of Commons, the Lord Chancellor tried to argue that this does not mean that the Bill will change retrospectively the sentence imposed by the court:
“Release arrangements are part of the administration of a sentence, and the overall penalty remains unchanged.”
That is the point made on Abedin by the noble Lord, Lord Pannick. A little later, however, the Lord Chancellor rather gave the game away in abandoning this position when he said:
“The justification for this emergency, retrospective legislation—out of the ordinary though I accept it is—is to prevent the automatic release of terrorist defenders in the coming weeks and months.”—[Official Report, Commons, 12/2/20; col. 872.]
Indeed, the noble and learned Lord today, in opening this debate, accepted that the Bill had retrospective effect but argued that it did not offend against Article 7.1. The Bill is retrospective, whatever the position under Article 7.1, and I do not believe that the Government have made a strong, evidence-based case for retrospection.
I will add only this. To impose apparent injustice on serving prisoners risks their being less amenable to rehabilitation, more resentful of their having their time in custody increased, and so more dangerous on release then they might otherwise have been. Significantly, the impact assessment at page 2 recognises both this risk and the risk to rehabilitation in the Bill, saying:
“A later release date and reduced (or no) licence period could disrupt offenders’ and family relationships and reduce opportunities for rehabilitation in the community, this would be more severe for young offenders and children convicted of terrorist offences. Additionally, there is a risk of prisoner frustration, disengagement or unrest at changing release arrangements, though there is little evidence to support how prisoners will actually react, and reaction is likely to vary from prisoner to prisoner.”
I fear that we abandon long-established principles at our peril. The peril is worse still when we legislate in a rush. We have amendments down in Committee seeking a review after a year of the operation of this legislation. We regard such a review as extremely important to consider its functioning when we have been denied, as we have, proper scrutiny at this stage. It is our intention to press those amendments in Committee. I beg to move.
The Lord Speaker (Lord Fowler)
The original question was that this Bill be now read a second time, since when an amendment has been moved, at the end to insert the words as set out on the Order Paper. The question I now therefore have to put is that this amendment be agreed to.
Lord Judge (CB)
My Lords, we are being required to legislate urgently to remedy an emergency created, at least in part, by overcomplicated sentencing law. I deeply regret the rush, and my support for the Bill —I do support it—is predicated on the premise that, before long, we shall be taking an entire look at the whole spectrum of sentencing: how it operates, how it is legislated for and how it will work. However, as I emphasise, I should prefer specific problems with sentencing to be considered in the context of time and measured reflection. We do not have that time; I am satisfied that recent events have shown that we are facing a real threat of catastrophic damage to public safety, not excluding multiple murders, by individuals who have been convicted and who, even as they strike, are still subject to prison sentences for terrorist-related offences. In my opinion, although this legislation does no more than postpone release dates—which will come and will have to be addressed, and we are not addressing that issue—and, even if we had the time to work towards a better solution to this very real problem, the interests of public safety must come first, particularly in the context of retrospectivity and the expectations of convicted criminals.
I want to put the issue of retrospectivity into some sort of context. There is no right of a convicted criminal to be released after he or she has served the prescribed part of their sentence; it is only lawyerly talk, but the Acts of Parliament that deal with this refer to a “duty” on the Secretary of State to release the prisoner on licence after he or she has completed the defined proportion. The release date itself has absolutely nothing to do with good behaviour or earning remission. It is automatic and time-based. The proposed legislation is retrospective but, to put it in context, it does nothing to remove anything that the criminal personally has earned.
It will not help the House if I try to sort out the differences between—wait for it—the extended determinate sentence, the standard determinate sentence, the sentence for an offender of particular concern, extended sentences, minimum terms of imprisonment and so on. There is a whole cacophony of this sort of language. What matters is the complexity that results. Some prisoners are released after half their sentence; some are released after half their sentence, provided the Parole Board has had a look at the case and recommends it. Some prisoners are released after two-thirds of their sentence, and some do not get released until the minimum term has been completed. There is no axiomatic period that works in relation to release and nothing sacrosanct about a half-time release. The legislation has come and gone, and gone and come, covering these sorts of issues.
Those released are released on licence. Their sentence is not completed until the full period of that sentence has elapsed. So, under the present legislation, release is more or less automatic, depending on which category it comes under, but it is conditional. Among other features worth underlining are the responsibilities of the Parole Board, the way periods of remand spent in custody should be credited against the sentence, the power to release early—even earlier than the statute requires, for example, on compassionate grounds—curfews and the nature and terms of licence conditions for individual prisoners, which have always been regarded as administrative responsibilities. They are administrative responsibilities to be carried out by the Secretary of State; they are not judicial decisions, and no reference is made to the sentencing judge about how those responsibilities should be exercised.
In the meantime, the sentence of the court remains in force and, as I said, there are a number of different restrictions. It is possible—we cannot afford it, but as a matter of law it is possible—to impose what used to be called control orders and are now called TPIMs. I had to remind myself that they are terrorism prevention and investigation measures, which may be imposed on a prisoner at liberty under licence. For an unconvicted person, those conditions are usually regarded, rightly, as a massive interference with their ordinary civil liberties. Can we be clear that the liberty of a prisoner released under the statutes is not the same liberty that we enjoy as we walk up and down the streets? More importantly—or no less importantly—that licence may be revoked by the Secretary of State. The offender may then be recalled to prison without a further trial to serve the rest of the sentence.
Of course, the Secretary of State cannot whimsically disapply the relevant statute because he does not like someone, and, of course, the criminal will expect to be released. Since 2012 the sentencing judge has been required to tell the prisoner that the sentence is X, which means he will serve Y, and so on. By the time the prisoner has been in prison for, say, three days, five days or a week, he or she will have been told the expected date of release. That is the retrospectivity concern. It is a serious issue that I do not dismiss, but we have to put it in a context that I have endeavoured to describe. What I find completely extraordinary is that, although rightly, the Secretary of State may revoke the prisoner’s licence and recall him to prison for breach of any licence conditions, and may—if not, why not?—do so if his behaviour while on licence gives rise to a reasonable suspicion that he is engaging in activity that represents a threat to public safety, the duty to release once the requisite custody has expired appears in practice to be absolute, or at least seems in practice to be treated as though it were. Can that be correct? If so, is it not obviously wrong—indeed, absurd—that if the deradicalisation process for an individual convicted of terrorist offences has plainly not had the desired effect, it is nevertheless the duty of the Secretary of State to release him?
I shall illustrate what I mean. In relation to the Streatham attack, we have been told that the perpetrator was subject to close police scrutiny, as I understand it, immediately or almost immediately after his release, presumably because he was believed—rightly, as it turned out—to pose a serious risk. There may have been many reasons why he was not recalled to custody. One may have been that his release had been so recent that it could have been argued on his behalf that the Secretary of State had failed to comply with the duty to release. To the extent that the answer does not compromise intelligence or create any embarrassment to anybody, the simple question is: if the Secretary of State was lawfully entitled not to release him, why was he released? If she was not entitled, given all the evidence we now know, why on earth not?
The legislation is complex and difficult. I have nothing to say about it that suggests that I am entirely happy with it, but we have to look at recent disasters, which have provided disquieting evidence that the deradicalisation processes in prison have been far from successful and that convicted terrorists, still subject to the sentence imposed by the court, have immediately resumed terrorist attacks while on licence. There is an immediate danger; we have to address it. I support the Bill.
Lord Soley (Lab)
My Lords, I will speak briefly on the question not of law—which I shall leave to others who have more knowledge than I have—but of dangerousness. I have dealt with this quite a bit, albeit 40-odd years ago when I dealt with an awful lot of serious offenders and dangerous people. At times I got predictions right and at times wrong, but the important point is that we need to look at—
Lord Ashton of Hyde (Con)
May I remind the noble Lord that there is a speakers’ list?
Baroness Neville-Jones (Con)
My Lords, I support this Bill. When supporting a Bill, I suppose it is customary to say that one welcomes it. I am sure I am not alone in this House in facing a situation I would much prefer we did not have to act on, but I recognise the urgency and necessity of this legislation and hope others also will.
It is not right for us to take unacceptable risks with the lives of the people of this country. There is no doubt—it has already been argued—that in the present situation a level of risk has arisen as a result of automatic release that should not have arisen and that should have been foreseen. It has also been said that retrospectivity in the management of sentencing is wrong. In the current crisis, if I had to choose between the expectations of prisoners about the management of their sentence and the safety of the public, I know where my choice would lie.
We are where we are. As my noble and learned friend the Minister said, we have just had two serious cases of random violence committed by individuals convicted on terrorism charges only shortly after their release, one only a couple of weeks after release. By definition, there can be very little warning to enable the agencies protecting us to deal with such activity: one individual acting alone, with no possibility of notice for those seeking to detain them. They represent a serious risk to the public, with comparatively little chance for the probation service and police to be sure that they can intercept the danger. It was a very good thing that the individual who had been released only two weeks earlier, Sudesh Amman, was intercepted by the police. We were very fortunate—thank goodness. Otherwise, the injury to the public would have been much greater.
It is wrong to court this continuing danger to the public; we cannot have further repeats. Given the number of terrorist offenders due for release in the near future, it is clear that neither the police nor the probation services have the resources to ensure that dangerous individuals never break the terms of their licence—were, indeed, this way of handling things sensible. I do not believe it is.
This emergency legislation, which places early release at two-thirds of the way through the time to be served, with the Parole Board interposing in the decision on the safety of early release, provides a necessary and welcome breathing space—and nothing more. Much has to be done to improve the underlying situation.
It is not as if this legislation solves the problems we face concerning terrorist violence. Those currently in prison, and potentially those to be convicted of terrorist offences in future, will eventually be released. The Government have promised a further Bill. I entirely accept the necessity for this legislation, but the policy which underlies how we prevent radicalisation and go about de-radicalisation must go much further and be much more effective. As the noble and learned Lord, Lord Judge, said, the penal policy is a maze of extraordinary categories; it is not at all obvious to the layman why there is so much variation between them. I hope that they can be simplified.
There is also the question of how these people are handled. We must develop more effective de-radicalisation policies and prevent radicalisation. The Minister told us about the policies being pursued, but I share the widespread scepticism about their effectiveness. There is a lack of co-ordination between those involved, and a lack of information-sharing and bringing together the many resources that are potentially available. This is an area of policy which needs a great deal more thought and, I hope, explaining to this House in due course.
There are no quick fixes. Part of the problem is that we face an emergency and must solve an intrinsically difficult long-term problem, which will take time. Even when we get the next Bill, we will not have solved all the underlying problems. I hope the Minister will say more about future intentions when he winds up.
Finally, I want to say something about TPIMs and control orders. When I was in office, there was a great deal of objection to the terms of control orders—the principle of executive detention and the nature of the restrictions imposed on individuals. I do not want us to revert to extensive use of executive detention, but policies on licences must be strengthened. I doubt whether the services involved are well co-ordinated, understand each other’s roles, work to maximum efficiency and have the finance and manpower resources.
Many things need to be fixed, but the first thing we need to do with this legislation is pass it, to give ourselves the breathing space to correct some of the current deficiencies.
Lord Falconer of Thoroton (Lab)
My Lords, I support this Bill, save in one significant respect: increasing the point at which existing prisoners will be considered for release, from half to two-thirds of their determinate sentence. I agree with noble Lords who have said that we need a breathing space, but we can achieve that simply by introducing the Parole Board and asking it to consider existing prisoners’ release at half-time.
The Bill does three things. It provides a new sentencing regime for future terrorists—I have no objection to that—and does two things in relation to existing prisoners: it increases their release date from half-time to two-thirds and prevents release being automatic, and brings in the Parole Board at two-thirds. I have no objection to bringing in the board in relation to existing prisoners, as that will allow the state to consider whether or not that prisoner is safe to be released. If we as a state need a breathing period in respect of that prisoner, bringing in the Parole Board to make a decision deals with that.
What is objectionable as a matter of principle is increasing the length of sentence retrospectively. It is a terrible agony for me to disagree with the noble and learned Lord, Lord Judge, but he did not state in a way that I found compelling the position regarding how long existing prisoners are in prison for. Where there is a determinate sentence for this cohort of terrorists, they are automatically released at half-time without the intervention of the Parole Board. It is not a matter of discretion but of duty for the Secretary of State to release them. If the Secretary of State did not do so, there could be litigation and she would be compelled to do so.
If that period is increased from half-time to two-thirds, the sentence is increased retrospectively. What is so objectionable about retrospectively increasing a sentence is that it is not the courts that then decide how long the person is in prison for, it is the Executive or the legislature deciding, frequently pursuant to public pressure. That really undermines the rule of law.
Should we allow that? Article 7.1 does not allow it at all under the Human Rights Act; there is no entitlement to derogate from that principle, because that is the way despots behave. The common law is more flexible; it will allow derogation from the principle of retrospectivity by saying, as we are doing, “All your sentences are increased from half to two-thirds.” Whatever sophistry is put forward, that is what is happening. The justification is given, and the noble Baroness, Lady Neville-Jones, put it well, that we need a breathing space. But you get your breathing space if you bring in the Parole Board to look at half-time and determine whether you can release that person, and do so only if it is safe to do so.
If and to the extent that one needs to take a proportionate step to protect the public—everybody who has debated this so far, including me, agrees that a proportionate step needs to be taken—that step is to let the Parole Board say, “Is this person safe to release?” If he or she is not, they are not released at half-time and you have the breathing space. I can see no justification whatever, whether it be under common law or the human rights convention, Article 7.1, for saying, “Up it from a half to two-thirds.” It is worth pointing out that the person who committed the atrocities in Streatham would have been released four months later if his custody had been increased from a half to two-thirds. He would not have been released at all until the end of his sentence if the Parole Board had been brought in, so you solve the problem by bringing in the Parole Board.
I am very happy to say that the noble Lord, Lord Anderson of Ipswich, has tabled an amendment that accepts the proposition that the Parole Board should be brought in at half-time in relation to existing prisoners, but puts to one side the increase from a half to two-thirds. That is the right course for the legislature to take to deal with the problem of the risk and to deal with the need to give a breathing space. That would not infringe the principle that we have always accepted. We should not as a legislature say to a group of people—whether justified or not, because it will not be justified to keep some of those people in beyond half their sentence—that we the legislature, not the courts, are deciding what your sentence is.
Lord Beith (LD)
My Lords, it is a pleasure to follow the noble and learned Lord in his powerful speech, and I will return to his key point. But I first want to indicate that the Constitution Committee was concerned about and very much regrets that this is a fast-tracked Bill whose scrutiny is therefore curtailed. The committee points out that scrutiny of the second terrorism Bill, which we are expecting later in this Session, must take account of the provisions of this Bill, which will be revisited at that point. Indeed, the Government’s Explanatory Notes almost imply that that is an alternative to the post-legislative scrutiny that they are not providing for. My noble friend Lord Marks has tabled an amendment for Committee—and I have added my name to it—requiring a one-year review. Even though many of the effects of this Bill will take time to show, the way in which it has been rushed through as fast-tracked legislation requires it to be reviewed early.
There is fairly widespread agreement on requiring all offenders covered by this Bill to be subject to Parole Board assessment as a condition of early release. That is a necessary response to the threat posed by ideologically driven terrorists who may have been convicted of lower-level offences but show no clear sign that they are likely to desist from terrorist activity when released. It is right and not an egregious form of retrospection that existing prisoners should now face a Parole Board assessment, but I question whether that could not better be done and would not better address the more serious retrospectivity concerns at the halfway stage, when they currently expect to be released, rather than at the two-thirds point.
At either point, the power of the Parole Board not to release is, in my view and in all the circumstances, a reasonable variation of the way in which the total sentence is to be served. It is not clear to me that much if anything is gained for public safety from denying that assessment until a later point in the custody of existing prisoners—a later point that either they or the sentencing judge would expect to be the one when they would be released. The sentence is the whole of the sentence, not just the custody part: the assumption that custody is the only significant part of the sentence is wrong, and it bedevils much discussion of criminal justice policy more widely. However, I see no justification for the move from half to two-thirds for the point at which the Parole Board makes the assessment in respect of existing prisoners.
That brings me to the reality of the threat. These people will be released—fairly soon in many cases. A year or two added to the period of custody solves nothing. It does not of itself turn terrorists into peace-loving, law-abiding members of the community. Moreover, it is a fallacy to say that committed terrorists are a danger only when they are released. Some of them could pose more harm through their activities in prison than they might do outside. Prison presents them with a ready supply of vulnerable, resentment-filled potential recruits and with the time and opportunity to groom and train those people to do massive damage when they are released.
A transformation of the prison system is required, so that it has the means, the people and the skills to engage in a serious deradicalisation programme. I simply do not recognise as the present reality of the prison system the description that the Minister gave us of the measures that the Government either are undertaking or believe they will be able to undertake in that respect. It will require effective separation of radical recruiters from those whom they seek to draw into their evil activities and structures. It will be impossible to do these things while our prison system is hopelessly and increasingly overcrowded, understaffed and underresourced. We need to take some of the other pressures off the prison system, including from longer sentences, to enable this to be achieved at all. As the noble Baroness said earlier, it also requires a substantial commitment to the probation service and other relevant agencies such as the police and the security services.
We also have to consider the warning from Jonathan Hall, the independent reviewer, that the Bill creates a situation in which standard determinate-sentence offenders will be released without ever having been subject to licensing conditions, even though they have been judged as high risk and therefore not released until the full term has expired. This, he points out, creates a cliff edge at release, when it might have been more effective to have at least a period of release under strict licence conditions as a prelude to unconditional release at the end of the sentence.
We will look into these issues at Committee stage later tonight, but we need to remind ourselves that the potential of this Bill to reduce or eliminate future terrorist activity is small. It will affect relatively few terrorists or potential terrorists—mainly those it has been possible only to convict of lower-level offences—and it relies on a prison system that does not have the capacity, skills, resources or even space to prevent terrorists from posing almost as great a danger from inside prison as they will pose when, inevitably, they are released.
Lord Anderson of Ipswich (CB)
My Lords, we are here because of the brutal and despicable knife attacks committed recently by former terrorist prisoners in Fishmongers’ Hall and in Streatham. Given the prominence of such attacks in the national consciousness, a political reaction is inevitable and wholly understandable, but let us not forget that attacks by former prisoners, though an ever-present threat, are, thankfully, unusual. As the Minister recently informed me in a Written Answer—and I thank him for that—of the 196 prisoners in Great Britain convicted of terrorism-related offences and released between 2013 and 2019, only six, just 3%, have been convicted since their release of further such offences. Indeed, scholars tell us that low recidivism rates are characteristic of terrorist offenders across the western world.
Urgent and piecemeal legislation of this kind, as the noble and learned Lord, Lord Judge, has said, rarely makes for optimal results. Even after this Bill becomes law, non-terrorist offenders subject to standard determinate sentences will continue to be released automatically at the halfway point, despite far higher recidivism rates. The differential treatment of terrorist and non-terrorist offenders and improvements to the bewildering variety of regimes for sentencing terrorists would merit a reflective debate. Given the timetable for this Bill, I fear that there will not be time for that.
Let me accept the premise of the Bill that terrorist offenders should not automatically be released before the end of their custodial term, and focus on four detailed matters, of which I put the Minister on notice in a letter of last Tuesday and on which I look forward to hearing his response at the end of this debate.
First, there is the question of its retrospective application to existing prisoners. There is force, as the noble Lord, Lord Pannick, said, in the Government’s position that the Bill does not contravene Article 7 of the European Convention on Human Rights. However, just because we can do something does not mean that we should. It is a long-established principle of our law, expressed judicially by no less an authority than the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that,
“existing prisoners should not be adversely affected by changes in the sentencing regime after their conviction”.
That principle was given effect, as has been said, only a few weeks ago, when existing prisoners were exempted from a change to the release point for serious violent and sexual offenders under Article 5(a) of the Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019.
I accept that recent events and the risk of copycat attacks are enough to justify Parole Board involvement, even in the case of prisoners already sentenced. However, I echo the noble and learned Lord, Lord Falconer, in asking what additional purpose is served by moving the first possible release of existing prisoners from the halfway to the two-thirds point of the sentence. We know that this will result in the continued incarceration, without regard to their personal circumstances, of some prisoners who were sentenced on the basis that they are not dangerous and pose no continuing threat to the public. Those prisoners were told by the sentencing judge that they would be released at the halfway point. What purpose is served by delaying their Parole Board assessment any longer? The point might appear a narrow one, but it is of real consequence for the liberty of the individual, particularly if this departure from established legal principle is to become a precedent. Therefore, I have tabled three amendments in the hope that they will elicit from the Government more persuasive justification for this feature of the Bill than has been advanced to date.
Secondly, there is the non-application of the Bill to Northern Ireland. Naomi Long, Minister of Justice in the Northern Ireland Executive, said last week in the Assembly that in her opinion there was no barrier to the legislation being applied UK-wide and that this was her preference because she was concerned about what she called
“the risk of a two-tier system”
within the UK when it comes to the paroling of terrorist prisoners. I am grateful to the Minister, the noble Baroness, Lady Williams, for meeting me to talk about that, but can the noble and learned Lord, Lord Keen, tell us whether the intention is in due course to extend the provisions of the Bill to Northern Ireland, and, if not, why not?
Thirdly, there is the issue of how to manage the risk from offenders released at the end of their sentences. On 22 January, in the debate on the order that I have already referred to, the noble and learned Lord the Minister rightly said:
“It is crucial that when someone is given a custodial sentence, they spend part of this sentence under supervision in the community.”—[Official Report, 22/1/20; col. 1115.]
How is that principle to be given effect in the case of a prisoner who, under this Bill, will reach the end of his sentence without the Parole Board concluding that he can be safely released?
Reference is made to TPIMs: powerful instruments which, since their welcome revision in 2015—in which I should declare an interest—have provided for all the restrictive measures previously associated with control orders. However, as of 31 August 2019, only three were in force. Why so few? Are they too cumbersome? Are they being applied as flexibly as the law permits? Is the Minister satisfied that such measures are an adequate substitute for the period of release on licence that my successor as Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, suggested last week should be there for all terrorist prisoners, including those on determinate sentences, in the interests of public protection?
Fourthly and finally, it is unfortunate that we should be debating terrorism legislation without the latest annual report of Jonathan Hall QC. I understand that his report was submitted to the Home Office on 7 November last year. All fact-checking and security checking was completed by 10 January. There is an obligation on the Home Secretary under Section 36(5) of the Terrorism Act 2006 to lay a copy of this annual report before Parliament “on receiving” it and
“as soon as the Secretary of State is satisfied that doing so will not prejudice any criminal proceedings”,
which is not an issue here. In the circumstances, it seems that the Home Secretary is under a legal obligation to publish that report forthwith; it is simply not a matter for discretion. The whole point of the independent reviewer, going back as far as the 1970s, is to inform those of us who are expected to pass laws in this heavily classified area about how the existing laws are operating. Can the Minister confirm the legal position as I have outlined it and ensure that we have the independent reviewer’s report straightaway and in good time for the further Bill that he referred to?
The Lord Bishop of Gloucester
My Lords, I am grateful to those contributing to this subject today who have far greater knowledge than I do, and I will aim to keep my comments brief.
Certainly, if a society that relies on government to deliver justice has lost confidence in the current system, it is right that we try to address those fears, and we must look at the bigger picture. I share concerns already expressed about the manner in which this legislation has been brought before the House, and particularly the very short time that we have to consider it.
If the justice system is to serve the common good and the flourishing of people and place, there needs to be an emphasis on a radical mutual responsibility, in which we are all truly responsible for one another. Offenders must be expected to take responsibility for their actions. This should be about not only taking the consequences and punishments imposed by a criminal justice system but having the opportunity to take responsibility for past actions, and the possibility of taking responsibility to restore their relationship with society.
What is our responsibility? There are undoubtedly some affected by the measure today for whom time in custody is absolutely vital if they are to have any hope of rehabilitation and a future contribution to society that is about good and not harm. Yet, as has been said, the current condition of prisons and numbers of staff, not least those with experience, means that the Prison Service simply does not have sufficient resources to live its responsibility to ensure a genuine opportunity for rehabilitation, and thus a safer society. Sadly, I do not recognise the picture that the Minister painted of the adequate input already available in prison, not least from my discussions with chaplaincy teams.
As has already been said, it is unsatisfactory that the Bill before us has been produced in isolation from legislation that addresses the urgent need for significant support and reform of the Prison Service and probation services. Given the status quo of our criminal justice system, we will not automatically improve public protection by simply keeping some of these offenders in prison for more of their sentence and removing time spent on licence supervised by the probation service. I am concerned that we might perpetuate a myth that people will be safer because of this Bill.
Given that the legislation will give the Parole Board an expanded role, I hope the Minister can give us assurance that the Parole Board will be appropriately resourced to carry out its task, given the complex nature of determining risk in these cases.
The old adage says that hard cases make bad law. In the light of the tragic events of past months, it is certainly understandable that the Government should want to act to ensure public safety. I want that too. However, I have some fear that tinkering with parts of the system may prove to create as many problems as it solves. I look forward to hearing the rest of this debate.
Baroness Buscombe (Con)
My Lords, it is a pleasure to follow the right reverend Prelate the Bishop of Gloucester. I am in favour of the Bill; it is a critical stepping-stone to fundamental and urgent reform that will require courage, honesty and acceptance of what is happening in this country, particularly in our prisons. Let us not forget that we are talking about sentencing for treason; a heinous act against our sovereign and our state that has become almost commonplace in this country in recent years.
A recent and brilliant article in the Spectator written by Ian Acheson, and already referenced by the noble Lord, Lord Marks of Henley-on-Thames, refers to the awful reality that our prisons are fuelling radicalism, not fighting it. He references the fact that, of 82,000 prisoners, about only 220 are terrorists—but “only” 220 is an appalling number.
Our sentencing rules do not take account of this reality. As a barrister with 43 years’ call, I believe that reform of our sentencing rules is absolutely overdue. They have not, to my mind, made sense for some time. As the noble and learned Lord, Lord Judge, has explained so well, they are overcomplicated and so often misunderstood. To many living in this country now, the current rules do not incentivise good behaviour. Rather, they are a sign of the weakness of the state and do not command respect. For many people, where there is a conflict between our rule of law and their religious beliefs, the latter takes precedence.
I want to use this opportunity to share with noble Lords a specific case which I feel speaks volumes and demonstrates a truth which has shocked me personally. I hope this will discourage any suggestion that a tough and fundamental review of our approach to terrorism and sentencing, and a radical reform of our prison and probation systems, are not needed.
I will not declare my source, for obvious reasons. However, I ask noble Lords to accept the veracity of what I am going to say. It relates to a Christian family I know, for whom I have great regard and to whom I pay tribute for their courage in sharing with me the experience of one young man among them who, four years ago, aged 20, did time in a category A prison. He has had mental health issues since about the age of five and suffers from a complex range of learning difficulties. During his time in prison, he was regularly approached by Muslim prisoners and encouraged to convert to Islam. The message, to be exact, was, “If you convert to Islam, you will have a better life in here, and we will protect you”. Various incentives and enticements were offered to put pressure on him to convert; one was the opportunity to meet, without being overheard by the prison authorities, every Friday at 1 pm for prayers, where “stuff” was planned. Other enticements were repeatedly offered to him—I did not press for details.
I asked his mother whether this was an isolated case. She said, “This is a massive issue across all our prisons and everybody knows about it, including the prison authorities, but they turn a blind eye because they do not want to be personally attacked, and, anyway, they would be accused of racism”. The main targets for conversion are young men like my source, who are vulnerable, often with complex issues, and who probably should not be in prison at all. To put it bluntly, they are easy targets. It seems that many convert to Islam for the promise of an easier life, and just some are able to forget what they have learned when they leave prison. However, let me be clear that this is not a sound reason for opposing the Bill, as suggested by the noble Lord, Lord Marks: it is not an argument that people should not remain longer in prison because of radicalisation. Rather, it means that we need fundamental reform.
I keep using the word “respect”, and I hope noble Lords will allow me to explain why. Some 23 years ago, I fought the parliamentary seat of Slough. I am still haunted by what young Muslim men would say to me then: “Peta, we like you on a personal level but we don’t respect you people because you are all weak, because you do not stand up for what you believe”. I entirely understand those young men and boys, who were, notwithstanding that they were born and brought up in Slough, living a hard, parallel life, stuck between two different cultures: one largely secular, in good local schools; the other within a strict regime of work and prayer at home, where their parents—their fathers in particular—demanded a separate way of life. I witnessed it for myself. In essence, they were not free to mix beyond the school gates with their school friends from other faiths. As for the girls and young women, I was not even allowed to look at them in their homes, let alone talk to them, even though I may have spoken to them earlier in the day in their schools.
1 recall saying to my husband back then, “We are storing up enormous trouble in this country, with so many largely intelligent, angry and isolated young men”—and that was before 9/11. Is it much different now? I doubt it. Why should it be while we just carry on talking about working together, spending more money on so-called local community projects and undertaking endless departmental reviews, leading to reports that are then shelved and metaphorically marked “too uncomfortable”?
In essence, our reform must take account of cause: of what leads to radicalisation and terrorism—the bigger picture, as the right reverend Prelate has said. We need to have the courage to face the truth and embrace the need for fundamental reform. It is time for tough love and to show wisdom and determination, given—as my noble and learned friend the Minister has said—the unprecedented gravity of the danger we face.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, although down the years I have had quite a lot of experience of terrorist cases, I recognise that I am already out of date and lack the enormous expertise of several noble Lords who have spoken in this debate—and several more who are yet to speak. I will not name them: that would be invidious, as it would imply that others lack that expertise.
I will confine myself at this stage—Second Reading—to one or two generalities, and will leave to others discussion of certain important questions that arise, and the balances that need to be struck. One that has already been identified by the noble Lord, Lord Anderson, is on the one hand the benefit of keeping terrorist prisoners incarcerated for the maximum period permissible under their existing sentence, and on the other hand ensuring a post-release period on licence that may help to reduce the chance of reoffending.
There are a number of other such difficult balances to strike—tensions within the legislation. The noble and learned Lord, Lord Falconer, raised the question of the Parole Board coming into the picture at the halfway stage, as opposed to two-thirds of the way through. I am not sure that he was right to say that if the Streatham prisoner had failed to convince the Parole Board at the appropriate stage, he would not have been freed. He would have been freed; he had a determinate sentence and would inevitably have come out at the end of it.
The broad generalities I want to voice are these. First, having looked quite carefully at the Strasbourg jurisprudence on this, including the various cases discussed by the noble Lords, Lord Marks and Lord Pannick, I am reasonably satisfied—like the noble Lord, Lord Pannick —that there is no serious risk of this legislation being held to contravene Article 7 of the convention. Notwithstanding what the noble Lord, Lord Anderson, said about a past decision of mine—a case called Stellato, I think—it would be my hope and expectation that our own domestic courts, in applying our own historic common law, would not feel it appropriate to be “plus royaliste que le roi”—in other words, to go further than Strasbourg in condemning what is proposed here as being outwith the powers of the legislature.
My second generalisation is that the problems posed by terrorist offenders are different in kind from those posed by other categories of offender. Of course it is true that some sex offenders, and others with a history of violence, have an undoubted proclivity towards those peculiarly destructive and distressing forms of criminality. But what so frighteningly distinguishes terrorists is their zealotry—their compulsion to kill and maim in furtherance of fixed doctrinal beliefs. They are driven to commit atrocities even at the cost of sacrificing their own life. They pose, therefore, a specific and singular threat.
Thirdly, while I am essentially supportive of the Bill’s approach—keeping terrorists longer under lock and key and releasing only those who prove that they are genuinely no longer intent on causing mayhem to others—I shall continue to espouse the cause of other types of criminal, notably most of those remaining under the IPP scheme, who are still detained seven and a half years after it was abolished, as the ill-starred project that it was, often having served 10 or 12 years beyond their due punishment. Their plight should continue to be examined sympathetically and not regarded as being in any way overlain by the terrorist threat of one or two others in that same category.
Finally, this country still has far too many indeterminate-sentence prisoners and life prisoners: more than double the numbers in Italy, France and Germany combined. As we have debated often enough in this House—or perhaps not often enough—we also have grossly overcrowded prisons, resulting in the well-known problems of violence, self-harm, appalling attacks on fellow inmates and prison officers, and problems of substance and drug abuse, which in turn prevent engagement with appropriate rehabilitation measures. So, although I am, as I indicated, supportive of the Bill in the round, we need to recognise, and try to find the means to ameliorate, the inevitable effect that this legislation will have, both on the number of indeterminate sentences and of course on overcrowding in prisons.
Lord Harris of Haringey (Lab)
My Lords, I refer to my police and security interests in the register.
I am grateful to the noble and learned Lord for his introduction to the Bill. He has assured the House that this measure does not breach Article 7 of the European Convention on Human Rights and does not impose retrospective punishment on the prisoners affected. I am a non-lawyer, so I have listened with great interest to the points made by a number of noble and learned Lords, noble Lords who are QCs and, in particular, to my noble and learned friend Lord Falconer of Thoroton. To my simplistic, non-legal mind, it seems fairly clear: if a prisoner has been sentenced to a particular term of imprisonment, with the clear expectation, backed by statute, that he or she will be released automatically after half that time, under the Bill it will seem to the prisoner as though, retrospectively, that position has been changed. However, the Minister is a law officer, and I was always taught that we should accept the advice of law officers. It will no doubt be tested in the courts and we will then see how valid it is.
The Minister has told us why the passage of the Bill is urgent: that there are prisoners who, if it does not pass, will be released in a matter of days and present a real and present danger to the public. The urgency has led to the Bill being considered in the House of Commons in a single day and the expectation that your Lordships’ House will do the same. Such procedures are rare and exceptional, and I do not doubt that there is an urgency to today’s proceedings, but that urgency, and indeed the need for these emergency procedures, is entirely the fault of the Government. We are in this position today as a consequence of irresponsible recklessness over the last few years.
Automatic release has been in place throughout the lifetime of this Government. It was known that terrorist offenders were covered by such automatic release, yet nothing was done. The Government have known the numbers of those involved, and when they were due to be released, but despite that knowledge they waited until now to do something about it. The first duty of any Government is to seek to protect their citizens from harm, so why have they waited until this month to do so? Had they acted even a few weeks earlier, the events in Streatham would not have occurred. This was a foreseeable issue, yet nothing was done.
What is more, the Government have presided over an increasingly failing prison service, which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred to. The prison service actually fosters alienation and radicalisation; the noble Baroness, Lady Buscombe, referred to an instance of that. It is so overcrowded and understaffed that effective rehabilitation programmes are, in most cases, no more than a fantasy. Prisons and the probation service are in crisis. A RUSI commentary earlier this month found self-harm was at a record level, that the service struggles
“to provide adequate rehabilitation and community supervision services to offenders post-release”,
and that staff shortages mean weekly case-load targets cannot be met.
The Prison Reform Trust reminds us how overcrowded our prisons are. The prison population already exceeds the number of available decent cell spaces by around 8,000. In practice, the Government do not have a prison policy. The numbers do not add up, and our jails are in chaos. In the final days of the last Parliament, the House of Commons Justice Committee noted that since 2016, just three years ago, the Government had made 378 separate and largely unmet promises on prisons. As the committee put it, the Government’s approach is “policy by press release.”
In 2014, the then Prisons Minister—I think there have been five since then, but I may have missed one or two along the way—asked me to review the self-inflicted deaths of young people in prison custody. My report was published the following year and concluded that, because of staff shortages and the physical condition of the estate, the prison environment was grim, bleak and demoralising to the spirit. Operational staffing levels were so inadequate that prisoners could not be sufficiently engaged in purposeful activity and that time was not spent in a constructive and valuable way. Planned core day activities that might help rehabilitation were cancelled. Even medical and mental health appointments were being missed because there were insufficient staff to escort prisoners to those appointments within the prison.
This has not got significantly better in the last four years. In fact, the situation is worse. The Bill is urgent only because nothing was done to address the underlying situation much earlier. The Government have known that some terrorist prisoners were subject to automatic release. This is not something the Minister and his colleagues have suddenly discovered, yet nothing was done until now. The Government have presided over a rapid deterioration in our Prison Service, which has faced budget cuts substantially above those in other departments.
My report in 2015 and successive reports from the Chief Inspector of Prisons have highlighted the appalling conditions in our jails. Peter Clarke in his most recent report says that
“far too many of our jails have been plagued by drugs, violence, appalling living conditions and a lack of access to meaningful rehabilitative activity.”
The Government’s response has been too little and too slow. Ian Acheson, whose report has been referred to several times, in his review for the Government on Islamist extremism in prisons highlighted issues affecting precisely the prisoners whom this Bill is concerned with. The Government’s response to his recommendations has at best been patchy.
The Government have no excuse. They knew what was happening: prisoners were coming up to the time of automatic release and would present a danger to the public. All this Bill does is postpone the problem: prisoners will still come up for release, maybe a few months later or maybe a year or so later, but it will still happen. The key question is whether the Prison and Probation Service and the Parole Board will have sufficient experienced and suitable expert staff available to ensure that individual prisoners of concern are receiving a proper level of supervision, proper assessment and appropriate support and that deradicalisation and rehabilitation are delivered. As an aside, could the Government assure us that they actually know what works in deradicalisation?
We on this side of the House do not question the need for the right measures to be put in place to protect the public. Automatic release is not appropriate and it is right that there be a proper assessment of the risk that individuals may pose before they are released. However, the Government have been silent on the resources needed and, without proper assurances on that, the Bill is no more than a sticking plaster that will do no more than provide a late temporary fix to a problem that is of the Government’s own making.
Lord Garnier (Con)
My Lords, I remember during the Tony Blair and Gordon Brown Governments making more or less exactly the same speech that the noble Lord has just made, in criticism of the then Labour administrations. There is no perfect answer to the questions of counterterrorism measures and the management and organisation of our prison estate. Governments of both political complexions have made mistakes. I am not sure that the debate is hugely advanced by the remarks of the noble Lord, but he is entirely free to make them. This is, of course, a proper subject of parliamentary, government and public concern. The two events that have most closely touched us—at Fishmongers’ Hall and on Streatham High Road—reinforce the need to deal with these questions as best we can and the pressure on the Government to protect the public from terrorists.
I largely agree with the remarks made by the noble Lord, Lord Anderson, whose amendment I support, and indeed with a lot of what the noble and learned Lord, Lord Falconer, said. We are talking about matters of judgment, essentially, and I do not think we need to ascribe ill motive to this or any earlier Government when it comes to dealing with these problems. They are hugely complicated and difficult, and it is very rare to find a right answer.
The noble and learned Lord, Lord Judge, put the hugely complicated sentencing system in context. Although his experience as a sentencer is hugely greater than mine, I remember that on the occasions when I used to sentence people as a Crown Court recorder, they were not interested in the explanation behind the sentencing regime—they just wanted to know what the number was. When the number came out, they went downstairs and off they went. If they now find that, retrospectively, that number has been increased from a halfway-point release to a three-quarter point release, that will create understandable tension in the prisons in which these people live. I do not mind whether or not this complies with Article 7. I do not think that the man in the dock, or the prison governor looking after him, is hugely worried about the legal niceties; he is concerned about the practical effect of what we are proposing. If we change the halfway point to the three-quarter point for those already sentenced—whether it is an administrative adjustment or a change in the sentence—we are both misleading ourselves about its effectiveness and being unfair.
You may say that those sentenced for terrorist offences do not deserve fairness, but take Sudesh Amman, who was at the centre of the Streatham High Road event three weeks ago. He was sentenced to three years and four months, essentially for uploading terrorist material. Although he was released early, he was the subject of armed police surveillance. It seems to me—this was a point touched upon by the noble and learned Lord, Lord Judge—that if such a person is thought suitable for armed police supervision, despite getting a relatively short sentence in the sphere of terrorist law, he might be the sort of person who ought not be released at all. In the context of the timeframe in which this activity took place—he was released just before Christmas and was causing trouble on the streets of Streatham in February—one must think that somebody has some questions to answer about why he was released, despite the usual rule being that you are released at the halfway point. However, as I said a moment ago, sentencing is not an answer in itself. Retrospectivity is a matter which will cause problems, both for the people who manage prisons and for those who look after prisoners once they have been released.
There is another thing we need to warn ourselves about. If there is a Division tonight, I will vote in favour of the Government’s proposals, but with some degree of qualification. We need to be careful that we do not allow ourselves to think that keeping someone in prison for a further period without coming to terms with what is going on inside their head is going to solve the problem, other than by keeping that person off the streets for that limited additional period. The number of people who have gone through deradicalisation treatment or training or education—call it what you like—and who have then come out of prison and never committed another offence must, I suspect, be unknowable. The success rate of deradicalisation is quite low, but that should not discourage us from making sure that those who organise and teach deradicalisation schemes are not demoralised by the events in Streatham and Fishmongers’ Hall. Those terrible events caused great distress to the victims of those two individuals. However, I urge the Government not to allow themselves to tell the public that this measure by itself is the answer to the problems—because it is not.
Lord Carlile of Berriew
My Lords, I think it is clear that we are all trying to achieve the same during the course of this debate: to keep the public safe from terrorists by the best means lawfully available. This Bill has been presented as a fast-track Bill, but in my view, although it is certainly an urgent matter, it does not justify for one moment being one. The sentence release dates of the prisoners we are talking about have been known since the day they were sentenced to the precise day, and there is quite a large number of them. Certainly some of them have committed despicable and appalling acts, but to say that this was not predicted and is therefore an emergency seems to be wholly misleading.
On the subject of retrospectivity and the law, I am going to use an Americanism and say that I will not repeat everything that others I agree with have said; I will simply say that I am going as fifth chair to the noble Lords, Lord Marks, Lord Anderson and Lord Garnier, and the noble and learned Lord, Lord Falconer, who expressed views on retrospectivity that I share.
I would like to join with the noble Lord, Lord Anderson, in his remarks about TPIMs. I respectfully do not agree with what the noble Baroness, Lady Neville-Jones, said earlier about control orders, and indeed it may be that she was confusing control orders with executive detention—a term she used—which was what control orders succeeded. I am astonished that at one point at the end of last year, only two TPIMs were in existence. They are available to deal with people such as Usman Khan, they have stringent measures, and if Usman Khan or Mr Amman had been subject to a TPIM with sufficient measures, obviously neither of them would have done what they did after their release.
I also share the concern of the noble Lord, Lord Anderson, about the failure to publish the report of the current independent reviewer, Jonathan Hall, QC, which has now been with the Government for many weeks. I have to declare my interest as a former independent reviewer, and I have a slight concern that what has happened is either a deliberate slight on the role or a deliberate slight on the reviewer; I cannot think of any cogent explanation of why Mr Hall’s report has not been published.
I have probably spent more time sitting with defendants in cells than possibly anyone else in the Chamber. I cannot remember what kind of practice the noble Baroness, Lady Buscombe, had, but what actually happens? The defendant concerned may be deciding whether or not to plead guilty and may well be faced by counsel or leading counsel saying, “Well, you’re going to be convicted so you’d better plead guilty, because if you do that you’ll get a shorter sentence.” That is a truncation of a typical conversation that takes place in the cells, and I have been involved in countless such conversations. So what do they say? “How long will I do?” If you are very plucky, you venture something like, “I think you’ll get eight years”—usually meaning that you hope they will get six—“and you’ll do four.” That is what is fixed in their mind.
But it is not fixed just in their mind. Like the noble and learned Lord, Lord Garnier, I have sat as a recorder in many criminal cases. I have known perfectly well to the day that, if I passed a sentence of eight years in the circumstances I have described, I was taking part in a fiction that judges are forced to carry out. I would rather they did not—I would rather they passed the sentence that will be served—but the judge knows that that person is going to do four years because of automatic release at half-time. So, whether the noble Lord, Lord Pannick, is right or not, do we really want to introduce a law of this kind that makes the court a double teller of untruths? I therefore have real reservations about this legislation, given particularly that there are other measures available.
The noble and learned Lord, Lord Judge, in his own inimitable way, did not put us to sleep, but he made it clear that if you know anything about the law of sentencing, it is a great cure for insomnia if you start thinking through it at night. It is extremely complicated. But what the sentencing judge does not have in these cases is a proper detailed analysis of the terrorism offender whom the judge is sentencing. There is no hurry in sentencing these cases: desistance and disengagement programmes can be considered, and the judge can be given an opinion before passing sentence.
But what happens in prison? I was visited last week by somebody who told me, on the basis of very sound knowledge—I am not going to identify that person—what has been going on in Whitemoor. In that prison very recently, there was an attack on prison staff which was, I am told, an attempted beheading. The people who were carrying out the attack were—at least in some cases—subjects of desistance and disengagement programmes. But there is no structure to those programmes; there is no peer review to those programmes; there is no real analysis of those programmes. If the Minister were to go to Whitemoor and ask the staff on the wings what the effect of those desistance and disengagement programmes was, he would be told that they were completely ineffective and poorly planned. Usman Khan was in that prison, as I understand it, and any person working on the wings would have told anyone asking the right question, “He is completely unreformed; he is absolutely determined to go out and cause mayhem as a radicalised terrorist.”
We should really be focusing our discussion—in the broader debate about these issues—not on the narrow nature of the Bill but on how we should structure desistance and disengagement programmes. They do work for some people: I know some people for whom they have worked. The Prevent strand of counterterrorism policy is doing great work; some people have been decorated for doing that work. But we need to make sure that what we are doing with the cohort of people concerned either works or we know that it is not going to work, so we can make the right decisions at the right time in a lawful fashion.
Lord Dholakia (LD)
My Lords, I welcome the contribution from the noble Lord, Lord Carlile, and I support what he has said. Having worked in the criminal justice system as a volunteer and having talked to many professionals involved in the system, it is obvious that there is no such thing as total security and safety for all our citizens. It is for this reason that we have to be very careful: great care must be taken to ensure that in ratcheting up the release mechanism, this legislation is not counterproductive to the objective of reducing terrorist activities in our country.
The atrocities perpetrated by terrorists outside Fishmongers’ Hall and in Streatham High Road brought home to all of us the need for continual vigilance against the terrorism threat. As the House knows, both the perpetrators had recently been released automatically from determinate sentences after serving half the sentence in custody. In the face of these events, I accept the Government’s argument that speed is necessary in legislating to prevent the further automatic release of similar offenders in the very near future. I also accept the argument that offenders of this type should be required to undergo a risk assessment by the Parole Board before they can be released.
I was privileged to serve some years ago on the committee of the noble Lord, Lord Carlile, which reviewed the parole system. The parole system is an effective way of dealing with offenders in the criminal justice system. At times in the recent past, the board has been subject to misplaced and ill-informed criticism in some quarters. It is therefore gratifying that its expertise in assessing risk and safeguarding the public has been recognised on all sides during the passage of this legislation. The proportion of offenders of all types who are released by the Parole Board and who commit a further serious offence is less than 1%. In any system based on human judgment, it would be difficult to improve on that record.
When the board is considering the release of offenders convicted of terrorist offences, additional measures are in place to ensure that these cases are considered by members with expertise and training in terrorist matters. There is no doubt that the public will be better protected if the release of such offenders is subject to prior consideration by the Parole Board. I therefore support the Bill’s replacing automatic release in these cases with release at the discretion of the Parole Board. However, I have a number of caveats, which are important if we are to get the right balance and guard against the risk that rushed legislation may turn out to be flawed legislation.
The first caveat relates to the additional time that some offenders will serve if the Parole Board concludes that it is not safe to release them. These offenders are serving determinate sentences, so they will be released at some time in the future. It is therefore important that while they are in custody, we deploy the most effective measures possible to counter and change their mistaken beliefs. This means countering them through both offending behaviour programmes focused on terrorism, and through chaplaincy-based programmes seeking to produce a more appropriate understanding of the faith and its requirements for peaceful behaviour towards others. We should keep the effectiveness of deradicalisation programmes under continuous review to ensure that they are designed and delivered to have the maximum impact in challenging and changing people’s pro-terrorist beliefs. I welcome the establishment of the new counterterrorism programmes and interventions centre within Her Majesty’s Prison and Probation Service. I urge the Government to review, publish and act in the near future on information and research on the most effective approaches to radicalisation.
My second caveat relates to the change in the minimum term which offenders serving sentences for terrorism-related offences must serve before they are considered for release. I have already expressed my support for making the release of these offenders dependent on a Parole Board assessment of risk. However, under the Bill, even offenders who have been deradicalised and rehabilitated and whom the Parole Board judges safe to be released will not be released at the halfway point in their sentence and will have to wait until two-thirds of the sentence has elapsed. It is difficult to see how this is supposed to increase public safety. If Parliament decides that it wants this category of offender to serve longer in prison for punishment or deterrence reasons, for example, that is surely a decision to be taken with full discussion and debate in the normal course of a future Bill’s passage through Parliament. It is difficult to see the justification for making this change in a Bill which is being rushed through all its stages in a couple of days on the grounds that public safety requires it.
I accept that an emergency justifies emergency legislation to require a Parole Board assessment before release, but it is difficult to see a similar justification for changing the release eligibility point for offenders serving existing sentences who would receive a favourable risk assessment by the board. Jonathan Hall, QC, the Independent Reviewer of Terrorism Legislation, has made this point in his note on the legislation:
“unless there is a clear justification for retroactively changing the earliest release date for this set of prisoners, it sets an uncomfortable precedent for retroactive alterations to the release dates for other offenders who are currently serving sentences of imprisonment. In summary, whilst consideration by the Parole Board of all terrorist offenders prior to release is sensible and to be welcomed, it is unclear to me why this consideration needs to be delayed until two thirds of the sentences of prisoners—who would otherwise have been released after one half—have elapsed”.
My third caveat is that if an offender is not released by the Parole Board at any point before the end of his sentence, he will be released with no requirement for compulsory supervision by the Probation Service and with no licence conditions. Perhaps the Minister can explain the Government’s position.
My final caveat is that it behoves us to ensure that any legislation which is being pushed through the House in haste must be subject to a formal independent review in the near future.
In conclusion, I am willing to support the position taken by my noble friend Lord Marks because I accept the need to ensure that prisoners serving sentences for terrorism-related offences are released only if the Parole Board assesses it is safe to do so. The Government and Parliament must continue to take responsibility for ensuring that the legislation is closely monitored in practice and that prompt action is taken to remedy any defects or injustices identified in the course of its implementation.
Lord Balfe (Con)
My Lords, I am not a lawyer, but I have listened with great interest to those lawyers who have spoken today. I start from the position that many people in Britain do not understand why this law is necessary, because the common belief is that if people are sentenced to a prison sentence, they serve it. It is only here that we learn of all the nuances and the way in which sentences are two-thirds, one-third or a quarter or dependent on the Parole Board. The fundamental belief of people in Britain is that, if you are sentenced to a term in prison, you should serve it. There may be a reason for having an early release, supervised by the Parole Board, on clear grounds of good behaviour or by being eligible for release for other reasons, but the idea among most of the general public is that, when people are sentenced to a period such as in the headline “X gets five years”, that should mean five years.
My starting point is that I strongly support what the Government are doing, and I am sorry that it was necessary in the first place. I spent two and a half years as chair of the Council of Europe committee on the implementation of judgments of the European Court of Human Rights. In Britain, we had the matter of prisoners voting, and we got ourselves into a dreadful mess. The court came down with a fairly reasoned decision that was totally misunderstood by the Government, and it was David Lidington—who I still think was the best Justice Minister we had—who went to Strasbourg and unravelled the thing and sorted it out.
However, the point that I want to make goes a bit further than that. I am not well known on these Benches for asking the Government to spend money, but I reflect on the remarks of my noble friend Lord Howard, when he spoke about locking up the prisoners and throwing away the key. He says that he did not say that, but that was how it was reported, and it certainly had a great degree of public support. However, what has not had a great degree of public support is the deplorable state of the prisons themselves; we have heard about Whitemoor, and we have heard from my noble friend Lady Buscombe and the noble Lords, Lord Beith and Lord Carlile, about the conditions in prisons.
I would like to draw attention to a problem frequently brought to the fore by the Prison Officers’ Association, which is the trade union that represents prison officers. It is on the front line in prisons; it is its members who are assaulted. One of its members in Whitemoor was threatened with beheading. The fact of the matter is that, if there is one area in which privatisation has not worked, it is the Prison and Probation Service. It is a lot worse off now than in the past, and in the past it was not fit for purpose.
The problem we have is that politicians of all parties have been chronically unwilling to stand up to the press. The fact of the matter is that it is a cheap and easy headline to talk about prisoners living in luxury. I have been to Whitemoor prison at the invitation of the Prison Officers’ Association; it is not a nice place to be. It is overcrowded and dirty. The crucial thing about our Prison Service is that it is hidden; it is underground. People never look at it. They do not look at the prison officers and they regard a person put in prison as out of sight, out of mind. But they are still human beings, and the way in which our prison estate works can only encourage more recidivism. It is not in any way fit for purpose.
We not only need to look carefully at ways in which we can improve the Prison Service; we need more prisons. We cannot keep cramming people into the space we have. The population is expanding. The desire for prison sentences is expanding. In a democracy you have to reflect what the people want, but you cannot do it unless you have a proper service to do it. That means we have to up the status of the prison officers and the probation service. We have to talk to the unions—the Prison Officers’ Association and the probation unions—and take them into our confidence in building a Prison and Probation Service, and a deradicalisation service, that actually works.
We spend a lot of time talking about what happened in Streatham. Incidentally, my son has a bike shop in Streatham, not far from where this incident took place. It is a very ordinary suburb of London. We have to look at ways in which we can improve the Prison and Probation Service and make it fit for purpose, because recidivism is encouraged by these bad conditions. Bad conditions in prisons, and in particular the feeling among prison officers that they are unwanted, unloved and basically just kicked around and used for public relations purposes, are not the way forward. We have to value the prison officers and the probation service if we want to make the Prison Service work in the interests of what we have set forward as its tasks.
Lord Hogan-Howe (CB)
My Lords, I broadly support this Bill, with one area of discomfort and one suggestion for improving the system of controlling the danger of released convicted terrorists. The three recent incidents at Fishmongers’ Hall, Whitemoor prison and Streatham remind us of the continuing threat from Islamism and the terrorism associated with it.
For five to six years, I have been concerned about two major threats, one of which these cases represent, and that is the wave we are now experiencing of releases from prison of people arrested on short sentences over the last few years. The second is the return of foreign fighters; 20,000 Europeans went to Syria in the hope of a caliphate, and the street-level terrorist attacks we saw in the succeeding years in the UK and across Europe were profound things that have affected our society. Both are things that we needed to plan for and that we are now experiencing in real time.
I suspect that many people would have been surprised that those convicted of terrorism and given determinate sentences were automatically released halfway through their sentences. It cannot have been easy for the Prison Service, trying to impose a disciplined regime without a lever to affect their behaviour that had some effect on their release date. The requirement for the Parole Board to consider whether it is safe for a terrorist prisoner to be released is essential and long overdue. The Government propose that this should take place two-thirds of the way through the sentence. I agree, as that is a more significant period. It allows the gravity of the offence to be recognised and any attempts at deradicalisation to take place. Most importantly, it keeps the public safe for longer.
I admit to some discomfort at the retrospective nature of this legislation. It is important—though some would say it was a fine point—that the ECHR forbids the retrospective extension of sentences because, as has been said by the noble Lord, Lord Harris, for the prisoner and their family the outcome would be the same. In this country, on the whole we have succeeded in maintaining the majority support of our minority communities by incrementally and forensically changing the law to confront the latest terrorist behaviour. Any apparent breach of a fair approach can be a recruitment aid for radicalisers and terrorist groups, as we experienced with internment in Northern Ireland. However, on balance I believe that our national security requires this change now to keep the public safe, and the impact on convicted prisoners is not disproportionate or unreasonable.
The Government’s argument would be stronger if they made clear arguments about what they would do with the longer time these prisoners are to be kept in prison for. Three areas need constructive ideas to be developed in the remaining months before these prisoners are released. First, as has already been stated, deradicalisation in our prison system appears at best to be stalled. It is not working, as these three cases sadly show.
Secondly, the assessment of whether someone remains dangerous at the point of giving them a licence or at the end of that licence does not appear to be working either. Neither of these issues is easy, but there are other places in the world which have dealt with them more effectively.
Finally, I think that we should set up a new unit to monitor and control those released prisoners throughout their licence period. We cannot leave it entirely to the probation service. There is a risk that released prisoners will not feature highly on the priorities of either the security services or the police, who are monitoring thousands of individuals and are said to have hundreds of live operations while also attempting to obtain convictions in those live operations.
Such a unit could be modelled on the Metropolitan Police’s fixated-individuals department, which has been in existence for at least 20 years. That is led by the police but has consultant psychiatrists and mental health nurses to manage those fixated on royalty and those in diplomatic or government positions. I would add surveillance and technical monitoring dedicated solely to monitoring terrorists on their point of release, because the numbers will grow and therefore the risk is likely to be magnified.
We need a new approach, and part of that will be about a psychiatric assessment. Such an assessment already takes place in the Prevent space, where a pilot is taking place, and it certainly takes place in live operations, where the security services and the police struggle to know when it is the right time to make an arrest or intervene in the behaviour of someone who seems to have terrorist inclinations.
I was attracted by the suggestion of my noble friend Lord Anderson that, instead of keeping people in prison, we could extend their licence period. However, I am not persuaded, for several reasons. First, presumably one of the reasons for suggesting this is because better or stronger licence conditions is less intrusive than prison, but I would prefer them to be in prison and the risk removed altogether rather than managed. Secondly, we have already accepted that the test for whether someone is dangerous is very hard to achieve. Therefore, if we still have to apply that test at the end of the period of detention, the proposal of my noble friend Lord Anderson would be less persuasive. Also, the probation service does not have the system in place that he would prefer, and I doubt that it will be put in place over the next few days, which is the period we are talking about. Therefore, that system would not be there to mitigate any risk from letting people out, even if we thought that there may be of some level of danger. Thirdly, both systems may have legal challenge if one accepts the theory that by changing the terms of the sentence at some point there may be a legal challenge to even that type of change. If there is to be a legal challenge, it would probably be best to make the change effective rather than worry that some of these people might kill after they are released.
Finally, the proposed changes, which are broadly proportionate and reasonable, are unlikely to be a better recruiting sergeant than anything else that has happened recently. While there may be some risk, it is not profound and, on balance, the Government’s proposal is reasonable, and I therefore support it.
Lord Judd (Lab)
My Lords, we are clearly facing a grave threat to people in all parts of the United Kingdom. It is a heavy responsibility on the Government and we therefore have to take seriously their responsibility and how they are proposing to deal with it. I should declare an interest. As will become patently clear during my remarks, I am not a lawyer, but I am president of the Labour Campaign for Human Rights, and I am involved in an advisory capacity at the Centre for the Study of Human Rights at the London School of Economics.
We are involved in a strategic battle for hearts and minds. We have to be careful that inadvertent counterproductivity does not become a spur for increased recruiting by the extremists. They and their leaders are cruel, barbaric, highly manipulative and cynical. At all times, we have to demonstrate that we are about values, beliefs and systems that are totally different from their destructive nihilism that threatens humanity. Therefore, if we are to live up to those values and demonstrate them, it is vital that any legislation proposed is carefully considered, with plenty of opportunity for interested parties—lawyers, community workers, social workers and the rest—to be involved in giving their advice on the best way forward.
At all times, our law has to be clear, fair, consistent and transparent. It has become clear—as has been emphasised in this debate—that we have been dealing with a situation that has been aggravated by misguided legislation. Mandatory early release was a bad idea if there was an absence of any part to be played by the Parole Board in coming to a decision on the period of time stipulated.
In my view, the involvement of the Parole Board, which the Government are now proposing, is absolutely right, but I agree very strongly with those who have argued that, in terms of short-term legislation and interim measures, it is crucial that we make sure that the Parole Board is involved in those as well. Furthermore, we need to be certain that, with its responsibilities, the Parole Board is properly and adequately resourced and that it too is not working under impossible pressures because of cuts.
If we are talking about justice, what is worrying about the immediate situation is that there is apparently a rush to prevent the early release of some prisoners who were under existing arrangements expecting that release to happen. But that does not add up to a convincing battle for hearts and minds; it plays into the hands of the extremists. They want to demonstrate that when horrible things happen we do not have the strength or self-confidence to ensure that the principles we lay down are sustained.
It is worth noting that between January 2013 and December 2019, 196 prisoners were released under the existing arrangements. Six went on to commit further offences, but 190 did not. That is something to consider when we have this legislation before us. We must not just do something: we must do something that is right, sensible and convincing.
An even more important question, which has not been answered, is what will happen to these prisoners who are detained for longer. Where is the evidence that the resources and arrangements will be there to undertake effective rehabilitation, decriminalisation and deradicalisation? The evidence is that resources are not there and that the programme is failing, and we will just compound the problem by putting still more pressure on the Prison Service. This is a grave situation, but it is all the more important to make sure that we get our response absolutely right and are not rushed into measures that are ill-prepared.
Lord Blair of Boughton (CB)
My Lords, I begin my assessment of the present legal position on this area of policy with a quotation that will be familiar to noble Lords:
“‘the law is a ass’, said Mr Bumble.”
The release of Sudesh Amman was lawful and his further detention would have been illegal, but his release represents a failure by the British state. The law needs to be changed and I support the provisions of this Bill. However, I do so on the rather precarious grounds of an anonymous No. 10 briefing that the Government intend to undertake a “deep dive” into matters surrounding the release of convicted terrorists. Perhaps the Minister will be in a position to confirm that.
There is a lot of diving to do. We simply have not got this right. Some of the revisions to previous legislation introduced by the coalition Government need to be reversed. The most important reversal would be the replacement of the rather weak and little-used terrorism prevention and investigation measures—little used because they are not very good—by the more resilient control orders, particularly those with a provision requiring the suspect person to reside somewhere away from his or her previous contacts.
As the Bill provides, the Parole Board needs to be involved in the release of all terrorism offenders, whatever the length of their sentence. However, the Government need to look further to see what the Parole Board should do if it thinks that a person should not be released. They need to look, perhaps, at Australian post-sentence detention orders, which immediately fit this position. We now know much more about prison radicalisation and, as other noble Lords have said, the Government must fully implement the measures suggested by Ian Acheson on this phenomenon as soon as possible.
We must recognise that we have not yet reached the peak of UK returnees from the fighting in Syria—the problem will get worse before it gets better. Right-wing terrorism is also on the rise. This means that, while I am urging the Government to take a much more holistic approach to the problem than just enacting this Bill—I am sure they will, as it only postpones rather than solves the situation—it is also time for other political parties to get behind the Prevent programme, rather than proposing to abolish it, like one prospective leader of the Labour Party.
I accept that risk assessment is not easy. Usman Khan, who killed two people on London Bridge, pretended to have renounced violent extremism. However, the idea that the law allows the release of a man who is still openly threatening to kill invokes the spirit of Mr Bumble. I have pointed a police revolver at another human being. I have been present at briefings for armed operations and given many of those briefings myself. I very much doubt that the officers involved in the armed surveillance of Sudesh Amman thought about Charles Dickens, but they must have thought that the situation about which they were being briefed was simply mad. They are a precious and very limited resource. They will have been pulled off surveillance of another target suspected of planning a terrorist act, to follow a man who had just been let out of prison and had already committed terrorist offences and was now threatening more. Days later he was dead; two people were badly injured and two officers were left with the lifelong burden of having killed a fellow human being.
Amman’s release is a straightforward failure of policy and legislation. In summary, while I admire the optimism of those noble Lords who want men such as Amman to be given the opportunity of being supervised on licence by the probation service, that seems a rather inadequate proposition. In this case, he would have been followed to his meeting with the probation officer by armed surveillance officers. I support the Bill but I urge the Government to do much more.
Lord Davies of Gower (Con)
My Lords, it is a great pleasure to follow the noble Lord, Lord Blair; we were colleagues quite some years ago. I am not a lawyer—indeed, I spent most of my years delivering defendants into the hands of lawyers—and I will leave the more detailed legal arguments to the lawyers and the noble and learned Lords.
Our first duty as a Government is to keep the country safe. The 2019 Conservative manifesto said:
“We will keep our country safe from terrorism. We will invest in the police and security services and give them the powers they need to combat new threats”.
That is very good news and clearly an issue that the electorate wanted the new Conservative Government to deliver on.
Terrorism is challenging and terrorists fall into a unique category. They are committed criminals and murderers who, in the main, are ideologically disposed towards a particular following of some description. While the vast majority may never reoffend, the challenge we all face and which this legislation seeks to address is that if we cannot be sure, we must, in the interests of safety, err on the side of caution in order to protect the public at large and safeguard through robust and effective legislation.
The National Counter Terrorism Security Office recently advised that the direct risk of violence posed by former terrorist prisoners on release should be kept in proportion. It described reoffending rates as “relatively low”, stating that only 9% of terrorist prisoners released since 2012 had been reconvicted for any type of offending. This was contrasted with an overall reoffending rate of almost 50% for adults released from custody. Of 200 or so terrorist offenders released from custody since 2012, only six had been convicted of further Terrorism Act offences at that point.
That said—I make no apology for repeating the details of these facts—let us remind ourselves that on 30 November 2019, Usman Khan killed two people at Fishmongers’ Hall near London Bridge before being shot by police. Khan had been released from prison in December 2018, having been convicted of terrorism offences in 2012. He was released from prison automatically at the halfway point of the custodial part of an extended sentence for public protection. Khan was serving an extended public protection sentence of 21 years, comprising a custodial term of 16 years and an extended licence period of five years. For an extended public protection sentence imposed after 14 July 2008, as Khan’s was, release was automatic at the halfway point of the custodial period. The Parole Board was therefore never involved in Khan’s release.
On 2 February 2020, as we know, Sudesh Amman attacked two people with a knife in Streatham before being shot by police. Amman had been released from prison in January 2020, having been convicted of terrorism offences in November 2018. He was given a standard determinate sentence of three years and four months, and was released from prison automatically at the halfway point. The Parole Board was not involved in his release.
We also know that on 9 January 2020 a convicted terrorism offender, Brusthom Ziamani, along with another prison inmate, was reported to have attacked a prison officer at HMP Whitemoor. Both were reported to have been wearing fake suicide vests. A prison officer was slashed and stabbed, and several others were injured. The Metropolitan Police confirmed that the incident was being treated as a terrorist attack and investigated by officers from Counter Terrorism Command.
It is worthy of note that between March and June 2017 there were four terrorist attacks in London and Manchester in which vehicles, knives and explosives were used to kill and injure members of the public. Thirty-six people were killed in the attacks and almost 200 were injured. In addition, as your Lordships will recall only too well, on 22 March 2017 Khalid Masood killed five people, including a police officer on duty here at the Palace of Westminster, before being shot by armed police.
During my police career, I served for a number of years in Counter Terrorism Command in the 1980s when London and other cities were being blown apart by terrorist activity, creating carnage and crimes scenes far too distressing to recount. I never want to see that happen again. I believe that this Bill will help in some measure to deter such future slaughter. This legislation is needed urgently to put appropriate safeguards in place for further terrorism offenders on release from prison. As we sit here debating the Bill, your Lordships will be only too aware of the urgency of ensuring that it receives Royal Assent this week.
It is, as we have heard, a significant Bill that will change the release point for offenders who have committed a relevant terrorism offence and refer them to the Parole Board at the two-thirds point of the sentence. The changes will apply to those offenders who are currently serving a custodial sentence for terrorism offences, as well as future terrorism offenders who receive a standard determinate sentence.
Public safety is paramount, and the Government have a duty to consider the tragic events that I have already outlined to protect those going about their daily lives from terrorists who fall within the scope of the Bill. As I have just outlined, I firmly believe that the Bill should apply to all serving prisoners, as well as to those sentenced in the future. However, that will not work unless the Parole Board consists of suitably qualified and sufficiently trained personnel. Faith in the parole system has wobbled slightly in recent times, but there can be no room for error where terrorism is concerned, and I too ask that the Parole Board be properly resourced. At this juncture, I mention the cost of surveillance in manpower and resources in relation to suspected terrorists. It is exceptional and has accompanying risks, as appears to have been the case with Sudesh Amman in the Streatham attacks.
In preparing for this debate, I read and was much impressed by the 2015 Acheson review. I noted Mr Acheson’s recent warning concerning the ability of the Prison Service to manage terrorism offenders. He stated that he was unconvinced that the Prison Service had the “aptitude or attitude” to assertively manage terrorist offenders. I am sure I am not alone in being somewhat worried by his remarks and would welcome the Minister’s comments on the Government’s plans to improve this to ensure that the Bill’s objectives are met.
To my thinking, this is one of the most important pieces of legislation that your Lordships will ever have to consider in relation to the safety of the public. On that basis, I support the Bill.
Lord Ramsbotham (CB)
My Lords, like my noble friend Lord Carlile, I am less concerned with the legal niceties of the purpose of the proposed legislation than with the inadequacy of current arrangements needed to ensure that that purpose can be realised. It is all very well introducing knee-jerk legislation to ensure that terrorists remain in prison for longer, but the Government should ensure that they have a robust strategy to try to prevent them offending again on release. Presumably formulation of that strategy will be included in the tasks of the promised royal commission, about which I have asked questions of the noble and learned Lord the Minister both in our debate on the Queen’s Speech and by letter, but I still do not know any details of its timing, chairman or terms of reference.
Unfortunately, as Kenny MacAskill MP, a former Justice Minister in Scotland, said, the nub of the problem is that no Government can ever reassure the public that a terrorist whose outlook is based on either a perverted ideology or a deep-seated hatred, whatever their religious or racial background, can ever be deradicalised or will never reoffend. Consequently, the authorities—particularly the Prison and Probation Service—is faced with an impossible task, but there are various measures that can be taken to help it.
The noble and learned Lord the Minister, in his letter of 13 February to all Members of this House, drew attention to the forthcoming counterterrorism Bill, dealing with sentencing and release, which he said would include further provisions. However, before that, I have six questions to ask him, some of which were raised, but not answered, in the other place.
Some noble Lords have made reference to the 2016 report by Ian Acheson, which included the following sentence:
“There were serious deficiencies in almost every aspect of the management of terrorist offenders throughout the system.”
The Secretary of State responded that things had moved a long way since then. However, the validity of that statement must be in doubt following the dreadful incidents that the Minister and other noble Lords have outlined, and my first question is: what things have moved?
The Secretary of State also said,
“rest assured that whatever resources are needed in order to deal with this issue, we will devote them to this particular line of important, intensive work.”
Financially, he detailed that £90 million had been made available for unspecified “counter-terrorism activity”, in addition to the £900 million made available to “support for counter-terrorism”. He also announced extra resources for,
“doubling the number of specialist probation officers”—[Official Report, Commons, 12/2/20; col. 866.]
and the introduction of more specialist psychiatric and imam involvement. My second, third and fourth questions are: how much of this financial provision will be made available to the Prison and Probation Service; how many specialist probation officers trained to work with terrorists are there; and is there a trained specialist in each National Probation Service area?
Turning to the all-important deradicalisation programmes, several noble Lords have pointed out that there is no evidence that any actually work. In his summing up in the other place, the Minister mentioned theological and ideological intervention and healthy identity, as well as deradicalisation programmes. This leads on to my fifth and sixth questions: what proportion of convicted terrorists can regularly attend such programmes; and what exactly did the Secretary of State mean when he said that there is a constant self-searching among those responsible to make sure that programmes are properly calibrated?
Other matters raised in the other place include the possible fusion of the independent review of the Prevent programme announced last year—although it has a statutory deadline of this August, it still has no named reviewer—with the review under the Independent Reviewer of Terrorism Legislation, and the appropriateness or otherwise of current arrangements to deal with the demands of this high-risk, high-level cohort. In his note on the legislation of 19 February, the independent reviewer said that while consideration by the Parole Board of all terrorists prior to release is sensible and to be welcomed, he is unclear why such consideration needs to be delayed until they have completed two-thirds of their sentence, because conditions in prison are so bad that prisoners may be exposed to worse influences than if they are released.
In addition to these announced reviews and a tailored review of the Parole Board to make certain that it can take on the extra workload, MPs recommended scrutiny and assessment of deradicalisation programmes and a review of the qualifications and certifications of imams and madrassas working in prisons. In other words, there are many more issues to consider than merely keeping terrorists in prison for longer. Therefore, as was pointed out by the shadow Minister in the other place, a strategic, rather than knee-jerk, approach to this issue is required. This brings me back to the promised royal commission and counterterrorism Bill; I look forward to making a contribution in both of these.
Lord Cormack (Con)
My Lords, I am delighted to follow the noble Lord, Lord Ramsbotham, who was an outstanding inspector of prisons. I very much hope that my noble and learned friend who will reply to the debate will reflect on what he has said and try to give full answers to the questions that he very reasonably asked.
I support this Bill. I believe that it is necessary, but this is not the answer to the problems that we have been discussing this afternoon. The elephant in the Chamber is the Bill that is yet to come. It is crucially important that we get it right.
There are two things that we have not taken sufficiently carefully into account when we look at modern terrorism. I first entered the other place almost 50 years ago. The first 30 or more years of my time there were punctuated by terrorist acts, perpetrated for the most part for political reasons by people who wanted to kill others but did not want to kill themselves. We are now dealing with a wholly new dimension. I could not help reflecting on this at the weekend, when I read the disturbing case of the woman who had become radicalised and a convert, and decided that her mission in life was to blow up St Paul’s Cathedral, and as many people as possible, in an explosion. There is somebody who will have to be looked at for a very long time.
I suggest that we need a radical approach to dealing with terrorism. I believe that there should be a special court devoted to terrorism and a special parole board devoted to dealing with terrorists. In our prisons, it is crucially important that there are those who can deradicalise because they know what the authentic Muslim religion is all about. We have not fulfilled what we should have, by allowing these prisoners to continually refresh and re-radicalise themselves.
While the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was entirely right when he talked about the unsatisfactory nature of indeterminate sentences, I believe that in this particular instance all terrorist-related offences ought to be subject to indefinite sentences. These would of course be reviewed regularly, with a benchmark for the number of years at which they should be reviewed.
Viscount Hailsham
Will my noble friend consider the possibility that control orders, which are less confining, are an alternative to indefinite sentences?
Lord Cormack
They may be; that is certainly worth discussing. However, I still believe that when we are dealing with these people—bent on mayhem and murder of an indiscriminate nature, the most dangerous of whom believe that they are fulfilling a religious purpose —there is a need to monitor them constantly and do everything possible to deradicalise them, but to have sentences that do not present a danger to the general public. The first and overriding purpose of the Government and Parliament is to defend the realm and all those who live loyally within it. My noble friend Lady Buscombe was entirely right when she referred to treason.
We need a Bill that will really look deeply into these matters. This one cannot. It is necessary and expedient, but it is not the answer. I very much hope that there will be a Bill, subject to pre-legislative scrutiny, where my noble friend Lord Hailsham can pitch his case. We need to take time over that Bill. The one we are dealing with is addressing the emergency, but terrorism is here to stay for the foreseeable future, probably well beyond all our lifetimes and those of our children. If we are truly to protect society—bearing in mind, as other Peers have said, that there will be not hundreds but thousands coming back from Syria in the coming two or three years—we have to have a system that is as watertight as we can make it.
We owe an enormous amount to our police forces. St Paul’s might well have been blown up without the brave action of an undercover officer. We owe a great deal to those who serve in our prisons, but they have to work to an agreed strategy—one mistake is too many. In a previous incarnation, I had the great pleasure of having the noble Lord, Lord Blair of Boughton, as a pupil. He was right when he talked about Mr Bumble and the law being an ass. Those officers who shot down that man in Streatham High Road should never have been in that position. Let us haste this Bill through tonight and then have a long and determined look at how we tackle the problem in the future.
Baroness Jones of Moulsecoomb (GP)
My Lords, it is always a pleasure to follow the noble Lord, Lord Cormack; as usual, I agreed with one or two of the things he said. I oppose this Bill. For me, it is a panicky little piece of legislation that has come out of two terrible events. It fits the definition of the politician’s syllogism: something must be done—this is something, so it must be done. It is illogical to think that keeping somebody a little longer in prison will solve any of our problems. I suppose that the Government will feel that they can then at least say that they are being tough on terrorism, but that is plainly not true. If they were being tough on terrorism, they would think about what happens to people in prisons, as well as before they go into prison and, very definitely, after they come out. Simply keeping people in prison a little longer is no use if they come out just as dangerous, just as hate-filled and just as angry, or even angrier, as when they went in.
This Bill will not solve the problems of terror unless the Government sort out proper deradicalisation in prisons. Of course, the severe cuts to prison budgets over the last decade of Conservative austerity cannot have helped improve the quality of supervision in our prisons. Some are now squalid dumps, in which radicalisation can fester rather than be solved. If the easy access to drugs in prison is any parallel, extremism could spread quickly and we will have a serious epidemic. The Government need to take back control of our prisons and put in the resources to solve these complex problems, which cannot be fixed by this Bill. Just talking tough is really not enough.
The scope and application of the Bill are very important. I have listened to the learned arguments made this afternoon; I hope that the Government have listened to them too and will perhaps take some lessons from them. But I have also been contacted by an animal rights activist who is currently serving a prison sentence and is due for automatic release in the summer. This person was visited by a Prevent officer, who told them that their release date has now been scrapped due to the new legislation going through. I do not believe that this Bill would have that effect; the Prevent officer is either behaving in an oppressive manner or is severely misinformed. Will the Minister please reassure me, and correct this Prevent officer, by making very clear that the legislation will not affect the sentences or early release of non-violent environmental, animal rights and social justice political prisoners?
It has been an interesting debate but, unfortunately, the present Government are far too arrogant to listen to the wise words that have been said in this Chamber. I deeply regret that and hope that, in the future, perhaps they will think twice about bringing something so panicky to this House.
Lord Pannick
My Lords, I agree with the Government that the changes to the early release provisions which will be introduced by this Bill are not a retrospective increase in the offender’s penalty, in breach of their rights under the European Convention on Human Rights. It is well-established that the penalty imposed on the offender is the term of years which he or she receives when sentenced by the judge: four years, for example. An alteration in the early release provisions within that four years does not affect the penalty, and so such a change may be imposed on serving prisoners. A long line of cases, both in this jurisdiction and in the European Court of Human Rights, establishes that proposition—most recently, as I suggested to the noble Lord, Lord Marks, the decision of the European court on 12 November 2019 in the case of Abedin v the United Kingdom. The noble Lord, Lord Marks, then argued that there is a common law principle against retrospectivity. Well, there is certainly a presumption against retrospectivity, but it is not an absolute rule.
The question in every case is whether there is a justification for acting in a retrospective manner. It seems to me that, in this context, there is such a justification. Offenders are about to be released early without a Parole Board assessment of whether that is safe. No doubt the Government should have acted more speedily to address this problem, as the noble Lord, Lord Harris of Haringey, and others have suggested, but any fault does not alter the situation in which we now find ourselves. My noble friend Lord Carlile is no doubt correct that further measures are needed to disengage terrorist offenders from their perverted ideology, but again that does not remove the urgent need to disapply the right to automatic early release of those who pose a real danger to the community.
I agree with the Government on all of that, but I have two concerns about the Bill. The first is why it does not provide for a Parole Board assessment by the time these offenders have served half their sentence—a point made by the noble and learned Lord, Lord Falconer of Thoroton, and my noble friend Lord Anderson of Ipswich. As noble Lords have heard, the Bill confers a right to a Parole Board assessment only after two-thirds of the sentence has been served. Since these offenders were previously entitled to release after half their sentence, the proportionate step to take to meet the mischief that there is currently no safety valve of a Parole Board assessment may be to provide for a Parole Board review after half the sentence has been served. That would mean that only those assessed as safe to be released early would be so released. Indeed, the effect of the Bill will be to keep in prison those who have served half their sentence, who would be assessed by the Parole Board as safe to be released. It is unfortunate that the Minister did not address this issue at all in his opening remarks, despite the fact that there is an amendment down. I very much hope that he will enlighten the House on this matter in his closing remarks.
My second concern is that the Government have not followed the recommendations in the 2009 report of your Lordships’ Constitution Committee on fast-track legislation, a matter which, again, the Minister did not address in his opening remarks. I was a member of that committee in 2009 and, like the noble Lord, Lord Beith, I remain a member. The 2009 report recommended that when fast-track legislation is enacted, there should be a presumption of a sunset clause as a safeguard, because the normal process of parliamentary scrutiny would not have occurred. It seems all the more important that the Constitution Committee recommendation should be applied in this Bill. As your Lordships know, relevant parliamentary committees that would normally scrutinise this Bill have not yet been appointed; I refer to the Joint Committee on Human Rights, the Justice Committee, the Home Affairs Committee and the Intelligence and Security Committee. None of these has been appointed yet—I find that extraordinary—and, therefore, they have not been able to scrutinise this Bill.
We are told that the Government plan to introduce a counterterrorism Bill later in this Session, dealing with sentencing and release, but we all know that such plans do not always come to fruition. Indeed, the noble and learned Lord had that experience in relation to the online courts Bill; we are still waiting for it to come back. Bills that are anticipated do not come forward for a variety of reasons. It seems therefore very unfortunate that we are being asked to enact, on a fast-track basis, a Bill that does not contain a sunset clause. I hope that the Minister, in closing the debate, will address that matter.
Lord Leigh of Hurley (Con)
My Lords, it is always an honour to follow the noble Lord, Lord Pannick. I welcome this Bill, which honours a promise made by the Justice Secretary on 3 February.
The situation is very serious. Terror attacks are unlike any other criminality and require specific legislation, possibly with new offences and punishments—which, I gather, may be forthcoming, as the noble Lord, Lord Pannick, indicated. Those who have perpetrated such attacks, and might do so again, deserve the full force of the state as it does everything in its power to protect citizens against violent extremists.
The noble Baroness, Lady Jones of Moulsecoomb, might be surprised to hear that I agree with much—well, some—of what she said. She is indeed astonished. I will raise some issues relating to what is happening inside prisons that has led to the position we find ourselves in, with—albeit a relatively small number of—potentially highly dangerous people.
Clearly, the Government have taken considerable and important steps since the Acheson review, as the Minister himself correctly noted, in July 2019. Likewise, the Healthy Identity Intervention programme is welcome, but it is voluntary, small-scale and clearly easy to game.
Prisons can provide near-perfect conditions for radical, religiously framed ideologies to flourish, but they can also be incubators of peaceful change and transformation—a positive thought that I want to develop. The answer is not just policies but people. Frequently, the key will be the prison imam, and it is the training of these people I want to touch on, as I have been looking at this area for some four years with the assistance of Dr Mustafa Mohamed and latterly Mr Mohamed Amersi, both well-known interfaith leaders.
Radicalisation in prisons, an issue that has been mentioned in this debate, was addressed last April by the distinguished academic, research professor Dr Azeem Ibrahim, who pointed out in his paper that substantial investment is needed to provide expert training for imams and chaplains on how radicalisation works with vulnerable inmates, and how to respond to and deconstruct their destructive ideologies and attitudes.
He suggested that we need an infrastructure of qualified experts, such as theological intervention providers, to assist those imams who simply do not have the right training—they are not trained to be welfare officers and counterterrorism experts as well as spiritual advisers. A programme of rehabilitation can include, for example, providing ideological challenges to extremist ideology, improving educational and vocational training, or offering volunteering work. But, as Dr Ibrahim points out, it needs to be overseen by a single trusted mentor who can build a relationship of trust and be relied on to guide a person in the right direction. An advisory board has been suggested, therefore, comprising UK and international Islamic scholars, to advise Her Majesty’s Government and the Prison Service on tackling extremism in this way. Such people exist and are available and willing to help.
Noble Lords may wonder why I am speaking on this issue. Some four years ago my friend Dr Mustafa Mohamed and I were discussing the issue of imam training in the UK, as I explained to him how the training of rabbis had developed in the UK. The Jewish community recognised the need for rabbis to be trained in British culture. It proved to be a prescient decision, as there was a massive destruction of many—if not most—learning centres in Europe by the Nazis. This led to us working up a paper to see if we could achieve apprenticeship status for those seeking to become imams, and indeed for other clerics. Sadly, the initiative ran into difficulties, despite constructive meetings with Sir Oliver Letwin, then Chancellor of the Duchy of Lancaster at the Cabinet Office—and indeed with some folk from Number 10.
Now, however, seems the time to re-energise these ideas, as we face the consequences of a failure to control radicalisation in prisons. It is of course an international problem. In the Netherlands, three programmes for Muslim chaplains were set up in universities in 2005-06, but in 2013, sadly, two announced their closure. As recently as 18 February—a week ago—President Macron announced measures to tighten controls on foreign financing of mosques and said, “We will train imams in France, so they learn our language and the laws of the Republic.”
In conclusion, faith training is difficult. There are conflicting demands, such as a government requirement for mixed classes, which clashes with some ideologies. But, as Mohamed Amersi of the Faith in Leadership foundation has pointed out, there would be substantial advantages if programmes of Muslim faith leadership training were validated in accordance with national qualifications. At the same time, we need to recognise the need to expand existing courses and programmes for Muslim chaplains in Islamic pastoral care and counselling.
As this Bill passes into legislation, will the Minister agree to facilitate a meeting with the Government for the aforementioned Muslim thought leaders, to address the problems that have led to the need for this Bill?
Lord Marlesford (Con)
My Lords, I do not welcome the Bill but I support it, because it is needed to protect our national security from the deadly threat posed by convicted terrorists who, if released from prison, may still believe that their mission is to kill without discrimination, under the banner of Islamic jihad. There have been eight such attacks in Britain since March 2017. Many others have been detected and prevented. I start, therefore, by offering a heartfelt tribute to our security services—MI5, MI6, GCHQ and the anti-terrorist police.
Before considering the Bill in more detail, however, we should face up to what lies behind it all. My noble friend Lord Leigh has just indicated some of that. In recent decades, a belief based on the teachings of the Wahabi sect of Sunni Islam has gathered momentum among a small but growing minority of Muslims. The belief is that there is a religious obligation to impose theocratic government, by whatever means are needed, on nation states throughout the world. It is generally described as political Islam.
In many countries the dormant seeds sprouted with the Arab spring of 2011. They flowered with astonishing vigour with the launch of Islamic State from the Iraqi branch of al-Qaeda on 8 April 2014. IS had declared the aim of establishing a worldwide Islamic caliphate. It swept through much of Iraq and Syria. After five years of struggle, IS lost its last territory with the capture of Baghuz in Syria on 23 March last year. The embers of IS, however, still glow throughout the world, including in British prisons.
IS is, of course, a cruel distortion of peaceful Islam and has been, and will continue to be, rejected by the vast majority of Muslims in the UK. I fear, however, that there is little prospect of effective deradicalisation of those who believe that they act with religious authority, as my noble friend was saying. Only when the leaders of Islam themselves seek to extrude and expel—or, in Muslim terms, declare as kufar or un-Islamic infidels—jihadists who seek to justify their violence, will there be any real hope of proper deradicalisation. Sadly, there is little sign of the leaders taking such initiatives. On the contrary, there has been prolonged and determined advocacy of exactly such beliefs in some UK mosques.
The Muslim Brotherhood, founded in Egypt by Hassan al-Banna in 1928, has been the political arm of al-Qaeda, rather as Sinn Féin was of the IRA. One of its leaders, Ibrahim Munir, lives in Britain. The Muslim Brotherhood gains sustenance from both Qatar and Turkey. I have never heard the UK Muslim Brotherhood publicly condemning IS acts in this country—not even the terrible May 2017 Manchester bombing which killed 22 people. In that case, those alleged to be responsible were the three Abedi brothers, who had deep al-Qaeda roots in Libya.
The closest that Sunni Islam has to a world leader is, perhaps, the Sheikh and Grand Imam of al-Azhar University, founded in 970 AD in Cairo. On 2 December last year, the long-time sheikh, Dr Ahmed al-Tayeb, refused to denounce ISIS as un-Islamic but declared that, under sharia, it committed a great sin by causing “corruption on earth”. He went on to say that, under sharia, drinking alcohol is also a great sin but that those who do so cannot be denounced as infidels. So, tragically, we cannot yet expect support for deradicalisation from the supreme leaders of the Islamic world.
So what are the options and implications? First, what is the potential impact of the Bill on the capacity and cost of our prison system? The cost of incarceration, especially in high-security, category A prisons is very high. They only have a capacity of 5,600. Belmarsh prison, built for 760 prisoners, is regularly overcrowded with as many as 70 more. Each inmate costs £40,000 a year. The most expensive, which has been referred to several times, is Whitemoor in Cambridgeshire, at £58,000 a year.
Secondly, the cost of close supervision of those who are released can be enormous. The prospect of detection should be a deterrent, especially as it has recently ended in the death by police shooting of seven terrorists. In Britain, when life is threatened, the police shoot to kill. Unfortunately, some jihadists have been groomed to seek martyrdom. The Government are right to deny the return to the UK of those who have left to take up arms with ISIS.
We have a really dangerous threat ahead of us. Inevitably there will be difficult balances to strike between homeland security and civil liberties, as there were in World War II, but we are once more under attack. The overriding motto must be, “Britain’s safety first”. That is why I support the Bill.
Lord Evans of Weardale (CB)
My Lords, I welcome the Bill for two slightly different reasons. First, the police and security services are faced daily with acute and difficult priority decisions about to which of such a large number of potential terrorist targets they should apply their surveillance resources. By taking the decision to put surveillance on target A, you are by implication deciding not to put it elsewhere; that is where the risk arises. Against that background, it is absurd to have the situation that appears to have applied with the Streatham attacker—to release from custody a convicted terrorist who was believed to pose an immediate and direct threat, and to land that problem on to an already stretched system. The fact that that individual continued to pose a threat while subject to armed surveillance demonstrates the difficulty in controlling this sort of risk outside a prison environment—and we know it can be difficult even within that environment. Anything that can be done to reduce the sharpness of those prioritisation decisions is worth doing and important, to keep members of the public safe.
Secondly, I support the measure because of what the noble Lord, Lord Carlile, referred to as the current fiction of sentencing policy. What you see is not what you get when it comes to sentencing. That undermines trust and credibility in the criminal and judicial system. Anything that moves the dial towards more alignment between the sentence and how long somebody actually serves is highly desirable. The Bill goes some small way towards that aim.
The House has heard quite a lot about deradicalisation. We need to be concentrating resources and intellectual firepower on this problem. It is one of the key elements of the Government’s Prevent agenda, which has been running for nearly 20 years. As everyone who has followed this knows, it is a difficult process to design and implement. I have had the opportunity of visiting a number of deradicalisation programmes in various parts of the world; not only in the United Kingdom but in places as different as Singapore and Saudi Arabia. The programmes in place in those countries are extremely varied; some are community based, others based in the prison system. None of them is anywhere close to guaranteeing successful outcomes.
There are clearly successful cases of individuals having been deradicalised; they have gone through the process and taken the decision to leave behind their extreme views. However, it is difficult to have confidence that that will be the outcome in any particular case. I am therefore reluctant to rely on that as a way of trying to reduce the dangers on our streets. It is not that it is not important: it is not sufficient. The corollary is that decisions, even by a well-informed and professional body such as the Parole Board, are always going to be uncertain. Therefore, any decision to allow a convicted terrorist to leave prison before the end of their sentence carries significant risk. The nature of that risk is quite intense; we should therefore limit the amount of time that individuals in that category spend out on the streets when there is the opportunity to keep them inside. The Bill moves the dial on that aspect; I therefore support it.
Lord Faulks (Non-Afl)
My Lords, the Lord Chancellor has made a statement, under Section 19 of the Human Rights Act, regarding the Bill’s compatibility with that Act and has firmly defended his stance in the House of Commons. I agree with the noble Lord, Lord Pannick, who is not in his place, that the case law, both here and in Strasbourg, supports the Government’s analysis that there is no conflict with Article 7. However, it must be remembered that the courts here do not have to follow the Strasbourg jurisprudence; they merely have to take it into account. So one cannot entirely rule out the possibility of a challenge; I hope there is not one.
Whatever the legalities, the fictional man or woman in the Dog and Duck, where they discuss these things, may not be well versed in Article 2 or Article 8 of the European convention—the right to life and family life—Article 7 or even the presumption against retrospectivity. But they might ask: “What are the Government doing to protect me? What about my human rights?” We must have considerable sympathy with that concern.
The noble and learned Lord, Lord Falconer, has made the very real point that we should make sure that the Parole Board has a chance to consider these prisoners before they are released, but I gently remind him that the shadow Minister said in the House of Commons:
“If this Bill is not passed and rushed through its stages over the next couple of weeks, terrorist prisoners will be on our streets, without any assessment of risk or dangerousness by the Parole Board. That does not leave the House in the easiest of positions, but it is the reality of the situation before us.”—[Official Report, Commons, 12/2/20; col. 873.]
Of course I will hear what the Minister has to say, but I wonder whether it is feasible to carry out the sort of detailed and thorough Parole Board assessment that the noble and learned Lord has in mind.
At the heart of the analysis is when, if ever, it would be safe to release a prisoner who has committed a terrorist offence. Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, whose distinguished predecessors have already spoken in this debate, said:
“It is said that keeping terrorist prisoners longer in custody will protect the public … But the question is whether keeping a non-risky prisoner longer in custody, rather than releasing them, will protect the public.”
With respect, that seems to me to beg the central question: how do we know whether someone is non-risky? Rehabilitation has never been an exact science. It fails more than it succeeds but, as a number of noble Lords have said, the problem with deradicalisation is particularly acute. As the noble Lord, Lord Evans, has pointed out, a number of attempts all over the world have failed to establish a really satisfactory way of proving to anybody that deradicalisation has worked in any particular instance.
I remember as a Justice Minister having a number of conversations with my counterparts in the European Union, all of whom had the same problems. Whatever the shortcomings of our deradicalisation programme, it was considerably more advanced than those of most European countries. It is because of the warped ideology that often lies behind the terrorism that difficulties are particularly pronounced, and I take the point of the noble Lord, Lord Cormack, that it is very different from the form of terrorism we were confronted with in the 1960s and 1970s.
I understand from the Minister and what was said in the House of Commons that the Parole Board will have special expertise to help decide whether it is safe to release these prisoners, but even very experienced High Court judges, probation officers and those with special knowledge are still confronted with the almost impossible task of assessing whether someone is safe or not. The fact is that in one case, Fishmongers’ Hall, the prisoner had fooled everybody and in another, the Streatham case, he had not fooled anybody at all. However, even then, with police and security officers right on the scene, he was not prevented from seriously wounding those at the scene.
What do we do? The Government will bring legislation, and nobody can pretend that this Bill is anything but a temporary response. The noble Lord, Lord Cormack, referred to the return of IPP prisoners, and I stand behind the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who has been a doughty champion of those unfairly affected by the previous regime. He has been absolutely right to pursue the policy as he has, but we are talking about something different here. The noble Lord, Lord Cormack, talked about the threat to St Paul’s and to individuals. It needs a radical change of thought. Unfortunately, civil liberties will be threatened, but the Government have to do their job to protect the public.
Control orders have been raised, along with their somewhat more anaemic cousins, TPIMs. I am afraid that control orders would not have helped in Streatham; however close the control, it would not have done any good. Whether we have a special court or IPP sentences, we must seize this problem. This is a short response to a particular difficulty, but it does not begin to address the real problems we face.
Lord Macdonald of River Glaven (CB)
My Lords, this Bill places convicted terrorist prisoners in a special category and makes special rules for the administration of their sentences. I consider this approach justified.
Terrorism offences represent a uniquely broad and dangerous threat to not just the public but the organisation of society. They are a twin attack on both individuals and the body politic. In the face of this analysis, it seems to me actively perverse for a state to grant early release to terrorist prisoners who are believed to remain a threat to the public. The Government are right to abolish the automatic right to early release in these cases and, by altering the purely administrative arrangements around the relevant sentences in this way, the Government do not offend any presumption against retrospectivity. This change is proportionate. It strengthens public protection and offends no principle of law.
What of the provision that increases the period to be served before release may be considered? My view is that this, equally, is a proportionate provision that strengthens public protection and offends no principle of law. To alter the period that must pass before a prisoner may be considered for early release is not to alter the original penalty that was imposed by the sentencing court. To do that would precisely offend the presumption against retrospectivity, but the Government’s proposal does no more than alter a particular aspect of that original penalty’s implementation. The penalty itself, the sentence imposed by the judge, remains the same. I do not believe that such a modification in any way engages a presumption against retrospectivity.
A justification for this measure is readily apparent: strengthening public protection from a uniquely dangerous category of offender. The uniqueness of the danger represented by terrorist offenders lies in the fact that their crimes are motivated by ideology and that this ideology positively and precisely mandates the commission of further similar crimes. This means that every proportionate step must be taken to ensure that the prisoner’s ideology has been sufficiently tempered before early release can be considered. In my view, that easily justifies a requirement that a longer period should be served by convicted terrorists, as opposed to other prisoners, before they may be considered for early release to allow for a deeper and more intensive examination of this important question than might otherwise be available in their case.
I strongly agree with the part of my noble friend Lord Carlile’s speech on deradicalisation and probation provision and its present hopeless inadequacy. In isolation, without more, this legislation just kicks the can down the road—not very far in some cases, because we are dealing with prisoners who will be released, even under the provisions of this Bill, in the near future. We need to develop multiagency deradicalisation programmes, but I agree with my noble friend Lord Evans of Weardale that these do not guarantee anything. We will also need to develop programmes for post-release supervision and, if necessary, control. Because these programmes would only follow criminal conviction for terrorist offences, in my view they could easily—depending on how they are designed—be proportionate and appropriate in these particular cases. All this needs thought, effort and a good deal of investment, but if the Government really wish to protect the public they should urgently commit all three.
Lord Blencathra (Con)
My Lords, I support the Bill, as it is an essential stop-gap measure. When one looks at the offences in Schedule 1, it beggars belief that these terrorists can automatically be released half way through their sentences even if they are still a threat, spouting fundamentalist hate and vowing to kill again on release.
Let us face it, the law on sentencing both generally and for terrorists and serious offenders is a mess and has been for some time. In my opinion, Governments have made two main mistakes over the years. The first is that maximum sentences are too low. The second is letting courts decide on the sentences served rather than introducing mandatory minimum sentences for categories of terrorist offences that the courts would have to apply if someone was found guilty.
The Minister has said that the Bill applies to standard determinate sentences where convicts are released automatically at the halfway period. That will now be increased to two-thirds of their sentence with a Parole Board review. That is still grossly inadequate, since there should be no release until they are safe or deradicalised. That is why indeterminate sentences were so good and I regret that we have lost them.
My noble friend says that there will be a proper counterterrorism sentencing and release Bill coming soon. I welcome it—it is long overdue. At the moment, only the worst offenders get a life sentence, but what does that mean in reality? When capital punishment was abolished, we were told that, in the absence of the death penalty, people would get life in jail instead. No, they do not. We all know that most sentencing in our courts is a lie and a life sentence is, on average, 15 years. Of course, we hear of the occasional 40-year sentences for vile child killers, such as Huntley, but the vast majority of killers are out in 15 years.
On terrorism sentencing, there is the sentence for offenders of particular concern, who are eligible for release after half their sentence. If someone is regarded as a criminal of particular concern, why in the name of God is he even considered for early release? He should serve the whole term. The problem is—as noble and learned Lords, who are much more learned than I, have said—that the system of sentencing in our courts is based on a big lie. Judges may say to the convicted person, “You are a dangerous criminal and I sentence you to 10 years’ imprisonment”. Everyone in the court, except the victim, knows that this is a lie—it is in fact only five years. We must get back to honesty in sentencing, as was advocated by my noble friend Lord Howard of Lympne when he was Home Secretary, where convicts serve a whole term, with a maximum of, for example, 10% off for good behaviour or 20% off for exemplary behaviour, however we may define that behaviour, which could of course include successful deradicalisation, rare though that will be.
My opinion on the whole problem is that sentencing is too soft generally. Last week, a Member of the other place got Answers from the Ministry of Justice—I consider that a misnomer if ever there was one—saying that two serial offenders with 390 and 291 previous convictions were spared jail. What planet were these judges on? The courts are failing again and again to lock up serial offenders. Of course, community sentences must be tried for first-time and minor offenders, but habitual, serial and terrorist offenders must receive sufficiently long sentences to protect the public. Too many of our courts are obsessed with rehabilitation and have forgotten that the first rule of sentencing is punishment, then protection of the public and then, ideally, rehabilitation. As my noble friend Lord Howard of Lympne said some time ago, “Prison works”, and I look forward to that doctrine being advocated when we get the terrorism sentencing of offenders Bill in due course.
Finally, I admire the enthusiasm of those who try to rehabilitate convicts. Rehabilitation can work for many categories of people, except two: paedophiles or sex offenders and Islamic fundamentalists. You cannot change or rehabilitate a person’s sexual mores. Would anyone dare to suggest that you could turn a heterosexual into a homosexual or vice versa through therapy? Of course not. Those who advocate such so-called cures are rightly condemned. Why then do we persist with the belief that someone who believes that rape is the normal sexual behaviour or that sex with children is okay can be cured by talks or therapy? It cannot be done.
My experience of four years in the Home Office is that many young males get into crime and escalate upwards, from petty stuff to theft and robbery. Many grow out of it by age 25 and others can be rehabilitated with training, a job and housing. These people, however, do not have a deep-seated belief in the fundamental rightness of theft or robbery, nor are they part of an ideology or theocracy where many of their elders praise it as their sacred duty to steal or rob. But Islamic fundamentalist terrorists are in a totally different category. With very few exceptions, they cannot be deradicalised or rehabilitated out of their deeply held beliefs, especially when there are tens of thousands like them around the world with similar beliefs.
Let us not be naive about our ability to rehabilitate terrorists. They are a serious threat and, in the vast majority of cases, will continue to be so. They should serve very long prison sentences. This Bill is a small but necessary step to protect the public, but I look forward to that more overarching legislation with minimum mandatory sentences set down by Parliament for different categories of offence—five, 10, 15 or 40 years, as appropriate. Parliament should set minimum mandatory sentences, with no automatic release for anybody, and the courts should implement them if someone is found guilty. I believe that it is time for Parliament to properly protect the public. If that means a dozen or so new supermax prisons, I understand that the Chancellor of the Exchequer has a bit of spare cash to splash around at the moment.
Baroness Meacher (CB)
My Lords, I rise to express my support for the Government’s determination to act in response to the imminent release of high-risk prisoners. I agree with one thing that the noble Lord, Lord Blencathra, said—I do not think I agreed with anything else—and that is that the automatic release of high-risk prisoners half way through their sentence cannot be very sensible. At the same time, I want to question whether the retrospective increase in the period of imprisonment before consideration of release, which is quite different from automatic release, is necessary and therefore justified. If it is not necessary, then it certainly is not justified. I also question whether the Bill, on its own, can achieve the Government’s objective of keeping the public safe.
Along with many noble Lords, I very much support the involvement of the Parole Board in release decisions for terrorist prisoners, as established in Clause 1(2), albeit that the scope of this change is limited to a particular category of terrorist prisoner—I learned that from my noble and learned friend Lord Judge; I had no idea about such things. With other noble Lords, I agree very strongly with the noble and learned Lord, Lord Falconer, that the involvement of the Parole Board in deciding whether these prisoners can safely be released is surely a sufficient safeguard, without needing to resort to the automatic extension of the period of imprisonment prior to review. I am sure the noble and learned Lord the Minister will respond to the very powerful case made by the noble and learned Lord, Lord Falconer, and I look forward to what he has to say.
My other concern is that, in the absence of highly professional deradicalisation programmes for terrorist prisoners who are a risk to the public while they are in prison, the likelihood of their release by the Parole Board is just about zero. The Minister referred to various interventions in prison but with no indication at all of their efficacy or their availability to prisoners. They might be—and I think they probably are—small projects here and there, but there is no comprehensive availability of highly effective and well-proven services. The Minister will be aware of the warning by Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, that this Bill could make terrorists more dangerous on their release. Far from being deradicalised in prison through carefully constructed interventions, Hall warns, inmates could be exposed to worse influences in prison than outside. Hall also makes the important human rights point that this lengthening of the time period behind bars before consideration will apply to terrorist prisoners even if they are no longer a risk to the public. At best, it is a terrible waste of taxpayers’ money and, at worst, a policy which will increase the risks of attacks on members of the public as well as breaching the human rights of the prisoners themselves.
The Minister will also be aware of the warning of Dave Thompson, the outstanding Chief Constable of West Midlands Police and vice-chairman of the National Police Chiefs’ Council, that although he supports the legislation—as I do, in general terms—it will only defer the problem and will not solve it. The crucial element in keeping the public safe is what goes on within prisons and with prisoners, rather than length of term. My understanding is that deradicalisation and disengagement programmes have been underfunded and poorly executed over recent years.
The main deradicalisation programme in prisons is, of course, the Healthy Identity Intervention programme, which delivers one-to-one individually tailored services. One consequence of the 40% cuts to Ministry of Justice budgets is that, when prisoners say they are willing to on a programme, they cannot get on it before their release date; thus they are incredibly dangerous, and we have not been able to do anything about it. The pilot showed that the programme was well received by facilitators and participants, which was helpful, but we will not know whether it actually works for yet another two years.
I hope that the Minister will respond positively to the thoughtful proposals made by the noble Lord, Lord Leigh of Hurley, because imams have a very important part to play in this work if they are moderate and sensible, which I think was what the noble Lord was suggesting.
Another concern is that the Acheson review recommended establishing three separation units to detach the most radical inmates from the rest of the prison population, but only two are open. What plans do the Government have to open the third one, because without those sorts of units, we are building up problems for the future. The noble Lord, Lord Marks, has already referred to the other major concerns about the Government’s refusal to accept the great majority of the Acheson recommendations.
To introduce this Bill in the absence of serious investment in deradicalisation programmes and evaluation of those programmes—we have to prove that they work—will be inordinately expensive for the taxpayer. People will just have to remain in prison for very long terms, which I am not sure that I am entirely happy with if there is an alternative, and that is effective deradicalisation, which has to be better for everybody. Are the Government aware of any such programmes that have been proven to be effective? I do not have that knowledge, but perhaps the Minister does.
Finally, will the Government consider amending the Bill, first, to withdraw the change to the minimum period of imprisonment from a half to two-thirds of a sentence before consideration for release, in response to the point made powerfully by the noble and learned Lord, Lord Falconer of Thoroton? Secondly, will they establish proven deradicalisation programmes as essential services for all terrorist prisoners? I look forward to hearing the Minister’s response.
Baroness Hamwee (LD)
My Lords, we have heard some powerful and thoughtful speeches, but that is what this House does well. I do not want to add to the debate on the retrospective effect of the legislation and the distinction between sentences imposed before and after these provisions come into force—there has been a lot of discussion about the jurisprudence—but I have wondered why we are using the term “retrospection” rather than “retroactive”. However, how the step is perceived by an offender, their family and their community seems to me to be particularly important and worth pausing to consider for a moment. Human rights compliance must seem less of an issue than what is perceived as further punishment.
I want to say a word about why it is necessary to look at the response to individual offenders who are going to be released at some point. Many noble Lords have said, quite rightly, that the can may be kicked down the road but it will not be kicked terribly far. I do not mean the knee-jerk—to use the term of the noble Lord, Lord Ramsbotham—“Let’s bang them up for longer because prison works,” or as the noble and learned Lord, Lord Falconer, put it more delicately, “in response to public pressure.” The violence both in our prisons as well as outside gives the lie even to prison working for the period that the prisoner is inside.
Most of the discourse has been about punishment—this is bound to be regarded as an extension of punishment—but what about rehabilitation? I was taught that there are three connected objectives in the sentencing of offenders, which ironically the victims of the Fishmongers’ Hall attack would have learned as students at the Cambridge Institute of Criminology.
We all recognise that this is not easy territory. Clearly, the process of deradicalisation, if that is the way to put it, is hugely complex. Can it be the same for each individual in their circumstances? What are the factors at play in each case and what are the risks? After the Fishmongers’ Hall attack, Usman Khan’s solicitor was reported as saying that none of the programmes to which his client was exposed tackled the underlying ideology and that he wrote to organisations outside the prison system requesting help for his client. So this must be a moment for focusing on the programmes by investing in research into what has the best prospects of success and investing in specialists who can administer them. The Minister must know as well as anyone from a department which has suffered 40% cuts that the probation service is buckling, and in any event, this is a very specialist area. We should share the success stories too. In summary, we should evaluate where we are and where we should be going.
The Parole Board, too, carries a huge responsibility. I acknowledge its expertise, but what extra support based on the best developing research and advice will it receive? Some risks are known within the system, as we have been discussing; otherwise, Sudesh Amman would not have been under close observation in Streatham. That must have been a huge cost, and as the noble Lord, Lord Evans of Weardale, reminded us, the resource is finite.
Like others, I am puzzled about the non-use of TPIMs, although I have heard the criticisms of them. And what about the conditions in our prisons, which are widely thought to be breeding grounds for radicalisation? This measure will add numbers—not that many and probably not for very long—to an environment which of itself is a risk, putting in danger those who are susceptible but who have been convicted of low-level offences or, indeed, completely unrelated offences.
What does the impact assessment for this Bill tell us? First, as regards the Prison Service, each additional prison place will incur annual running costs of around £63,500. We are told that that will not cover “additional rehabilitative activities”, so what will they be? Indeed, will there be any? On the Parole Board, the impact assessment says that the additional workload
“will be carried out largely within the current resources.”
Is that it?
I have said that there are success stories, as there are in some other countries. The noble Lord, Lord Hogan-Howe, drew our attention to this. I do not suppose that all programmes are fool-proof, but we should not dismiss them out of hand. Can the Minister tell us what is being done to learn from these and, dare I ask, to replace the partnership and co-operation agreement between the EU and, I think, six south-east Asian nations? I mention this because, apparently, a very successful programme is being applied in Malaysia for bringing people home from Syria. Alok Sharma, in a previous ministerial incarnation, said that Malaysia is a key counterextremism partner because
“it is a modern and moderate Islamic nation.”
The noble Lord, Lord Blair, mentioned a “deep dive”. When will that deep dive take place? It is in the nature of our role that we are generalists—or at least most of us are, although I accept that the lawyers among us are specialists—and one of the objections to fast-tracking legislation is that there is no opportunity for stakeholders and specialists to influence it. Earlier today, I was very glad to attend a meeting, or what I would call a seminar, organised by the noble Lord, Lord Anderson, which was tremendously helpful. We heard a range of views from people with a lot of experience. There is no opportunity for considering evidence, including evidence from government, to Parliament’s committees—which, like the noble Lord, Lord Pannick, I am amazed are not yet set up, but that is the way the other place operates. There is no opportunity to consider why the legislation is not to be extended to Northern Ireland, although I hear what has been said about that coming along with the next Bill. I am not sure whether those in Northern Ireland would regard that as satisfactory.
The cliff edge at the end of a sentence with no licence period is not the only timing issue, but a cliff edge with no licence seems to be very unwise—as decisions taken to show that “Something is being done” without time for consultation and consideration often can be. The powers of the probation service regarding someone on licence can be very tough, including recall to prison, so limiting or excluding that possibility cannot be appropriate.
I do not want to be glib, but in summary, and to follow the analogy made by the noble Lord, Lord Harris, will the bleeding start again once the sticking plaster is removed? Indeed, are we dealing with evidence-based policy or policy-based evidence?
Baroness Chakrabarti (Lab)
My Lords, the Opposition support the logic that terrorist offenders—even minor terrorist offenders—should not be released from prison on an automatic early-release basis; they should be subject to assessment by the Parole Board. That said, it is a daunting burden and a grave duty of any legislator to be faced with emergency legislation, let alone emergency legislation affecting both public safety on the one hand and the rule of law on the other. Inevitably, the Executive present us with an emergency, and such is the nature of sensitive intelligence—reports relating to specific offenders and their potential associates—that we lack equivalent information. Therefore, to some extent, we have to trust in the emergency, but it would be better if we could be granted a little more trust as well.
I have seen a letter sent by Peter Dawson, director of the Prison Reform Trust, to the Lord Chancellor and Justice Secretary. It is a letter to which I do not think there has yet been a reply, and no doubt there cannot be a reply this evening. However, it highlights one point that needs to be considered before any further legislation in this area. Peter Dawson is an experienced former prison governor and a distinguished former Home Office civil servant; I hold Home Office civil servants in quite a lot of regard. Following the debate on the Bill in the other place, he wrote:
“I noticed your response to the general issue raised by Kate Green MP about recall arrangements during the second reading debate. You mentioned that either arrest or charge on suspicion of a further offence might trigger recall, but of course recall can and very often is triggered at a much lower threshold. In the specific case of Sudesh Amman, in the days following his release, there was sufficient concern about an imminent risk to public safety for the police to mount a covert surveillance operation by armed officers. Why was that concern considered insufficient to justify a decision by the National Probation Service to protect the public by recalling Mr Amman immediately to prison, as the law currently allows?”
It might be that the Minister will not be in a position to respond to that in his remarks, but that kind of scrupulous detail in relation to the law as it currently stands needs to be considered before the deep dive that we are promised later in the year, after this specific measure, which broadly we support.
We also heard from the noble Baroness, Lady Jones, about rumours and suggestions that some of those serving offenders on whom this legislation will bite are not of the jihadi persuasion but might be minor “terrorist” offenders who have been convicted of criminality in connection with other kinds of activism; she mentioned an animal rights activist. No doubt the Minister can give us some answers in relation to the scope of this legislation and the particular offenders who will be affected.
It is also right that I echo concerns raised by the noble Lord, Lord Pannick, and others about the lack of an Intelligence and Security Committee at a time when we are looking at one version of emergency terror legislation, and why we do not yet have a Hall report. These other mechanisms are there to assist your Lordships’ House and the public in grave times such as these. There cannot just be emergency legislation in a vacuum without the supporting mechanisms that have been provided.
That said, I am prepared to accept the emergency, and have no choice in doing so. But if there is an emergency that requires this legislation—I do not mean this rhetorically; this is really the central thrust of my concern—it is, for the most part, an emergency of the Government’s own making. It is an emergency made by all those who failed for at least a decade to protect the Ministry of Justice from 40% cuts—some of the most savage cuts in Whitehall. That has a direct bearing on the nature of capacity, regime and intervention in the prison and probation systems. It is an emergency of overstuffed, understaffed prisons; some parts of prisons are almost controlled by dangerous offenders. As was eloquently put in the other place by no less than the former Prime Minister, prisoners—most of whom will leave at some time—are highly likely to be far more dangerous when they leave than when they entered; that includes prisoners suffering from mental health and substance-abuse problems who were convicted of minor non-terrorist offences, who have gone into the estate and been radicalised there.
With respect to the comments made by the noble Lord, Lord Blencathra, it is all very well to talk about minimum mandatory sentences or longer sentences for terrorists, but what about the other prisoners who are going into the estate? They would never be sentenced to life in prison, but they are being radicalised. I have even heard serving prison officers speak of their own vulnerability in this kind of regime—vulnerability to radicalisation as well as to physical harm. Such are the dangers of this crumbling criminal justice system on its knees, the cuts to the Prison and Probation Service, and a system too much run for private profit and not for public safety. I noted the remarks from the other side of the Chamber on the failure of privatisation in relation to accountability and public trust in the system.
I support the basic principle of this Bill: discretionary release in the hands of the Parole Board, rather than early automatic release for terrorist offenders. I am glad that that was the limited measure proposed in the light of this emergency, but of course there were many alternative briefings to which we were all subjected suggesting other things that the Government might have been considering and might yet consider. I have heard talk of derogations from the European Convention on Human Rights, of leaving it altogether, and of further experiments in executive punishment without charge or trial—all those have been mooted and briefed on. I am grateful to the Lord Chancellor, at least at the time being, for adopting this more limited measure, and indeed for taking the trouble to consider its compatibility with human rights and to make the Section 19 statement, as mentioned by the noble Lord, Lord Faulks, and others.
On the point of legality and the desperately interesting forensic debate that has gone on in your Lordships’ Chamber on Article 7 of the convention and common law traditions on retrospection—between a positively fantasy football league of eminent lawyers—I will say this. It is quite something to be faced with the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown, on the one hand, and my noble and learned friend Lord Falconer and no fewer than three Independent Reviewers of Terrorism Legislation—the two former ones, and Jonathan Hall with his report—on the other. This suggests a grey area. I have always been completely forthcoming when I have believed that a measure is patently unlawful and will fall foul of the courts: this is not one of those cases. It is of course for the Government to investigate and ultimately defend the legality of their policy and legislation in the courts.
Your Lordships heard the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown, eloquently explain the case law that supports the idea that to retrospectively change release arrangements within the envelope of a sentence does not offend the principle against retrospective punishment. However, your Lordships also heard from my noble and learned friend Lord Falconer, the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Garnier—another fantasy football team—about the danger that, whether or not this offends Article 7, it would certainly offend the sense of basic fairness of a lot of people and prisoners, which is quite important when trying to establish and promote the rule of law in our communities.
I therefore humbly submit to your Lordships that, in the light of that genuine grey area, and given that, whatever we would like, these provisions will almost certainly at some point be tested in the courts, it would be sensible for any Government to listen carefully to the amendment in the name of the noble Lord, Lord Anderson, and to adopt it if it presents no challenge to the basic public policy ambition of this legislation: that is, to prevent dangerous offenders being released automatically into the community while they still pose a risk. As your Lordships have heard from the noble Lord, Lord Anderson, my noble and learned friend Lord Falconer, and others, this amendment does no harm to that central ambition of the Bill: that in future, those convicted and sentenced of the relevant offences will not be eligible for release until the two-thirds point in their sentence, and not without the permission of the Parole Board. If the amendment were accepted by the Government, those already convicted, sentenced and serving in prison would not be released automatically as now, as they understood when they were sentenced. They will have to persuade the Parole Board, but at least they will be able to go to the board at the halfway point. It is to some extent a compromise: it does not offend the public protection ambition of the Bill but goes some way towards that sense of fairness and instinct against retrospection, whether it would ultimately fail in court or not. I will be particularly interested in what the Minister says about that amendment, which can only improve the legal defence ability of this legislation in the domestic court and the Strasbourg court.
However, even with that exquisitely drafted amendment and the wonderful seminar that some noble Lords enjoyed earlier today, this legislation will be vulnerable to challenge if adequate resources are not pumped into the prison and probation system so that offenders have a realistic prospect of engaging with programmes and of an early hearing before a properly resourced Parole Board. If those resources are not provided, the right to engage in programmes and to appear before the Parole Board will be completely illusory. Therefore, resources go not just to the practicality of trying to keep people safe but to the legality and efficacy of protecting prisoners’ rights as well. Resources are the central problem in all this.
Of course, there is no risk-free society, and this is an incredibly difficult area of public policy and legislation, as all noble Lords have acknowledged. However, it is so much harder because of the environment of savage cuts that has been created over the past decade. Even beyond that decade, our politics have not served this area of policy well; there has been a lack of resources, combined too often with overblown rhetoric, and even attacks on the rule of law itself. The rule of law binds not just citizens but Governments too, and if we undermine it by blaming judges and human rights instruments, and by treating it as an irritant, that message will go home to the public and to those who feel that they have just cause for disfranchisement. The rule of law is surely the one thing that binds us all together, not just in your Lordships’ House but in this country, even in polarised and difficult times. I hope that, when the Government and those on the Benches opposite engage with the deep dive that is yet to come after tonight, they will remember that and restrain the more carnivorous instincts in No. 10.
Baroness Buscombe
Does the noble Baroness believe that sharia councils do not interfere with our rule of law? Do they fully respect our rule of law?
Baroness Chakrabarti
There is one law of the land and it binds everyone. Sharia councils do not provide an alternative legal regime; there is one law of the land, which is what I am talking about. If people seek to argue otherwise—I take the noble Baroness’s point—they need to be disabused of that. There is one law of the land which binds us all, in this House, in government and in opposition; it binds the citizenry, the suspects and the victims. I think we can agree about that.
Baroness Deech (CB)
Can the noble Baroness reassure us on the efficacy of the programmes for stopping radicalisation? I have read—I do not have the evidence—that at least one of the terrorists had successfully completed such a programme, and that other convicted terrorists are encouraged by their hierarchy to go neatly through the programme to secure release and be seen to have been deradicalised. In other words, there may be nothing we can do, no matter how much money is thrown at these programmes.
Baroness Chakrabarti
As always, the noble Baroness, Lady Deech, points out genuine challenges in this area. We have to try, and to put in sufficient resources to make the best attempt. We certainly cannot have a situation whereby those going into prison, not for terrorist offences, are being radicalised there and coming out more dangerous than when they went in. They will not be touched by this legislation. If and when they offend, people will not say, “That was a convicted terrorist”; they will just think that they were yet another person who has done the rounds, been in and out of prison for whatever offence, and come out more dangerous than when they entered.
We will have to break shortly, and then we will have the opportunity to consider amendments. So many noble Lords talked of their ambitions for the future, and I hope that when considering this Bill, and in future debates, they will remember not just the legalities but the practicalities of trying to ensure that this emergency is not a permanent one that takes us into the seventh circle of hell, debating more emergency legislation, to little effect, well into the future.
Lord Keen of Elie
My Lords, clearly these are grave matters worthy of serious debate, and I am obliged to all Members of the House for contributing to that debate.
Let us be clear at the outset. This Bill is not a complete answer to the challenges we face with regard to terrorism, the ability to counter terrorism, radicalisation and the ability to deradicalise individuals. There will be a great deal more to do, and the Government have made it clear that they intend to follow through and do a great deal more in this area, including the proposal for a counterterrorism Bill that has already been referred to. The noble Lord, Lord Pannick, suggested that such a Bill may or may not emerge, but at present we are not anticipating a dissolution of Parliament. Therefore, I believe with a degree of confidence that we will be bringing that forward.
Over and above that, noble Lords will recollect that last month, following the terrorist attack at Fishmongers’ Hall, the Government announced a major overhaul of counterterrorism, prison and probation, a proposal to double the number of specialist probation officers working with terrorists, the introduction of further legislation, such as the counterterrorism Bill, and the creation of a new counterterrorism programme and intervention centre. I note what the noble Baroness, Lady Deech, observed: we also have to delve into the efficacy and effectiveness of many of these programmes in order to determine our direction of travel. We anticipate that the new centre will represent a major shift in our capability to intervene with terrorist offenders to try to identify the risk they pose, and to bring to bear the correct specialists to work with them to reduce such risks while they are in custody.
Of course, turning a terrorist away from the mindset they have is no easy task. It requires not only expertise and application but eventually a willingness on the part of the offender to engage with such programmes, and to do so genuinely. Noble Lords have pointed out that there have been instances when it is apparent that some individuals have embraced these programmes, but in a wholly superficial, indeed false, way. That is a further challenge that we face.
There is clearly more that can be done. Indeed, the proposed centre will prioritise three things. The first is the need to build the evidence base for what works for terrorist offenders, using the best evaluation approaches we can identify, not just in the UK but in other jurisdictions. Secondly, the centre will have capacity to respond to new threats and challenges with regard to terrorist offending, because those will almost certainly emerge. Thirdly, it will try to bring to bear highly trained staff to deliver intervention programmes, which will include bolstering the cohort of counterterrorism specialists, psychologists and trained chaplains who deliver theological and ideological interventions.
This is not entirely novel. Since 2010, significant work has taken place to try to develop and improve counterterrorism interventions. The primary intervention, as mentioned by the noble Baroness, Lady Meacher, has been the Healthy Identity intervention, which is a one-to-one programme that supports desistance and disengagement from extremism by targeting the social and psychological drivers of such offending. Again, I do not seek to minimise the challenges that will be faced in developing and applying these programmes, and, indeed, learning from these programmes, because that will be part of the process.
I shall turn for a moment to one issue that has driven the regret Motion and some of the amendments: whether, or to what extent, the Bill’s proposals have retrospective effect, and whether they are consistent and lawful pursuant to Article 7 of the European Convention on Human Rights. On the Article 7 point, let me say clearly that I concur entirely with the view expressed by the noble Lord, Lord Pannick, that the provisions of this Bill are entirely consistent and allowable under Article 7 of the convention. Any doubts raised by reference to the Del Río Prada v Spain case, referred to by the noble Lord, Lord Marks, have, in my view, been dispelled by the recent decision in Abedin v the United Kingdom. It is for that reason that a certificate has been signed, pursuant to Section 19 of the Human Rights Act, to confirm that the provisions of the Bill are consistent with convention obligations.
There is the further issue of common law. As was observed, there is no common-law prohibition on retrospective legislation. There is a presumption against it, and it is a presumption that has to be addressed. But before we address it, we have to understand what is meant in this context by the retrospective element in the Bill. The noble Lord, Lord Marks, complained that the common-law principle, as he put it, against retrospection was being intruded upon because of the Bill’s intention to increase the length of prison sentences. With respect, that is not what the Bill does—but, of course, the noble and learned Lord, Lord Falconer of Thoroton, also referred to increasing the length of sentences retrospectively. Indeed, the noble Lord, Lord Harris, suggested that this was Executive interference with judicial sentencing.
Lord Harris of Haringey
If any prisoner had understood that his sentence was four years but that automatically, because the Secretary of State had a duty to do so, it was reduced to two years, he would feel that retrospectively his situation had changed. I said nothing in that context about the Executive. What I did say is that the Executive have been wilfully failing in not bringing forward proposals much earlier to address some of these problems.
Lord Keen of Elie
I misheard the noble Lord, and I apologise to him for that. I had understood him to refer to the issue of the sentence being retrospectively changed, as reflected in the observations of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.
The point I wish to make has already been touched upon by the noble Lord, Lord Pannick. The position is simply this. There is an established line of case law up to the Criminal Division of the Court of Appeal that a court should pass a sentence that is commensurate to the offending behaviour in relation to the offence committed, without any consideration of any possible early release. In other words, early release under licence and the various ramifications of that are an irrelevant consideration to the courts on sentencing. That is reflected by the Court of Appeal decisions in Round in 2009 and Bright in 2008. So it is not a case of retrospective change to sentence. Somebody is sentenced to a period of, say, four years. There is then a statutory provision whereby the Secretary of State comes under a duty to release at a certain point in the sentence. The current position with regard to the type of sentence we are dealing with is release at the halfway stage. In response to an observation by the noble and learned Lord, Lord Judge, I say that the Secretary of State has a duty to obtemper that statutory obligation and, I suspect, would be faced with a writ of habeas corpus if he did not. There is a clear duty there, and there is no way around that.
The true retrospective nature of this legislation, insofar as it is at all retrospective, comes from the application of the provisions with regard to the Parole Board, with which everyone appears to be in agreement. Under the present statute, a prisoner is entitled to automatic release at the halfway stage. We now propose—and everyone appears to agree—that this should not be the case and that they should have to satisfy the requirements of the Parole Board before they are released. So a prisoner who anticipated automatic release will no longer be able to do so, because the provision with regard to the Parole Board is that it must be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. That is the retrospective element in all this.
The noble Lord, Lord Pannick, then asked: why apply that at the two-thirds point in the sentence rather than at the halfway point? There are a number of reasons behind the provision in the Bill extending the period of imprisonment from half to two-thirds of the sentence. The most immediate was reflected in an observation from noble Lords that this Bill gave a breathing space. That is certainly required at present, because we face a situation in which we are placing a quite considerable obligation on the Parole Board to bring forward expertise and examination of individual prisoners, in circumstances in which a number of these offenders are due for release at the halfway point in a matter of days. In the interim period, therefore, it is necessary that we are able to accommodate that very real risk.
In addition, it brings the sentence into a position that is consistent with other sentences, where the period is two-thirds. We suggest that it allows for a further period of incapacitation of terrorist offenders—it may seem limited in some instances, but not in all—and confers a degree of public confidence on those concerned about recent behaviour and recent events.
Lord Falconer of Thoroton
I make it clear that I have no problem with imposing the Parole Board. Equally, Equally, I understand the point that the noble Lord, Lord Faulks, made and that the Minister is making, that there will be quite a lot to deal with. But I understand that the effect of the Bill will be that you cannot be released automatically until the Parole Board has said you can be, so there will not be a problem on the basis of the draft of the Bill. The bit I question the Minister on—I find it completely incomprehensible—is that he appears to be saying that moving it from half to two-thirds is part of the administration of the sentence and therefore not caught by retrospectivity, but that removing release from automaticity is part of the sentence. I just do not follow that.
Lord Keen of Elie
The sentence itself reflects the entire period ordered by the court. It is then an executive action to decide at what point during that sentence somebody may be released on licence. Let us remember that it is not a right to be released on licence. There is simply a parliamentary provision by statute that places a duty on the Secretary of State to allow release on licence. And it is not an absolute release: you may be recalled, depending on the conditions of the licence and whether you adhere to them. In that sense, the true retrospectivity of the Bill lies in the imposition of the Parole Board decision-making, not in anything else.
The question then raised is: why impose that at the two-thirds stage of the sentence rather than at the halfway stage? As I say, there are a number of reasons why the Government consider that appropriate, the most immediate being the point I made about the need for a breathing space. We face a number of instances in which such terrorist offenders are due to be released and, under present legislation, would be entitled to be released without qualification or test in a matter of days. To accommodate that is simply not possible. That is why a breathing space is appropriate and why we consider that in these circumstances we should shift the point at which the Parole Board becomes involved to a point consistent with other sentences, which is the two-thirds point.
As I say, this has the additional benefit of incapacitating those terrorists and preventing them engaging in activity for a further period. We suggest that this, in turn, would confer a degree of public confidence in the way in which we are dealing with such terrorist offenders. So clearly the Bill cannot achieve its intended effect unless it operates with retrospective effect, and the retrospective effect here is the imposition of the requirement that the Parole Board be satisfied about the release—rather than the existing legislative provision, which places a duty on the Secretary of State to release without any further consideration in respect of that matter.
Baroness Meacher
Can the Minister explain something to me? Perhaps I have misunderstood it, but my understanding was that if this legislation passed, somebody due for release in a few days could not then be released until the Parole Board had got around to reviewing whether they could be released. So, if the Parole Board is not ready for a month, two months or whatever, the prisoner would have to wait for that process. Is that correct, or have I misunderstood the point?
Lord Keen of Elie
My understanding is that under the present legislative regime, there is a duty on the Secretary of State to release the prisoner at the halfway point. We require a regime in which the Parole Board is able to act in determining whether it is satisfied that the prisoner could be released—but you could not hold the prisoner simply on the view that the Parole Board might take a few months to get round to considering his case. That is why it is necessary to look at what was referred to as a breathing space: the requirement to allow time to implement this process. As I say, it is also consistent with other sentences, where release is at the two-thirds point, and it allows for the incapacitation of the terrorist offender for a slightly longer period—which in turn, we suggest, assists in maintaining public confidence in the way in which we are dealing with these offenders.
While I understand the concern about retrospection, it has to be seen in its proper context. The Bill will not achieve its intended objective unless there is that element of retrospectivity in it. The noble Lord, Lord Anderson, alluded to a situation in which a prisoner might remain in custody until the very end of their sentence and then be released without licence. It is in those circumstances that one can find provision for TPIMs, for example. I acknowledge that they have been utilised only to a very limited extent until now, and it may be that their use has to be looked at again. They are very resource-intensive, which may explain to some degree why they have been employed only in limited numbers until now. Again, we are looking at the need to employ such procedures.
The noble Lord, Lord Anderson of Ipswich, also raised Northern Ireland, which I believe the noble Baroness, Lady Hamwee, also referred to. The Justice Minister felt that she would like to see the legislation extended to Northern Ireland. We have discussed the matter with officials in Northern Ireland, and there are very real technical difficulties regarding the way in which sentencing policy is implemented in Northern Ireland. It is quite different to sentencing policy in England and Wales in a number of respects. We fully intend to take forward this legislation, which is why we intend to look at this in the context of the counterterrorism Bill that we intend to bring forward—but at present we feel that it would be too complex an issue to try to deal with in the context of this emergency legislation.
The noble Lord, Lord Pannick, asked why, if this is emergency legislation, there is no sunset clause. The Government’s view is twofold. First, it could create uncertainty and confusion, because a prisoner would not know whether they were to be subject to the regime that we are introducing. Secondly, we are intending to bring forward a more substantive and wide-ranging counterterrorism Bill, properly addressing these issues, when the various committees of the House are available to examine the proposed legislation. I hope that that goes some way towards satisfying the noble Lord.
I am conscious of the time, so let me say this in conclusion. In extending parole release to all terrorist offenders, the Bill provides a sensible and proportionate safeguard against the problem of automatic release. The consequences of such automatic release are reflected at Fishmongers’ Hall and in Streatham. Further releases of prisoners are due within a matter of days. If the Bill is to achieve its desired effect, early commencement of the provisions, including retrospection, is vital. We are concerned not only with public confidence, but also with public safety. That is the first duty of any Government and one that we take extremely seriously. I invite the House to do likewise.
Lord Marks of Henley-on-Thames
My Lords, my regret amendment does not ask the House to reject the Bill. If the noble Baroness, Lady Buscombe, or anyone else understood it as so doing, that was not intended. I fully agree with the many noble Lords who said that the Parole Board should carry out a safety assessment before terrorist prisoners are released. I agree with the Minister that that is sensible and proportionate.
Let me briefly take up the point made by the noble Baroness, Lady Meacher, to which I do not accept that the Minister had a satisfactory answer. If the Bill were to achieve Parole Board assessment prior to release but did not increase the minimum time in custody from half to two-thirds of the original sentence, the breathing space for which the Minister asked would be achieved. As soon as the Parole Board had decided that release was safe, release would follow.
I also agree that automatic release is not appropriate in the case of terrorist prisoners. My amendment is confined to expressing some regrets that the Bill will do nothing to improve deradicalisation and rehabilitation, that Ian Acheson’s recommendations are hardly being implemented, that without further measures we risk radicalisation of non-terrorists in custody and that the Bill may cut down the time for supervision of some lower-grade terrorist offenders, who will spend more time in custody and less under supervision, thereby losing the benefits of significant periods of supervision.
On the Bill’s retrospective effect, I agreed with the noble Lord, Lord Harris of Haringey, except when he described his reasoning as “simplistic”. I also agreed with the noble and learned Lords, Lord Falconer and Lord Garnier, the noble Lord, Lord Carlile, and other noble Lords that, whatever the position under Article 7, where a six-year sentence meant three years in custody under the 2003 Act when passed but after this Bill will mean four years in custody, it is mere sophistry to assert that this is not a retrospective change. Similarly, it is mere sophistry to draw legalistic distinctions between a presumption against retrospectivity and a principle against retrospectivity and mere sophistry to draw a legalistic distinction between the sentence passed and the time to be spent in custody. I agree with the noble and learned Lord, Lord Garnier, that such a retrospective change will rightly seem unjust and unfair to serving prisoners, their families and those around them and may fuel further radicalisation.
For the reasons explained by the noble Lords, Lord Anderson and Lord Carlile, the noble and learned Lord, Lord Garnier, my noble friend Lord Beith and others, I will support the amendments to be moved in Committee to introduce pre-release assessment by the Parole Board at the halfway point for terrorist prisoners already serving sentences with the prospect of release, if the Parole Board considers their release is safe. That said, I do not intend to press my amendment to the vote and I therefore beg leave to withdraw it.
Amendment withdrawn.
Bill read a second time and committed to a Committee of the Whole House.
Lord Bethell
My Lords, the Legislation Office is open for a further 30 minutes for amendments to be tabled for Committee. If no further amendments have been tabled, Committee will start immediately after the Question for Short Debate in the name of the noble Lord, Lord Lucas. If further amendments are tabled, we may need to adjourn during pleasure, with timings updated via the annunciator.
Terrorist Offenders (Restriction of Early Release) Bill
Monday 24th February 2020
(4 years, 9 months ago)
Lords ChamberRead Full debate Terrorist Offenders (Restriction of Early Release) Act 2020 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 99-I Marshalled list for Committee - (21 Feb 2020)
21:52 - Division on Amendment 3 - Ayes: 49 / Noes: 165 - Amendment 3 disagreed.
Lord Anderson of Ipswich
Member’s explanatory statement
This amendment creates a distinction between sentences imposed before and after this section comes into force. Prisoners sentenced after this section comes into force are not eligible for release until they have served two-thirds of their sentence. For this category of prisoner, there is no change from what the Bill currently provides.
Lord Anderson of Ipswich (CB)
My Lords, though in common with some others of your Lordships, I regret the highly accelerated way in which this Bill has been handled, the compressed timetable has one very considerable advantage: the excellent debate we have just had at Second Reading, much of it touching on the subject matter of these exploratory amendments, is still ringing in our ears. For that reason, there seems little point in trying to repeat the full glories of that debate at this hour of the evening, for the battle lines are pretty clear.
Every speaker who addressed the issue, as the Minister rightly said, sees the need for a degree of retrospective effect to protect the public: the injection of Parole Board review into the sentences of existing prisoners, despite the fact that those prisoners will have been assured by the judge who sentenced them that they would be automatically released by the halfway stage of their sentences. None of us is prepared to see them released before the end of their sentence without the Parole Board’s say-so.
The issue raised by Amendments 1 and 2 which relate to England and Wales, and Amendment 4 which relates to Scotland, is whether we should go further into the dangerous waters of retrospectivity, as the Bill in its unamended form would do, by providing as a universal rule that not even Parole Board scrutiny will be considered until the two-thirds point of the sentence. This—let us not forget—is in relation to prisoners who are at the bottom end of the terrorism scale where seriousness is concerned and who are not assessed as dangerous by the trial judge or they would have been on a different and more onerous type of sentence.
On this issue, the European Court of Human Rights seems to be a sideshow. As the noble Lord, Lord Pannick, said—and I agree with him—it is not likely to be contravened by whatever we do. What we need to ask is whether sufficiently cogent reasons have been advanced to displace, in the interests of public safety, the normal presumption that a prisoner’s sentence will not be changed to his disadvantage after it has been passed.
On that issue, I will not summarise the respective arguments of what the noble Baroness, Lady Chakrabarti, described, perhaps optimistically, as two fantasy football teams of lawyers, although I would correct her in one respect by pointing out that the noble Lord, Lord Pannick, as I have confirmed with him, is for these purposes a member of the squad supporting these amendments, along with the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Carlile, the former law officers, the noble and learned Lords, Lord Falconer and Lord Garnier, and the others who made such pertinent contributions, including the noble Baroness, Lady Meacher, and my fellow signatory, the noble Lord, Lord Beith. The noble Lord, Lord Hogan-Howe, although not a member of the team, expressed his discomfort about the way the Bill has been written.
The Minister advanced two reasons in his all-Peers letter which I dealt with in opening, and then two more came along as he wound up the debate. With great respect to him, they were not obviously more convincing. He spoke first of consistency with sentencing regimes where Parole Board consideration comes at the two-thirds stage, but the point goes nowhere for there are plenty of other regimes at which Parole Board consideration happens at half time. He spoke of a breathing space, but the releases that are due in the next few days and weeks—the ones that we are told make this Bill so urgent—are of prisoners who are well past both the half way and the two-thirds point, so the application of one test rather than the other makes no difference in practice and gives the Parole Board no additional scope to draw breath. He spoke of public confidence, but that is a self-serving argument; it is about appearance, not about a real and objective justification. He also spoke of a further period of incapacitation as being an advantage of the scheme in the Bill, but if these amendments were to be accepted, no one would be released at half time unless the Parole Board considered them to be safe, so the only prisoners who will be further incapacitated by the provisions that we seek to amend are those who, in the assessment of the Parole Board, could safely be released.
That, I suspect, is more than enough from me. I beg to move.
Lord Garnier (Con)
My Lords, there was never any possibility of my becoming a member of the Court of Appeal, but had I been a member, the job I would most like to have had is that of the third member of the court who says, “I have read the judgment of my learned friend. I agree and I have nothing further to add.” I have heard what my friend the noble Lord, Lord Anderson, has said both at Second Reading and just now and I have nothing further to add save one point.
During the course of the Second Reading debate, instead of saying “two-thirds” I said “three-quarters”. I do not suppose that that made much difference to the way in which the House considered the matter, and the noble Lord, Lord Anderson, has made the points that need to be made. The one thing I have learned in politics is that it is possible to win the argument and to lose the vote, and it is possible to make winning arguments and sensibly to avoid a vote. For my part, I think that the noble Lord, Lord Anderson, has made and won the arguments, but whether he moves this issue to a vote is another matter. However, he has certainly won the moral victory.
Lord Beith (LD)
My Lords, I do not dissent at all from that assessment that a moral victory has been won, but that is only the beginning of the story. I simply want to address the Government’s distinctly lacking arguments against the amendment as advanced so far in a context where there was such widespread agreement on the efficacy of bringing the Parole Board into all cases but no very clear defence by the Government as to why the two-thirds provision has to be imposed on those who would otherwise have been released without the Parole Board’s involvement half way through their sentence.
The arguments produced by the Government have been very strange. One was that it would create greater confusion. It is in the essence—in the nature—of this provision that there will be confusion, because nobody can know what assessment the Parole Board is going to make of their case. The avoidance of confusion is not a primary objective of this: quite the contrary, we invite the Parole Board to make a very serious consideration of each case and only to allow release at either the halfway or two-thirds point if it is satisfied that there is not a danger to the public from doing so. The confusion argument does not really make any sense at all.
Then there is the argument that this will increase public confidence. Of all the things that might increase public confidence, I cannot see someone rushing into the pub saying, “Have you heard? Do you know that some of these offenders might spend up to another year in jail, but then they will be released?” That is not what public confidence is built on, and it is the wrong argument to use for something that involves issues of liberty.
Then I want to challenge the argument about the further period of incapacitation, because terrorists in prison are not incapacitated. They engage in grooming and recruitment activities and, as I said in the Second Reading debate, in some cases might be able to achieve more by their work among other prisoners—including prisoners who are not there for terrorist offences—than they might be able to achieve on the outside. They might recruit a larger number of people, so I do not accept the incapacitation argument.
The only argument that would be persuasive would be that it was impossible, with this amendment as drafted, to avoid the situation in which the Parole Board could not cope in a reasonable period of time with the cases at the half-time stage, but that probably could be overcome by alternative drafting if the drafting presented tonight has that problem. That would be the only argument that would persuade me: that we were letting people out without the Parole Board assessment, when the whole purpose of this is to make sure that they have that assessment.
Therefore, unless the Government produce a better argument, I do not think that they have made the case.
Lord Carlile of Berriew (CB)
My Lords, my name is the fourth name on these amendments, and I am not going to add anything, save to say this: I wish it had not been necessary to table these amendments. They represent what I would have considered a reasonable Bill to tackle the difficult problems we are dealing with tonight. I support strongly my noble friend Lord Anderson and others who have signed these amendments.
Viscount Hailsham (Con)
My Lords, I rise only briefly. First, I apologise for not participating in the Second Reading debate. I had a professional engagement that I thought would go on all day, so I did not put my name down to speak, but I have been present throughout almost all the debate, so I am familiar with the arguments that have been articulated.
Turning directly to the comments and the amendment of the noble Lord, Lord Anderson, like other noble Lords I do not like changing goalposts. I entirely take the point made by the noble Lord, Lord Beith, the noble and learned Lord, Lord Falconer, and of course the noble Lord, Lord Anderson, himself. In principle, it is an unsatisfactory business. I am not competent to form a view as to whether this is an infringement of Article 7 of the European Convention, but I am bound to say that I took a great deal of reassurance on that point from the speeches of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, both of whom addressed the matter most directly.
My arguments are of a more pragmatic nature. Firstly, the Bill introduces two elements of retrospectivity. The first is the introduction of the Parole Board filter—a point made by the Minister. The second, and different, element is the introduction of raising the minimum custodial period from one-half to two-thirds. Almost everybody who has spoken in this House, and everybody who I heard, welcomed the introduction of the Parole Board filter and thought it was a jolly good idea—but it is retrospective. Once one has decided that one can as a matter of principle accept that retrospective change, I find it quite difficult to see why as a matter of principle one should not accept the other change: namely, raising the minimum period from one-half to two-thirds.
Lord Thomas of Cwmgiedd (CB)
May I add one observation? I warmly support the idea of a Parole Board review. It is plainly not contrary to Article 7, and, if one looks at whether it is justified as against the presumption against retrospective or retroactive legislation, there are reasons which justify taking that view, as has been explained in the debate. Ultimately, it may be for others to opine on that.
However, the one thing that troubles me is the retrospective nature of this. I accept—it is obviously sensible—that a mistake was no doubt made many years ago, before the full import of terrorist offences was understood, which assumed that you could safely release anyone at the halfway point. I have dealt with many appeals on terrorist cases and I can only confirm what has been said, which is how difficult it is to make the assessment. Therefore, it is plainly right that there be an assessment—but, if that is the position and we say, “Okay; the person is to stay in prison up to the maximum of the term imposed by the judge, until he is deemed to be safe”, the detention is lawful and there is justification for that retrospectivity. What I fail to understand—I am sure that it is my fault—is why we should apply this to a person who was properly sentenced, is not dangerous and should not be serving more than the minimum term. I cannot accept the argument that we are trying to make the sentencing system logical, which is confusing. Anyone with any experience of it knows that it is in sad need of reform, and the Law Commission Bill will help great a deal in that respect.
In addition, evidence shows that keeping someone in prison, particularly if it is for an Islamic terrorist offence as opposed to another kind of terrorism offence, might make them more dangerous. It therefore seems that the only reason that can be advanced is that it is not practicable for the Parole Board to deal with the matter immediately. However, if this legislation makes it lawful to maintain someone until the Parole Board decides that they are safe, what is the risk in saying, “That is the law; we don’t need to impose a two-thirds term”? I do not follow that. It seems that it is grossly unfair and very difficult to justify for someone who, in fact, is no danger. I cannot see the risk for the Government, but maybe I have not understood this properly, because detention in custody would be perfectly lawful, and it would be very difficult to mount a case saying that the prison authorities were negligent or in breach of duty in not getting on with the matter, when it is Parliament itself that has decided to make the change. On that basis, the Bill is plainly necessary, but I do not understand this one minor aspect of it, and I look forward to the Minister’s clarification.
Lord Hope of Craighead (CB)
I have some difficulty in understanding what exactly the amendment is trying to achieve. I have the greatest respect for all four noble Lords who have tabled the amendment, but to take the point on Article 7 of the European Convention on Human Rights, I do not think that the amendment meets the terms of the article. It seeks to address the position when the sentence was imposed, whereas Article 7 refers to the situation at the time when the act that gave rise to the criminal offence was committed. It is worded in such a way that the individual should have been aware at the time of his conduct what sentence he was likely to receive. The amendment does not address that, as it is not addressed to that point in time. On Article 7, it misses the point, and does not achieve anything.
The noble Lord, Lord Anderson, said that the convention was a sideshow. That brings me to the other point, which I think I do understand, on the value of retaining the Parole Board at halfway through the sentence, partly for the reason that changing the system for those who have already been sentenced seems instinctively rather unfair to them. It also has a value in getting the Parole Board in as early as possible, because the longer it has to assess the element of risk, the greater the possibility that it can achieve something useful at the end. To shorten it, which seems to be the effect of the Government’s amendment, reduces the opportunity for the board to get into the depths of the mind of the individual and to see what it can do about the risk. If that is the purpose of the amendment, why not have the same rule for everybody? It is accepting the Government’s amendment for the newcomers—those who have not yet been sentenced. It would be more logical to apply the same rule throughout.
That goes back to the point made by the noble and learned Lord, Lord Falconer of Thoroton, when he asked what the change from a half to two-thirds would achieve, given that the Parole Board will be involved anyway. If it comes in halfway through, there is no question of the prisoner being released until it is safe for them to be released, which could well be right up until the end of the sentence imposed by the judge. Logically, it would be sensible to have the same rule for everybody, rather than split it up. The other point, which is worth emphasising, and perhaps an answer to the noble and learned Lord, Lord Thomas, is that a great deal has been said about automatic release, but it is not unconditional release. This point was made very effectively by the noble Baroness, Lady Chakrabarti, when describing the deficiencies of the Parole Board system.
When the original scheme was devised with release subject to conditions, it was understood that these conditions meant something. I remember cases in which I was involved where people were returned to custody because they had breached their conditions. It was not just a day in custody; they were in for a substantial time until it was regarded as appropriate for them to be released again. In the case of life prisoners, sometimes they went backwards and forwards because they had breached conditions, and they went back in again. This is what we have lost, I am afraid. It bears thinking about that the release halfway through is not unconditional; it is a conditional release subject to the licence terms. That has a bearing on whether this is something that attracts the Article 7 attack in any event. For the reasons I have indicated, I am slightly puzzled by the amendment, and I am not sure that I would support it.
Lord Mackay of Clashfern (Con)
My Lords, I will not apologise to your Lordships for not speaking at Second Reading. It is, rather, a matter for congratulation—noble Lords have not had to listen to me twice.
The situation is one of severe crisis in respect of the damage that has occurred as a result of the release of persons described in this Bill. That is a matter of the utmost importance for Her Majesty’s Government, because if any human right is vital it is people’s right to be protected against danger, by their Government. That danger has been illustrated vividly by these two incidents.
I do not imagine for one minute that anyone thought that the man involved in the London Bridge incident was going to do anything like that. One of the people murdered was doing his best to look after him and to bring him into ordinary life in a good way, yet that man was struck down. I do not believe it is possible to discern who is dangerous and who is not, because the problem with this type of danger is that it is not necessarily there when the man or woman is originally sentenced. It is danger that, to a great extent, seems to have arisen as a result of the experience in prison, and that is most unfortunate.
On the other hand, if you had an opportunity to ask somebody to change his mind, you may find it difficult if he has a religious persuasion. The people trying to get rid of this danger in prison are finding that it is very difficult to succeed and mightily difficult to know when, if at all, the attempt has succeeded. The concentration therefore has to be on the circumstances in which one of these people is released. One way of dealing with that, to get a bit of time, is to postpone the release. That is what is done in the move from half to two-thirds. Of course, there is still a third of the sentence left.
The second point that has been made clear is that there is a substantial number of convicted prisoners up for release quite soon. The Parole Board’s investigations are quite substantial, and I do not believe it would be possible for the board to deal with a large number of these satisfactorily in a very short time. We have to remember the decision the board is going to take. Personally, I would not like to be a member of the Parole Board taking that responsibility. I am glad to say that there are people who do that and who have the skills to do it properly. On the whole, the Parole Board’s decisions have been pretty well received. One or two—I remember one in particular—have been by no means well received, but generally they have been. So it is important that it gets a proper opportunity to carry out its task.
The rule is to be that when the two-thirds is up, the prisoner is released or not according to whether the Parole Board is satisfied that it is safe for the person to be released. That seems the best possible solution to a mighty difficult problem. However, it is only a temporary solution, because when the sentence is fully served, the person is to be released in any case, without anything from the Parole Board. That matter must be dealt with in the Bill that is to come. In the meantime, with respect to the noble Lord, Lord Anderson, I cannot see any justification for dividing up the original division with this amendment. The Bill would be better without the amendment.
Lord Falconer of Thoroton (Lab)
My Lords, I strongly support the amendment tabled by the noble Lord, Lord Anderson. It grieves me to do so because I am disagreeing with the noble and learned Lord, Lord Mackay of Clashfern, but this is emergency legislation, so described. Put aside the question of precisely what Article 7 means or how the presumption against retrospectivity works; it is essentially a bad thing for a legislature to change the sentence of everybody in a particular group. Everybody accepts that proposition, except, possibly, one noble Lord who said that it would be good if everybody’s sentence went up—but let us put that to one side. It is bad for a legislature to change a whole cohort sentence because you should be sentenced by the courts, not by a legislature that subsequently takes a different view, primarily because of public pressure. It may be legitimate public pressure, but it is public pressure nevertheless.
There may be circumstances that make it necessary to break with that principle. If you have to break with it, break with it to the minimum degree required to provide public protection. I do not agree with the “in for a penny, in for a pound” approach of the noble Viscount, Lord Hailsham: that if there is some justification for retrospectivity, any retrospectivity is justified. That cannot be the right approach.
The problem here is that prisoners may well be very dangerous—the Streatham terrorist was plainly and evidently dangerous, because he had said that he wanted to commit very dangerous crimes—and yet they have to be released. The solution is to make sure that somebody looks at every individual case and that those people can be released only if, in the words of the Bill,
“the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
So, unless the Parole Board is satisfied that the person is no longer a danger, they must be kept in prison.
On the right way to approach this, instead of saying that everybody must stay in prison for longer, even if they are evidently no longer a danger, the right course is for everybody to be looked at. As the noble and learned Lord, Lord Mackay of Clashfern, says, it might be that we cannot reach everybody by the time they are half way through their sentence. That is dealt with by the perfectly adequate drafting in this Bill, which says that you can be released by the Secretary of State only after you have been examined by the Parole Board and it has directed that you can be released. Therefore, the factor that determines when you get released is not that you have to wait until you are two-thirds of the way through your sentence before it is considered, but that you are considered at half-time and, if there is a delay while the Parole Board gets its act together, you the prisoner must wait, and the problem is solved. Of course there are difficulties in making an assessment, but there is that difficulty whether it is two-thirds of the way through a sentence or halfway through. It is fundamentally wrong that we just up it to two-thirds for no good reason in the context of emergency legislation.
I shall make one more point and then give way to the noble Lord, Lord Cormack. I do not accept the proposition being advanced that this provision, which increases detention from a half to two-thirds, would not offend against Article 7; nor do I accept that it would not offend against the presumption against retrospectivity. All the Article 7 cases are about changing the terms. So, in the Uttley case, somebody comes out with some terms on release, whereas previously there would have been no terms on release. In another case where it is held not to be retrospective under Article 7, a person is moved from one country to another and different provisions apply; but that was the provision right from the start. In the Aberdeen case, which the noble Lord, Lord Pannick, relied on—sadly, he is not here—somebody was released and then recalled. The rules changed regarding what happens when you are recalled. These examples do not go to the fundamental point of keeping you in prison for longer.
In the one case in which that matter was considered by the European Court of Human Rights, the Inés Del Río Prada case, the fundamental reason why it was held to be retrospective was that a sentence was changed because time off for work in prison suddenly began to count in a different way and, instead of getting out in 2008, the unfortunate prisoner was not going to get out until 2017. That was held to be in breach of the retrospectivity rule. I find it very difficult to distinguish this case from that case, whereas it is easy to distinguish all those other cases in which the precise terms changed but not the length of time in prison.
However, that is not the prime way in which I put my case, which is that if we are in emergency legislation going to impose this provision, we should not be upping the sentence if we can meet the emergency with the introduction of the Parole Board. We can do so and should do no more than that now. I give way to the noble Lord, Lord Cormack.
Lord Cormack (Con)
I would rather make my own comments, because the noble Lord did not give way at the point at which I wished to intervene when he was talking about the two cases that are the reason behind this emergency legislation. He talked about the Streatham stabbings. What he failed to acknowledge was that the really dangerous terrorist was the one at Fishmongers’ Hall, who had feigned conversion and then turned on the very man who had been his mentor. That, in a nutshell, illustrates why it is important that we have this emergency legislation. I made it plain in my speech at Second Reading that this is only the beginning. We want substantial legislation; my noble friend has promised it and we must hold him to that promise. But we need to pass this tonight without further ado, and I very much hope that the noble Lord, Lord Anderson, who made an extremely good case with great eloquence, will feel able to withdraw his amendment.
Baroness Chakrabarti (Lab)
My Lords, I associate myself with the noble Lord, Lord Anderson, and my noble and learned friend Lord Falconer. I have listened to this debate and heard no compelling reason why this amendment has not been adopted by the Government. In answer to the noble Viscount, Lord Hailsham, the difference between one aspect of the retrospection and the other is that one does not compromise public safety, pure and simple.
By accepting the amendment of the noble Lord, Lord Anderson, nobody is let out, even with the administrative challenges of getting up a Parole Board under the appalling and savage cuts and debilitation to the system that I spoke about earlier, without Parole Board approval. That is the distinction between his amendment and the status quo ante, which is that people come out automatically, regardless of their risk, at the halfway point.
In answer to others, I have so much respect for the noble Lord, Lord Cormack, but his point was about people who are not even on the radar. That problem is ongoing and not dealt with by this Bill. Saying that people should be held for as long as possible is not an answer to the amendment in question now. By definition, those who are affected by this Bill are subject to finite sentences that are not always very long, because these are not by definition the most serious terrorist offenders, as the noble Lord understands. These are people who were subject to the regime that we have been examining because they were at the lower end of the scale. To quote once more the former Prime Minister, these people are coming out at some point, and there has to be some principle in the way that we engage with this.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, we all understand the purpose of this amendment and of the other amendments in the group, albeit that I will come on to deal with the point that arises with regard to the second amendment if I may. But I begin by referring to one or two observations made by the noble Lord, Lord Anderson. He observed that when sentenced these persons were not regarded as dangerous by the court, but I cannot wholly accept that proposition. Their offences may not have been part of the extended determinate sentence regime at the time they were sentenced, but of course a number of terrorist offences were added to the extended determinate sentence regime only in 2019. It cannot be assumed that these people were regarded as non-dangerous at the time they were sentenced, so I cannot wholly accept that.
The second fact that I have to raise concerns the suggestion that those due for release in coming days are past the halfway or two-thirds point. I am advised that the prisoners due for release shortly are approaching the halfway release point in their sentences. That is simply the advice that I have been given. Therefore, there remains an issue over their release. The noble and learned Lord, Lord Falconer of Thoroton, said, “They can wait for the Parole Board to get its act together”, but I rather think that if that happened we would face a challenge under Article 5.4 of the convention, and therefore that is not a complete answer at all.
Indeed, the noble and learned Lord talked repeatedly about fundamental points. That leads me to fundamentally disagree with him on a primary point that he kept on making, which is that the legislation would change the sentence and that they should be sentenced by the court. The legislation does not change the sentence; they have been sentenced by the court. As I alluded to earlier, there is lengthy legal authority for the proposition that the court has regard to the appropriate sentence that should be imposed for the crime irrespective of what point there may be executive action for release during the period of that sentence. In other words, it does not distinguish between the custodial and non-custodial elements. That is why the provisions of the Bill are entirely Article 7 compliant apart from anything else.
I understand the concern that arises when we have to look at the presumption against retrospective operation of the law. One thing that the Bill does is to bring the earliest release point for the standard determinate sentence into line with the earliest release point for extended determinate sentences and therefore to produce, if nothing else, an element of consistency. We have been clear that terrorist offenders should serve time in custody that better reflects the seriousness of their offending, particularly in light of recent events, and the measures in the Bill are in keeping with that approach.
I repeat the point—albeit some noble Lords do not feel that there is much force in it—that applying these measures retrospectively will ensure that terrorist prisoners who are currently serving sentences are incapacitated for longer. There is a reason for that in light of what happened, for example, in November last year.
I want to raise one further point. As I read Amendment 2, it would apply not only to those serving fixed determinate sentences but would also reduce the release point for those who have been convicted and sentenced under the extended determinate sentence regime. I suspect that is an unintended consequence—it is not the primary grounds on which I resist the amendment. In light of this debate, I urge the noble Lord to withdraw this amendment.
Lord Anderson of Ipswich
I am a little nervous of senior political figures, however eminent, saying that they have won the argument unless they have also shown themselves capable of winning a vote. Despite that, we have had two excellent debates, both at Second Reading and just now, on the subject matter of these amendments. Extremely eminent people have lined up on both sides. I think someone tuning in to Parliament TV might have thought at times that they were watching Supreme Court TV but, none the less, points have been made and markers have been well and truly laid down for the forthcoming terrorism sentencing Bill and, indeed, for future Bills.
It seems to me that moving an amendment from the Cross Benches is a bit like crossing the road in that it is prudent to look very carefully to the left and to the right. As I have been doing that over the past few minutes, it has seemed very clear to me that the traffic is a great deal heavier on the government side and I have drawn the necessary conclusions. My heartfelt thanks go to all noble Lords who have spoken in this debate, but I shall be seeking leave to withdraw the amendment.
“Review of sections 1 and 2
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 and 2 to be carried out in relation to the initial one-year period.(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to imprisonment for offences of terrorism to conduct the review.(3) The review must be completed as soon as practicable after the end of the initial one-year period.(4) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(5) The Secretary of State must lay before each House of Parliament a copy of the report sent under subsection (4)(b) within one month of receiving the report.(6) The Secretary of State may—(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of the review, and(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of the review (including arrangements for the provision of staff, other resources and facilities).(7) In this section, “initial one-year period” means the period of one year beginning with the day when this Act comes into force.”
Lord Marks of Henley-on-Thames (LD)
My Lords, my Amendments 3 and 5 seek a review of the working of this legislation one year after the Bill comes into force. Amendment 3 is concerned with Clauses 1 and 2, relating to England and Wales, while Amendment 5 is concerned with Clauses 3 and 4, relating to Scotland.
I suggest it is always sensible to review the working of legislation after it has come into force. That usually occurs in the case of non-urgent legislation after a period of years. However, review is even more important and urgent in the case of emergency legislation. This Bill cries out for a specific review of how its provisions are working, precisely because it is being put through Parliament as emergency legislation. We have had no time for consultation or proper scrutiny—one day in the other place and one day here. The result has been that a number of questions that have arisen today have been inadequately considered, so that the Government have no answers to them. That is not a criticism of the noble and learned Lord, nor of the Government in general. It is the inevitable consequence of the haste with which we are passing this Bill.
We have heard today from noble Lords around the House about the risks posed by the lack of measures to improve deradicalisation and rehabilitation in prisons, and of the risks of radicalisation in prison of non-terrorists. We have also heard of the dangers of legislation that in practice, even if not in law—as to which there has been much argument—has retrospective effect. I agree with the noble Lord, Lord Pannick—which I have not always done today—in his point that this Bill involves keeping in custody terrorist prisoners who have served half their sentences and who would have been released had they had a safety assessment by the Parole Board at that point.
I have discerned no indication from the Government that the point made by the noble Lord, Lord Pannick, has been considered by them. The noble Lord made his point in the context of serving prisoners, whose time in custody is to be increased by the enactment of this legislation. However, this is presented, rightly, as a public safety Bill, and the point might also be relevant in relation to some terrorist offenders, not yet sentenced and probably at the lower end of the scale, who would plainly have a better chance of rehabilitation if released following the halfway point on a favourable Parole Board safety assessment.
Then there was the argument put forward by the noble Baroness, Lady Meacher, that a breathing space could be secured by interposing a Parole Board safety assessment, when it can be prepared, but before a release following the halfway point and such an assessment, and before the two-thirds point. That, again, was an argument that the Government could not meet.
Those are all concerns that cry out for review because the emergency treatment of this Bill has cut its consideration to the bone; yet, far from accepting the need for an urgent review, the Government’s position is unclear, inconsistent and, bluntly, all over the place. At paragraph 58 of their impact assessment the Government wrote:
“In the normal way, the … Bill will be subject to a post-legislative review to determine whether this legislation is working in practice as intended. This will take place between three and five years following Royal Assent.”
Therefore, there will be a review but very late. In contradiction to that position, in the Explanatory Notes, the Government say the following at paragraph 16, in question-and-answer form, on issues raised by fast-track legislation. The question is:
“Are mechanisms for effective post-legislative scrutiny and review in place? If not, why does the Government judge that their inclusion is not appropriate?”
The Government’s answer is:
“No post-legislative scrutiny is planned. However, the Government intends to introduce a Counter-Terrorism (Sentencing and Release) Bill later in this Session.”
However, we do not know what will be in that Bill, and it does not seem to answer the need for a specific review of the working of this Bill.
Today I have been told by the Government that they are not prepared to agree to a review because the independent reviewer is already engaged upon his review of the Multi Agency Public Protection Arrangements —the so-called MAPPA—and the release and supervision arrangements will inevitably be included in that. Also, it is to be expected—and the independent reviewer, Jonathan Hall QC, has confirmed—that he will scrutinise this legislation in his regular annual review. I am sure that that is so, and it is indeed very welcome, but neither of the independent reviewer’s reviews will be specifically directed to the efficacy or merit of the provisions of this legislation. They cannot therefore take the place of proper parliamentary scrutiny, which we have been denied. It is an inappropriate treatment of Parliament to attempt to piggyback post-legislative scrutiny of this Bill on reviews conducted for a separate and different purpose, however good those reviews might be expected to be.
Our amendments would require the Government to commission a review by an independent professional, whose appointment would be made in consultation with the Independent Reviewer of Terrorism Legislation. No one has seriously challenged the mechanism of our proposed review. I beg to move.
Lord Anderson of Ipswich
My Lords, I want to pick up on the point just made by the noble Lord, Lord Marks, about the independent reviewer. As a former independent reviewer myself, I am temperamentally rather inclined to the merits of independent review. However, in his note of 19 February on this Bill, Jonathan Hall said:
“I consider that the effect of sentences passed under the Terrorism Acts falls within my remit as Independent Reviewer of Terrorism Legislation, and therefore I would propose to report on the impact of these changes (and of the changes likely to be made by the more sizeable Counter-Terrorism Sentencing Bill later in the year) in one of my forthcoming annual reports, most likely my report on the Terrorism Acts in 2020.”
Perhaps I may ask the Minister, when he responds, to confirm whether it is his impression, as it is mine, that reviews of that nature fall within the existing remit of the independent reviewer. Perhaps I may also ask the noble Lord, Lord Marks, to comment on whether, in the light of that fact, his amendment will really add anything at all.
Viscount Hailsham
My Lords, I rise very briefly to express my views on this amendment. I have a lot of sympathy in general with the proposition that we need a review. However, I cannot support it on this occasion for two reasons.
The first is, I admit, wholly pragmatic; this is going to go nowhere. This matter was discussed in the House of Commons. The noble Lord, Lord Marks, will know that there were two amendments, creating a new Clause 1 and a new Clause 3. The latter in the House of Commons was in exactly the same terms as the noble Lord’s amendment and was barely discussed. I think that new Clause 1, which was a Labour Party amendment, also received no effective discussion. So it will not go anywhere, and I personally am not in favour of parliamentary ping-pong on this matter, rather for the reasons advanced by my noble friend Lord Cormack.
The second reason is rather longer: this does not go nearly far enough. Indeed, such a review could stand in the way of the kind of review that I would hope to persuade your Lordships is desirable. We have a counterterrorism and sentencing Bill coming forward. For that purpose, it is absolutely essential that there is very wide consultation prior to the consideration by Parliament of that Bill. That could be called a review but is essentially a consultation, and it has to address at least four substantive matters.
First, there is the complexity of the existing sentencing and sentence arrangements. These were described very eloquently by the noble and learned Lord, Lord Judge. It is a hugely complex area. There is huge scope for consolidation and simplification. That should be addressed in a pre-Bill consultation process.
Secondly, we need to know much more about how terrorism prisoners are being managed in the prison estate, and in particular the degree to which Mr Acheson’s actual recommendations are being implemented. To the extent that they are not, we need to know the reasons why.
Thirdly, almost everybody who has spoken in these three debates has welcomed the Parole Board filter that is being introduced. But the Parole Board can only act on information that it receives. It is absolutely essential that there is provision within the prison system for making suitable information available. That means a whole range of things, such as having experienced probation officers; having experienced prison officers —which is very important, because too many are retiring and being replaced by very young ones; appropriate courses; meaningful out-of-cell activity; and not churning prisoners from prison to prison within the estate. We have to know about all of this. The noble Lord, Lord Ramsbotham, has made this point on many occasions. Provision of all of these things in prisons is lamentable. We are going to see really large sums of money being dedicated to the Prison Service. But if the Government are serious about increasing the number of prisons, the money will actually go on buildings, not to the provision of the courses and information that will be absolutely essential to enable the Parole Board to make an effective decision.
My last point is that, down the track, the Parole Board will release prisoners who go on to commit very serious offences—probably multiple murder. It will almost certainly happen and will be a tragedy. At that point, there will be immense public opinion calling for prisoners to be kept in prison indeterminately. If I may say so, that is the point that my noble friend Lord Cormack was addressing. My point is that that pressure will arise. I personally believe that it may be necessary to introduce some form of post-sentence control-order process, as mentioned by the noble Lord, Lord Macdonald. That may be necessary, but I think it should take the form more of the old control-order regime, rather than indeterminate sentences of the kind identified by my noble friend Lord Cormack.
Whatever the case, we need to consider it now, not in the context of emergency legislation. If there is emergency legislation, there will be immense pressure for indeterminate sentences, and I have a very strong feeling that that is profoundly wrong and that we should not do it. The consultation that will precede the introduction of the counterterrorism and sentencing Bill should address what happens if the Parole Board does release offenders who go on to commit multiple murder. It is much better to do this over a slightly longer period, without the urgency of emergency legislation, than to do it in the latter context.
Therefore, I say to the noble Lord, Lord Marks, that I am not against reviews, but I think his review is far too narrow and could stand in the way of the much bigger review that I think is essential.
Lord Keen of Elie
My Lords, this Bill is only one element in a much broader response to terrorism, which includes both legislative and non-legislative measures. The Government’s view is that it would be inappropriate to consider just one element of those measures in isolation. We have announced our intention to introduce a counterterrorism (sentencing and release) Bill, which has been referred to. That will make wider changes to the release arrangements governing terrorist prisoners, as well as the penalties available to the courts. The provisions of this Bill—hopefully by then enacted—and the questions surrounding discretionary release for terrorist offenders will no doubt form part of that ongoing debate.
Last month, the Government launched an independent review of the multiagency public protection arrangements. This review is being led by the Independent Reviewer of Terrorism Legislation, Jonathan Hall, Queen’s Counsel. The release and supervision arrangements for many of the prisoners to whom the Bill applies will inevitably be included in that review. A report following the MAPPA review will be provided to the Home Secretary and Justice Secretary for publication as soon as is practicable.
Taking up the point made by the noble Lord, Lord Anderson of Ipswich, we anticipate that, in the course of his routine duties as the Independent Reviewer of Terrorism Legislation, Jonathan Hall will scrutinise the new release legislation for terrorist offenders in his annual report; that is a statutory commitment. Indeed, as the noble Lord, Lord Anderson, observed, the Independent Reviewer has already said in his comments on the Bill that he envisages doing just that in a future report. I would certainly accept that that falls well within the boundaries of his responsibilities, and it is in these circumstances that we say that a further review is unnecessary.
The Government are clear that we want to see an end to the automatic early release of terrorist prisoners. In the forthcoming counterterrorism Bill, we will make further changes to the law surrounding the release of these offenders. In addition, later in this Session we intend to introduce a sentencing Bill that will cover wider areas of sentencing and release policy. Again, that will provide an opportunity to discuss sentencing and release arrangements. In these circumstances, we consider that there is no requirement for the further review proposed by the noble Lord, Lord Marks, and I urge him to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I turn first to the point made by the noble Lord, Lord Anderson, and the question that he asked me. I accept, of course, that the independent reviewer Jonathan Hall, QC will be looking at the way this Bill is working; but he will do so in a much wider context—that of his annual review and his MAPPA review. An issue of serious principle is involved. What is needed here is a precise review of how the provisions of this emergency legislation, passed with inadequate scrutiny, are working.
I turn now to the observations of the noble Viscount, Lord Hailsham. I am afraid that if this House always took the view that the House of Commons might kick back amendments we make, we would lose a great deal of our usefulness. The points that we make and the amendments we pass are often very influential to a much wider audience. I am not deterred by the fact that my colleagues in the House of Commons, who are slightly less numerous than my colleagues here, failed to get their amendment through that House, or by the fact that the Labour Party’s amendment did not succeed. I suggest that it is for us to form a view of this amendment.
When the noble Viscount went on to explain the kind of review that he foresaw as necessary and should take place, and indeed when the Minister responded to these amendments, they were both considering a much wider, more comprehensive, fuller review of the treatment and punishment of terrorists, including the Acheson recommendations on how to secure rehabilitation and the whole issue of deradicalisation. Those issues are crucial, and my regret Motion was concerned with the lack of those provisions. The very fact that the reviews that the noble Viscount and the Minister have in mind are so general and broad-reaching deprives them of the specific accent that a review of this legislation ought to have.
We should not forget the emergency nature of this legislation: it is just over three weeks since the awful atrocity in Streatham High Road. We will have passed this legislation tonight—as I am sure we will—in response to a promise made by the Lord Chancellor, the Secretary of State for Justice, the very next day. We have done it in double-quick time. Question after question was raised in today’s Second Reading—a very good debate—by noble Lords who know a lot about the subject but have had insufficient time to consider the provisions of this Bill and their consequences. As a matter of principle, it is important that post-legislative scrutiny is directed urgently at Bills that are passed as an emergency, and with this Bill, where the liberty of the subject—however undeserving many of the subjects may be—is at stake, that principle is of great importance. I have not heard anything said today that addresses the requirement for a review of emergency legislation of that kind, and I therefore wish to test the opinion of the House.
Lord Bethell (Con)
My Lords, the legislation office is now open for amendments to be tabled for Third Reading. Timings for Third Reading will be confirmed via the annunciator.
Terrorist Offenders (Restriction of Early Release) Bill
Monday 24th February 2020
(4 years, 9 months ago)
Lords ChamberRead Full debate Terrorist Offenders (Restriction of Early Release) Act 2020 Read Hansard Text Amendment Paper: HL Bill 99-I Marshalled list for Committee - (21 Feb 2020)
Royal Assent
Wednesday 26th February 2020
(4 years, 9 months ago)
Lords ChamberRead Full debate Terrorist Offenders (Restriction of Early Release) Act 2020 Read Hansard Text Amendment Paper: HL Bill 99-I Marshalled list for Committee - (21 Feb 2020)