Monday 24th February 2020
(4 years, 8 months ago)
Lords ChamberTerrorist Offenders (Restriction of Early Release) Act 2020 View all Terrorist Offenders (Restriction of Early Release) Act 2020 Debates 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.