Royal Commission on Criminal Justice

Debate between Lord Fowler and Lord Marks of Henley-on-Thames

Monday 9th November 2020 Lords Chamber

[The Lord Speaker (Lord Fowler)]

With apologies to the noble Baroness, we have to move on. I call the noble Lord, Lord Marks of Henley-on-Thames.

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

My Lords, members of BAME communities are currently treated disproportionately at every stage of our criminal justice process—stop and search, arrest, charging decisions, trial and sentence. In appointing the chair and considering the commission’s membership and its terms of reference, will the Government ensure that we have a commission that is utterly dedicated to tackling all these inequalities?

Terrorist Offenders (Restriction of Early Release) Bill

Debate between Lord Fowler and Lord Marks of Henley-on-Thames

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

[Lord Marks of Henley-on-Thames]

My Lords, I am familiar with the case of Abedin. I do not accept, however, that that involves or considers the position here, where the length of time spent in custody is changed by statute from the automatic release that prevailed under the 2003 Act to the prohibition on release before the two-thirds point that would prevail once this Act was passed. Abedin did not answer that point. It concerned the mechanism for release; it did not concern the overall time that was necessary by statute to be spent in custody. That is the answer to the direct point of the noble Lord, Lord Pannick, on the ECHR jurisprudence.

I was saying that I prefer to rest this regret Motion on the traditional common-law principle against retrospectivity. When we debated before the recess the Sentencing (Pre-consolidation Amendments) Bill, the noble and learned Lord rightly described the Bill as ensuring that it did not,

“contravene the general common law presumption against retroactivity.”—[Official Report, 11/2/20; col. 2253.]

The noble and learned Lord, Lord Hope of Craighead, described the principle as being,

“that the convicted person is not dealt with by the imposition of a penalty of any kind that is more onerous than that which applied when the offence was committed.”—[Official Report, 11/2/20; col. 2249.]

The penalty that applied when the 2003 Act was being applied meant automatic release at the one-half point. This Bill requires consideration of—not automatic —release only at the two-thirds point. That is one-third longer, and that is the point that I make. The noble and learned Lord, Lord Falconer of Thoroton, expressed anxieties on this point during the course of that debate, and I share them.

My concern, therefore, is simply that an offender convicted before this Bill is statutorily entitled to release at one half, under an automatic response. If this Bill is passed unamended, his release will be deferred until after the two-thirds point, and then only on a Parole Board assessment.

At Second Reading in the House of Commons, the Lord Chancellor tried to argue that this does not mean that the Bill will change retrospectively the sentence imposed by the court:

“Release arrangements are part of the administration of a sentence, and the overall penalty remains unchanged.”


That is the point made on Abedin by the noble Lord, Lord Pannick. A little later, however, the Lord Chancellor rather gave the game away in abandoning this position when he said:

“The justification for this emergency, retrospective legislation—out of the ordinary though I accept it is—is to prevent the automatic release of terrorist defenders in the coming weeks and months.”—[Official Report, Commons, 12/2/20; col. 872.]


Indeed, the noble and learned Lord today, in opening this debate, accepted that the Bill had retrospective effect but argued that it did not offend against Article 7.1. The Bill is retrospective, whatever the position under Article 7.1, and I do not believe that the Government have made a strong, evidence-based case for retrospection.

I will add only this. To impose apparent injustice on serving prisoners risks their being less amenable to rehabilitation, more resentful of their having their time in custody increased, and so more dangerous on release then they might otherwise have been. Significantly, the impact assessment at page 2 recognises both this risk and the risk to rehabilitation in the Bill, saying:

“A later release date and reduced (or no) licence period could disrupt offenders’ and family relationships and reduce opportunities for rehabilitation in the community, this would be more severe for young offenders and children convicted of terrorist offences. Additionally, there is a risk of prisoner frustration, disengagement or unrest at changing release arrangements, though there is little evidence to support how prisoners will actually react, and reaction is likely to vary from prisoner to prisoner.”


I fear that we abandon long-established principles at our peril. The peril is worse still when we legislate in a rush. We have amendments down in Committee seeking a review after a year of the operation of this legislation. We regard such a review as extremely important to consider its functioning when we have been denied, as we have, proper scrutiny at this stage. It is our intention to press those amendments in Committee. I beg to move.

[The Lord Speaker (Lord Fowler)]

The original question was that this Bill be now read a second time, since when an amendment has been moved, at the end to insert the words as set out on the Order Paper. The question I now therefore have to put is that this amendment be agreed to.