Terrorist Offenders (Restriction of Early Release) Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

1: Clause 1, page 2, line 32, after “period”” insert “, in relation to a sentence imposed after this section comes into force,”
Member’s explanatory statement
This amendment creates a distinction between sentences imposed before and after this section comes into force. Prisoners sentenced after this section comes into force are not eligible for release until they have served two-thirds of their sentence. For this category of prisoner, there is no change from what the Bill currently provides.

[Lord Anderson of Ipswich (CB)]

My Lords, though in common with some others of your Lordships, I regret the highly accelerated way in which this Bill has been handled, the compressed timetable has one very considerable advantage: the excellent debate we have just had at Second Reading, much of it touching on the subject matter of these exploratory amendments, is still ringing in our ears. For that reason, there seems little point in trying to repeat the full glories of that debate at this hour of the evening, for the battle lines are pretty clear.

Every speaker who addressed the issue, as the Minister rightly said, sees the need for a degree of retrospective effect to protect the public: the injection of Parole Board review into the sentences of existing prisoners, despite the fact that those prisoners will have been assured by the judge who sentenced them that they would be automatically released by the halfway stage of their sentences. None of us is prepared to see them released before the end of their sentence without the Parole Board’s say-so.

The issue raised by Amendments 1 and 2 which relate to England and Wales, and Amendment 4 which relates to Scotland, is whether we should go further into the dangerous waters of retrospectivity, as the Bill in its unamended form would do, by providing as a universal rule that not even Parole Board scrutiny will be considered until the two-thirds point of the sentence. This—let us not forget—is in relation to prisoners who are at the bottom end of the terrorism scale where seriousness is concerned and who are not assessed as dangerous by the trial judge or they would have been on a different and more onerous type of sentence.

On this issue, the European Court of Human Rights seems to be a sideshow. As the noble Lord, Lord Pannick, said—and I agree with him—it is not likely to be contravened by whatever we do. What we need to ask is whether sufficiently cogent reasons have been advanced to displace, in the interests of public safety, the normal presumption that a prisoner’s sentence will not be changed to his disadvantage after it has been passed.

On that issue, I will not summarise the respective arguments of what the noble Baroness, Lady Chakrabarti, described, perhaps optimistically, as two fantasy football teams of lawyers, although I would correct her in one respect by pointing out that the noble Lord, Lord Pannick, as I have confirmed with him, is for these purposes a member of the squad supporting these amendments, along with the former Independent Reviewer of Terrorism Legislation, the noble Lord, Lord Carlile, the former law officers, the noble and learned Lords, Lord Falconer and Lord Garnier, and the others who made such pertinent contributions, including the noble Baroness, Lady Meacher, and my fellow signatory, the noble Lord, Lord Beith. The noble Lord, Lord Hogan-Howe, although not a member of the team, expressed his discomfort about the way the Bill has been written.

The Minister advanced two reasons in his all-Peers letter which I dealt with in opening, and then two more came along as he wound up the debate. With great respect to him, they were not obviously more convincing. He spoke first of consistency with sentencing regimes where Parole Board consideration comes at the two-thirds stage, but the point goes nowhere for there are plenty of other regimes at which Parole Board consideration happens at half time. He spoke of a breathing space, but the releases that are due in the next few days and weeks—the ones that we are told make this Bill so urgent—are of prisoners who are well past both the half way and the two-thirds point, so the application of one test rather than the other makes no difference in practice and gives the Parole Board no additional scope to draw breath. He spoke of public confidence, but that is a self-serving argument; it is about appearance, not about a real and objective justification. He also spoke of a further period of incapacitation as being an advantage of the scheme in the Bill, but if these amendments were to be accepted, no one would be released at half time unless the Parole Board considered them to be safe, so the only prisoners who will be further incapacitated by the provisions that we seek to amend are those who, in the assessment of the Parole Board, could safely be released.

That, I suspect, is more than enough from me. I beg to move.

[Lord Garnier (Con)]

My Lords, there was never any possibility of my becoming a member of the Court of Appeal, but had I been a member, the job I would most like to have had is that of the third member of the court who says, “I have read the judgment of my learned friend. I agree and I have nothing further to add.” I have heard what my friend the noble Lord, Lord Anderson, has said both at Second Reading and just now and I have nothing further to add save one point.

During the course of the Second Reading debate, instead of saying “two-thirds” I said “three-quarters”. I do not suppose that that made much difference to the way in which the House considered the matter, and the noble Lord, Lord Anderson, has made the points that need to be made. The one thing I have learned in politics is that it is possible to win the argument and to lose the vote, and it is possible to make winning arguments and sensibly to avoid a vote. For my part, I think that the noble Lord, Lord Anderson, has made and won the arguments, but whether he moves this issue to a vote is another matter. However, he has certainly won the moral victory.

--- Later in debate ---

[Lord Anderson of Ipswich]

I am a little nervous of senior political figures, however eminent, saying that they have won the argument unless they have also shown themselves capable of winning a vote. Despite that, we have had two excellent debates, both at Second Reading and just now, on the subject matter of these amendments. Extremely eminent people have lined up on both sides. I think someone tuning in to Parliament TV might have thought at times that they were watching Supreme Court TV but, none the less, points have been made and markers have been well and truly laid down for the forthcoming terrorism sentencing Bill and, indeed, for future Bills.

It seems to me that moving an amendment from the Cross Benches is a bit like crossing the road in that it is prudent to look very carefully to the left and to the right. As I have been doing that over the past few minutes, it has seemed very clear to me that the traffic is a great deal heavier on the government side and I have drawn the necessary conclusions. My heartfelt thanks go to all noble Lords who have spoken in this debate, but I shall be seeking leave to withdraw the amendment.

Amendment 1 withdrawn.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my Amendments 3 and 5 seek a review of the working of this legislation one year after the Bill comes into force. Amendment 3 is concerned with Clauses 1 and 2, relating to England and Wales, while Amendment 5 is concerned with Clauses 3 and 4, relating to Scotland.

I suggest it is always sensible to review the working of legislation after it has come into force. That usually occurs in the case of non-urgent legislation after a period of years. However, review is even more important and urgent in the case of emergency legislation. This Bill cries out for a specific review of how its provisions are working, precisely because it is being put through Parliament as emergency legislation. We have had no time for consultation or proper scrutiny—one day in the other place and one day here. The result has been that a number of questions that have arisen today have been inadequately considered, so that the Government have no answers to them. That is not a criticism of the noble and learned Lord, nor of the Government in general. It is the inevitable consequence of the haste with which we are passing this Bill.

We have heard today from noble Lords around the House about the risks posed by the lack of measures to improve deradicalisation and rehabilitation in prisons, and of the risks of radicalisation in prison of non-terrorists. We have also heard of the dangers of legislation that in practice, even if not in law—as to which there has been much argument—has retrospective effect. I agree with the noble Lord, Lord Pannick—which I have not always done today—in his point that this Bill involves keeping in custody terrorist prisoners who have served half their sentences and who would have been released had they had a safety assessment by the Parole Board at that point.

I have discerned no indication from the Government that the point made by the noble Lord, Lord Pannick, has been considered by them. The noble Lord made his point in the context of serving prisoners, whose time in custody is to be increased by the enactment of this legislation. However, this is presented, rightly, as a public safety Bill, and the point might also be relevant in relation to some terrorist offenders, not yet sentenced and probably at the lower end of the scale, who would plainly have a better chance of rehabilitation if released following the halfway point on a favourable Parole Board safety assessment.

Then there was the argument put forward by the noble Baroness, Lady Meacher, that a breathing space could be secured by interposing a Parole Board safety assessment, when it can be prepared, but before a release following the halfway point and such an assessment, and before the two-thirds point. That, again, was an argument that the Government could not meet.

Those are all concerns that cry out for review because the emergency treatment of this Bill has cut its consideration to the bone; yet, far from accepting the need for an urgent review, the Government’s position is unclear, inconsistent and, bluntly, all over the place. At paragraph 58 of their impact assessment the Government wrote:

“In the normal way, the … Bill will be subject to a post-legislative review to determine whether this legislation is working in practice as intended. This will take place between three and five years following Royal Assent.”


Therefore, there will be a review but very late. In contradiction to that position, in the Explanatory Notes, the Government say the following at paragraph 16, in question-and-answer form, on issues raised by fast-track legislation. The question is:

“Are mechanisms for effective post-legislative scrutiny and review in place? If not, why does the Government judge that their inclusion is not appropriate?”


The Government’s answer is:

“No post-legislative scrutiny is planned. However, the Government intends to introduce a Counter-Terrorism (Sentencing and Release) Bill later in this Session.”


However, we do not know what will be in that Bill, and it does not seem to answer the need for a specific review of the working of this Bill.

Today I have been told by the Government that they are not prepared to agree to a review because the independent reviewer is already engaged upon his review of the Multi Agency Public Protection Arrangements —the so-called MAPPA—and the release and supervision arrangements will inevitably be included in that. Also, it is to be expected—and the independent reviewer, Jonathan Hall QC, has confirmed—that he will scrutinise this legislation in his regular annual review. I am sure that that is so, and it is indeed very welcome, but neither of the independent reviewer’s reviews will be specifically directed to the efficacy or merit of the provisions of this legislation. They cannot therefore take the place of proper parliamentary scrutiny, which we have been denied. It is an inappropriate treatment of Parliament to attempt to piggyback post-legislative scrutiny of this Bill on reviews conducted for a separate and different purpose, however good those reviews might be expected to be.

Our amendments would require the Government to commission a review by an independent professional, whose appointment would be made in consultation with the Independent Reviewer of Terrorism Legislation. No one has seriously challenged the mechanism of our proposed review. I beg to move.

[Lord Anderson of Ipswich]

My Lords, I want to pick up on the point just made by the noble Lord, Lord Marks, about the independent reviewer. As a former independent reviewer myself, I am temperamentally rather inclined to the merits of independent review. However, in his note of 19 February on this Bill, Jonathan Hall said:

“I consider that the effect of sentences passed under the Terrorism Acts falls within my remit as Independent Reviewer of Terrorism Legislation, and therefore I would propose to report on the impact of these changes (and of the changes likely to be made by the more sizeable Counter-Terrorism Sentencing Bill later in the year) in one of my forthcoming annual reports, most likely my report on the Terrorism Acts in 2020.”


Perhaps I may ask the Minister, when he responds, to confirm whether it is his impression, as it is mine, that reviews of that nature fall within the existing remit of the independent reviewer. Perhaps I may also ask the noble Lord, Lord Marks, to comment on whether, in the light of that fact, his amendment will really add anything at all.

[Viscount Hailsham]

My Lords, I rise very briefly to express my views on this amendment. I have a lot of sympathy in general with the proposition that we need a review. However, I cannot support it on this occasion for two reasons.

The first is, I admit, wholly pragmatic; this is going to go nowhere. This matter was discussed in the House of Commons. The noble Lord, Lord Marks, will know that there were two amendments, creating a new Clause 1 and a new Clause 3. The latter in the House of Commons was in exactly the same terms as the noble Lord’s amendment and was barely discussed. I think that new Clause 1, which was a Labour Party amendment, also received no effective discussion. So it will not go anywhere, and I personally am not in favour of parliamentary ping-pong on this matter, rather for the reasons advanced by my noble friend Lord Cormack.

The second reason is rather longer: this does not go nearly far enough. Indeed, such a review could stand in the way of the kind of review that I would hope to persuade your Lordships is desirable. We have a counterterrorism and sentencing Bill coming forward. For that purpose, it is absolutely essential that there is very wide consultation prior to the consideration by Parliament of that Bill. That could be called a review but is essentially a consultation, and it has to address at least four substantive matters.

First, there is the complexity of the existing sentencing and sentence arrangements. These were described very eloquently by the noble and learned Lord, Lord Judge. It is a hugely complex area. There is huge scope for consolidation and simplification. That should be addressed in a pre-Bill consultation process.

Secondly, we need to know much more about how terrorism prisoners are being managed in the prison estate, and in particular the degree to which Mr Acheson’s actual recommendations are being implemented. To the extent that they are not, we need to know the reasons why.

Thirdly, almost everybody who has spoken in these three debates has welcomed the Parole Board filter that is being introduced. But the Parole Board can only act on information that it receives. It is absolutely essential that there is provision within the prison system for making suitable information available. That means a whole range of things, such as having experienced probation officers; having experienced prison officers —which is very important, because too many are retiring and being replaced by very young ones; appropriate courses; meaningful out-of-cell activity; and not churning prisoners from prison to prison within the estate. We have to know about all of this. The noble Lord, Lord Ramsbotham, has made this point on many occasions. Provision of all of these things in prisons is lamentable. We are going to see really large sums of money being dedicated to the Prison Service. But if the Government are serious about increasing the number of prisons, the money will actually go on buildings, not to the provision of the courses and information that will be absolutely essential to enable the Parole Board to make an effective decision.

My last point is that, down the track, the Parole Board will release prisoners who go on to commit very serious offences—probably multiple murder. It will almost certainly happen and will be a tragedy. At that point, there will be immense public opinion calling for prisoners to be kept in prison indeterminately. If I may say so, that is the point that my noble friend Lord Cormack was addressing. My point is that that pressure will arise. I personally believe that it may be necessary to introduce some form of post-sentence control-order process, as mentioned by the noble Lord, Lord Macdonald. That may be necessary, but I think it should take the form more of the old control-order regime, rather than indeterminate sentences of the kind identified by my noble friend Lord Cormack.

Whatever the case, we need to consider it now, not in the context of emergency legislation. If there is emergency legislation, there will be immense pressure for indeterminate sentences, and I have a very strong feeling that that is profoundly wrong and that we should not do it. The consultation that will precede the introduction of the counterterrorism and sentencing Bill should address what happens if the Parole Board does release offenders who go on to commit multiple murder. It is much better to do this over a slightly longer period, without the urgency of emergency legislation, than to do it in the latter context.

Therefore, I say to the noble Lord, Lord Marks, that I am not against reviews, but I think his review is far too narrow and could stand in the way of the much bigger review that I think is essential.