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.