Terrorist Offenders (Restriction of Early Release) Bill

(Limited Text - Ministerial Extracts only)

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.