Tuesday 9th February 2021
(3 years, 10 months ago)
Lords ChamberCounter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Amendment Paper: HL Bill 129-II Second marshalled list for Committee - (4 Feb 2021)
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, Amendment 16 would introduce a new clause requiring the Secretary of State to arrange for an independent review of the impact of Clauses 1 to 31 in the first year of the Act coming into force. I must respectfully disagree that this amendment is necessary. As the House has heard in Committee, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and his remit covers the Bill. Indeed, as the noble Lord, Lord Marks, referred to, he has announced his intention to conduct a review in prisons, which we welcome. He has already shown his expertise and engagement with the Bill in its entirety by providing detailed comments on its provisions—contributions that I know this House and those in the other place valued highly. We have every confidence that he will continue to provide valuable and important scrutiny following its enactment and through the prisons review which he will be undertaking. I therefore disagree that there is any need to appoint another reviewer to focus on just some of the Bill’s provisions.
That said, I recognise that the noble Lord, Lord Marks, and others indicated particular concerns by specifying the areas which such a review ought to consider. I shall take these points in turn, which I hope will assuage noble Lords’ concerns. First, there is the question of the impact of longer sentences—or a longer proportion of the sentence spent in custody—on prisoners’ rehabilitation as a result of the Bill. I start by reflecting that within a year of the Bill’s commencement, the impact of longer sentences will not yet be available for us to analyse. Importantly, however, the rationale behind longer custodial sentences for the most serious and dangerous terrorist offenders is one of public protection, which is this Government’s primary concern. Ensuring that these offenders are incapacitated for longer meets this ambition. The noble Lord, Lord Marks, spoke of the crucial importance of the hope of reform and rehabilitation, and we on this side share that hope. It is not that we consider that rehabilitation is unimportant; it will remain central to the work that is undertaken with terrorist offenders in custody.
Second is the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate and the use of separation centres to this end. These issues are raised in reference to the Acheson review recommendations. I assure the noble Lord that most extremist prisoners are and should be managed in the mainstream prison population, with appropriate conditions and controls.
Across the entire prison estate, we have, and seek to maintain, robust case-management processes to manage the risks posed by extremists and to prevent them radicalising others, including co-located offenders. The Government, however, have designed separation centres to hold the most subversive extremist prisoners, preventing them spreading their malicious ideology to other prisoners. These centres were never intended for use with significant numbers of terrorist offenders, as this would undermine their main purpose: to separate the most dangerous from those most vulnerable to radicalisation. The Government use these centres only when it is necessary and, for reasons of national security, the Government do not confirm the numbers of prisoners in individual separation centres.
Finally, I note that the Bill will be subject to the usual practice of post-legislative scrutiny three years after the Bill receives Royal Assent, as is the case for all legislation. In light of this, and the existing position of the Independent Reviewer of Terrorism Legislation, who already has authority to review this legislation, I do not believe this amendment to be necessary.
Amendment 34, spoken to by the noble Lord, Lord Ponsonby of Shulbrede, and in the name of the noble and learned Lord, Lord Falconer of Thoroton, would insert a new clause requiring the Secretary of State to lay a report within three years on the financial impact of the provisions of the Bill, specifically detailing the effects of extended sentences and extended licence periods; the expansion of the sentence for offenders of particular concern regime; the use of polygraph testing as a licence condition; and, as a result of these measures, any increased staffing resources required in Her Majesty’s Prison and Probation Service. I appreciate from the terms of the amendment that there is a concern to examine the cost of these measures when set against the impact assessment already published by the Government.
I make the point that numbers of terrorism offences are so low, comparatively speaking, that the impact of the measures the Bill puts in place is minimal. The impact of licence periods will depend on judicial discretion in setting them and, if the impact assessment carried out and published by the Government was inaccurate, that would be shown up by the process of post-legislative scrutiny. I cite to the Committee a number of figures to inform what I have just said. On 31 December 2020, there were 78,180 in the prison population. The impact assessment estimates the impact of the measures will be around 50 additional cases at any one time. On 30 September 2020, there were 222,657 cases on the probation caseload. The Bill’s impact assessment estimates that the impact of the measures will be around 50 additional case at any one time. The additional polygraph testing as a licence condition is estimated to affect fewer than 150 offenders at any one time, at a cost of about £400,000 annually in steady state.
Therefore, our impact assessment and the figures that support it estimate that the measures in the Bill will have a minimal impact on the prison population and the probation caseload of fewer than 50 additional cases at any one time. This impact, though small, will build up gradually over time and so will not be felt immediately. We are therefore confident that these changes will not have a substantial financial impact on Her Majesty’s Prison and Probation Service. I assure the noble Lord, Lord Ponsonby of Shulbrede, that the Government are already providing funding to support our legislative changes: an increase of £90 million in funding for counterterrorism policing this year; an increase in the resources dedicated to training front-line prison and probation staff through the counterterrorism step-up programme; and an immediate £500,000 package for the Victims of Terrorism Unit. The Government will continue to publish data on prison population and probation caseloads, and we will carry out an internal review on polygraph testing. I do not believe that a legislative commitment is required or necessary to review the financial impact of these measures.
The noble Lord, Lord Ponsonby of Shulbrede, spoke also to Amendment 36, which would insert a new clause requiring the Secretary of State to lay a report on the potential impact of the Bill’s provisions on prison capacity. Again, I respectfully draw his attention to the impact assessment the Government published alongside the Bill, which has already made that assessment. The estimates I have already spoken of are based on recent trends in overall numbers of terrorist offenders being convicted. As the cohort of offenders affected by the Bill is small, these changes will have only a minor impact on prison capacity. We will always provide places, of course, for those sentenced to custody.
In addition to the impact assessment, as I have said, the Government routinely publish data on prison population statistics. I do not believe that a legislative commitment will provide any greater opportunity for scrutiny in this respect. It is worth underlining that the Government’s ambitious programme of improvement in this area—the counterterrorism step-up programme—will put more specialist staff in prisons, working directly with prisoners on rehabilitation, as well as providing intelligence and monitoring of such prisoners. This will make our prisons, and ultimately our streets, safer, an ambition that I am sure noble Lords will support. I know that that is a matter of agreement across the Committee. This programme will be important to ensure that prisons can manage any increased demand from terrorists serving longer in prisons in the near future. Therefore, it is not necessary for us to legislate for a further assessment of the potential impact of these measures.
The noble Lord spoke also to Amendment 38, which would insert a new clause placing a statutory requirement on the Government to review all measures in the Bill that relate to Northern Ireland, in consultation with the Northern Ireland Minister for Justice and the Northern Ireland Executive. This review would be required annually and to be published as a report and laid before Parliament. First, I assure him that in developing the Bill, despite the fact that terrorism is a reserved matter, we have carefully considered Northern Ireland’s unique history with terrorism and taken great care not to tamper with provisions enshrined in the Belfast agreement and, particularly, the Northern Ireland (Sentences) Act 1998. Furthermore, when we have found concessions viable, we have made them, as we demonstrated through our removal of clauses providing for polygraph testing in licensed conditions, following assurances from the Northern Ireland Executive that they are satisfied that the legislative power to use such measures exists already. That said, I remain of the view that we need to take a robust approach to terrorist offending wherever it occurs in the United Kingdom and whatever ideology it aligns itself to. We must avoid a two-tier approach to the sentencing and release of terrorists across the United Kingdom.
The most recent data shows that in 2019-20, there were just 14 convictions for terrorism-related offending in Northern Ireland, and just six in the previous year. With numbers at that level, I submit that there will be too little information on which to base an annual review. The same amendment was raised in the other place, and I respectfully remind the noble Lord that the opportunity already exists for the House to review the Bill’s impact in the relevant committee three years after it receives Royal Assent, through the post-legislative scrutiny process. A review clause of this nature is therefore not required. Reviewing the impact of a Bill after three years will provide a more meaningful opportunity for review. For these reasons, I am not persuaded of the benefit of an annual review of the Bill’s measures in Northern Ireland.
Amendment 39 would insert a new clause placing a statutory requirement on the Government to report on the impact of the provisions in the Act on the National Probation Service 18 months after its enactment. I assure the noble Lord, Lord Ponsonby of Shulbrede, that we have considered fully the impact on the National Probation Service of the measures in this Bill, which we consider to be low. We set out the impact in full in the published impact assessment.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment and the amendment at page 29, line 14 are consequential on the removal of Clause 35.
Lord Falconer of Thoroton (Lab) [V]
It is a pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames. He has covered much of the area with which I am concerned in these sensible probing amendments. The next amendment, Amendment 20, which talks about piloting polygraph tests in this area, deals in effect with the same concerns.
My understanding of the position that the Government are advancing is that we are now concerned only with England and Wales because they deleted the Scotland and Northern Ireland provision that was there before. In effect, they are applying the principles in the Offender Management Act 2007 on polygraph tests. Therefore, the first question is: should one put a polygraph condition into the licence conditions of a terrorist offender? As I understand it, a polygraph condition is that the offender has to agree, if asked, to a polygraph. Will it be automatic that such a condition will be imposed for terrorist offenders? What will be the basis on which such conditions will be imposed?
We on this side are very keen that the authorities should have every reasonable tool that they can to try to prevent terrorist offenders, including those who are released on licence. I am keen to probe whether this particular provision contributes to that. As I understand it from the Government’s proposal, the purpose of the polygraph sessions that will be included in the licence condition will be only to monitor the offender’s compliance with the other conditions of his licence or improve the way in which he is managed during his release on licence.
In relation to the first of those two—monitoring compliance with the other conditions of his licence—does that mean that it will be used to see whether he is in fact complying? If he fails a polygraph test, could that be a basis for recalling him to prison on the basis that he has failed to comply with the other conditions of his licence? If it is the Government’s intention not just to rely on the failure of a polygraph test before recalling an offender to prison, where is that reflected in the statute or in the Bill?
In addition to those questions, to what extent is the Minister worried that, if somebody passed a polygraph test, it would lead the authorities not to make further investigations about an offender’s possible breaches of compliance of the conditions of his licence? Additionally, in relation to the second purpose of polygraph testing—namely, to improve the way in which he is managed during his release on licence—can the Minister give us some examples of what that would mean in practice?
Can I deal with the legal use of the answers to polygraph tests? Section 30 of the Offender Management Act 2007—this has already been referred to by the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee—says that evidence of
“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”
cannot be used against that released person for any offence. In answer to my question, that of the noble Baroness, Lady Hamwee, and that of the noble Lord, Lord Marks of Henley-on-Thames, can the Minister confirm whether that means that those two things can be used in relation to proceedings against somebody else? It would appear from Section 30 of the Offender Management Act 2007 that they could be. Can they be used on their own for recall proceedings, or are recall proceedings simply an administrative act—in which case, the question of whether they can be relied on alone to justify a recall arises?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, in responding to the amendment and the various points put to me, I will bear in mind and seek to avoid falling into the trap of being one of those “pesky lawyers” that, as the noble Lord, Lord Thomas of Gresford, reminded us, still exist.
In that regard, let me turn to the substance of the amendments, particularly Amendment 19 put down by the noble Baroness, Lady Hamwee. This amendment seeks to amend Section 30 of the Offender Management Act, which relates to the use of polygraph evidence in criminal proceedings. I understand that the noble Baroness and others may have concerns that evidence gathered from the conduct of polygraph examinations could be used against a third party in a criminal trial. I know that we covered this yesterday in the Domestic Abuse Bill, but I want to take a moment to record my thanks to those in my department who arranged the learning session for a number of noble Lords, including the noble Lords, Lord Marks and Lord Faulks, and the noble Baroness, Lady Hamwee. I understand that they found it helpful and informative, which perhaps indicates that those sessions could be used more often. I assure the noble Baroness, Lady Hamwee, and the Committee that it is neither the intention nor the effect of the polygraph testing provisions of the Bill that they will be used in criminal proceedings against third parties.
In response to the specific point put to me by the noble Lord, Lord Thomas of Gresford, we do not harbour any desire to go further than the provisions in the Bill.
Polygraph examinations are now well established as a risk management tool in England and Wales. They have been used successfully, as the Committee has heard, with sex offenders since 2013. In the context of terrorist offenders, which I acknowledge represents a different cohort, they are—if I can put it this way—an additional tool in the toolbox. They will be used, to respond to the point made by the noble and learned Lord, Lord Falconer of Thoroton, where it is necessary and proportionate to do so as part of the assessment of the risk offenders pose in the community while on licence and how that risk can best be managed.
As I made clear to the noble Lord, Lord Marks, yesterday in the Committee sitting on the Domestic Abuse Bill, Section 30 of the Offender Management Act makes clear that
“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”
may not be used in criminal proceedings in which that person is a defendant. While that section does not expressly provide for such information to be precluded from use against others in criminal proceedings, which is what this amendment seeks to achieve, I do not believe the amendment to be necessary.
This is because, although there may be circumstances where information obtained through the polygraph test relating to a third party can be passed from probation to the police to make further investigations, the polygraph material would not be suitable for use as evidence in its own right against a third party. Any allegation against a third party would ultimately need to be tested in court. The court would have to consider, among other things, whether the polygraph evidence was admissible in such other criminal proceedings and the effect of the hearsay rule. While that would ultimately be a matter for the judge in the particular case, noble Lords will appreciate the great difficulties that would be presented by the hearsay rule.
The noble Lord, Lord Faulks, said that sex cases are different from terrorism cases. He is of course right, but he was also right to say that what is presented by terrorism cases is a difficult and challenging task. That is why, to use my earlier metaphor, this is another tool in the toolbox which we would like the services to have available to them. In that regard, I can assure Members of the Committee that polygraph testing will not replace any other risk assessment tools or measures, it is an additional source of information that would otherwise not be available. On that basis, I would invite the noble Baroness, Lady Hamwee, to withdraw the amendment as it is unnecessary.
I turn now to Amendments 19A and 19B, which are tabled in the name of the noble Lord, Lord Paddick. The amendment to Clause 35 would require regulations relating to the conduct of polygraph examinations to be subject to the affirmative procedure. Perhaps I may remind the Committee that we have already tabled our intention to remove Clause 35 from the Bill, alongside Clauses 33 and 34 dealing with the introduction of polygraph testing as a licence condition in Scotland and Northern Ireland, as part of our efforts to secure legislative consent from each Administration. We covered this in the first sitting of the Committee. It does not reflect a change in policy for England and Wales. As I have said, we firmly believe that polygraph testing is an additional and useful tool.
In that regard, polygraph examinations will be used to monitor compliance with licence conditions based on what has happened and will not ask about future behaviour. I think it was the noble Baroness, Lady Hamwee, who put to the Committee an example of the type of questions that might be asked. She was right to frame those questions in the past tense. A polygraph examiner might ask, for example, “Did you enter those premises?”, if that was something which had been prohibited by the licence conditions. The question would not be, “Are you going to enter the premises next week?” The questions look at what has happened and past behaviour rather than future intent. They are not used as a way of trying to catch offenders out, but as a measure to identify the extent to which the person on licence is complying with the conditions of the licence.
Although I accept, as the noble Lord, Lord Thomas of Gresford, reminded the Committee, that giving evidence in court can be a stressful experience, it was interesting to note that he pointed out that we have provided special measures for vulnerable witnesses in the Domestic Abuse Bill. As I understood it, he used that as an example of a case where we recognise that giving evidence can be stressful. Of course, we have also provided for the polygraph examination of the perpetrators of domestic abuse in that Bill. Just as it is in the Domestic Abuse Bill, it is also here; it is an additional tool in our toolbox.
I come to a question put to me by the noble Lord, Lord Marks, which I think was repeated by the noble and learned Lord, Lord Falconer of Thoroton: if a person who is subject to a polygraph examination “fails” a question, can they be recalled immediately? There are two parts to the answer and let me give both. First, what do we mean by “failing”? We use the term as a form of shorthand, and the Government factsheets use it because they are written in what we hope is plain English so that members of the public can understand them, but it is not the correct professional term. The correct terminology that is used by examiners in reports is whether there is a significant response or no significant response. That more nuanced term makes it clear that we are not dealing with a question of passing or failing here; rather it is about whether the examination results indicate that the response has been truthful or not.
That is why, coming to the second part of the question, we do not recall offenders to custody on a significant response in itself. In answer to the question put to me by the noble and learned Lord, Lord Falconer of Thoroton, that is not in the Bill, but it is firm policy. Therefore, “failure”, a term that the Committee will now appreciate is a form of shorthand, does not by itself or by default trigger a recall. Where it is safe to do so—for example, with the addition of new licence conditions—the offender can continue to be managed in the community. However, if a disclosure is made which indicates that the risk has escalated beyond the point where the offender can be managed safely in the community, they can be recalled to custody.
Lord Robathan (Con)
My Lords, I apologise for not adding my name, which I put down to speak but not on a particular group. Yet again, I find myself as the only person taking part in the debate who is not a lawyer. I shall come back to that later.
In layman’s terms, I joined the Zoom call on polygraph testing last week, to which other noble Lords referred, and it was extremely useful. I thank Heather Sutton from the probation service, Professor Don Grubin and others for laying it on because it explained to me what polygraph testing is. They explained straightaway that a polygraph is not a lie detector but an additional tool to enhance the safe and effective risk management of offenders and could not be used as evidence.
I did, in fact, ask why sex offending was used as the only precedent for using polygraphs on terrorists. I think that I sort of understood the response, which was that it was a question of denial. That is what they sought to find out. It was a very useful teach-in session.
That is why I am slightly puzzled that we are discussing these amendments. As I said, I am not a lawyer. The noble and learned Lord, Lord Falconer, reminded us that law can be a gift that keeps on giving. We were reminded of that only at the weekend. We heard from three Liberal Democrats. I think they all said—the noble Lord, Lord Thomas of Gresford, certainly did—that you cannot use a polygraph test as evidence. If you cannot use it as evidence against the specific person against whom you have done the test, surely by implication it cannot be used as evidence against somebody else. My noble friend the Minister specifically pointed to hearsay. It seems that we are slightly arguing about angels on the head of a needle: it will not be used, so why on earth are we arguing about it? This was presented as a probing amendment, but it seems to be probing something that we do not really need to probe
The point of polygraph testing is that, as an additional tool, we would get away from the case of Usman Khan at Fishmongers’ Hall, who had convinced his mentor, Jack Merritt, that he was de-radicalised. Jack Merritt believed in him and his redemption, and Usman Khan killed him. Surely we should use these additional tools if they have any substance or credibility. From what we heard in the teach-in last week, polygraph testing has some credibility.
Let us please back the use of an additional tool until proved otherwise, because frankly we are dealing with something that I guess probably none of us in this Chamber or on this call understand. We do not understand why somebody would get into an aeroplane, train for months in the United States and then fly that aeroplane into the twin towers. We do not understand suicide bombers. We do not understand the radicalisation that takes place in these people, so surely we should give the Government every tool they can possibly have. I certainly back them on this.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the question put to me by my noble friend. As I said, that is precisely what the Government seek to do: to provide an additional tool for the management of these offenders. The point he made regarding deradicalisation is, if I may say so, very perceptive. It is a difficult part of the overall structure we are putting in place in the Bill, as we have in other legislation.
I am delighted to hear that my noble friend found the teach-in session helpful. I am particularly grateful to him for putting on record the names of the people who presented it. I know that they put a lot of work into putting it together.
The only point I would respectfully disagree with my noble friend on is one that I had cause to point out to another Member of your Lordships’ House—I think last week. One must really stop apologising for not being a lawyer. I think my noble friend did it twice. I pointed out last week that what is regarded as a cause for apology in this House is generally regarded as a badge of honour everywhere else. The question put to me by my noble friend exemplifies how this is a matter for lawyers and non-lawyers.
Baroness Hamwee (LD) [V]
My Lords, at the briefing by the MoJ, I was one of those who volunteered—at some point when we are able to travel again—to undergo a test, because I would like to experience what it is like. I sound a note of caution about the use of private—sometimes confidential but certainly private—sessions. They are terrific and helpful, but only so far; I do not believe that they can take the place of public debate. I could respond at some length to the noble Lord, Lord Robathan, but it would be outside the scope of the amendment. The purpose of scrutiny and its place in the development of legislation mean that it must be undertaken in public. I do not mean to sound too pompous in saying that, but it is something that I believe very profoundly.
The Minister apologised for being a pesky lawyer, but I think that being a pesky lawyer or an activist lawyer is a badge of honour. I disagreed with the comment of my noble friend Lord Thomas that people would not want to apply polygraphs in criminal proceedings. I can imagine that there are a lot of situations when people in court think that they would very much like to apply a polygraph to some witnesses—but that is by the by. I have told myself that I would not take up too much time with this response, because we have a lot of amendments to get through.
Inevitably, perhaps, this turned into a more general debate. On the specific amendment, we are told that it is unnecessary, and that what one might take—I cannot think of the right term— from a polygraph would be unsuitable for use in court, because it would be hearsay. I shall have a look at that after today, but I think that there is a little bit of circularity in all that. Certainly, in the real world, the questions that might be asked would, I am sure, provide material for the police, if not the prosecution—but that is a common-sense response. I beg leave to withdraw the amendment.
Lord Paddick (LD) [V]
My Lords, I wish either that this group had been grouped with the previous group or that I had spoken in the previous group, as we seem to be going over the same ground. Can I also push my luck, at the invitation of the noble and learned Lord, as an out and proud non-lawyer and wonder out loud whether lawyers feel somewhat threatened that there might be a machine more able to tease out whether someone is telling the truth or not, or even to tease out a disclosure, than a lawyer? I do not believe lawyers need to worry. I feel this group and the previous one turned into an extension of the teach-in. But I shall press on.
Amendment 20, moved by the noble and learned Lord, Lord Falconer of Thoroton, to which my noble friend has added her name, calls for a review of polygraph testing on terrorist offenders based on a pilot scheme. I take a slightly different view to my noble friends Lady Hamwee and Lord Marks, probably because they are pure Liberal Democrats, unlike me, who am contaminated by 30 years’ experience as a police officer.
Yesterday, in discussion on the use of polygraph testing in the Domestic Abuse Bill, the Minister talked about how polygraph tests were used. I join other noble Lords in saying how helpful the teach-in on polygraph testing provided by the Ministry of Justice was, and I thank the ministry for it. In that presentation, if I recall correctly, we were told that the tests are 80% to 90% accurate, on the basis of tests carried out on sex offenders. The tests measure physiological changes that occur if someone is trying to think of a wrong answer about an experience they have had in the past. People usually instinctively think of the truthful answer before they offer a dishonest alternative, and this produces physiological changes that the tests pick up. The evidence suggests a dishonest response cannot be used in court, and it is not used to recall someone to prison, but it might prompt further investigation by the police. Failing the test is not a replacement for any other form of risk assessment.
From the notes I made at the time, which take me back to giving evidence in court as a police officer, polygraph tests also prompt disclosures that might not otherwise occur. If such a disclosure indicates the subject has breached their licence conditions or is a threat to the public, this can result in prison recall. In short, disclosures can result in immediate sanction, but failing the test can only lead to further investigation.
Although polygraph tests have been used on a large number of sex offenders and have, therefore, been thoroughly evaluated, it will be more difficult, even with a pilot, to evaluate use with terrorists, as there are far fewer of them. My noble friend Lord Thomas of Gresford mentioned the right to silence, recalling what we were told in the teach-in. The difference here is that these are convicted offenders on licence, who have no right to silence. However, the science is the same whether we are dealing with sex offenders or terrorists, and polygraph tests are useful where there is a pattern of behaviour rather than a single act. It is, therefore, anticipated that their use in terrorism cases will be similarly effective. There has already been considerable experience of using polygraph tests and evaluating the results, somewhat at odds with the comments of the noble and learned Lord, Lord Woolf. But in agreeing with the noble and learned Lord, I think that it is true to say there has been very limited, if any, experience of using polygraph tests in connection with terrorism offences.
I feel sure that the Government will use polygraph testing with terrorists and, as we will hear in a later group, those subject to TPIMs, on a trial basis, as they intend to do in relation to domestic abuse. But the opportunities to evaluate their effectiveness with terrorists will be more limited, because, as I said, the numbers are considerably smaller. I am sure the Minister will say whether I got that right.
Lord Wolfson of Tredegar (Con)
My Lords, on the face of it the purpose of this amendment, tabled by the noble and learned Lord, Lord Falconer of Thoroton, is to provide for a pilot of polygraph testing for terrorist offenders in the UK and for a report to be prepared and laid with a recommendation on commencement before the provisions are commenced. I appreciate, however, that the debate has gone a little broader than that, and I will try to respond in my remarks to all the points put to me. I should say at the outset that I am impressed by the note-taking ability of the noble Lord, Lord Paddick, which has obviously not diminished with time. I hope that the notes which he took are consistent with not only what he was told at the meeting, as I am sure they are, but with what I said on the previous group and what I am going to say on this group as well.
Polygraph examinations have been used successfully in the management of sexual offenders by the National Probation Service since 2013, following an initial pilot. Offenders involved in the pilot stated that, although they did not like being tested, for many it helped them modify their behaviour and comply with other licence conditions. While I therefore respectfully agree with the comments of the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon, that we are on a learning curve, we are in fact someway up the curve, if I may put it in those terms. The noble and learned Lord, Lord Woolf, was right to remind us of Clause 35(1), which provides for regulations in this context. The breathalyser is a good example, as put before the Committee by the noble and learned Lord, Lord Morris of Aberavon, of how we must always in the criminal justice field avoid being shy of using technology where it is available. The question is how it is to be used; it is in that context that I come to the questions put to me by the Members of the Committee.
Having put that provision in place for sexual offenders, the independent evaluation of mandatory testing on sexual offenders carried out by the University of Kent produced extremely positive results. As the Committee is aware, we have since rolled out polygraph testing in that context. We must therefore be wary of two things. First, we must be wary of the trap of saying that because something might or might not be used in “The Jeremy Kyle Show”, it should form no part of the criminal justice system. “The Jeremy Kyle Show”, which I think has now stopped, can look out for itself. My concern is to ensure that we have proper provisions for polygraph testing in the criminal justice system.
The second thing we must be careful of, if I may respectfully say so, is not to fall into the trap of thinking that anything which comes from the United States of America is inherently suspect in the criminal justice field. I would gently point out to the noble Baroness, Lady Hamwee, that the American Polygraph Association’s standards are those of an international professional association for polygraph examiners. That association carries out research and provides accredited training for examiners. It also provides mandatory professional development training, which all examiners must complete every two years to maintain their accreditation. Its standards are used by examiners across the world, and the Government want to ensure that those standards are maintained for examinations conducted on terrorist offenders.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment, and the amendments at page 94, line 15, page 94, line 29 and page 94, line 41 are consequential on the removal of Clause 33.
Lord Wolfson of Tredegar
“(b) in paragraph (a), for “that Act” substitute “the Counter-Terrorism Act 2008.””Member’s explanatory statement
This amendment makes a further consequential amendment to section 23A of the Terrorism Act 2000 needed as a result of Clause 1 of the Bill.
Lord Wolfson of Tredegar (Con)
My Lords, I shall speak also to Amendments 42 to 65 inclusive and to Amendments 69, 71, 72, 74 and 76. I make four very short points. First, the hour is late and getting later. Secondly, these are all technical and consequential amendments. Thirdly, we have placed an explanatory note for each of them, which I am sure Members of the Committee will have looked at. Fourthly, I propose to set out in a letter, which I shall place in the Library, a more detailed analysis of the admittedly somewhat arcane and, in many cases, technical and consequential nature of these amendments. I hope that in those circumstances, I can draw my remarks to a close there. Obviously, if noble Lords have specific questions, I will attempt to answer them now, but otherwise, I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, since requests to speak after the Minister are delivered to the Deputy Chairman of Committees by forked stick, perhaps I might comment on the earlier group concerning the review. Mr William Shawcross’s report on compensation for Libyan-backed terrorist atrocities in Northern Ireland was discussed on Monday. It was received by the Government last May but not published, as we have discussed. I hope that any review or report in the field that we have been discussing will not similarly be kept clutched to the Government’s bosom.
I have considered the government amendments to this schedule, and I am satisfied that they are consequential to amendments to legislation made necessary by this Bill and do not contain in themselves any questions of principle. I would not be surprised, given the complexity of the Bill, if other amendments emerged in the course of time.
Lord Falconer of Thoroton (Lab) [V]
The only amendment I would like to mention is Amendment 60, which amends Section 250 of the Criminal Justice Act 2003 so that, according to the explanatory statement,
“the Parole Board will set the licence conditions for all prisoners to whom section 247A of that Act applies (restricted eligibility for early release) whose release is directed by the Board.”
Is this dealing with licence conditions where there is no right to early release or with licence conditions where there is a right to early release? If so, what is the effect of the amendment? It is the only amendment in this group that looked as if it might be doing something substantive. If the Minister would like to write to me, I will quite understand.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the comments of the noble Lords, Lord Thomas of Gresford and Lord Paddick. In response to the specific point put to me by the noble and learned Lord, Lord Falconer of Thoroton, in one sentence, the change is needed to ensure that there was clarity over the authority for setting licence conditions for terrorist offenders, whether serving standard, determinate, extended or other sentences. I shall include an explanation of the amendment in my letter. I hope that satisfies him; if he wants any further information, I would of course be happy to provide it.
Lord Wolfson of Tredegar
“Counter-Terrorism and Security Act 2015 (c. 6)
2A_ In section 44(2)(e) of the Counter-Terrorism and Security Act 2015 (provisions subject to review by the independent reviewer of terrorism legislation), for “Schedule 1” substitute “Schedules A1 and 1”.”Member’s explanatory statement
This amends the list of terrorism legislation which is subject to review by the independent reviewer to include the new Schedule A1 inserted into the Sentencing Code by Schedule 1 to the Bill.
Lord Stewart of Dirleton
“(1A) In section 1(3A) (release of short-term, long-term and life prisoners serving concurrent sentences), for “section 1A” substitute “sections 1A and 1B”.”Member’s explanatory statement
This amendment is consequential on the insertion of new section 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 made by the amendment at page 123, line 6.
Lord Stewart of Dirleton (Con)
In moving the amendment in the name of my noble friend Lord Wolfson of Tredegar, I shall speak also to Amendments 67 and 70, also in his name. These amendments are intended to modify Scottish provisions on sentencing with the intention of providing that, throughout the United Kingdom, terrorist offenders serve the appropriate custodial period of sentences for terrorism offences. They are made necessary by an aspect of Scottish sentencing practice that does not appear elsewhere in the United Kingdom.
The three amendments, taken together, make provision for technical sentence calculation adjustment. They clarify how terrorism sentences will operate when served consecutively with non-terrorism sentences. The amendments come at the end of a positive engagement with the devolved Government; as a result of that engagement, the Scottish Government have now tabled a legislative consent Motion in respect of this Bill.
As I said in the course of these brief remarks, the amendments are technical in nature and I shall be happy to place detail of them and their implications in a letter in the Library of this House. I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, I am most grateful to the noble and learned Lord, Lord Stewart, for moving these amendments and for pronouncing “Tredegar” correctly. I am sure that the noble Lord who hails from, or has a connection with, Tredegar, will be happy with his pronunciation as well. I have looked at these Scottish provisions. I agree that they are technical, and I really have nothing to add.
Lord Falconer of Thoroton (Lab) [V]
Like the noble Lord, Lord Paddick, I too am grateful to the four Ministers for the care and good humour with which they have dealt with it all. Of the three amendments, Amendment 66 looks entirely technical. As the noble and learned Lord, Lord Stewart of Dirleton, says, Amendment 67 deals with a situation where you have a non-terrorist sentence and then, consecutively, before or after, a terrorist sentence. I cannot work out how you deal with that situation for the purposes of licences as a result of this amendment. Hopefully, that will be explained to us—for reasons that may be entirely my fault, it is not entirely clear to me from the wording of the amendment. As I understand it, Amendment 70 again deals with the position of consecutive sentences; and again, the effect of that is not entirely clear to me. It might be significant, because what we are dealing with are very long sentences. So I hope that the noble and learned Lord will explain this when he comes to write his letter to us. I am very much obliged.
Lord Stewart of Dirleton (Con)
My Lords, I will undertake to provide that explanation on what are, as all the speakers who have kindly commented on the provisions have remarked, matters of a technical nature.
Lord Stewart of Dirleton
“(3) In the heading of section 1A, after “to” insert “certain”.(3A) After section 1A insert— “1B Prisoners serving consecutive sentences including at least one terrorism sentence(1) This section applies where—(a) a prisoner has been sentenced to two or more terms of imprisonment which are to be served consecutively on each other,(b) one or more of the sentences (the “terrorism sentence”) was imposed in respect of an offence within section 1AB(2), and(c) the sentences were imposed on the same occasion or, where they were imposed on different occasions, the prisoner has not been released under this Part at any time during the period beginning with the first and ending with the last of those occasions.(2) If the prisoner is serving a terrorism sentence and a sentence imposed in respect of an offence that is not within section 1AB(2) (a “non-terrorism sentence”), the terrorism sentence is to be served (or, where subsection (7) applies, treated as being served) after the non-terrorism sentence irrespective of when the sentences were imposed.(3) Where subsection (2) applies, the prisoner is to be taken to begin serving the custodial part of the terrorism sentence (or first such sentence) as soon as the prisoner has served the custodial part of the non-terrorism sentence.(4) If (but for this section) the prisoner would have been released on licence under this Part in respect of a non-terrorism sentence, the period during which the prisoner would have been on licence under this Part is to be served concurrently with the custodial part of the terrorism sentence.(5) The prisoner may not be released under this Part in respect of the terrorism sentence unless and until the prisoner has served the aggregate of—(a) if the prisoner is serving a non-terrorism sentence, the custodial part of the sentence, and(b) the custodial part of each terrorism sentence that the prisoner is serving.(6) Subsection (7) applies where—(a) a non-terrorism sentence is imposed on the prisoner (the “new sentence”), and(b) the prisoner has already served part of the custodial part of a terrorism sentence (the “served part”).(7) The prisoner is to be treated as having served—(a) where the served part is less than the custodial part of the new sentence, such part of the custodial part of the new sentence as is equal to the served part,(b) where the served part is equal to the custodial part of the new sentence, the custodial part of the new sentence,(c) where the served part exceeds the custodial part of the new sentence—(i) the custodial part of the new sentence, and(ii) so much of the custodial part of the terrorism sentence as is equal to the amount by which the served part exceeds the custodial part of the new sentence.(8) Nothing in this Part requires—(a) the Scottish Ministers to release the prisoner in respect of any of the terms of imprisonment unless and until they are required to release the prisoner in respect of each of the other terms of imprisonment,(b) the Scottish Ministers or the Parole Board to consider the prisoner’s release in respect of any of the terms of imprisonment unless and until the Ministers are or the Board is required to consider the prisoner’s release, or the Ministers are required to release the prisoner, in respect of each of the other terms. (9) If the prisoner is released on licence under this Part the prisoner is to be on licence, on and after the release, until the prisoner would, but for the release, have served a term equal in length to the aggregate length of the term of imprisonment of any non-terrorism sentence and the term or, as the case may be, terms of imprisonment for the terrorism sentence or sentences less the period mentioned in subsection (10).(10) The period is—(a) any period served concurrently in accordance with subsection (4), and(b) if (but for this section) the prisoner would have been released unconditionally under section 1(1) in respect of a non-terrorism sentence, the period equal to one-half of the term of that sentence.(11) Where a prisoner to which this section applies is released on licence under this Part (other than a licence under section 3AA), the release is to be on a single licence which is to be subject to such conditions as may be specified or required by this Part in relation to all the sentences in respect of which the prisoner has been so released.(12) In this section “custodial part”, in relation to a term of imprisonment means a period equal to the part of the term that (but for this section) the prisoner would be required to serve before—(a) the Scottish Ministers are required to release the prisoner under this Part, or(b) the Parole Board is first entitled under this Part to make a recommendation that the prisoner be released on licence under this Part.(13) In this section—(a) references to a non-terrorism sentence include references to two or more such sentences that are treated as a single term by virtue of section 27(5) (whether imposed before, after or both before and after a terrorism sentence), and(b) where subsection (7) applies, the references in that subsection to the “custodial part of the new sentence” include references to the custodial part of the single term.””Member’s explanatory statement
This amendment inserts new section 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993. New section 1B makes provision where a prisoner is serving consecutive sentences including at least one terrorism sentence to which section 1AB of the 1993 Act applies, including provision consequential on the amendment of section 27 of the 1993 Act made by the amendment at page 125, line 15.
Lord Wolfson of Tredegar
“(i) Part 3 of that Schedule, except as mentioned in subsection (3)(hb);(ia) Part 4 of that Schedule;”Member’s explanatory statement
This is consequential on the amendment at page 44, line 11.