Terrorist Offenders (Restriction of Early Release) Bill

Lord Falconer of Thoroton Excerpts

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

[Lord Falconer of Thoroton (Lab)]

My Lords, I support this Bill, save in one significant respect: increasing the point at which existing prisoners will be considered for release, from half to two-thirds of their determinate sentence. I agree with noble Lords who have said that we need a breathing space, but we can achieve that simply by introducing the Parole Board and asking it to consider existing prisoners’ release at half-time.

The Bill does three things. It provides a new sentencing regime for future terrorists—I have no objection to that—and does two things in relation to existing prisoners: it increases their release date from half-time to two-thirds and prevents release being automatic, and brings in the Parole Board at two-thirds. I have no objection to bringing in the board in relation to existing prisoners, as that will allow the state to consider whether or not that prisoner is safe to be released. If we as a state need a breathing period in respect of that prisoner, bringing in the Parole Board to make a decision deals with that.

What is objectionable as a matter of principle is increasing the length of sentence retrospectively. It is a terrible agony for me to disagree with the noble and learned Lord, Lord Judge, but he did not state in a way that I found compelling the position regarding how long existing prisoners are in prison for. Where there is a determinate sentence for this cohort of terrorists, they are automatically released at half-time without the intervention of the Parole Board. It is not a matter of discretion but of duty for the Secretary of State to release them. If the Secretary of State did not do so, there could be litigation and she would be compelled to do so.

If that period is increased from half-time to two-thirds, the sentence is increased retrospectively. What is so objectionable about retrospectively increasing a sentence is that it is not the courts that then decide how long the person is in prison for, it is the Executive or the legislature deciding, frequently pursuant to public pressure. That really undermines the rule of law.

Should we allow that? Article 7.1 does not allow it at all under the Human Rights Act; there is no entitlement to derogate from that principle, because that is the way despots behave. The common law is more flexible; it will allow derogation from the principle of retrospectivity by saying, as we are doing, “All your sentences are increased from half to two-thirds.” Whatever sophistry is put forward, that is what is happening. The justification is given, and the noble Baroness, Lady Neville-Jones, put it well, that we need a breathing space. But you get your breathing space if you bring in the Parole Board to look at half-time and determine whether you can release that person, and do so only if it is safe to do so.

If and to the extent that one needs to take a proportionate step to protect the public—everybody who has debated this so far, including me, agrees that a proportionate step needs to be taken—that step is to let the Parole Board say, “Is this person safe to release?” If he or she is not, they are not released at half-time and you have the breathing space. I can see no justification whatever, whether it be under common law or the human rights convention, Article 7.1, for saying, “Up it from a half to two-thirds.” It is worth pointing out that the person who committed the atrocities in Streatham would have been released four months later if his custody had been increased from a half to two-thirds. He would not have been released at all until the end of his sentence if the Parole Board had been brought in, so you solve the problem by bringing in the Parole Board.

I am very happy to say that the noble Lord, Lord Anderson of Ipswich, has tabled an amendment that accepts the proposition that the Parole Board should be brought in at half-time in relation to existing prisoners, but puts to one side the increase from a half to two-thirds. That is the right course for the legislature to take to deal with the problem of the risk and to deal with the need to give a breathing space. That would not infringe the principle that we have always accepted. We should not as a legislature say to a group of people—whether justified or not, because it will not be justified to keep some of those people in beyond half their sentence—that we the legislature, not the courts, are deciding what your sentence is.

--- Later in debate ---

[Lord Keen of Elie]

I misheard the noble Lord, and I apologise to him for that. I had understood him to refer to the issue of the sentence being retrospectively changed, as reflected in the observations of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.

The point I wish to make has already been touched upon by the noble Lord, Lord Pannick. The position is simply this. There is an established line of case law up to the Criminal Division of the Court of Appeal that a court should pass a sentence that is commensurate to the offending behaviour in relation to the offence committed, without any consideration of any possible early release. In other words, early release under licence and the various ramifications of that are an irrelevant consideration to the courts on sentencing. That is reflected by the Court of Appeal decisions in Round in 2009 and Bright in 2008. So it is not a case of retrospective change to sentence. Somebody is sentenced to a period of, say, four years. There is then a statutory provision whereby the Secretary of State comes under a duty to release at a certain point in the sentence. The current position with regard to the type of sentence we are dealing with is release at the halfway stage. In response to an observation by the noble and learned Lord, Lord Judge, I say that the Secretary of State has a duty to obtemper that statutory obligation and, I suspect, would be faced with a writ of habeas corpus if he did not. There is a clear duty there, and there is no way around that.

The true retrospective nature of this legislation, insofar as it is at all retrospective, comes from the application of the provisions with regard to the Parole Board, with which everyone appears to be in agreement. Under the present statute, a prisoner is entitled to automatic release at the halfway stage. We now propose—and everyone appears to agree—that this should not be the case and that they should have to satisfy the requirements of the Parole Board before they are released. So a prisoner who anticipated automatic release will no longer be able to do so, because the provision with regard to the Parole Board is that it must be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. That is the retrospective element in all this.

The noble Lord, Lord Pannick, then asked: why apply that at the two-thirds point in the sentence rather than at the halfway point? There are a number of reasons behind the provision in the Bill extending the period of imprisonment from half to two-thirds of the sentence. The most immediate was reflected in an observation from noble Lords that this Bill gave a breathing space. That is certainly required at present, because we face a situation in which we are placing a quite considerable obligation on the Parole Board to bring forward expertise and examination of individual prisoners, in circumstances in which a number of these offenders are due for release at the halfway point in a matter of days. In the interim period, therefore, it is necessary that we are able to accommodate that very real risk.

In addition, it brings the sentence into a position that is consistent with other sentences, where the period is two-thirds. We suggest that it allows for a further period of incapacitation of terrorist offenders—it may seem limited in some instances, but not in all—and confers a degree of public confidence on those concerned about recent behaviour and recent events.

[Lord Falconer of Thoroton]

I make it clear that I have no problem with imposing the Parole Board. Equally, Equally, I understand the point that the noble Lord, Lord Faulks, made and that the Minister is making, that there will be quite a lot to deal with. But I understand that the effect of the Bill will be that you cannot be released automatically until the Parole Board has said you can be, so there will not be a problem on the basis of the draft of the Bill. The bit I question the Minister on—I find it completely incomprehensible—is that he appears to be saying that moving it from half to two-thirds is part of the administration of the sentence and therefore not caught by retrospectivity, but that removing release from automaticity is part of the sentence. I just do not follow that.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Falconer of Thoroton 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

[Lord Falconer of Thoroton (Lab)]

My Lords, I strongly support the amendment tabled by the noble Lord, Lord Anderson. It grieves me to do so because I am disagreeing with the noble and learned Lord, Lord Mackay of Clashfern, but this is emergency legislation, so described. Put aside the question of precisely what Article 7 means or how the presumption against retrospectivity works; it is essentially a bad thing for a legislature to change the sentence of everybody in a particular group. Everybody accepts that proposition, except, possibly, one noble Lord who said that it would be good if everybody’s sentence went up—but let us put that to one side. It is bad for a legislature to change a whole cohort sentence because you should be sentenced by the courts, not by a legislature that subsequently takes a different view, primarily because of public pressure. It may be legitimate public pressure, but it is public pressure nevertheless.

There may be circumstances that make it necessary to break with that principle. If you have to break with it, break with it to the minimum degree required to provide public protection. I do not agree with the “in for a penny, in for a pound” approach of the noble Viscount, Lord Hailsham: that if there is some justification for retrospectivity, any retrospectivity is justified. That cannot be the right approach.

The problem here is that prisoners may well be very dangerous—the Streatham terrorist was plainly and evidently dangerous, because he had said that he wanted to commit very dangerous crimes—and yet they have to be released. The solution is to make sure that somebody looks at every individual case and that those people can be released only if, in the words of the Bill,

“the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

So, unless the Parole Board is satisfied that the person is no longer a danger, they must be kept in prison.

On the right way to approach this, instead of saying that everybody must stay in prison for longer, even if they are evidently no longer a danger, the right course is for everybody to be looked at. As the noble and learned Lord, Lord Mackay of Clashfern, says, it might be that we cannot reach everybody by the time they are half way through their sentence. That is dealt with by the perfectly adequate drafting in this Bill, which says that you can be released by the Secretary of State only after you have been examined by the Parole Board and it has directed that you can be released. Therefore, the factor that determines when you get released is not that you have to wait until you are two-thirds of the way through your sentence before it is considered, but that you are considered at half-time and, if there is a delay while the Parole Board gets its act together, you the prisoner must wait, and the problem is solved. Of course there are difficulties in making an assessment, but there is that difficulty whether it is two-thirds of the way through a sentence or halfway through. It is fundamentally wrong that we just up it to two-thirds for no good reason in the context of emergency legislation.

I shall make one more point and then give way to the noble Lord, Lord Cormack. I do not accept the proposition being advanced that this provision, which increases detention from a half to two-thirds, would not offend against Article 7; nor do I accept that it would not offend against the presumption against retrospectivity. All the Article 7 cases are about changing the terms. So, in the Uttley case, somebody comes out with some terms on release, whereas previously there would have been no terms on release. In another case where it is held not to be retrospective under Article 7, a person is moved from one country to another and different provisions apply; but that was the provision right from the start. In the Aberdeen case, which the noble Lord, Lord Pannick, relied on—sadly, he is not here—somebody was released and then recalled. The rules changed regarding what happens when you are recalled. These examples do not go to the fundamental point of keeping you in prison for longer.

In the one case in which that matter was considered by the European Court of Human Rights, the Inés Del Río Prada case, the fundamental reason why it was held to be retrospective was that a sentence was changed because time off for work in prison suddenly began to count in a different way and, instead of getting out in 2008, the unfortunate prisoner was not going to get out until 2017. That was held to be in breach of the retrospectivity rule. I find it very difficult to distinguish this case from that case, whereas it is easy to distinguish all those other cases in which the precise terms changed but not the length of time in prison.

However, that is not the prime way in which I put my case, which is that if we are in emergency legislation going to impose this provision, we should not be upping the sentence if we can meet the emergency with the introduction of the Parole Board. We can do so and should do no more than that now. I give way to the noble Lord, Lord Cormack.

[Lord Cormack (Con)]

I would rather make my own comments, because the noble Lord did not give way at the point at which I wished to intervene when he was talking about the two cases that are the reason behind this emergency legislation. He talked about the Streatham stabbings. What he failed to acknowledge was that the really dangerous terrorist was the one at Fishmongers’ Hall, who had feigned conversion and then turned on the very man who had been his mentor. That, in a nutshell, illustrates why it is important that we have this emergency legislation. I made it plain in my speech at Second Reading that this is only the beginning. We want substantial legislation; my noble friend has promised it and we must hold him to that promise. But we need to pass this tonight without further ado, and I very much hope that the noble Lord, Lord Anderson, who made an extremely good case with great eloquence, will feel able to withdraw his amendment.