Counter-Terrorism and Sentencing Bill (Fourth sitting)

(Limited Text - Ministerial Extracts only)

Committee stage & Committee Debate: 4th sitting: House of Commons
Tuesday 30th June 2020 Public Bill Committees

On this side of the debate, we want to reduce the threat of extremists and ensure that appropriate punishment is handed down to those who commit or seek to commit an act of terror. However, we should not pursue that by reducing the seriousness of this heinous crime, just to be seen to be doing something about it. The burden of proof is important, as is ensuring that courts, whether juries or sentencers, reach a solid burden of proof, such as “beyond reasonable doubt”, before coming to such a serious conclusion. We seek clarity, and the purpose of the amendment is to ensure that terrorist connections will be subject to the same criminal standard of proof as we currently know it. Otherwise, I fear that this measure will undermine our efforts to keep us safe and let down individuals, particularly from an ethnic minority, who are already disproportionately sent to prison under the criminal justice system.

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

It is a pleasure to serve under your chairmanship, Mr McCabe, in our line-by-line consideration of the Bill. I thank the shadow Minister for his opening remarks, in which he expressed general support for the objectives of the Bill. I hope that we can, as he said, provide an example of constructive cross-party working, although I am sure he will have many questions about the detail. As the shadow Minister has said, and as the hon. Member for Coventry North West said in her speech, the threat that terrorism poses is a serious one, and one of our heaviest responsibilities as Members of Parliament is to protect our fellow citizens from such attacks, but in a way that is lawful, fair and just.

Amendment 35 seeks to specify a beyond-reasonable-doubt standard of proof in making the terrorist connection, as clause 1 does. I am happy to confirm for the shadow Minister that existing criminal court procedure already requires the criminal standard of proof to be met in making a determination of a terrorist connection, or indeed any finding of fact in relation to sentencing. If, after conviction by a jury, there is a finding of fact to be made by the judge prior to sentencing in what is known as a “Newton” hearing, under existing procedures the criminal standard of proof is applied. On the request that the shadow Minister and his colleagues make, I am happy to confirm that it is already inherent in the operation of our criminal justice system, and rightly so, for all the reasons that the shadow Minister and the hon. Member for Coventry North West have outlined. I trust that on the basis of that assurance they will see fit not to press the amendment, given that the provision they call for is already enshrined in law.

One further point: both the shadow Minister and the hon. Member for Coventry North West raised the question of what happens if the judge makes an error or exhibits some form of conscious or unconscious bias. That is extremely rare, but, if it did happen, there are of course appeal rights against both the sentence and any erroneous finding of fact associated with it. If a defendant or, by this point, an offender who has been convicted feels that the sentence is genuinely unfair or that an unfair determination has been made of a terrorist connection, they can appeal, so a safety mechanism by way of appeal also exists. I hope that on that basis the shadow Minister will not press the amendment to a vote.

[Alex Cunningham]

I am grateful to the Minister for his explanation. He believes that the matters are already covered in existing law, but perhaps he will accept that later in the Bill we will be discussing how we make sure that what has happened over a period of time has in fact demonstrated that the judges have got it right. In other words, we will revisit this matter with a view to seeking a form of review of how the legislation is working to ensure that we do not have the particular problems that might well be possible. I am also grateful to him for reminding us that in criminal proceedings we still have an appeal process in this country, and I am sure that that would operate appropriately. On the basis of what the Minister has said and on the basis that we will seek reassurance through a review process later in the Bill, I am content to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

The Government’s duty under the Equality Act 2010 goes further than the Bill’s equality statement acknowledges —it includes the duty to foster good relations between people who share a characteristic and those who do not. Given the evidence of institutional discrimination across the criminal justice system, the Bill carries a severe risk of reinforcing stereotypes that result in unfair treatment and the stigmatising of a large group of people on the basis of their religious belief and ethnicity. The amendment invites the Government to describe the actions they will take, and subsequently review, to ensure that that risk is averted.

[Chris Philp]

I thank the shadow Minister for his detailed exposition of some of the risks that we must seek to navigate and overcome. For justice to function, we must make sure that it is truly even-handed and fair in assessing anyone who comes before the court, regardless of their background, race or religion.

[Taiwo Owatemi]

Is the Minister not concerned that, without proper consideration of the impact of the Bill on many BAME communities, relationships between these communities and authorities may worsen?

[Chris Philp]

Let me come on to that point, which is the substance of the amendment. The amendment calls for an assessment prior to the clause coming into effect; it does not ask for an assessment afterwards but beforehand. I submit to the Committee that the impact assessment published with the Bill and the accompanying equality statement, which looks specifically at questions of racial and religious discrimination—or the potential for those things to happen—has already thoroughly analysed the Bill’s potential impact. That detailed analysis, which obviously included a review by Government lawyers and others, concluded that nothing in the Bill would unlawfully discriminate against people of a particular ethnic or religious background within the meaning of the Equality Act 2010.

Of course, the provisions in the Bill are simply based on a measure of criminality—has somebody committed a specified offence? Is there a terrorist connection? Nothing in any of those provisions is biased for or against anyone from any particular background, as is the case with all laws that Parliament passes.

[Alex Cunningham]

The Minister says that nothing in the Bill would lead to further discrimination. I should hope that that would be the case for any legislation we pass. However, the fact remains that there are certain groups within our society—BAME and other groups—who are disproportionately disadvantaged in the legal system. The amendment asks the Minister to recognise that there could be even more of that as a direct result of the provisions of the Bill.

[Chris Philp]

Where there are concerns of the nature of those raised in the Lammy review, which I think the shadow Minister or the hon. Member for Coventry North West mentioned earlier, the Government are committed to responding to those. Indeed, in a sense, we are in the wrong room in Parliament today to raise that, because there was an urgent question earlier on exactly that topic, to which the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk) responded.

The Government are committed to acting in response to the Lammy review to make sure that no unconscious biases discriminate against any particular group. I have not had a chance to read the Hansard of the debate, and I suspect the shadow Minister has not either, but based on the conversations that I have heard taking place in the Ministry of Justice, I think that the Government generally and the Ministry of Justice in particular are committed to taking action where needed. I would have expected the response of my hon. Friend the Member for Cheltenham to the urgent question an hour or two ago to have confirmed that.

[Alex Cunningham]

The fact remains that the Lammy review talked about a whole range of provisions that were supposed to be implemented, but very few of them have been. Some have been partially implemented and others have not. Can the Minister simply accept that we are failing as a Government and a Parliament to ensure that discrimination does not exist in our system? We are simply not taking the action to do that. Does he further accept that the more legislation we have where particular groups of people, BAME or otherwise, feel that they are being discriminated against, the greater the discord in society?

[Chris Philp]

Recent events obviously tell us how important it is to maintain social cohesion and confidence in the criminal justice system. The hon. Gentleman raises a point that goes far beyond the scope of the Bill, but it is a fair point none the less. If he listens to what my hon. Friend the Member for Cheltenham, my fellow Justice Minister, said in the House of Commons Chamber earlier, he will see that the Government are resolved to act where necessary to address issues of that kind.

The substance of the Bill is obviously public protection. It makes no distinction between any kind of terrorism, whether rooted in a twisted religious ideology or a far-right ideology, or terrorist acts committed for any other reason. The Bill, as with all Bills, as the hon. Gentleman says, is even-handed between different kinds of offence and different kinds of offenders. Where we need to do more systemically, not just in relation to the Bill but across the whole range of the criminal justice system, to make sure that everybody gets a fair hearing and fair treatment, the Government will do that. I hope that the response of my hon. Friend the Member for Cheltenham to the urgent question earlier will give assurance on that point. No doubt there will be many more opportunities to debate it.

[Alex Cunningham]

rose—

[Chris Philp]

On the specific question of amendment 36 to clause 1 and amendment 42 to clause 21, which call for an impact assessment prior to the commencement of those clauses, I repeat what I said earlier. We have already done that. It has been published as the impact assessment together with the Bill and the equality statement that went with it. The obligation being requested by the amendments has already been discharged, but of course we must remain mindful, as the shadow Minister eloquently said, of potential unconscious biases. We must be vigilant and make sure that our justice system is not in any way besmirched by them. I am confident that the measures my hon. Friend the Member for Cheltenham laid out earlier will achieve that.

[Alex Cunningham]

I am sorry that the Minister would not give way, because I wanted to press him on that particular matter. We have several days of debate, so we have plenty of time to deal with these issues. It is a bit disappointing.

[Chris Philp]

I apologise; I did not realise that the hon. Gentleman was trying to intervene. Had I realised, I would, of course, have given way.

[Alex Cunningham]

Fair enough; I accept that.

The Minister was talking about how the Bill is important for public protection and I agree. It is essential to protect the interests of the public, but if the Bill results in a growing number of terrorists in prison, and if we are releasing into the community people who are still radicalised—or even new people who they managed to radicalise when they were in prison—perhaps public protection will not gain in the way that the Government hope.

I accept the Minister’s statement that he believes the law covers that, but I am disappointed that we cannot accept that a review, although it might cost a few pounds and take some time to commission, would at least give us some information to enable us to understand how well or how badly the legislation is working. I accept what he said, however, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

We touched on many of the purposes of clause 1 in our debate on amendments 35 and 36. Very briefly, clause 1 seeks to give judges the power to make a factual finding after conviction that a particular offence has a terrorist connection, to the standard of proof beyond reasonable doubt, as has been discussed, rather than simply referring to a fixed schedule of offences. If, for example, somebody commits an offence that is a serious offence but is not currently on the list of terrorist offences, the finding of terrorist connection can none the less be made. That has consequences in the rest of the Bill, and we will debate them in due course.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 2

Meaning of “serious terrorism offence”: England and Wales

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

The purpose of clause 2 is to create new categories of offences in relation to the new serious terrorism sentences. It defines the meaning of a “serious terrorism offence” in England and Wales, so that a sentencing court can establish whether an offender has committed a qualifying offence for the purpose of applying the serious terrorism sentence, which we will discuss more in due course.

The clause will amend section 306 of the sentencing code to include a new category of serious terrorism offence, with two subsets of offences: those in part 1 of schedule 17A, which specifies offences with a life penalty that are terrorist or terrorist-related; and those in part 2, which specifies offences with a life penalty that may be found to have a designated terrorist connection further to section 69 of the sentencing code, as amended.

Clause 2 inserts new schedule 17A into the sentencing code that is currently making its way through Parliament, so that those offences can be identified as serious terrorism offences by the sentencing court for the purposes of setting a serious terrorism sentence or, alternatively, an extended sentence.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 3

Offences relevant for provisions of this Act relating to Northern Ireland

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 3 has essentially the same purpose as clause 2. Clause 2 applied to England and Wales; clause 3 does essentially the same thing in relation to Northern Ireland, by amending article 12 of the Criminal Justice (Northern Ireland) Order 2008.

[Conor McGinn (St Helens North) (Lab)]

There is a specific point on this and some other measures in this Bill pertaining to Northern Ireland: they will require a legislative consent motion in the Northern Ireland Assembly. To start as we mean to go on, and so that I do not have to ask the Minister this at every juncture, will he outline what representations he has received from the Northern Ireland Executive, specifically the Justice Minister? For the benefit of the Committee, will he also set out what it means to have to go through the legislative consent motion process?

[Chris Philp]

Under the Sewel convention, where a provision in UK legislation touches on a matter that is devolved to one of the nations of the United Kingdom, one applies for a legislative consent motion. Most of the Bill, relating as it does to terrorist offences, is reserved to the UK Government, but some relatively limited elements of it touch on matters that are ordinarily devolved. For them, we will of course seek a legislative consent motion under the Sewel convention. In that context, we have made contact with the Scottish Government in Holyrood and with the Northern Ireland Administration—in particular, with Justice Minister Naomi Long. We have entered into fairly extensive correspondence, which is ongoing, about the provisions in the Bill. The Justice Minister in Northern Ireland has raised various matters, which she has asked questions about, asked for clarification about and wanted to discuss further. Those discussions and that correspondence are ongoing.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 4

Serious terrorism sentence for adults aged under 21: England and Wales

[Alex Cunningham]

I beg to move amendment 37, in clause 4, page 5, line 32, at end insert—

“(7) The pre-sentence report must—

(a) take account of the offender’s age;

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(8) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (7) and consider whether they constitute exceptional circumstances under subsection (2).”

--- Later in debate ---

[Ruth Cadbury]

I absolutely agree with my hon. Friend. As others have said, it would have been better if there had been proper risk assessments of a number of aspects of the Bill, because many clauses do not seem to be evidence-based. We know that we have funding problems within the prison system. We know that we have, as we heard this morning, disjoints between various elements of the course through the system for offenders. There is an awful lot of work to do, and there are a number of respects in which I do not feel that the Bill is fit for purpose. It would have been better if it had been based on proper evidence of what works to reduce the threat to the public and improve rehabilitation.

Children have long been treated differently in sentencing considerations, and the amendments would enable particular considerations for young adults, particularly of their maturity. Mr Hall, the independent reviewer, was concerned that, unless these considerations are taken into account, we risk locking people up for too long, building bitterness and a refusal to engage in the prison system, and actually, on eventual release, potentially a greater risk. He considered that longer and more punitive sentences do not in themselves ensure that people are less dangerous on release, and that while extending sentences for serious offenders may, of course, keep them out of our harm’s way for a temporary period, we do not want them to leave prison more dangerous than when they entered.

Early release provides prisoners with the incentive to behave and show that they are capable of reform. We heard powerful evidence that prison staff are at increased risk of harm where hope is lost. As my hon. Friend the Member for Stockton North said, many studies show that young terrorist offenders are much more likely to reform than older offenders, yet the Bill treats a young adult who has just turned 18 the same as an older offender. Are the Secretary of State and the Minister concerned that the Bill effectively gives up on those offenders?

We need to look at the evidence, not the tabloids. We need a flexible response that is offender-based, and it must be tailored. If we really want to enable rehabilitation and reduce the harm to the public, I hope that the Minister will consider the amendment.

[Chris Philp]

I will speak to the amendments relating to younger offenders. There are a couple of things to be clear about first of all. For the sake of absolute clarity, offenders who are under the age of 18 are not subject to the 14-year minimum prison sentence. Only offenders over the age of 18 are subject to those provisions. The amendments relate to offenders aged between 18 and 21, so we are discussing a very specific cohort.

I agree and concur with many points that the shadow Minister and the hon. Member for Brentford and Isleworth made about rehabilitation, and about the increased opportunity for rehabilitation for younger people. It is of course the case that younger people are more open to change—particularly as their brains mature—than older people, and it is right that we try to work with them to achieve that. I would not dispute that as a general principle, but clause 4 as drafted applies to an extremely small subsection of those offenders aged between 18 and 21. It by no means applies to the generality of offenders, including terrorist offenders, aged 18 to 21. It applies to that narrow subsection who have committed a serious terrorist offence, as we have discussed already, but it also requires a finding by the judge, following a pre-sentence report—something the shadow Minister referred to in his amendment and in his speech—of dangerousness. What a finding of dangerousness means in law is that there is a significant risk of the offender causing serious harm by committing further serious terrorism or other specified offences.

There are already two hurdles to jump: a serious terrorist offence, followed by a finding of dangerousness based on a pre-sentence report. However, there is also a third hurdle that must be jumped before a younger offender aged 18 to 21 would fall into the scope of this clause, which is that, at the time of committing the offence. they were aware, or should have been aware, that their offence was very likely to result in or contribute to multiple deaths. That is a well-established test dating back to section 1 of the Terrorism Act 2000. We are talking about an extremely small subsection of offenders aged 18 to 21 and a very small subsection even of terrorist offenders—those who meet all three of those criteria.

[Alex Cunningham]

I wonder whether it really is true that it is such a small cohort of offenders, because the Bill opens up the number of offences that can be considered severe enough for this sentence to be passed. There may currently be very few, but this new law extends the offences quite considerably—in fact, in some ways, it leaves it quite open for people to determine that a terrorist offence or a terrorist connection is involved. Surely there is more opportunity now for people to be serving this sort of sentence.

[Chris Philp]

The provisions open it up for judges to make a finding of a terrorist connection, but the impact assessment for the Bill refers to a potential increase in the prison population of 50 people. Of course, that is for all ages over 18; if we consider how many of those estimated additional 50 places might be occupied by people aged between 18 and 21, one might reasonably assume that the number at any one time will certainly be less than 10 and possibly even less than five. That is an estimate, but none the less, it appears in the impact assessment.

[Alex Cunningham]

It might be helpful, as the Bill progresses, if the Minister could publish some of the facts and the evidence for the claim he has just made about the 50 people and the relatively small number of younger people.

[Chris Philp]

I think the number 50 appears in the impact assessment, and I would be happy to look into the basis for that estimate. As for the number of younger people, that was something that I spontaneously generated, based on the fact that we are talking about a three-year range from 18 to 21, whereas the number of offenders will generally cover all ages, from 18 upwards.

The point I am making is that, while I accept the generality of what the shadow Minister and the hon. Member for Brentford and Isleworth say about the need to have hope and to have an opportunity to rehabilitate, we are talking about a very small number of very serious offenders, who have been assessed as dangerous following a pre-sentence report and who have engaged in activity likely to cause multiple deaths. In those very serious circumstances, I think it is appropriate, and I think the public would also think it is appropriate, that we protect the public for an extended period, as this Bill does.

If we are talking about other offenders, including terrorist offenders who do not meet that level of seriousness—there are many—all the comments made about rehabilitation and the chance to reform do legitimately apply. Indeed, we heard in evidence earlier today that the proven reoffending rate on release for that sort of offender is between 5% and 10%, which is an extraordinarily low figure compared with other cohorts. That suggests that the rehabilitation work done in prison is effective, as I think our last witness this morning suggested.

It is important, given the assessment of dangerousness that is made, that the pre-sentence report fully reflects the offender’s ability to change and the changes to the brain and so on that take place around the early 20s. That is a point that my hon. Friend the Member for Aylesbury, who is not with us this afternoon as he is attending the Justice Committee, has made to me. I will discuss with the Minister of State, Ministry of Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer)—I would not like to get my north, south, east and west muddled up—who is the prisons and probation Minister, whether there is any more we can do to make sure that these pre-sentence reports fully reflect the points that the shadow Minister and the hon. Member for Brentford and Isleworth have made about people’s ability to change. Those points are relevant in the context of assessing dangerousness, because if someone is undergoing changes, they may be less dangerous than someone who is fixed in their ways. I will take up that point with my hon. and learned Friend.

[Alex Cunningham]

The Minister may well be considering whether he is prepared to take the risk with this small cohort of people. As my hon. Friend the Member for Brentford and Isleworth outlined earlier, these individuals, who could reach middle age before there is any prospect of the state being off their back, are susceptible to further radicalisation in prison and might radicalise others. Surely, therefore, there is an element of risk that needs to be considered so that we can try to balance things.

[Chris Philp]

The cohort that I have described are dangerous, have been found to be dangerous by a judge following a pre-sentence report and have tried to kill multiple people. With this very small number of very dangerous people, who are endangering the lives of our fellow citizens, it is appropriate to prevent them for an extended period of time—a minimum of 14 years—from attacking our fellow citizens in the future. It is a truly exceptional and small cohort.

Speaking of the word “exceptional”, if there are circumstances in relation to these people that a judge thinks are truly exceptional—some extraordinary extenuating circumstances—and that, despite the fact that they have done the terrible things I have described and despite the finding of dangerousness, merit different treatment, the judge has open to them the possibility to make a finding that there is an exceptional circumstance and can derogate from the 14-year minimum. We would expect that to be extremely unusual—indeed, truly exceptional, as the word implies.

Given how dangerous and damaging this very small number of people are, and given our obligation to protect the public, this measure is couched appropriately. There is the ability to not make a finding of dangerousness, having read the pre-sentence report. There is also the ability for the judge to find that an exceptional circumstance applies. That provides more than adequate protection, bearing in mind how dangerous these people are.

As for other offenders, however, I take the point about the need to rehabilitate; rehabilitation is often successful, as we have seen from the figures. As I said, I will talk to my hon. and learned Friend the prisons and probation Minister to make sure that all the relevant information is collected in probation reports, which will help a judge when making a determination on the question of dangerousness.

I would like to briefly respond to a point made by the hon. Member for Brentford and Isleworth about indeterminate sentences and throwing away the key, as she put it. Of course, the coalition Government legislated—I think it was in 2012—to get rid of the former sentences of imprisonment for public protection, which had been introduced in the early 2000s, whereby people could be left in prison forever, despite not having been given a life sentence. Those sentences were replaced with extended determinate sentences, so the coalition Government, which of course was Conservative-led, legislated to remove, or significantly reduce, that problem of locking people up and throwing away the key, which the hon. Member referred to in her speech.

I hope that I have explained why this measure is appropriate, bearing in mind the small numbers and the extreme danger that these people represent, and I express my support for the Bill as it is currently drafted.

--- Later in debate ---

Division 1

Ayes: 6

---

Labour: 5
Scottish National Party: 1

Noes: 8

---

Conservative: 8

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

In my response to the amendment, I described the effect of the clause and the tests to be applied. If those tests are met, the minimum sentence of 14 years will be imposed, followed by a licence period of not less than seven years and not greater than 25. I beg to move that the clause stand part of the Bill.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5

Serious terrorism sentence for adults aged 21 or over: England and Wales

[Alex Cunningham]

I beg to move amendment 38, in clause 5, page 7, line 35, after “25 years.”, insert—

“(5) Where—

(a) a prisoner is subject to a licence for an extension period under this section, and

(b) the qualifying period has expired,

the Secretary of State shall, if directed to do so by the National Probation Service, order that the licence is to cease to have effect.

(6) Where—

(a) the prisoner has been released on licence for an extension period under this section;

(b) the qualifying period has expired; and

(c) if the prisoner has made a previous application under this subsection, a period of at least twelve months has expired since the disposal of that application,

the prisoner may make an application to the National Probation Service under this subsection.

(7) Where an application is made under subsection (6) above, the National Probation Service—

(a) shall, if it is satisfied that it is no longer necessary for the protection of the public that the licence should remain in force, direct the Secretary of State to make an order that the licence is to cease to have effect;

(b) shall otherwise dismiss the application.

(8) In this section, ‘the qualifying period’, in relation to a prisoner who has been released on licence, means the period of ten years beginning with the date of his release.”

The main area of concern that has led to the amendment relates to the maximum 25 years on licence specified by the Bill. We of course accept that we cannot have a cliff-edge situation whereby someone leaves prison without any further monitoring, particularly offenders in this cohort. There must be a licence period once the offender leaves prison. The issue is whether a licence period of up to 25 years is reasonable and whether it is a proportionate way of addressing the problem. There is also the concern over the lack of any review mechanism.

A licence for 25 years is equivalent to a licence for life. As well as severely curtailing the human rights of the offender after they have already completed their full custodial sentence, a licence for life also fundamentally constrains their ability to play an active part in society. For example, it would be a constant barrier to employment and—who knows?—perhaps new relationships. We would essentially be telling people that there is no point in them rehabilitating or contributing to society, because they will always be under suspicion—always under the careful watch and restriction of the state. A life on licence reduces individuals’ capability to reform and take positive action. It can have a detrimental impact on the joys of life that can keep an individual on the straight and narrow.

There is also the issue of the administrative burden on an already overworked National Probation Service, which has a financial cost, and which requires additional trained probation officers to deal with those released on licence. I would be interested to know where the idea for a term of 25 years on licence comes from. Is the Government’s intention simply that anyone convicted and sentenced to a determinate sentence of 14 years, with 25 years on licence, should have a life sentence, with the state constantly on their case and without any prospect of being released from it? If so, the Minister should say so. Can he confirm that there is logic in the period that he has decided on? Has he looked at the costs and at whether 20-year licenses, which would naturally be less expensive for the state, might be just as effective?

As I have said, the main area of concern that these amendments address is the maximum 25 years on licence specified by the Bill, which is effectively a licence for life under an indeterminate sentence for public protection. However, unlike the licence for life, the Bill does not allow for the licence to be terminated in certain circumstances. That creates an issue of unfairness, as well as a huge administrative burden, at a cost to the public purse.

I agree with the Independent Reviewer of Terrorism Legislation, Jonathan Hall, who said:

“determining whether a 7-year, 15-year or 25-year licence is appropriate at the point of sentencing for dangerous individuals who have committed the most serious offences may be asking courts to engage in guesswork.”

I personally would not feel confident in making such a decision. Would the Minister?

As I said earlier, there is a concern about existing case law and guidance available for sentencers on identifying terrorism connections when sentencing. We cannot expect sentencers to feel truly comfortable and informed if the frame of what licence they can impose is so broad. It is worth reiterating that a 25-year licence period is not so different from a licence for life. However, whereas licences for life imposed on imprisonment for public protection prisoners could be terminated in appropriate cases, that does not apply to serious terrorism sentences. It feels like the principle of rehabilitation is again being somewhat missed.

I spoke earlier this afternoon about young people. Is it the Minister’s intention that they are effectively to remain on licence until within a few years of the state retirement age? A 14-year term for a 20-year-old means that they will be 59 before they are free of the licence. Will the Minister clarify the merits of 25-year licensing and address young people in particular?

I am a strong believer in people doing their time for violent offences, but with a strong focus on rehabilitation. Our amendment would give them some hope that their good behaviour has paid off after time. Perhaps we need to give people sight of a future where they would live their lives in a very different way—an honest and crime-free way. What, if anything, can the Minister offer those people—particularly younger ones?

[Chris Philp]

The shadow Minister posed a question: why a maximum of 25 years? Therein lies the answer.

[Alex Cunningham]

Maybe I misunderstood, but I thought the 25 years was mandatory.

[Chris Philp]

No, it is a maximum. The licence period is between seven and 25 years; within that, the judge has discretion to choose the most appropriate length of time. The point that I was about to make is that it is up to judicial discretion to decide the appropriate length of time. We ask the judge to make that determination, as we do when setting any licence condition. That is the way the licence system works at the moment. The judge sets the licence period at the point of sentence.

The shadow Minister, quoting the independent reviewer, asked, “How can the judge know in advance what a suitable length of time may be, looking potentially as far as 25 years into the future?” The answer to that question is that although the licence period cannot and in my view should not be varied by the Probation Service acting administratively—that is for the judge to decide—the Probation Service can, and frequently does, vary the terms of the licence conditions; as an offender behaves better over time and matures, or as their radical or criminal behaviour more generally changes as they get older, the licensing conditions can be and are relaxed. The Probation Service does that as a matter of routine, and I would expect and hope for that to happen as time passes.

Were we to give the Probation Service the ability to change the length of licence period, it would be overriding a judicial decision, which is wrong in principle and would possibly infringe article 6 of the European convention on human rights, which says that the Government should not be allowed to interfere with or alter a sentence handed down by the court.

The shadow Minister mentioned the arrangements for terminating licence conditions for indeterminate sentences—that is, the old imprisonment for public protection I referred to previously. As the name implies, those IPPs are indeterminate and indefinite. A judge has not imposed a time limit, so they could go on for the duration of somebody’s life. Some termination mechanism is needed.

Where a judge has made a decision—and it is up to the judge to choose, at their discretion, somewhere between seven and 25 years—it is right that licence condition is applied for that length of time. However, to reassure the Committee and the shadow Minister, I should say that the Probation Service can, as appropriate, relax and change those licence conditions as time passes. That is the right way of handling the issue.

[Alex Cunningham]

I accept the Minister’s explanation and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

We have covered many of the operative provisions. They are rather similar to the ones we debated in clause 4, in relation to people under the age of 21.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6

Serious terrorism sentence: Scotland

[Kenny MacAskill (East Lothian) (SNP)]

I beg to move amendment 43, in clause 6, page 8, line 10, at end insert—

“(ea) the court does not impose an order for lifelong restriction under section 210F of the Criminal Procedure (Scotland) Act 1995, and”.

This amendment disapplies Clause 6 if an order for lifelong restriction, a sentence unique to Scotland, has been imposed.

It is a pleasure to serve under your chairmanship, Mr McCabe. Before I move to the specifics of amendment 43, I will say by way of preface where my party and I are coming from. As the Minister is aware, we recognise that it is the duty of not just a Government to keep their citizens safe and secure; it is the obligation of all who serve in Parliament. At the outset, we have given the Government our assurance that any opposition will attempt to be as constructive as possible, to ensure that the challenge of terrorism that we now see, sadly, all too regularly in our communities, is addressed and that we keep our people as safe as they can be.

Some issues concern us. The burden of proof has been mentioned in terms of TPIMs. The balance of the burden of proof has been an issue for over 40 years, since my involvement in the law—and, in a way, since the legal profession and legal systems came about. We recognise that there is good reason why there has to be some distinction when it comes to terrorism and that standards that might normally apply in a wider criminal trial cannot be expected, especially with regard to TPIMs. However, there still has to be an element of proportionality, and we have to ensure that we protect the rights of those who face considerable periods of loss of liberty. That is why we have concerns and are watching the situation.

Sadly, the issue disproportionately impacts BAME communities; we are conscious of that. It is clear that we are required not only to protect our people from terrorism—and, indeed, to punish those who perpetrate it—but to prevent it from happening in the first instance. If we have a system that is perceived, whether it in fact is or not, as prejudicial and impacting harshly, even sometimes deliberately, on one community, issues arise. Those of us old enough to remember the consequences of internment in Northern Ireland will realise that a community’s feeling of being discriminated against can be a recruiting sergeant rather than the method of preventing such recruitment.

--- Later in debate ---

I ask the Minister to reflect on that. The issue has probably come about because those drafting the Bill were not cognisant of the Scottish legal system or the sentencing policies in Scotland. If the order for lifelong restriction, which we think gives advantages to a court and those who monitor, were brought on board and made available as an opportunity, we, as the party of government in Scotland, and those in the judiciary and the prison and legal services in Scotland, would view that as appropriate for our particular circumstances.

[Chris Philp]

I thank the hon. Member for East Lothian for his constructive comments at the beginning of his speech. As the shadow Minister said, in many respects the work on the Bill demonstrates Parliament and public life at its best, as we work together to protect our fellow citizens throughout the whole United Kingdom. Protecting our fellow citizens from violent attack is, thankfully, a principle on which we all agree, regardless of our differences on various other topics that often come before us. I am grateful for the constructive approach of the hon. Member for East Lothian, accepting, of course, that he wishes to discuss further points in due course, a few of which he mentioned.

There is clearly a question about how this legislation interacts with the order for lifelong restriction, which is applicable in Scotland. Indeed, the sentence that a Scottish court might hand down in the absence of this legislation could conceivably be longer—lifelong, as the name implies—than the period required by this legislation. The Government essentially accept the principle that there is an interaction that requires further work, and—let me be clear—further amendment.

On the detail of how the interaction will work best, discussions are ongoing between Ministry of Justice officials and officials in the Justice Directorate in Scotland about the technicalities. For example, although the clause as it is drafted would make it possible for an OLR to be imposed and, therefore, a lifelong restriction to be in place, we would lose the 14-year minimum sentence. What we would like to try to achieve technically is an amendment that preserves the concept of the 14-year minimum, but allows the lifelong restrictions to apply thereafter if a Scottish judge sees fit.

Those technical discussions are taking place. If the hon. Member for East Lothian or his colleague, the hon. and learned Member for Edinburgh South West, wish to participate in those technical discussions, they are welcome to do so.

The fact that we would lose the 14-year minimum is problematic, but I accept the principle that an amendment is needed. If we can put such an amendment together quickly enough, we will be happy to bring it forward, in consultation with the hon. Gentleman, on Report. If we cannot get it ready fast enough for that, perhaps their lordships will be kind enough to consider making an appropriate amendment down at their end of the building.

I hope that my comments illustrate that I recognise the validity and the reasonableness of the point being raised. I hope that we can find a way to amend the Bill to preserve the 14-year minimum but not take away any ability that Scottish judges currently have to impose longer restrictions, should they see fit.

[Kenny MacAskill]

I am happy to accept that parliamentary drafting has its complexities; it is a skill way beyond my level of competence, but I appreciate the difficulties that go with it. I am happy to accept the undertaking given by the Minister, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 6 has the same operative effect as clause 5 has in relation to England and Wales.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 7

Serious terrorism sentence: Northern Ireland

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss Government amendment 31.

[Chris Philp]

Clause 7 and associated Government amendment 31 essentially do all the things we have just debated in relation to England, Wales and Scotland, but apply to Northern Ireland. The Government amendment is to ensure that we interact with Northern Irish sentencing law in a consistent way. It is rather the same issue that we debated a moment ago in relation to Scotland, where similar thinking clearly needs to be developed a little further. Government amendment 31 makes, I think, five technical changes to ensure that the measures that we have already debated apply consistently and coherently in Northern Ireland.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8

Reduction in appropriate custodial term for guilty pleas: England and Wales

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 8 relates to a reduction to the minimum custodial term for a serious terrorist sentence where the offender makes a guilty plea at the earliest opportunity. Ordinarily, when such a guilty plea is entered for most offences—not quite all, but most—a discount of up to 33% of the sentence is possible. However, reflecting the very serious nature of the offences we are debating, the clause limits the discount for an early guilty plea to 20% of the custodial term. By way of illustration, if a 14-year minimum were imposed—it could be more, of course—the reduction could be to 11 years and 73 days, but no less. Practically, that is implemented by inserting a new subsection into section 73 of the sentencing code.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9

Reduction in appropriate custodial term for guilty pleas: Scotland

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 9 has the same effect as the one we have just discussed, but in relation to Scotland.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clause 10

Reduction in appropriate custodial term for assistance to prosecution: England and Wales

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 10 provides for the court to apply a reduction to the custodial term for a serious terrorist sentence in England and Wales from the 14-year minimum in cases where the offender assists the prosecution. It does so by inserting a new subsection into section 74 of the sentencing code. The subsection notes that nothing in the STS sentencing provisions affects the court’s ability or power to take into account the extent and nature of any assistance given to the prosecution.

In keeping with the approach to all other sentences, including other minimum sentences and mandatory life sentences, there is no maximum reduction rate in relation to the flexibility that I have just described. While we are determined to ensure that serious terrorists receive the appropriate penalties for their offending, it is also important to ensure that an incentive remains for guilty offenders to assist the prosecution with other cases it may be pursuing.

This is a well-established process within the sentencing procedure across the whole United Kingdom. It can, and indeed often does, play a pivotal role in helping our prosecutors and the police to secure guilty verdicts in other, often more significant, related cases where the defendants may be a higher risk to the public than those in the case under direct consideration. We think it appropriate to continue that judicial discretion in cases where defendants assist the prosecution and where that assistance may help to convict other, even more dangerous people.

Question put and agreed to.

Clause 10 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Tom Pursglove.)