Terrorist Offenders (Restriction of Early Release) Bill

Lord Faulks Excerpts

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

[Lord Faulks (Non-Afl)]

My Lords, the Lord Chancellor has made a statement, under Section 19 of the Human Rights Act, regarding the Bill’s compatibility with that Act and has firmly defended his stance in the House of Commons. I agree with the noble Lord, Lord Pannick, who is not in his place, that the case law, both here and in Strasbourg, supports the Government’s analysis that there is no conflict with Article 7. However, it must be remembered that the courts here do not have to follow the Strasbourg jurisprudence; they merely have to take it into account. So one cannot entirely rule out the possibility of a challenge; I hope there is not one.

Whatever the legalities, the fictional man or woman in the Dog and Duck, where they discuss these things, may not be well versed in Article 2 or Article 8 of the European convention—the right to life and family life—Article 7 or even the presumption against retrospectivity. But they might ask: “What are the Government doing to protect me? What about my human rights?” We must have considerable sympathy with that concern.

The noble and learned Lord, Lord Falconer, has made the very real point that we should make sure that the Parole Board has a chance to consider these prisoners before they are released, but I gently remind him that the shadow Minister said in the House of Commons:

“If this Bill is not passed and rushed through its stages over the next couple of weeks, terrorist prisoners will be on our streets, without any assessment of risk or dangerousness by the Parole Board. That does not leave the House in the easiest of positions, but it is the reality of the situation before us.”—[Official Report, Commons, 12/2/20; col. 873.]


Of course I will hear what the Minister has to say, but I wonder whether it is feasible to carry out the sort of detailed and thorough Parole Board assessment that the noble and learned Lord has in mind.

At the heart of the analysis is when, if ever, it would be safe to release a prisoner who has committed a terrorist offence. Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, whose distinguished predecessors have already spoken in this debate, said:

“It is said that keeping terrorist prisoners longer in custody will protect the public … But the question is whether keeping a non-risky prisoner longer in custody, rather than releasing them, will protect the public.”


With respect, that seems to me to beg the central question: how do we know whether someone is non-risky? Rehabilitation has never been an exact science. It fails more than it succeeds but, as a number of noble Lords have said, the problem with deradicalisation is particularly acute. As the noble Lord, Lord Evans, has pointed out, a number of attempts all over the world have failed to establish a really satisfactory way of proving to anybody that deradicalisation has worked in any particular instance.

I remember as a Justice Minister having a number of conversations with my counterparts in the European Union, all of whom had the same problems. Whatever the shortcomings of our deradicalisation programme, it was considerably more advanced than those of most European countries. It is because of the warped ideology that often lies behind the terrorism that difficulties are particularly pronounced, and I take the point of the noble Lord, Lord Cormack, that it is very different from the form of terrorism we were confronted with in the 1960s and 1970s.

I understand from the Minister and what was said in the House of Commons that the Parole Board will have special expertise to help decide whether it is safe to release these prisoners, but even very experienced High Court judges, probation officers and those with special knowledge are still confronted with the almost impossible task of assessing whether someone is safe or not. The fact is that in one case, Fishmongers’ Hall, the prisoner had fooled everybody and in another, the Streatham case, he had not fooled anybody at all. However, even then, with police and security officers right on the scene, he was not prevented from seriously wounding those at the scene.

What do we do? The Government will bring legislation, and nobody can pretend that this Bill is anything but a temporary response. The noble Lord, Lord Cormack, referred to the return of IPP prisoners, and I stand behind the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who has been a doughty champion of those unfairly affected by the previous regime. He has been absolutely right to pursue the policy as he has, but we are talking about something different here. The noble Lord, Lord Cormack, talked about the threat to St Paul’s and to individuals. It needs a radical change of thought. Unfortunately, civil liberties will be threatened, but the Government have to do their job to protect the public.

Control orders have been raised, along with their somewhat more anaemic cousins, TPIMs. I am afraid that control orders would not have helped in Streatham; however close the control, it would not have done any good. Whether we have a special court or IPP sentences, we must seize this problem. This is a short response to a particular difficulty, but it does not begin to address the real problems we face.