Offender Management: Checkpoint Programme

Lord Keen of Elie Excerpts

Thursday 27th February 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I add my thanks to my noble friend Lord Bates for securing this debate. I note that Durham Constabulary is making a notable contribution to innovation and evidence-building through the locally led Checkpoint initiative. I seek to address this and to consider the wider context of the Government’s policy on out-of-court disposals and efforts to reduce reoffending.

Ultimately, it is for police forces to determine how they choose to use the flexibility that they have to adapt their own local policy and practice around the use of out-of-court disposals, albeit within the constraints of national rules and guidance. We, as the Government, take an interest in evidence from the police and their partners about the effectiveness of such novel approaches. MoJ officials are in contact with partners in Durham and we look forward to seeing and analysing Durham’s forthcoming peer-reviewed findings of the randomised control trial phase.

That said, we have seen the promising early findings indicated in the media, including an estimated 15% reduction in reoffending compared with a control group, which appears to be a notable achievement in itself. I am also aware of the positive feedback on the role that specialist navigators play in delivering the Checkpoint initiative. It is encouraging to see offenders being supported in so many ways to identify and comply with meaningful steps to tackle the issues that sit beneath their offending and, therefore, to help to address reoffending.

To maintain public confidence, it is important that such schemes are operated effectively. It follows that only suitable cases should be identified as falling within such schemes. There is accountability required on the part of offenders, if they fail to meet the terms of such a scheme. But we recognise that early intervention provides an opportunity to address an offender’s issues, before they escalate into more serious offending.

We should be clear that police out-of-court disposals, including any local variants, should be for lower-level offences. They are not considered appropriate alternatives to prosecution for individuals who would be likely to receive a custodial sentence in court for the offence in question. Out-of-court disposals are therefore available to deal with lower-level or first-time offending, but in a swift and efficient manner. They can certainly maximise the use of police officer time and achieve a satisfactory outcome for the public, while allowing officers to tackle more serious crime issues.

The Government support the policy set out in the 2017-21 strategy of the National Police Chiefs’ Council for charging and out-of-court disposals, which favours a simpler set of options for the police, with only conditional disposals in use. By “conditional disposals”, I mean that the offender needs to comply with one or more conditions, which may be rehabilitative, reparative, restrictive or punitive. The conditions provide the opportunity to address the underlying causes of offending and to intervene early, before a potentially more serious future offence occurs.

Conditional out-of-court disposals allow victims to be involved in decision-making as well. Out-of-court disposals with rehabilitative conditions are an opportunity for early intervention and prevention. This is particularly important for vulnerable groups, such as offenders with drug or alcohol issues. In addition, the Government’s strategy for female offenders and accompanying police guidance promotes the opportunity for police to direct women into appropriate services, such as women’s centres, as part of a disposal. I note the interest of the right reverend Prelate the Bishop of Gloucester on these issues, which are of direct interest to the department.

Durham’s Checkpoint initiative is one example of various models that have been termed deferred prosecution. Not all police areas are carrying out rigorous trials, but we are of course interested in any other meaningful evidence about the impact of different approaches. In fact, and I note this in the context of the observations of the noble and right reverend Lord, Lord Carey, we are trialling a Chance to Change scheme in north-west London and West Yorkshire in partnership with local police and the police and crime commissioners. Obviously, results on reoffending and other outcomes will take time to come through, but we will share those findings in due course.

One key difference between what is termed a conditional caution—the statutory disposal that is a formal structure to set enforceable conditions to offenders—and a deferred prosecution is the impact on an individual’s criminal record. Where a caution is a criminal record, a deferred prosecution may offer the opportunity to avoid that. Clearly that may have beneficial effects and implications—for example, for the future employability of an individual who is directed away early on from criminal activity. We take an active role in understanding what seems to work in reducing reoffending and we will continue to do so.

Reducing reoffending is of course a complex issue and it needs to be combined with efforts across government and local partners. I fully accept the observations that have been made, most recently by the noble Lord, Lord Tunnicliffe, about the need for collaboration in order to achieve results in this area. We work alongside a wide range of partners, including other departments, to ensure that support for offenders is given on what is as far as possible a joined-up basis.

I shall address some of the questions that were directed at me. My noble friend Lord Bates asked four questions. He asked how we are able to recognise the costs and complex benefits of such schemes. I can only go so far as to say that the Treasury considers flows of cost and benefit when reaching allocations, but I cannot give further detail of that at this time. On his second question about where we are with regard to the analysis of these schemes, I have to remind noble Lords that this is not our scheme; they are individual schemes. We await the report on the Checkpoint scheme and we will give consideration to it.

On the matter of short sentences that my noble friend raised, we consider that they should be an option, but of course custody is a last resort. In the Queen’s Speech, we announced plans for sentencing legislation that will include tougher community sentences, which we hope will take the place of shorter terms of imprisonment. My noble friend also referred to the matter of the royal commission. I can say that we are in the process of considering the scope of that commission and we will update the House with progress. However, at this stage I cannot say that it will embrace the matter of sentencing.

The noble Lord, Lord Blair, asked a series of questions about my knowledge of and interest in the Cambridge Centre for Evidence-Based Policing. I am not going to claim detailed knowledge of that scheme at all, but clearly we are interested in such initiatives and I would be pleased to meet representatives from the centre and the noble Lord himself to discuss those initiatives. I cannot seek to bind a Home Office Minister with regard to that matter, but I hope that the noble Lord will accept that the Ministry of Justice would be interested in engaging on that topic.

The noble Baroness, Lady Hayter, talked about taking people out of a life of crime. Clearly that has to be one of our objectives, but over and above that it appears to me that one of the real objectives of Checkpoint is to prevent people from entering a life of crime in the first place. If we can employ this sort of methodology, we can prevent someone from beginning with a criminal record by diverting them away from the acquisition of such a record, so it has additional benefits of that kind as well.

I hope that I have addressed the points raised by noble Lords. I repeat my thanks to my noble friend Lord Bates for securing this debate and for his questions.

Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)

Lord Keen of Elie Excerpts

Order of Commitment discharged & Order of Commitment discharged (Hansard) & Order of Commitment discharged (Hansard): House of Lords
Tuesday 25th February 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the order of commitment be discharged.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I understand that no amendments have been tabled to the Bill and that no noble Lord has indicated a wish to move a manuscript amendment, or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Keen of Elie Excerpts

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

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the purpose of this Bill is to end the automatic early release of terrorist offenders, moving the earliest point at which they can be released and making their release contingent on approval by the Parole Board. Noble Lords will be all too aware that twice in the last few months we have seen appalling attacks on members of the public by terrorist offenders. In each case, these known terrorists were released automatically at the halfway point of their sentence without any oversight by the Parole Board.

It is clear that we must put a stop to the current arrangements, whereby a dangerous terrorist can be released from prison by automatic process of law before the end of their sentence. It is clear that automatic halfway release is simply not right in all cases. We must now respond as quickly as possible. Further releases of prisoners serving relevant sentences are due by the end of February, and if the Bill is to achieve its desired effect then emergency legislative procedure and early commencement is required.

The Bill sets out new release arrangements for prisoners serving a sentence for a terrorist offence or an offence with a terrorist connection. There are two main elements to this: first, to standardise the earliest point at which they may be considered for release, at two-thirds of the sentence imposed; secondly, to require that the Parole Board assess whether they are safe to be released between that point and the end of their sentence. This will apply to all terrorist and terrorist-related offences where the maximum penalty is above two years, including those offences for which the Streatham attacker, Sudesh Amman, was sentenced. Only a very small number of low-level offences, such as failure to comply with a police cordon, are excluded by this threshold, and prosecution and conviction for these offences are rare. The changes affect those serving sentences for a specified offence, whether the sentence was imposed before or after the new section comes into force.

The emergency provisions will extend parole release to those serving standard determinate sentences and other transitional cases subject to automatic release before the end of the custodial term. In line with the normal arrangements for prisoners released by the Parole Board, for this cohort of offenders the board will set the conditions of an offender’s licence when they are released before the end of their sentence. The Parole Board has the necessary powers and expertise to make risk-based release decisions for terrorist offenders. The board currently deals with terrorists serving indeterminate sentences, extended sentences and sentences for offenders of particular concern.

[Viscount Hailsham (Con)]

Will my noble and learned friend remind the House whether the Parole Board has to consider any burden or standard of proof? Is there any provision, statutory or otherwise, for the Parole Board to obtain a letter or opinion from the trial judge as to the dangerousness of the prisoner concerned?

[Lord Keen of Elie]

I am not aware of any statutory provision whereby the Parole Board can secure a letter from the trial judge. Regarding release, the Parole Board has to be satisfied that the prisoner does not represent a threat of harm if released under licence.

There is a cohort of specialist Parole Board members trained specifically to deal with terrorist and extremist offenders. This is, in effect, the specialised branch of the Parole Board that will be used to handle the additional cases. This cohort includes retired High Court judges, retired police officers and other experts in the field, all with extensive experience of dealing with the most sensitive terrorist cases.

We acknowledge that applying these measures retrospectively is an unusual step. However, this reflects the unprecedented gravity of the situation we face, and the danger posed to the public. The Bill simply will not achieve its intended effect unless it operates with retrospective effect, necessarily operating on both serving and future prisoners. The provisions do not, however, alter the length of the sentence, and therefore the penalty already imposed by the court. The Government are confident that the Bill is compatible with Article 7 of the European Convention on Human Rights, as both European and domestic case law have held that release provisions relate to the administration of a pre-existing sentence and do not form part of the penalty.

Due to the nature of this emergency legislation, the Government are proposing that the provisions in the Bill apply only to England, Wales and Scotland. The justification for emergency, retrospective legislation is to prevent the automatic release of terrorist offenders in the coming weeks and months, and such immediate measures are not currently required in Northern Ireland. However, we intend to make provision as appropriate for Northern Ireland via the upcoming counterterrorism Bill, which will deal with sentencing and release.

It is of course crucial that we continue to do our utmost to rehabilitate terrorist offenders when they are in custody. In prison and on probation, all terrorist offenders are closely managed by specialist counterterrorism personnel, and we have a range of capabilities to manage the risk posed by terrorist offenders, and to support their disengagement and rehabilitation, including tailored interventions. The time an offender spends in prison is an opportunity for us to do our best to rehabilitate them, while recognising that this is no simple challenge. Psychological, theological and mental health interventions are all used, and Her Majesty’s Prison and Probation Service has psychologists and specialists to supply formal counter-radicalisation programmes, both in custody and in the community.

The desistance and disengagement programme provides a range of intensive tailored interventions and practical support for terrorist offenders to tackle the drivers of extremism. This can include mentoring, psychological support, and theological and ideological advice. The programme draws on the expertise of academics both from the United Kingdom and internationally through its academic advisory group, ensuring that it is under- pinned by the latest research on desistance, disengagement and deradicalisation to provide constructive challenge and evidence on good practice in an innovative field.

[Lord Carlile of Berriew (CB)]

Can the noble and learned Lord tell the House what opinions have been expressed by prison staff, including chaplaincy services—for example, in Whitemoor prison—about the effectiveness or ineffectiveness of the programme he is describing?

[Lord Keen of Elie]

My Lords, I am not in a position to give a specific answer to that focused point with regard to the institution in question, but I will take advice and seek to revert to the noble Lord during the debate.

Beyond the work I have outlined, following the events at Fishmongers’ Hall in November 2019, we have also announced a set of measures to overhaul the sentencing and release arrangements for terrorist offenders. These include: introducing longer sentences for the most serious dangerous terrorist offenders and ending early release for other serious dangerous terrorist offenders; an overhaul of prisons and probation, to include tougher monitoring conditions and a doubling of counterterrorism probation officers; increasing counter- terrorism police funding by £90 million for 2020-21; and a review of support for victims of terrorism, including an immediate £500,000 to the Victims of Terrorism Unit.

The Government have also launched an independent review of the way different agencies, including police, probation services and the security services investigate, monitor and manage terrorist offenders. This is referred to as the Multi-Agency Public Protection Arrangements, and is being conducted by Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation. Many of these measures are under way, and the legislation to ensure that the most serious and dangerous terrorist offenders spend longer in prison, with strengthened licence periods, will be included in a new counterterrorism Bill dealing with sentencing and release, to be introduced later this Session.

We must acknowledge that while all efforts must be made to rehabilitate and deradicalise terrorist offenders, there will be times when these efforts do not succeed. Therefore we must have in place robust safeguards which mean that these offenders are not released automatically. The Bill’s objective is clear: to take the necessarily urgent steps required to protect the public from terrorist offenders who are still considered dangerous. This is a sensible safeguard against the early release of offenders who continue to pose a significant threat to the safety of the public. I commend the Bill to the House, and I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, clearly these are grave matters worthy of serious debate, and I am obliged to all Members of the House for contributing to that debate.

Let us be clear at the outset. This Bill is not a complete answer to the challenges we face with regard to terrorism, the ability to counter terrorism, radicalisation and the ability to deradicalise individuals. There will be a great deal more to do, and the Government have made it clear that they intend to follow through and do a great deal more in this area, including the proposal for a counterterrorism Bill that has already been referred to. The noble Lord, Lord Pannick, suggested that such a Bill may or may not emerge, but at present we are not anticipating a dissolution of Parliament. Therefore, I believe with a degree of confidence that we will be bringing that forward.

Over and above that, noble Lords will recollect that last month, following the terrorist attack at Fishmongers’ Hall, the Government announced a major overhaul of counterterrorism, prison and probation, a proposal to double the number of specialist probation officers working with terrorists, the introduction of further legislation, such as the counterterrorism Bill, and the creation of a new counterterrorism programme and intervention centre. I note what the noble Baroness, Lady Deech, observed: we also have to delve into the efficacy and effectiveness of many of these programmes in order to determine our direction of travel. We anticipate that the new centre will represent a major shift in our capability to intervene with terrorist offenders to try to identify the risk they pose, and to bring to bear the correct specialists to work with them to reduce such risks while they are in custody.

Of course, turning a terrorist away from the mindset they have is no easy task. It requires not only expertise and application but eventually a willingness on the part of the offender to engage with such programmes, and to do so genuinely. Noble Lords have pointed out that there have been instances when it is apparent that some individuals have embraced these programmes, but in a wholly superficial, indeed false, way. That is a further challenge that we face.

There is clearly more that can be done. Indeed, the proposed centre will prioritise three things. The first is the need to build the evidence base for what works for terrorist offenders, using the best evaluation approaches we can identify, not just in the UK but in other jurisdictions. Secondly, the centre will have capacity to respond to new threats and challenges with regard to terrorist offending, because those will almost certainly emerge. Thirdly, it will try to bring to bear highly trained staff to deliver intervention programmes, which will include bolstering the cohort of counterterrorism specialists, psychologists and trained chaplains who deliver theological and ideological interventions.

This is not entirely novel. Since 2010, significant work has taken place to try to develop and improve counterterrorism interventions. The primary intervention, as mentioned by the noble Baroness, Lady Meacher, has been the Healthy Identity intervention, which is a one-to-one programme that supports desistance and disengagement from extremism by targeting the social and psychological drivers of such offending. Again, I do not seek to minimise the challenges that will be faced in developing and applying these programmes, and, indeed, learning from these programmes, because that will be part of the process.

I shall turn for a moment to one issue that has driven the regret Motion and some of the amendments: whether, or to what extent, the Bill’s proposals have retrospective effect, and whether they are consistent and lawful pursuant to Article 7 of the European Convention on Human Rights. On the Article 7 point, let me say clearly that I concur entirely with the view expressed by the noble Lord, Lord Pannick, that the provisions of this Bill are entirely consistent and allowable under Article 7 of the convention. Any doubts raised by reference to the Del Río Prada v Spain case, referred to by the noble Lord, Lord Marks, have, in my view, been dispelled by the recent decision in Abedin v the United Kingdom. It is for that reason that a certificate has been signed, pursuant to Section 19 of the Human Rights Act, to confirm that the provisions of the Bill are consistent with convention obligations.

There is the further issue of common law. As was observed, there is no common-law prohibition on retrospective legislation. There is a presumption against it, and it is a presumption that has to be addressed. But before we address it, we have to understand what is meant in this context by the retrospective element in the Bill. The noble Lord, Lord Marks, complained that the common-law principle, as he put it, against retrospection was being intruded upon because of the Bill’s intention to increase the length of prison sentences. With respect, that is not what the Bill does—but, of course, the noble and learned Lord, Lord Falconer of Thoroton, also referred to increasing the length of sentences retrospectively. Indeed, the noble Lord, Lord Harris, suggested that this was Executive interference with judicial sentencing.

[Lord Harris of Haringey]

If any prisoner had understood that his sentence was four years but that automatically, because the Secretary of State had a duty to do so, it was reduced to two years, he would feel that retrospectively his situation had changed. I said nothing in that context about the Executive. What I did say is that the Executive have been wilfully failing in not bringing forward proposals much earlier to address some of these problems.

[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.

--- Later in debate ---

[Lord Keen of Elie]

The sentence itself reflects the entire period ordered by the court. It is then an executive action to decide at what point during that sentence somebody may be released on licence. Let us remember that it is not a right to be released on licence. There is simply a parliamentary provision by statute that places a duty on the Secretary of State to allow release on licence. And it is not an absolute release: you may be recalled, depending on the conditions of the licence and whether you adhere to them. In that sense, the true retrospectivity of the Bill lies in the imposition of the Parole Board decision-making, not in anything else.

The question then raised is: why impose that at the two-thirds stage of the sentence rather than at the halfway stage? As I say, there are a number of reasons why the Government consider that appropriate, the most immediate being the point I made about the need for a breathing space. We face a number of instances in which such terrorist offenders are due to be released and, under present legislation, would be entitled to be released without qualification or test in a matter of days. To accommodate that is simply not possible. That is why a breathing space is appropriate and why we consider that in these circumstances we should shift the point at which the Parole Board becomes involved to a point consistent with other sentences, which is the two-thirds point.

As I say, this has the additional benefit of incapacitating those terrorists and preventing them engaging in activity for a further period. We suggest that this, in turn, would confer a degree of public confidence in the way in which we are dealing with such terrorist offenders. So clearly the Bill cannot achieve its intended effect unless it operates with retrospective effect, and the retrospective effect here is the imposition of the requirement that the Parole Board be satisfied about the release—rather than the existing legislative provision, which places a duty on the Secretary of State to release without any further consideration in respect of that matter.

[Baroness Meacher]

Can the Minister explain something to me? Perhaps I have misunderstood it, but my understanding was that if this legislation passed, somebody due for release in a few days could not then be released until the Parole Board had got around to reviewing whether they could be released. So, if the Parole Board is not ready for a month, two months or whatever, the prisoner would have to wait for that process. Is that correct, or have I misunderstood the point?

[Lord Keen of Elie]

My understanding is that under the present legislative regime, there is a duty on the Secretary of State to release the prisoner at the halfway point. We require a regime in which the Parole Board is able to act in determining whether it is satisfied that the prisoner could be released—but you could not hold the prisoner simply on the view that the Parole Board might take a few months to get round to considering his case. That is why it is necessary to look at what was referred to as a breathing space: the requirement to allow time to implement this process. As I say, it is also consistent with other sentences, where release is at the two-thirds point, and it allows for the incapacitation of the terrorist offender for a slightly longer period—which in turn, we suggest, assists in maintaining public confidence in the way in which we are dealing with these offenders.

While I understand the concern about retrospection, it has to be seen in its proper context. The Bill will not achieve its intended objective unless there is that element of retrospectivity in it. The noble Lord, Lord Anderson, alluded to a situation in which a prisoner might remain in custody until the very end of their sentence and then be released without licence. It is in those circumstances that one can find provision for TPIMs, for example. I acknowledge that they have been utilised only to a very limited extent until now, and it may be that their use has to be looked at again. They are very resource-intensive, which may explain to some degree why they have been employed only in limited numbers until now. Again, we are looking at the need to employ such procedures.

The noble Lord, Lord Anderson of Ipswich, also raised Northern Ireland, which I believe the noble Baroness, Lady Hamwee, also referred to. The Justice Minister felt that she would like to see the legislation extended to Northern Ireland. We have discussed the matter with officials in Northern Ireland, and there are very real technical difficulties regarding the way in which sentencing policy is implemented in Northern Ireland. It is quite different to sentencing policy in England and Wales in a number of respects. We fully intend to take forward this legislation, which is why we intend to look at this in the context of the counterterrorism Bill that we intend to bring forward—but at present we feel that it would be too complex an issue to try to deal with in the context of this emergency legislation.

The noble Lord, Lord Pannick, asked why, if this is emergency legislation, there is no sunset clause. The Government’s view is twofold. First, it could create uncertainty and confusion, because a prisoner would not know whether they were to be subject to the regime that we are introducing. Secondly, we are intending to bring forward a more substantive and wide-ranging counterterrorism Bill, properly addressing these issues, when the various committees of the House are available to examine the proposed legislation. I hope that that goes some way towards satisfying the noble Lord.

I am conscious of the time, so let me say this in conclusion. In extending parole release to all terrorist offenders, the Bill provides a sensible and proportionate safeguard against the problem of automatic release. The consequences of such automatic release are reflected at Fishmongers’ Hall and in Streatham. Further releases of prisoners are due within a matter of days. If the Bill is to achieve its desired effect, early commencement of the provisions, including retrospection, is vital. We are concerned not only with public confidence, but also with public safety. That is the first duty of any Government and one that we take extremely seriously. I invite the House to do likewise.

[Lord Marks of Henley-on-Thames]

My Lords, my regret amendment does not ask the House to reject the Bill. If the noble Baroness, Lady Buscombe, or anyone else understood it as so doing, that was not intended. I fully agree with the many noble Lords who said that the Parole Board should carry out a safety assessment before terrorist prisoners are released. I agree with the Minister that that is sensible and proportionate.

Let me briefly take up the point made by the noble Baroness, Lady Meacher, to which I do not accept that the Minister had a satisfactory answer. If the Bill were to achieve Parole Board assessment prior to release but did not increase the minimum time in custody from half to two-thirds of the original sentence, the breathing space for which the Minister asked would be achieved. As soon as the Parole Board had decided that release was safe, release would follow.

I also agree that automatic release is not appropriate in the case of terrorist prisoners. My amendment is confined to expressing some regrets that the Bill will do nothing to improve deradicalisation and rehabilitation, that Ian Acheson’s recommendations are hardly being implemented, that without further measures we risk radicalisation of non-terrorists in custody and that the Bill may cut down the time for supervision of some lower-grade terrorist offenders, who will spend more time in custody and less under supervision, thereby losing the benefits of significant periods of supervision.

On the Bill’s retrospective effect, I agreed with the noble Lord, Lord Harris of Haringey, except when he described his reasoning as “simplistic”. I also agreed with the noble and learned Lords, Lord Falconer and Lord Garnier, the noble Lord, Lord Carlile, and other noble Lords that, whatever the position under Article 7, where a six-year sentence meant three years in custody under the 2003 Act when passed but after this Bill will mean four years in custody, it is mere sophistry to assert that this is not a retrospective change. Similarly, it is mere sophistry to draw legalistic distinctions between a presumption against retrospectivity and a principle against retrospectivity and mere sophistry to draw a legalistic distinction between the sentence passed and the time to be spent in custody. I agree with the noble and learned Lord, Lord Garnier, that such a retrospective change will rightly seem unjust and unfair to serving prisoners, their families and those around them and may fuel further radicalisation.

For the reasons explained by the noble Lords, Lord Anderson and Lord Carlile, the noble and learned Lord, Lord Garnier, my noble friend Lord Beith and others, I will support the amendments to be moved in Committee to introduce pre-release assessment by the Parole Board at the halfway point for terrorist prisoners already serving sentences with the prospect of release, if the Parole Board considers their release is safe. That said, I do not intend to press my amendment to the vote and I therefore beg leave to withdraw it.

Amendment withdrawn.

Bill read a second time and committed to a Committee of the Whole House.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Keen of Elie 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

[Baroness Chakrabarti (Lab)]

My Lords, I associate myself with the noble Lord, Lord Anderson, and my noble and learned friend Lord Falconer. I have listened to this debate and heard no compelling reason why this amendment has not been adopted by the Government. In answer to the noble Viscount, Lord Hailsham, the difference between one aspect of the retrospection and the other is that one does not compromise public safety, pure and simple.

By accepting the amendment of the noble Lord, Lord Anderson, nobody is let out, even with the administrative challenges of getting up a Parole Board under the appalling and savage cuts and debilitation to the system that I spoke about earlier, without Parole Board approval. That is the distinction between his amendment and the status quo ante, which is that people come out automatically, regardless of their risk, at the halfway point.

In answer to others, I have so much respect for the noble Lord, Lord Cormack, but his point was about people who are not even on the radar. That problem is ongoing and not dealt with by this Bill. Saying that people should be held for as long as possible is not an answer to the amendment in question now. By definition, those who are affected by this Bill are subject to finite sentences that are not always very long, because these are not by definition the most serious terrorist offenders, as the noble Lord understands. These are people who were subject to the regime that we have been examining because they were at the lower end of the scale. To quote once more the former Prime Minister, these people are coming out at some point, and there has to be some principle in the way that we engage with this.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we all understand the purpose of this amendment and of the other amendments in the group, albeit that I will come on to deal with the point that arises with regard to the second amendment if I may. But I begin by referring to one or two observations made by the noble Lord, Lord Anderson. He observed that when sentenced these persons were not regarded as dangerous by the court, but I cannot wholly accept that proposition. Their offences may not have been part of the extended determinate sentence regime at the time they were sentenced, but of course a number of terrorist offences were added to the extended determinate sentence regime only in 2019. It cannot be assumed that these people were regarded as non-dangerous at the time they were sentenced, so I cannot wholly accept that.

The second fact that I have to raise concerns the suggestion that those due for release in coming days are past the halfway or two-thirds point. I am advised that the prisoners due for release shortly are approaching the halfway release point in their sentences. That is simply the advice that I have been given. Therefore, there remains an issue over their release. The noble and learned Lord, Lord Falconer of Thoroton, said, “They can wait for the Parole Board to get its act together”, but I rather think that if that happened we would face a challenge under Article 5.4 of the convention, and therefore that is not a complete answer at all.

Indeed, the noble and learned Lord talked repeatedly about fundamental points. That leads me to fundamentally disagree with him on a primary point that he kept on making, which is that the legislation would change the sentence and that they should be sentenced by the court. The legislation does not change the sentence; they have been sentenced by the court. As I alluded to earlier, there is lengthy legal authority for the proposition that the court has regard to the appropriate sentence that should be imposed for the crime irrespective of what point there may be executive action for release during the period of that sentence. In other words, it does not distinguish between the custodial and non-custodial elements. That is why the provisions of the Bill are entirely Article 7 compliant apart from anything else.

I understand the concern that arises when we have to look at the presumption against retrospective operation of the law. One thing that the Bill does is to bring the earliest release point for the standard determinate sentence into line with the earliest release point for extended determinate sentences and therefore to produce, if nothing else, an element of consistency. We have been clear that terrorist offenders should serve time in custody that better reflects the seriousness of their offending, particularly in light of recent events, and the measures in the Bill are in keeping with that approach.

I repeat the point—albeit some noble Lords do not feel that there is much force in it—that applying these measures retrospectively will ensure that terrorist prisoners who are currently serving sentences are incapacitated for longer. There is a reason for that in light of what happened, for example, in November last year.

I want to raise one further point. As I read Amendment 2, it would apply not only to those serving fixed determinate sentences but would also reduce the release point for those who have been convicted and sentenced under the extended determinate sentence regime. I suspect that is an unintended consequence—it is not the primary grounds on which I resist the amendment. In light of this debate, I urge the noble Lord to withdraw this amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, this Bill is only one element in a much broader response to terrorism, which includes both legislative and non-legislative measures. The Government’s view is that it would be inappropriate to consider just one element of those measures in isolation. We have announced our intention to introduce a counterterrorism (sentencing and release) Bill, which has been referred to. That will make wider changes to the release arrangements governing terrorist prisoners, as well as the penalties available to the courts. The provisions of this Bill—hopefully by then enacted—and the questions surrounding discretionary release for terrorist offenders will no doubt form part of that ongoing debate.

Last month, the Government launched an independent review of the multiagency public protection arrangements. This review is being led by the Independent Reviewer of Terrorism Legislation, Jonathan Hall, Queen’s Counsel. The release and supervision arrangements for many of the prisoners to whom the Bill applies will inevitably be included in that review. A report following the MAPPA review will be provided to the Home Secretary and Justice Secretary for publication as soon as is practicable.

Taking up the point made by the noble Lord, Lord Anderson of Ipswich, we anticipate that, in the course of his routine duties as the Independent Reviewer of Terrorism Legislation, Jonathan Hall will scrutinise the new release legislation for terrorist offenders in his annual report; that is a statutory commitment. Indeed, as the noble Lord, Lord Anderson, observed, the Independent Reviewer has already said in his comments on the Bill that he envisages doing just that in a future report. I would certainly accept that that falls well within the boundaries of his responsibilities, and it is in these circumstances that we say that a further review is unnecessary.

The Government are clear that we want to see an end to the automatic early release of terrorist prisoners. In the forthcoming counterterrorism Bill, we will make further changes to the law surrounding the release of these offenders. In addition, later in this Session we intend to introduce a sentencing Bill that will cover wider areas of sentencing and release policy. Again, that will provide an opportunity to discuss sentencing and release arrangements. In these circumstances, we consider that there is no requirement for the further review proposed by the noble Lord, Lord Marks, and I urge him to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I turn first to the point made by the noble Lord, Lord Anderson, and the question that he asked me. I accept, of course, that the independent reviewer Jonathan Hall, QC will be looking at the way this Bill is working; but he will do so in a much wider context—that of his annual review and his MAPPA review. An issue of serious principle is involved. What is needed here is a precise review of how the provisions of this emergency legislation, passed with inadequate scrutiny, are working.

I turn now to the observations of the noble Viscount, Lord Hailsham. I am afraid that if this House always took the view that the House of Commons might kick back amendments we make, we would lose a great deal of our usefulness. The points that we make and the amendments we pass are often very influential to a much wider audience. I am not deterred by the fact that my colleagues in the House of Commons, who are slightly less numerous than my colleagues here, failed to get their amendment through that House, or by the fact that the Labour Party’s amendment did not succeed. I suggest that it is for us to form a view of this amendment.

When the noble Viscount went on to explain the kind of review that he foresaw as necessary and should take place, and indeed when the Minister responded to these amendments, they were both considering a much wider, more comprehensive, fuller review of the treatment and punishment of terrorists, including the Acheson recommendations on how to secure rehabilitation and the whole issue of deradicalisation. Those issues are crucial, and my regret Motion was concerned with the lack of those provisions. The very fact that the reviews that the noble Viscount and the Minister have in mind are so general and broad-reaching deprives them of the specific accent that a review of this legislation ought to have.

We should not forget the emergency nature of this legislation: it is just over three weeks since the awful atrocity in Streatham High Road. We will have passed this legislation tonight—as I am sure we will—in response to a promise made by the Lord Chancellor, the Secretary of State for Justice, the very next day. We have done it in double-quick time. Question after question was raised in today’s Second Reading—a very good debate—by noble Lords who know a lot about the subject but have had insufficient time to consider the provisions of this Bill and their consequences. As a matter of principle, it is important that post-legislative scrutiny is directed urgently at Bills that are passed as an emergency, and with this Bill, where the liberty of the subject—however undeserving many of the subjects may be—is at stake, that principle is of great importance. I have not heard anything said today that addresses the requirement for a review of emergency legislation of that kind, and I therefore wish to test the opinion of the House.

Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)

Lord Keen of Elie Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 11th February 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the sole purpose of this Bill is to pave the way for the Law Commission’s sentencing code, a consolidation of legislation governing sentencing procedure in England and Wales, as well as sentencing procedural law as it applies to the Armed Forces. I reiterate that the task before us today is to consider this necessary first step in the long-awaited consolidation proposed by the Law Commission. Noble Lords will have the opportunity to discuss wider issues relating to the substance of sentencing and release legislation in due course.

During proceedings on the Bill in the previous Parliament we heard many examples of highly experienced lawyers and judges spending too much time trying to disentangle which law applied to particular offenders. That challenge is made no easier by having to deal with multiple changes to the statute book, which may determine what sorts of disposals are available in particular cases.

It was with this in mind that the Government agreed in 2014 that the Law Commission should undertake a project designed to consolidate the law relating to sentencing procedure. The resulting sentencing code aims to assist judges and legal professionals in identifying and applying the law, thereby reducing the risk of error, appeals and delays in the sentencing process. It should also enhance the transparency of the process for the general public. However, for the sentencing code to work effectively, some technical changes need to be made to legislation that will be consolidated in the code.

In broad terms, the current Bill before the House does two things. First, it brings about something that we can call the “clean sweep”, which does away with historic layerings of sentencing legislation. Secondly, it makes various pre-consolidation amendments needed to tidy the statute book and make it ready for the ultimate consolidation process.

A key cause of the current complexity in sentencing procedural law is the need for courts to refer to historical sentencing provisions to ensure that sentences passed are in accordance with the applicable sentencing law at the time of the offence. The clean sweep mechanism in Clause 1 attempts to remedy that complexity by removing the need to identify and apply historic versions of the law. As a result, the current law of sentencing procedure as enacted in the sentencing code will apply to all offenders convicted after its commencement. Importantly, the clean sweep is subject to exceptions to protect the fundamental rights of the offender. These exceptions ensure that when an offender is sentenced under the sentencing code, they will not be subject to a greater penalty than was available, or to a minimum or mandatory sentence that did not apply, at the time they committed their offence.

Then there are the amendments and modifications of sentencing legislation contained in Schedule 2 to the Bill. These are referred to in Clause 2. These pre-consolidation amendments are generally limited to correcting minor errors and streamlining sentencing procedural law. They are a standard measure that often precedes a consolidation Bill. It should be emphasised that none of the pre-consolidation amendments makes changes to existing offences and penalties, nor do they introduce any new sentencing law.

The Government have made some changes to the Bill since it was most recently considered in the last Parliament. These are the result of the ongoing work of the Law Commission, working with parliamentary counsel, on readying the sentencing code Bill for introduction. The pre-consolidation Bill now includes a number of technical amendments that were tabled by the Government ahead of the scheduled Third Reading in the last Parliament. These include pre-consolidation amendments that seek to tidy up a few provisions of sentencing law as it applies to the Armed Forces, to ensure that the sentencing code can apply Armed Forces sentencing law as clearly and consistently as possible.

Further pre-consolidation amendments limit the provisions of primary legislation that can be amended by statutory instrument so that the sentencing code can contain more precisely targeted powers than is the case under the current law. Other pre-consolidation amendments reflect the recent coming into force of provisions in the Crime and Courts Act 2013.

Some further technical amendments that were not tabled in the last Parliament have now also been incorporated into the Bill. These amendments broadly fall into four categories. First, a minor drafting change has been made to Clause 5(3) of the Bill to accommodate a drafting change to the commencement clause in the sentencing code Bill itself. This will make clear, in the context of legislation to be consequentially amended by the sentencing code, to which offences the amendments apply where a person has been convicted over time of two or more offences. This change does not affect the way that the code will apply to a person convicted of an offence but is necessary to make clear that those amendments apply only in relation to offences for which a person is convicted after the commencement of the code.

Secondly, the Bill now includes some additional pre-consolidation amendments that will correct anomalies in references in existing legislation to provisions that will be rewritten in the sentencing code, so that the resulting references to the code in existing legislation are correct.

Thirdly, the Bill now makes provision at paragraph 133 of Schedule 2 to provide that where powers that are to be included in the sentencing code which are subject to different parliamentary procedures are exercised in the same instrument, the highest level of parliamentary procedure of the various powers will apply. For example, where provisions that are subject to negative resolution procedure are included in the same instrument as provisions that are subject to affirmative resolution procedure, affirmative resolution procedure will apply to the whole instrument. That is necessary, as the code will consolidate a number of different powers to make subordinate legislation that do not currently deal consistently with cases where powers that are subject to different levels of parliamentary scrutiny are exercised in the same instrument.

Finally, paragraph 134 of Schedule 2 provides the Secretary of State with the power to state the effect of savings or transitional provisions on the face of the sentencing code where uncommenced provisions in the code are brought into force. For example, if the Government wished in the future to commence a provision in the code only for offences committed on or after the date of commencement, commencement regulations could amend the code to state that date on its face. This should help provide courts and legal advisers with the full benefit of the clarity that the code will bring.

I finish by reiterating the Government’s gratitude to the staff of the Law Commission, and indeed to parliamentary counsel, for their exceptional efforts and continuous expertise and energy throughout the sentencing code project. It is a formidable achievement. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

I thank all noble Lords for their contributions to the debate. I join other noble and noble and learned Lords in thanking the noble and learned Baroness, Lady Hallett, for her maiden speech and her contribution to the debate. I welcome her to her place in this Chamber. I fear, however, that I must contradict her upon one point made in her maiden speech. She said that she had left the judiciary because, and I quote, “I was getting too old.” With respect, I would correct that assertion and suggest that what she had done was to trigger a statutory limitation introduced by the Judicial Pensions and Retirement Act 1993, which I suggest is really something quite different.

The noble and learned Lord, Lord Judge, implied that we were experiencing déjà vu all over again. There is an element of that, no doubt, but nevertheless the time that has elapsed has allowed this Bill to be improved, a point made by the noble and learned Lord, Lord Hope. So while I regret the delay that has occurred, that time has not been entirely wasted. We can therefore look forward, with the universal approval of all sides of the House, to introducing much-needed reform to the English law on sentencing procedure. It gives me particular pleasure as a Scottish lawyer to be introducing these measures.

The noble Lord, Lord Thomas of Gresford, inquired about the position of the sentencing code in the Armed Forces. It is intended that it will apply to the Armed Forces. I make one point clear: we are talking about the sentencing code Bill, not the sentencing Bill as anticipated in the Queen’s Speech. I want to make that absolutely clear.

My noble friend Lord Bates, and the noble Lord, Lord Adonis, raised wider questions about prisons, the impact of sentencing, crime, rehabilitation and the purpose of prison, and I quite understand their wish to address these matters going forward. However, while I acknowledge the importance of the points they raised, they are not for this Bill and I do not intend, at this time, to take them any further.

The noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, referred to future amendments to sentencing. Clearly it will be imperative, in taking forward further legislation on sentencing after the code is in place, that we ensure that Parliament abides by the principles of the code, so that it remains effective and workable. It would be of no benefit to anyone if we were to render such an important code effectively redundant by misadventure or inappropriate future amendments to sentencing.

Further points were made by the noble Lord, Lord Bassam of Brighton, about the power to carry out further amendments. That power is essentially there in case there has been any oversight in what is an extremely complex area, or if there is any change in sentencing law between Royal Assent for this paving Bill and the passing of the sentencing code Bill. It is included essentially for those purposes.

The savings that might be made by introducing the sentencing code have not been costed. We will have to wait to see what savings can be made, but, as the noble Lord observed, the Law Commission itself expects some savings to be made.

There were wider contributions from noble Lords, which I readily acknowledge, but at this stage—and at this point in the evening—I would like to repeat the thanks already expressed to all those who have contributed to this work, both at the Law Commission and within parliamentary counsel. I also acknowledge that, across the House, there is a recognition of the need for clarity to be introduced into this complex area of the law. I finish, therefore, by thanking all noble Lords for their contributions, and I commend this Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019

Lord Keen of Elie Excerpts

Tuesday 11th February 2020 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee, Session 2019 (special attention drawn to the instrument)

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I begin with a short apology for the delay in commencing. The purpose of this draft instrument is to enable the Secretary of State to make the alcohol abstinence and monitoring requirement available across England and Wales.

This legislation gives the court a new tool directly to address alcohol-related offending. As part of a community sentence, judges and magistrates will be able to impose a ban on drinking alcohol for up to 120 days, and we will monitor this using continuous electronic monitoring, which is referred to as alcohol tagging. I am grateful for the comments made by the Lords Secondary Legislation Scrutiny Committee and intend to address them below and in the course of this debate.

Alcohol-fuelled crimes put a huge strain on front-line services. Problematic alcohol consumption is associated with crime, particularly heavy or binge drinking and violent crime. The latest published figures from the Crime Survey for England and Wales, in 2018, estimated that in 39% of violent incidents the victim believed the offender to be under the influence of alcohol. Alcohol-related crime is estimated to cost the taxpayer up to £13 billion per year. Public Health England estimates that the total social and economic cost of alcohol-related harm was £21.5 billion in 2018.

AAMRs have a punitive effect on offenders by restricting their ability to drink alcohol while the requirement is in force. In addition, the pilots have shown us the potential of this measure to address the purposes of sentencing more widely. Where the criminal behaviour is driven by alcohol, an alcohol ban has the potential to reduce crime and provide the opportunity for reform and rehabilitation. Through enforcing abstinence, AAMRs are designed to mitigate offending behaviour which is driven by alcohol. Where alcohol is driving or triggering criminal behaviour, the AAMR will interrupt it and should give individuals and communities a break, reduce the number of victims, protect the public and save the costs of dealing with the crimes.

The monitoring will be continuous and delivered via electronic ankle tags, providing assurance with compliance. If alcohol is detected, or attempts are made to avoid the monitoring, the offender can be returned to court. These requirements may not be imposed on dependent drinkers or alongside an alcohol treatment requirement. They are only for adult offenders.

Harnessing innovative technologies such as alcohol tags can not only punish offenders but help turn their lives around. This legislation plays an important role in a wider package of reforms of community penalties that the Government plan to bring forward in due course, which will ensure that community sentences can offer an appropriate level of punishment while effectively tackling underlying drivers of offending.

The alcohol abstinence and monitoring requirement was introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This legislation creates a new requirement within the Criminal Justice Act 2003 that can be used where a community order or suspended sentence order is imposed. The 2012 legislation requires the order to be piloted before it can be rolled out. This requirement has been met. There have been two pilot schemes: one in London, initiated by the Prime Minister when he was mayor, and the other in Humberside, Lincolnshire and North Yorkshire. These pilots have shown us that this new measure will be welcomed by criminal justice partners.

The two AAMR pilots were run respectively by the Mayor’s Office for Policing and Crime in London, and by the police and crime commissioners and the Humberside, Lincolnshire & North Yorkshire Community Rehabilitation Company. I appreciate that the absence of published findings was criticised by the Lords Secondary Legislation Scrutiny Committee. I am pleased to say that findings from the pilot in the north-east have now been published and I am happy to be able to highlight some of them during this debate. Some 1,500 orders were imposed during the pilots.

The pilots had significant differences in how they were run, but the compliance rates are very similar, which gives us confidence in the utility of this measure. Compliance was very high indeed—the figure for the requirement itself was 94% for both pilots; and for abstinence from alcohol it was 98% in the London pilot and 97.4% in the Humberside pilot. That is the percentage of monitored days that were free from both alcohol and interference with the equipment. There was significant use of the order in the sentencing of violent offences in the pilots. In London, 45% of requirements were for violent offences, and in the north-east 31% were for domestic abuse offences.

This measure is welcomed by those on the front line. Indeed, as the Humberside police and crime commissioner Keith Hunter said:

“The period in which the offender is tagged will give rehabilitation agencies a real opportunity to work with the individual and get them to recognise and change their behaviour, hopefully for good. I would like to see these orders available nationally as a standard feature of the Criminal Justice System.”


Sentencers in the London pilot were frustrated that they were unable to impose the order on offenders who fell outside the pilot area.

Reports from the pilots demonstrate that offenders also recognised benefits. They were generally optimistic about the requirement and felt that it had a positive impact on their lives, particularly around their health, well-being and offending behaviour. In the north-east, 81% of those surveyed at the end of the requirement reported that they thought they would drink less or no alcohol when the tag was removed.

The scrutiny committee commented on a lack of information about rollout of the new measure. We plan to begin the introduction of the order later this year. Our intention is to take a similar approach to that used for the successful rollout of location monitoring and so avoid disruption to the core electronic monitoring service. We will balance an incremental rollout that allows us to respond to learning from early deployments and further findings from the pilots if necessary, alongside opportunities to prepare stakeholders and inform decision-makers appropriately, with ensuring that the tool is available across England and Wales as quickly as possible. We estimate that when the requirement is fully rolled out and in use nationally, in around 2023-24, some 2,300 people will be sentenced to these orders each year. This will mean that approximately 400 orders will be active at any given point in time.

The order’s requirement imposes an alcohol ban of up to 120 days, while continuous monitoring provides assurance regarding compliance with the sentence of the court. We believe that the introduction of this measure strengthens the community sentence response to alcohol-related offending and is a powerful message that we are tackling this issue. We should not lose time in introducing a new measure which means that our courts can directly address a driver of crime and stop the drinking of those who cause misery, damage and fear by their behaviour, for up to four months. We strongly believe it is in the public interest to introduce this measure. I beg to move.

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

My Lords, there is widespread agreement that a great deal of crime is related to and fuelled by alcohol. Indeed, Members of your Lordships’ House have been saying for many years, in debate after debate, that much offending in this country is related to excess alcohol and drug abuse, so the passage of Section 76 of the LASPO Act was unsurprising. There is also widespread agreement that we all should support measures to reduce the consumption of alcohol in relation to crime, and thus alcohol-related crime.

The alcohol abstinence and monitoring requirements, which I shall call simply alcohol monitoring requirements, use electronic tagging technology to ensure that offenders reduce or eliminate alcohol consumption for a period. The essential elements for the application of Section 76 of the LASPO Act are: first, that the offences concerned are alcohol-related; secondly, that during the period of the order the offender will take no alcohol, or alcohol reduced to a specified level; thirdly, that the consumption of alcohol will be electronically tagged; fourthly, that the period of the requirement will not exceed 120 days; fifthly, that it can be imposed only together with a community order or suspended sentence; and finally, that a breach of the requirement is punishable by a sentence for that breach.

The Committee has heard from the Minister that there have been two pilots. The London pilot ran from 2014 to June 2018, while the Humber, Lincoln and North Yorkshire pilot—which I shall call the northern pilot—ran from after the 2017 election until April last year. There were different methodologies. The London requirements were imposed on a stand-alone basis, whereas the northern pilot imposed the orders together with community orders, while monitoring and fitting of the tag was carried out by probation staff. In addition, the northern pilot included domestic abuse offenders whereas the London pilot did not.

The only question that warrants the Committee’s attention at this stage is whether enough evidence has been gleaned from the two pilots that alcohol monitoring requirements are or will be effective to justify Parliament’s commencing the section now and rolling out alcohol monitoring requirements. Your Lordships’ Secondary Legislation Scrutiny Committee clearly concluded that there was not. Central to its view was that the results of the northern pilot had not been published, although we have heard from the Minister that they have been now; that was predicted for this month. But published or not, it follows from their recent nature that the results cannot have been publicly evaluated.

The Ministry of Justice sought to justify its position in its Explanatory Memorandum at paragraph 7.3, which bears reading because, I suggest, it is unconvincing. It says that the evaluation of the northern pilot

“is not due until February 2020 but sufficient learning has been shared with the department, through ongoing involvement with the pilot and its evaluation, to indicate findings consistent with, and complementary to”,

the London pilot, and that:

“In addition, the department conducted a proof of concept for using the alcohol monitoring technology for suitable offenders released on licence. This has provided considerable insight into how alcohol monitoring can support the management of risk and rehabilitation. On this basis, we consider that we have a good evidence base around the utility and practice”


of alcohol-monitoring requirements

“which has informed our plans for England and Wales roll-out.”

What the Ministry could not assess was the impact of alcohol monitoring requirements on reoffending. Indeed, paragraph 29 of the committee’s report quoted the department’s response to Questions. It said:

“Reoffending findings will be available well in advance of commencing roll out and will inform the delivery of AAMR. However, it is our view that the findings we already have from the”


pilots

“indicate that AAMR is an effective sentence option. It is the department’s intention to assess impacts much more substantially, including to inform the better targeting of resources to address alcohol harms, when we roll out AAMR.”

The reality is that assessing the effect on reoffending will have to await medium-term evaluation of the behaviour of offenders who have been placed under these monitoring requirements. The Government appear to have accepted that in their impact assessment.

--- Later in debate ---

[Lord Keen of Elie]

I am grateful to noble Lords for their contributions to this debate. I will address a number of the points that have been raised. First, the results of the second pilot in Humberside were known to the ministry as it brought forward this order. The results have now been published and they are quite compelling. We are talking about a compliance rate well over 90% in both pilots. Indeed, it was 98% in the case of the London pilot and 97.4% in respect of Humberside. They were carried out over different periods and applied in the context of different offences. That gave us a spectrum of results, but all were very encouraging. Of course, we should consider not only the immediate importance and impact of the orders—because they stop people taking alcohol for a period of up to 120 days—we should like to be informed whether there is an ongoing impact. In the Humberside pilot, about 81% of those who had undergone such an order were contemplating either stopping taking alcohol or reducing their alcohol intake at the end of the period. It was clearly having an impact, therefore, on people’s intentions—but they were only intentions, of course.

As regards reoffending, it will take time to go through that process. As the noble Lord, Lord Marks, himself said, that is something for the middle term, not something we can immediately analyse. As the noble Baroness, Lady Chakrabarti, said, the primary legislation was enacted in 2012. The pilots were completed only last year. For how many more years are we to analyse the data before we commit to rolling out what appears on the face of it, and on the basis of the pilots already carried out, to be a very successful programme?

On the issue of resuming alcohol consumption, raised by the noble Lord, Lord Marks, yes, that is always a risk, but there are two benefits. First, there is the immediate benefit of taking someone off alcohol for a period after they have committed an offence, one that may well have been induced by excessive alcohol consumption. Secondly, there is the potential for them to learn from the experience that they do not wish to imbibe alcohol to excess in future, in order to modify their behaviour. However, I accept that you cannot guarantee that.

The noble Lord, Lord Beecham, raised the question of medical assistance. Let me be clear: an order of this kind will not be made where an individual is alcohol dependent. It is difficult to see how you could bring in and use doctors in the context of someone who is not alcohol dependent but is being taken off alcohol for 120 days because of a violent crime committed under the influence of alcohol. I find it difficult to understand what their contribution would be. On the other hand, in cases where someone is alcohol dependent, provision is made through the Community Sentence Treatment Requirement Programme for Health and Justice partners to work together to deal with such dependency, be it on alcohol or drugs.

At the end of the day, we have to bear in mind that we intend to roll out this programme on the basis of the probation areas, so we will learn even as we roll out the programme between now and 2023 how effective it is being. But we have already seen the results of the original pilots, and I suggest that they really are impressive. In the circumstances, we consider that now is the time for us to respond to the issue of alcohol-related offending and alcohol-related violent crime by taking the steps proposed in the order. It is in these circumstances that I commend the draft instrument—

[Lord Marks of Henley-on-Thames]

My Lords, before the noble and learned Lord sits down, is it intended that the alcohol monitoring requirements be imposed as a generality in the first stages of the rollout, together with rehabilitative requirements, so that the probation service will be involved, or is the stand-alone imposition of alcohol monitoring requirements likely, as in the London programme? It seems to me that there may be a substantial difference in the effect on future behaviour.

[Lord Keen of Elie]

My understanding is that the monitoring will not be carried out by or related to the probation service; it will be carried out independently. But clearly, the justice system will have an overall picture because, where someone is in breach of the order, that individual will be brought back to court.

May I just clarify a point I made earlier? The period 2023-24 is when we intend to reach steady state and to have completed the rollout. The rollout itself is intended to take place over the next 12 months. I hope that assists noble Lords.

[Lord Beecham]

What does the Minister envisage the role of the probation service to be under this new arrangement?

[Lord Keen of Elie]

Clearly, probation staff will have access to the monitoring data and will therefore use it to inform their supervision of individuals who are under licence, for example.

[Lord Beecham]

Has the matter been discussed with the probation service, and does it have the resources to do this? It is very stretched, and this will be an additional responsibility, presumably. The question therefore arises: can it meet it?

[Lord Keen of Elie]

There is no suggestion that it will not have the resources to address this matter. It will receive data in circumstances where there will be some 400 active monitoring requirements at any one time. That, I respectfully suggest, is not an overwhelming imposition in addition to the demands made upon the probation service.

Motion agreed.

Crime: Support for Children and Young People

Lord Keen of Elie Excerpts

Wednesday 5th February 2020 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare an interest as vice-president of Barnardo’s and an ambassador of Embrace Child Victims of Crime.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Government’s Victims Strategy, published in September 2018, outlined their commitment to support children and young people traumatised by crime. We are focused on the most vulnerable young victims of crime, ring-fencing funding for supporting victims of child sexual abuse, and revising the victims’ code with updated guidance for children, young people and their families, to help them better understand their rights, including how to access the services and the support that they need to cope and to recover.

[Baroness Benjamin]

I thank the Minister for that Answer. Embrace Child Victims of Crime supports more than 3,000 children each year, and that figure is rising. More and more children and young people are witnessing crime, especially knife crime and domestic abuse, or know of someone involved in some sort of violent abuse. This affects their mental health and will do for the rest of their life, leading to untold damage and a cost to the public purse. It is vital that they get early support, and trauma-focused behavioural therapy is proven to make a difference. So will the Government support charities such as Embrace and Barnardo’s to help these vulnerable children, and will they consider them in the upcoming domestic abuse Bill?

[Lord Keen of Elie]

My Lords, we fully understand the need to support young people and children who are not only the victims of crime but are traumatised by witnessing it. The noble Baroness made particular reference to cases of domestic abuse. Further to the Victims Strategy, we have increased funding to support children who are witnesses of domestic abuse, and we are taking further steps in the context of our Victims Strategy to address these issues. Over and above that, we have the Keeping Children Safe in Education statutory guidance, which applies to all schools and colleges.

[Baroness Butler-Sloss (CB)]

My Lords, will the Minister recognise the importance of a priority for children who have been victims of human trafficking, including children who are victims of county lines?

[Lord Keen of Elie]

Clearly, we are conscious of the increasing prevalence of cases where children have been the subject of trafficking. They have particular and special needs, and we are conscious of the need to address those.

[Baroness Uddin (Non-Afl)]

My Lords, we all recognise that there is an incredible number of good practices across our country where organisations support children who have been traumatised by crime. However, does the Minister accept that there is still a great number of shortcomings, especially in professions such as social work and policing, where it has been reported that children have often not been believed in time? Would the Minister therefore assure the House that resources are being provided for the training of professionals in these particular incidents?

[Lord Keen of Elie]

My Lords, children and young people under the age of 18 are automatically considered as vulnerable victims and therefore become eligible for enhanced entitlements under the victims’ code. That includes being offered referral to specialist support services in order that that can be addressed.

[Lord Lexden (Con)]

Is it the case that schools are required to have a designated member of staff responsible for ensuring that children in these circumstances get the specialist advice and help that they require?

[Lord Keen of Elie]

My Lords, the Keeping Children Safe in Education statutory guidance provides that every school and college should have a designated safeguarding lead, who should be a senior member of staff.

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

My Lords, the recent briefing on the Queen’s Speech reported that only 18% of victims were aware of the victims’ code at all. What steps are the Government taking to improve education among young people and children in particular about the existence of the victims’ code and their rights under it?

[Lord Keen of Elie]

My Lords, we will shortly be consulting on changes to the code, and we have committed to developing targeted, less complex and more accessible guidance aimed particularly at children, young people and their families.

[Baroness Smith of Basildon (Lab)]

My Lords, the noble and learned Lord will be aware that one of the biggest issues for young people is the fear of crime, whether that is online crime or knife crime, for example. This was recognised in the Children’s Commissioner’s report as well. Has he read the report from Barnardo’s on the kinds of issues that could make a difference to young people, because they are having a severe impact on their mental health, for which, as we all know, the services required are not available. When did Ministers last meet with Barnardo’s to discuss that issue, and does he have any plans to do so in future?

[Lord Keen of Elie]

My Lords, I have not read the Barnardo’s report—I have read the more recent report from the Department for Education—but I note what the noble Baroness said in that regard and I will address that matter.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, in reply to the noble Baroness, Lady Uddin, the noble and learned Lord referred to the rights of victims to access certain kinds of support. If I may respectfully say so, he did not say how that access will be delivered. I think the noble Baroness was asking about capacity in the system and the training and adequacy of the people delivering the help. Can he assure us that there is capacity and that it is of a sufficiently high standard?

[Lord Keen of Elie]

Certainly, I have no reason to doubt that the specialist support services to which I referred are fully available for those who require them.

Divorce, Dissolution and Separation Bill [HL]

Lord Keen of Elie Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Wednesday 5th February 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill be read a second time.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, this is a Bill for every family going through the upheaval of divorce. No one marries or forms a civil partnership expecting it to break down. No one wants a marriage or civil partnership to fail, but the unfortunate reality is that some marriages and civil partnerships do fail. The irreparable damage will have been done long before an application to the court to bring a legal end to the relationship. The Government believe that the law should deal with that reality in a way that not only protects society’s interests in marriage but avoids making the legal process of divorce or civil partnership dissolution unnecessarily antagonistic. The end of a marriage will always be difficult for the couple and children involved. It cannot be right that the law adds to that by incentivising the attribution of fault. Marriages fail for many reasons, and the responsibility may be shared. The simplistic allocation of blame cannot reflect reality and does not protect marriages.

In developing the proposals before the House today, Ministers have reflected on views that emerged during the Government’s consultation last year and on what legal practitioners and couples themselves have said. The Bill has a clear purpose in seeking to reduce the conflict that can arise from the current requirements for obtaining a divorce. That is all the Bill does. It will not make divorce painless or an easy choice. It will not take away the difficult decisions couples have to make about their future lives, but it will pluck out the legal sting whose effects can be felt long into the future. This is a matter on which there is wide support for change from the public as well as from legal practitioners. Removing unnecessary conflict from the legal process of divorce will, we believe, create a more amicable environment in which a couple can agree their future arrangements. There is a strong evidence base and consensus underlying the proposals in this Bill. It intentionally does not seek to change other aspects of divorce law where the evidence in support of reform has yet to be gathered and for which a consensus on the nature of the reform needed has yet to emerge. Those are quite separate issues on which we are open to be led by evidence.

Although it is 50 years since the Divorce Reform Act 1969 gave rise to the law we now have, the existing law is often misunderstood by couples when they come to use it. Couples are often surprised to discover that the law requires either a period of separation of at least two years or one party to allege fault against the other. A couple who want to divorce amicably can find the law pulling them in a different direction.

The Government’s reform allows divorce and civil partnership dissolution only on the ground that the marriage or civil partnership has broken down irretrievably, a ground we will retain. Under the existing law, however, the person who seeks a divorce must currently satisfy the court of at least one of five facts, as the statute calls them, before the court can hold that the marriage has broken down irretrievably and grant the divorce. In the dissolution of a civil partnership, the material difference is that the adultery fact is not available. It will be convenient to speak in terms of marriage and divorce, but the principles and effects apply equally to civil partnerships and their dissolution.

About two out of five divorces take a separation route. If both spouses agree to the divorce, they must have been separated for at least two years before an application to the court can be made. If the other spouse does not agree to the divorce, five years is the only separation fact available. It seems to us very unlikely that a marriage can be patched up when the people in it have been living separate lives for years. The marriage is likely to have been over by the time they separated, but a separation fact is the only route available if someone is unwilling to make allegations about the other spouse’s conduct. For victims of domestic abuse, including controlling or coercive behaviour, doing so may well be difficult and, indeed, unsafe. Having to live apart for so long will for many people only delay the inevitable legal ending of the marriage. It can also be difficult, not least because the court can make final orders on the financial position of the parties only on divorce.

Some people will say that the Government are introducing divorce without blame, but the truth is that we have had for half a century a route that allows couples to divorce without blame and by mutual consent. That route, however, requires them to be in the limbo of separation for at least two years: living separate lives, but still legally married and unable to make arrangements for the future. The Government do not believe that this requirement serves a useful purpose. Furthermore, the complex rules around what counts as a continuous period of separation can deter people from trying to move back together lest they have to start the separation period anew.

About three out of five divorces proceed on the basis of the conduct facts: the person seeking the divorce must evidence behaviour, adultery or, in rare cases, desertion on the part of the other spouse. With no prior period of separation needed, the law incentivises making allegations about conduct for those who do not want to wait. Sometimes, one spouse has behaved despicably. As I have said, that does not always mean it is safe for the other to put the details to the court, knowing their spouse will see them. Sometimes neither spouse has done anything particularly wrong and a series of trivial incidents might be presented so that they pass muster. The court itself has no practical means by which to investigate allegations made about a failed marriage and must take these at face value. A mere handful of cases proceed to trial, even among the 2% of cases in which respondents indicate their initial intention to contest the divorce. Only some of those dispute the irretrievable breakdown of the marriage; for most, it is the choice of fact and the supporting detail of the allegations. It is plainly absurd that the law facilitates conflict over the detail when the couple agree that the marriage is over.

Nothing in this legal drama gets to the real reasons why the marriage failed or helps people to move on. Worse, allegations can grind away at the majority of respondents who do not contest the divorce. No one wants to face a catalogue of real or perceived failings in their most intimate relationship—allegations that can sour attempts to make arrangements about the future. Conflict can have a particularly damaging and, indeed, lasting impact on children and their view of each parent. It can undermine good co-parenting; in fact, research shows that it is conflict between parents that is linked to greater social and behavioural problems among children rather than the separation and divorce itself. The law is also completely out of step with the constructive conciliatory approach that family law takes in other areas and that practitioners take every day.

This Government believe it is time to change this damaging situation. The Bill creates the conditions for a better prospect of moving forward more amicably and constructively, which is also the approach taken by members of Resolution. Indeed, Resolution’s chair, Margaret Heathcote, has said that

“because of our outdated divorce laws”

practitioners have effectively been working

“with one arm tied behind their backs.”

This Bill will change that. It is also a Bill with children’s best interests at heart.

With all this in mind, I turn briefly to the main provisions in the Bill, to explain the revision of the current process within the framework of the existing law. It is not a new process, merely an adjustment of what already takes place. The Bill therefore keeps the two-stage process that will be familiar to your Lordships as the decree nisi and decree absolute. In a modernisation of language to help couples, these will be called “conditional orders” and “final orders”, in line with civil partnership law. However, we are introducing for the first time the option for an application for divorce to be made jointly by both parties where the decision to divorce is a mutual one. The need to confirm to the court that it may make the conditional order as well as to apply to the court for the final order means that a divorce or dissolution is never automatic but remains intentional at each stage and within the control of the party, or the parties where an application is made jointly.

This is what the reform will do. It will retain irretrievable breakdown as the sole legal ground for divorce and dissolution. It will replace the current requirement to evidence irretrievable breakdown through a conduct or separation fact with a statement of irretrievable breakdown of the marriage or civil partnership. Couples will for the first time have the option to make this a joint statement, reflecting for some couples their mutual decision to divorce.

It will remove the possibility of contesting the decision to end the legal relationship. A statement of irretrievable breakdown will be conclusive evidence to the court that the marriage or civil partnership has irretrievably broken down. It will introduce a new minimum period of 20 weeks from the start of proceedings to when the applicant or the joint applicants can confirm to the court that a conditional order may be made. There is currently no minimum period, meaning that decrees nisi are reached as quickly as couples and the court process allow.

Our proposal will allow time to consider the implications of the divorce. Between 2011 and 2018, around two-thirds of cases reached conditional order in less than our proposed 20-week minimum period. About one in 10 cases did so within eight weeks, and four in 10 cases between nine and 16 weeks. Our reform is in no measure introducing so-called quickie divorce; for around 80% of couples the divorce will actually take longer than it does currently. In addition to the new minimum period of 20 weeks, the six-week minimum period between conditional and final orders will remain. As is the case now, the divorce will not be able to proceed to conditional order unless the court is satisfied in relation to service on the respondent.

It is time to end what has been termed the blame game. It is time to minimise the harm to children that can arise from the legal process and not give it a chance to worsen where conflict already exists. The reforms that we have set out today will deliver a revised process of divorce that protects all our interests in marriage, reduces the potential for conflict and its impact on children, and is fit for the 21st century. I commend the Bill to the House, and I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am grateful to everyone who has spoken in this debate, and I express particular thanks to the noble Baroness, Lady Hunt of Bethnal Green, for a cogent and perceptive maiden speech. I am encouraged by those, from all sides of the House, who have indicated their support for the Government’s proposals, which in turn reflect overwhelmingly the views of those in the other place. This Bill will bring long-overdue reform—a point made by the noble and learned Lord, Lord Walker—that directly benefits divorcing couples and, importantly, any children that they may have.

Of course the Government share the belief that marriage and civil partnership are vitally important to the well-being of our society, but I am very aware that there are some differing views about divorce, and I recognise that some noble Lords have misgivings about the proposals in the Bill—or, indeed, about proposals that are not in the Bill. But I would like to reiterate what I said in my opening speech, which is that this Bill is intentionally narrow because it focuses on the evidence for reform of particular aspects of divorce law on which there is a broad consensus. That seems to me a sensible and proportionate approach for the Government to take at this stage, acknowledging that there may be further matters to be addressed.

Many points have been raised today. I will consider some of those further between now and Committee and I have no doubt that they will also be the subject of consideration in Committee. But perhaps I might comment on a number of points that were raised.

The noble Lord, Lord Anderson of Swansea, began by referring to the apparent marital experiences of the actor Pamela Anderson. Some would consider that those experiences compare not unfavourably with those of the late Henry VIII, who was after all Defender of the Faith.

My noble and learned friend Lord Mackay of Clashfern made the point that marriage is essentially a voluntary union. I understand the point made by the noble and right reverend Lord, Lord Harries of Pentregarth, that marriage is not simply a contract, but requires the willingness of both parties to adhere, and that has to be borne in mind.

The noble Lord, Lord Anderson of Swansea, raised a further point about Clause 1(8), which allows the court in exceptional circumstances—the point was also raised by the noble Baroness, Lady Meacher—to alter the periods in question. That is part of the existing law, albeit on the matter of the gap between decree nisi and decree absolute. It is done only in exceptional circumstances. Perhaps the easiest example to give is where somebody is suffering from a terminal illness. The court may be prepared to step in to foreshorten the relevant period so that the divorce can be secured before a person is deceased. But it is employed only in such exceptional circumstances. I hope that the noble Lord will accept that.

The noble Lord and many others referred to the 20-week period, and in particular to its commencement. There are arguments about whether it should commence on application or at the point at which a respondent acknowledges service. The difficulty with the latter approach is that an unresponsive respondent, if I can put it in those terms, might well frustrate the entire process and delay it unconscionably. However, we are open to discussion on how we should approach the question of the 20-week period. I have no doubt that there will be an opportunity to do that between now and Committee.

The noble Baroness, Lady Burt of Solihull, raised the question of transgender people, or persons who wish to transition, which she acknowledged was outwith the scope of the Bill—which it certainly is. However, if and when we come to address that, I think that we would have carefully to approach her use of the unqualified term “veto” in respect of this matter. The noble Baroness, Lady Hunt, very charmingly used a “Jack and Jill” kind of illustration of certain matters; perhaps I may seek to deploy a similar approach. Mary marries Paul; Paul decides that he will transition to become Pauline. To complete that process, he will either require the consent of Mary or he will have to secure a declarator of nullity of marriage—so there is no actual veto. The point of the present situation is this: Mary who married Paul should not find herself married to Pauline without her consent. There are counter-arguments and it is a delicate and difficult issue; it is not one for this Bill, but I respond to the noble Baroness’s suggestion that I should say something on the topic. I simply underline that it is a delicate subject that will have to be approached with care and without using such unqualified terms as “veto”.

Financial settlement was also raised by the noble Baroness, Lady Burt. We are at present considering an appropriate form of consultation on how we might approach any reform of the law with regard to financial settlement, but we have no desire to derail the Bill by trying to draw in a rather more complex area—one underlined by the noble Baroness, Lady Janke, when she alluded to pensions. That will require wide-ranging consideration before we can bring forward any possible legislation. It is not something that we would seek to address in the context of the present Bill.

The noble and learned Lord, Lord Hope of Craighead, raised a number of points to which he said he would return in Committee. He referred first to the wide delegated powers in Clause 6, which would include powers in relation to Acts of the Scottish Parliament. I am confident that no such steps, which could be taken only where amendment consequential on this Bill was required, would be taken without consultation with the Scottish Government.

He also raised a point about paragraph 58 of Schedule 1 to the Bill. That is intended to apply existing legislation to the new form of order that will arise under this Bill. If there is a deficit of some kind in the wording of that proposed amendment, I would be happy to discuss it with the noble and learned Lord in advance of Committee, so that it can be properly addressed. It is not immediately apparent to me from my reading of paragraph 58 that there is a deficiency—but, as I say, I am perfectly content to discuss that.

The noble Baroness, Lady Meacher, raised a question about having to reaffirm your desire to end a marriage. The present Bill simply reflects existing law in that regard. We do not consider that this is a deficiency. There is no reason why, in our view, if someone has determined that a marriage has irretrievably broken down, they should not be able to reaffirm that when requested by our court procedures to do so. Indeed, there may be some merit in requiring them to do so.

The noble Lord, Lord McColl of Dulwich, alluded to mobile phone contracts and their length—but, of course, one is able to proceed with what is termed pay-and-go. We do not wish to introduce that in the context of marriage or divorce, but it just shows that such comparatives can sometimes be a little less than entirely convincing.

I am encouraged that many have welcomed the Bill. Many have suggested that there are points of detail that they will wish to raise in Committee, and I would welcome discussion with noble Lords in advance of Committee on any points of detail that we can address. Clearly, no law can make the breakdown of marriage painless. What a reform of the law can do is minimise the pain and difficulties that arise not from the breakdown of the marriage but from the legal process itself. The law should not compel people to continue in the empty shell of a marriage for longer than is absolutely necessary. The fact is that divorce and dissolution will continue to happen regardless of what legal process we put in place; the irretrievable breakdown of some marriages and civil partnerships is inevitable. The Bill deals with the reality that, with the minimum of acrimony, it should be possible for people to leave such arrangements in an orderly and hopefully sometimes constructive manner.

I certainly share the concern expressed by many of your Lordships that the legal process itself should not exacerbate the conflict that has driven divorcing couples to the point of seeking the termination of a marriage. I take the point made by the noble Baroness, Lady Shackleton, that we should, in a sense, contemplate addressing not how you end a marriage but how you begin it, and educating people as to what they are entering into rather than what they are about to leave. There is a great deal of force in that.

We believe that this Bill will make a genuine difference to the lives of many, including children, who have to experience divorce either at first hand or as witnesses. It is for that reason that I beg to move that this Bill be now read a second time.

Bill read a second time and committed to a Committee of the Whole House.

Streatham Incident

Lord Keen of Elie Excerpts

Monday 3rd February 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement about the senseless and horrific terror attack in Streatham yesterday afternoon. Two members of the public were brutally stabbed as they went about their business on the busy High Road. Another was injured as our brave police stepped in before even more harm could be done. I am sure Honourable Members will join me in sending our thoughts and prayers to the victims, their families and all those affected by this appalling attack.

I would also like to pay tribute to our outstanding emergency services who once again ran towards untold danger to protect the public: the police who shot the offender to save others, and the ambulance staff who fearlessly tended the wounded despite the risk to their own lives.

Protecting the public is, and has to be, the number one priority for this Government. The Streatham incident is subject to an ongoing police investigation. As such, I am limited in what I can say at this time, but I would like to share what details I can with the House. A known terrorist senselessly stabbed a man and a woman on Streatham High Road around 2 pm yesterday afternoon. The attacker has yet to be formally identified, but police are confident it was 20 year-old Sudesh Amman. In December 2018 he was imprisoned for three years and four months for 16 counts of distributing extremist material and for the possession of material likely to be useful for the purposes of preparing a terrorist act. The sentence he received was a standard determinate sentence. That means that one week ago he was automatically released half way through the term. The Parole Board had no involvement in the matter. The law required automatic unconditional release at the halfway point.

Amman was being followed by armed police officers when he attacked, and they immediately shot him dead before he could harm any others. They stepped in despite the fact he appeared to be wearing an explosive device, which has now been confirmed as fake. A female member of the public in her 20s was hurt by broken glass as shots were fired to end the threat. She remains in hospital, as does the male victim in his 40s, who I am pleased to say is now recovering after initially fighting for his life. The other female victim, in her 50s, has since been discharged. Our thoughts are with them all.

As this is an ongoing investigation, it would not be appropriate for me to comment further on the case while the full facts are established. However, I would like to reassure honourable Members that our outstanding security services and the police have the full support of the Government as they investigate this atrocity.

I also want to talk about our security services, police, prison and probation officers, and their joint response. All these operational agencies are truly first class and are the epitome of public duty. The swift response to yesterday’s attack, monitoring the threat and responding quickly when it escalated, can give us confidence that the police and security services are doing all they can to keep the public safe.

Our prisons and probation services have robust measures in place to deal with terrorist offenders and we are at the forefront of international efforts to counter this threat. All terrorist prisoners and individuals who are considered to be an extremist risk are managed through a specialist case management process. Most can be dealt with as part of the mainstream prison population but, where it is necessary, a small number of the very highest-risk offenders are now managed in separation centres.

The time offenders spend in prison is an opportunity to do our best to rehabilitate them, recognising that this is no simple challenge. Psychological, theological and mental health interventions are all used, and HMPPS psychologists supply two formal counter-radicalisation programmes, used both in custody and in the community. In addition, the desistance and disengagement programme was rolled out in prisons in 2018. This provides a range of intensive, tailored interventions designed to address the root causes of terrorism.

I want to pay tribute to the work of our prisons and probation staff. They are dedicated to keeping the public safe, and they work tirelessly to try to turn lives around, even in the face of such a deep-seated ideology.

The tragic events at Fishmongers’ Hall in November last year showed that we need to look carefully at the way we deal with terrorist offenders. I have long been clear, as has my right honourable friend the Prime Minister, that automatic halfway release is simply not right in all cases. After the London Bridge attack, the Prime Minister, the Home Secretary and I immediately promised a major shake-up of our response to terrorism. Two weeks ago, the Home Secretary and I announced clear measures, a tough new approach and a new commitment to crack down on offenders and keep people safe. Those include, first, introducing longer and tougher sentences for serious terrorist offenders, ending release for them before the end of their custodial term, opening up longer licence periods, and keeping the worst offenders locked up for a mandatory minimum 14-year term; secondly, the overhauling of prisons and probation, with tougher monitoring conditions, including lie detector tests to assess risks; thirdly, doubling the number of counterterrorism probation officers and investing in counterterrorism police, providing an increase in funding of £90 million from April; and, fourthly and finally, putting victims first by reviewing the support available to them, including an immediate £500,000 boost for the Victims of Terrorism Unit.

We have also announced an independent review of our multiagency public protection arrangements—MAPPA—to be led by Jonathan Hall QC. This is looking at pre-release planning, as well as the management of offenders upon release in the community.

Many of those measures will be in a new counter-terrorism (sentencing and release) Bill to be introduced in the first 100 days of this re-elected Government. However, yesterday’s appalling incident makes the case plainly for immediate action. We cannot have the situation, as we saw tragically in yesterday’s case, where an offender—a known risk to innocent members of the public—is released early by automatic process of law, without any oversight by the Parole Board.

We will do everything we can to protect the public. That is our primary duty. We will therefore introduce emergency legislation to ensure an end to terrorist offenders being released automatically, having served half their sentence, with no check or review. The underlying principle has to be that offenders will no longer be released early automatically and that any release before the end of their sentence will be dependent on risk assessment by the Parole Board.

We face an unprecedented situation of severe gravity. As such, it demands that the Government respond immediately, and this legislation will therefore also apply to serving prisoners. The earliest point at which these offenders will now be considered for release will be once they have served two-thirds of their sentence and, crucially, we will introduce a requirement that no terrorist offender will be released before the end of the full custodial term unless the Parole Board agrees. We will ensure that the functions of the Parole Board are strengthened to deal even more effectively with the specific risk that terrorists pose to public safety. For example, we will ensure that the appropriate specialisms are in place. That work is in train and we will take steps to implement this as soon as possible.

When someone is released, we will always ensure that terrorist offenders are subject to the most robust safeguards, and we will consider whether new legislation is required to provide additional assurance. Finally, we will review whether the current maximum penalties and sentencing framework for terrorist offences are indeed sufficient or comprehensive on the underlying principle that terrorist offenders should not be released until the Parole Board is satisfied that they are no longer a risk to the public.

As I said, keeping our streets and our people safe is our first duty. We face a threat from an ideology that takes no heed of others, and we must use every tool we can to make sure that that threat is neutralised. The British public have a proud history of coming together in times of adversity against those who seek to divide us. Together, we can make sure that the terrorists who seek to threaten our way of life will never win. This Government will do everything in our power to defeat them and to ensure that the public are protected. I commend this Statement to the House.”

--- Later in debate ---

[Lord Beith (LD)]

My Lords, I thank the Minister for repeating the Statement. This was a very serious incident; our thoughts are with the victims. It could have been much worse but for the rapid action of police officers. We should also recognise, as the noble Baroness, Lady Chakrabarti, did, the contribution of members of the public who came to the aid of the injured.

This terrorist was released by an automatic process which falls short of what we need to do to protect the public. We agree that, in future, release of those convicted of terrorist offences before the end of their sentence should require an assessment by the Parole Board, which will need the resources to do this. The Government have given some indication that they may give these. However, that is necessarily quite a limited thing, which will not in the end make a fundamental difference to the fact that most of these people will eventually come out of prison—a point which I will come to in a moment. If, for example, we have a terrorist conviction for possessing or distributing literature, the amount by which the sentence would be extended, from half to two-thirds, would be small as a proportion of a shorter sentence. In presenting this matter to the public, we should be clear about its limits. Is the Minister telling us—this is the point about retrospection that the noble Baroness referred to—that existing sentenced prisoners currently able to get release on licence at the halfway point will have their custody extended to two-thirds even if they are given a positive review in the Parole Board assessment? That seems to be not only retrospection but punishing prisoners for what others have done while they are inside.

The key point is that most of those we sentence for terrorist offences will eventually be released, so we have to deal with the risks. We need more resources to go into deradicalisation programmes in prisons, using any available expertise from other countries which have also been on this path. We need far more staff in our prisons, trained to deal with these prisoners. I do not think many people in the prison system would recognise the rosy picture tucked away in the Statement of life in our prisons. They house far more prisoners than they are built or staffed to hold, mainly because of longer sentences for a range of non-terrorist offences, which make prisons virtually unmanageable. We need rigorous management of terrorist prisoners, who all too often become members of a radical subculture in prison, which provides recruitment and training for terrorism and inspires the worst kind of fanaticism. When these prisoners are released, we need to be sure that they are supervised by properly financed probation services, police monitoring and, where justified, close surveillance and the involvement of the security services. We look forward to the Jonathan Hall review of multiagency co-operation, which is essential to dealing with this problem.

Finally, this House will want to look carefully at the legislation referred to in the Statement, because it touches on some important civil liberties issues. We must not let the terrorists destroy liberties which we all prize.

[Lord Keen of Elie]

My Lords, I am most obliged for the contributions from the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Beith. They touched on a very significant point, namely retrospection. I will elaborate a little on that.

There will be a retrospective element in the proposed legislation. It will not increase the sentence of those who have already been sentenced by the court. However, it will address the custodial period of the given sentence, which would be consistent with convention law and the common law. Therefore, we may have a situation in which someone has already been sentenced to a period of, say, nine years and might anticipate release without further consideration by the Parole Board after four and a half years. He would then face the prospect that the custodial element of the given sentence would increase to six years and he would also be subject to consideration by the Parole Board before he could be released even at that point. To that extent, as I say, there is an element of retrospection. We consider that to be proportionate and appropriate in the circumstances. As I say, it is consistent with convention jurisprudence and the common law that we should be able to address the custodial period of a sentence without altering the sentence itself. That is what we have in mind.

Noble Lords also raised the matter of resources. As I sought to indicate when repeating the Statement, we are seeking to address it. We are also addressing the need for clear licensing conditions to be imposed on those who are ultimately released having been sentenced for terrorist offences. Indeed, in this instance, there were conditions clearly attached. I cannot go into the detail, because that will be the subject of the police investigation, but I can say that there was a condition with regard to the place of residence of the individual who is believed to have been involved in this incident, for example. That would be common.

In addition, we have introduced the desistance and disengagement programme to try to mentor persons who have become involved in this sort of activity. That is an ongoing programme which operates both within and without prison.

I hope I can give some reassurance to noble Lords that we are concerned with the seriousness of this issue. I note with relief that noble Lords agree that we should address very quickly the question of automatic release of prisoners when they have committed terrorist offences of this kind.

[Viscount Hailsham (Con)]

My Lords, my noble and learned friend has said that no terrorist offender will be released before the end of the full custodial sentence, or something very like that, unless the Parole Board agrees. Provided that the class of offender is not too broadly defined, that seems a very sensible approach. My noble and learned friend has already addressed this matter in part, but what additional provision will be made for the testing and assessment of such prisoners when in custody? That was not happening with the IPP prisoners, for whom no adequate courses were made available. What additional resources will be made available to the probation services, to monitor these prisoners on release? I also ask that Mr Jonathan Hall QC be asked to make any further recommendation that he deems appropriate when he conducts his review.

[Lord Keen of Elie]

There was a period when remedial courses for IPP prisoners were considered to be less than entirely satisfactory, and we have sought to address that. Certainly, there are various programmes for those who have been sentenced for terrorist offences, including the desistance and disengagement programme, which tries to mentor these individuals. I fully accept that it is a challenge, given that many have been radicalised long before they appear in prison and may be susceptible to the risk of further radicalisation once they are in prison. The availability of resources for the probation services has been discussed with those services. We will increase the number of qualified probation officers capable of dealing with such terrorist offenders. I shall try to put this into context: although the numbers may vary year to year we are talking about tens, not hundreds, in each year. This is not a tidal wave of cases that will suddenly emerge and impose itself upon the probation service. In the current year, the estimate is of 50 cases; we consider that manageable in its proportions.

[Lord Carlile of Berriew (CB)]

Does the Minister recognise that there is likely to be serious and possibly cogent challenge to the retrospectivity as it relates to sentences being served, given that a person who is sentenced to, for example, six years’ imprisonment today has a legitimate expectation—known to the judge—that he will serve three years and not six? Are the Government not therefore taking an unnecessary risk in adopting that form of retrospectivity? Surely, it would be more practicable and immediate to reintroduce the tried-and-tested system of control orders, which was found lawful before it was abolished by the coalition Government in 2011, so that at least for a period or periods after release somebody could be held under a control order. That would not cause house arrest but would create meaningful controls on that person, and those orders worked extremely well when they were carefully reviewed while in existence.

In addition, will the Minister confirm that the review of the MAPPA arrangements to be carried out by the current independent reviewer, Jonathan Hall, will be able to look at the actual content and conduct of courses in prison which are offered and given to terrorist prisoners? Can we also be assured that the examination of what happened yesterday will provide, as was suggested by the noble Baroness opposite, lessons learned so that we can discover whether the form of surveillance followed yesterday was the best available to prevent the kind of occurrence that took place on Streatham High Road?

[Lord Keen of Elie]

My Lords, with regard to surveillance it respectfully appears to me that it was effective in the circumstances. I am not going to go into the detail of the circumstances but it was a sudden action by the individual in question, which was swiftly responded to by the police in an effective manner. As regards control orders, I remind the noble Lord that the licence conditions that now apply upon release to a prisoner, such as in the case in point, may include particular conditions about where they may reside. For example, the conditions may say that they must reside in a particularised hostel; they may also provide that they have to report in at certain times of the day or on a certain number of occasions during its course. They therefore effect a degree of control on the conduct of an individual. There has to be a careful balance between ensuring adequate supervision of such persons and not impeding unnecessarily, or in a disproportionate manner, their civil liberties.

I come on to the question of retrospective sentencing. We consider that we have taken a proportionate approach to that. The noble Lord suggests that there is a significant risk of legal challenge; with respect, I do not agree. It respectfully appears to me that the jurisprudence of the European Convention, and that in our common law, indicate that we are entitled to address the custodial element of a fixed sentence and vary it without impinging upon any fundamental rights of the prisoner in question. I am not going to say that there is no prospect of challenge; of course, there is always such a prospect in these circumstances, but we take that prospect into account when deciding the appropriate response to the present case.

With regard to the review to be carried out of MAPPA, I cannot give the precise details of the remit that is to be given. However, I will write to the noble Lord setting out that remit and place a copy of the letter in the House Library for noble Lords.

[Lord Harris of Haringey (Lab)]

My Lords, I am grateful to the Minister for repeating the Statement. However, it gives a rather rosy picture of conditions in our prisons and the extent to which there can be, and is, effective supervision of people of this nature. I would be interested to know what progress has been made on the recommendations made to the former Secretary of State for Justice, Michael Gove, by Ian Acheson, a former prison governor, on what needed to be done about extremism in prisons. He made the specific recommendation that any prisoner in this category should have end-to-end case management from the point at which they are admitted to prison, right the way through to their discharge into the community. That is akin to the recommendation I made when I looked at the problems of young people in prison and at risk of self-harm—that direct, personal oversight by somebody who knows the individual is essential. Has that been implemented?

[Lord Keen of Elie]

My Lords, we have accepted the recommendations of the Acheson review. They were essentially brought down to about 11 key points, which we have sought to implement. For example, I again notice the introduction of the desistence and disengagement policy, which is intended to ensure that there is mentoring on a one-to-one basis with prisoners who have been convicted of these serious terrorist offences.

[Lord Pearson of Rannoch (Non-Afl)]

My Lords, the Statement concludes:

“We face a threat from an ideology that takes no heed of others, and we must use every tool we can to make sure that that threat is neutralised.”


Will the Government therefore go to the root of the problem and encourage our Muslim leaders to re-form their religion, so that their jihadists cannot use it as the inspiration for this sort of attack and many thousands of similar attacks across the globe?

[Lord Keen of Elie]

My Lords, it is a matter of regret that these outrageous attacks are not limited to any one section of the community and are not to be attributed to religious belief, but rather to a corruption of that belief.

[Baroness Warsi (Con)]

My Lords, is my noble and learned friend familiar with the 20-plus drivers of radicalisation, factors which are well documented in academic research, in the judgments of courts sentencing terrorism offenders and in documents from our own intelligence services? How sophisticated is the Government’s understanding of those drivers of radicalisation? I raise this issue specifically because, as my noble and learned friend will be aware, many of the recommendations that date back to the work done by the last Labour Government after the attacks of 7/7 and work done after the terrorist attack in 2013 when drummer Lee Rigby was killed on the streets of London have simply been shelved. We may talk about this event—I echo all Front-Benchers in saying that our thoughts are with those who have been injured—but I urge the Government to go back to what we already have on our books: recommendations that would get ahead of this issue, but which have simply not been implemented.

[Lord Keen of Elie]

My Lords, there is diverse research in this area. We are on a learning curve and will remain so; we will never be ahead, as it were, because the terrorist can develop swiftly in diverse ways. We cannot always anticipate what those developments will be. Even if we could, there is a more fundamental issue with this sort of despicable offence and that is protection. We seek to address protection in many ways, but it can never be absolute.

[Lord Hogan-Howe (CB)]

My Lords, I join the Minister in commending the response particularly of the firearms officers yesterday. They make very quick decisions in very difficult circumstances. I am sure we all feel as though they had taken great steps.

However, yesterday’s events showed how difficult it is, even when surveillance is in place within what seems to be touching distance, to control dangerous people on the streets. We should not overreact after the two events, in November and now again in February. We need to ask three questions.

The first is the exam question. None of these comments is intended to be critical of the system or individuals, but how can the system allow the release part way through a sentence of someone who, within hours of their release, the police and security services have concluded requires surveillance, and allow them to wander around the streets of this city or any other, given that we do not have thousands of surveillance officers? There is a fairly limited resource, so they had to price in a pretty high bar before they got this commitment, yet the state has said they are okay to be released from part of their sentence. That is an unfortunate juxtaposition which I am sure, as the noble and learned Lord, Lord Keen, mentioned, needs to be addressed.

However, one day those people will come out, whether or not they serve more of their sentence, so we still have to consider what we will do for and with them. The deradicalisation work needs a complete quantum leap. The noble Lord, Lord Beith, said that it needs more resources; I am afraid that it needs a complete rethink and refresh. It is not just resource; the sad reality is that we are not sure whether people have been deradicalised or what works. There are international examples of it working and we could learn much from them, but we have to have a root-and-branch look at it.

Finally, we need to consider control orders, as mentioned by the noble Lord, Lord Carlile, although I do not necessarily agree with him. Having a period of home imprisonment or incarceration may be a halfway house. However, control orders are designed for people who have not yet been convicted of or charged with offences but who are dangerous. Whether it is the old ones, to which the noble Lord, Lord Carlile, referred, or the new ones, they are available. There are precious few of them in place, because they drag resources with them. At times, people will argue for internment, but these orders can make a difference where somebody is not charged or convicted. The licence conditions and MAPPA conditions mentioned by the Minister are not sufficiently strong for this type of offender.

[Lord Keen of Elie]

The noble Lord makes a very good point; this type of offender presents very particular issues and challenges. However, when looking at release and sentencing, we have to remember that there has to be a balance of rights. We must always acknowledge our adherence to the rule of law. No matter what the immediate consequences may be, we have to have regard to the wider consequences to civil society of any departure from our adherence to the rule of law, but this creates considerable challenges.

I agree with the noble Lord on the importance of deradicalisation and the need to try to develop our policy and approach to it; perhaps we should rethink it.

I go back to what I said before on control orders. I do not want to comment on the immediate case because it is still under investigation and report but, in the context of post-sentence release, I nevertheless emphasise that we now have a system of licensing conditions which can impose stringent controls on an individual after their release from custody.

[The Lord Bishop of Southwark]

My Lords, I have nothing but admiration for the response of the emergency services and the police in this incident, in the recent one at Fishmongers’ Hall, and in the one two and a half years ago at London Bridge, very near my cathedral. It is incumbent on me to try to correct what might be a mishearing of an earlier contribution. The response of the community in each of these cases has been remarkable and resilient. A major part of that response has come from the Muslim community, which has shown its conviction and commitment to peace-desiring and law-abiding ways of living and supporting the wider nation. The Statement said nothing about this because it did not have to, but I feel incumbent as a Bishop to do so.

The community response yesterday was very remarkable. The rector of the parish was immediately out on the streets, giving refreshments to the emergency services. The parish church was open for prayer. Yesterday and at noon today—when I was able to be present—a large number of people from the community came. First thing on Thursday morning, the rector and I will be going to the Streatham mosque, at its invitation. It is immensely important for the nation to be aware of this wider dimension.

My question for the Minister relates to the fairly open sentence in the Statement:

“The time offenders spend in prison is an opportunity to do our best to rehabilitate them, recognising that this is no simple challenge.”

This is about something wider than antiterrorism strategy and rehabilitation. I have been made aware, again and again, of failures in rehabilitation provision in the five large, significant prisons in my diocese. Cases have often fallen back on the chaplaincy when people have come near to release and inadequate arrangements have been made. They are just being thrown out of prison; they are very vulnerable and at risk. A wider review of rehabilitation is called for.

[Lord Keen of Elie]

My Lords, I thank the right reverend Prelate for his contribution. Clearly, one should not confuse the religion of Islam with the behaviour that we are concerned with here. I deplore any attempt to bring the two together or merge them in some way.

On the matter of rehabilitation, prison, a custodial sentence, is an opportunity for rehabilitation. The challenges of rehabilitation apply right across the prison community, but they are particularly stark in the case of terrorist offences where there has been radicalisation. We recognise that, which is why we will continue to look at the question of rehabilitation, not only during the period of custody but post release and during any licence conditions.

Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Lord Keen of Elie Excerpts

Wednesday 22nd January 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 14 October 2019 be approved.

Special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 3rd Report, Session 2019

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I will also speak to the Criminal Justice and Courts Act 2015 (Consequential Amendment) Regulations 2019.

These draft instruments form part of the Government’s wider plans to reform sentencing and law and order, through which we aim to strengthen public confidence in the criminal justice system. The purpose of these instruments is to ensure that serious violent and sexual offenders serve a greater proportion of their sentence in prison, and to put beyond doubt that these release provisions will apply in relation to offenders receiving consecutive sentences, ahead of further changes the Government will set out in a sentencing Bill.

Under the provisions of the Criminal Justice Act 2003, all offenders sentenced to standard determinate sentences must be automatically released halfway through their sentence. These orders move the automatic release point for the most serious offenders who receive a standard determinate sentence of seven years or more. Instead of being released at the halfway point of their sentence, they will be released after serving two-thirds of their sentence.

A key component of our criminal justice system should be transparency, but currently, a person convicted of rape and sentenced to nine years in prison will be released after only half that sentence. Victims and the general public do not understand why they should serve only half their sentence in custody. While improved communication about how a sentence is served will help, this measure aims directly to improve public confidence by making sure that serious offenders will serve longer in prison.

Some may suggest that the whole sentence should be served behind bars, but this would not serve victims’ interests. It is crucial that when someone is given a custodial sentence, they spend part of this sentence under supervision in the community. The licence period has long been an integral part of the sentence, and it should remain so. It provides assurance to victims through the imposition of conditions to protect them such as non-contact conditions and exclusion zones, through supervision by the probation service and through the power to recall that offender to prison if they breach their conditions. It is also an important period for rehabilitation, giving the offender the chance to address their offending behaviour and undertake activities that can help to prevent them reoffending. So, a licence period must remain.

However, it is not in the interests of public protection that when someone has committed a serious offence for which they rightly receive a long sentence, such as grievous bodily harm with intent or rape, they are entitled to be released half way. This instrument aims to address this by moving the release point for these serious offenders so that they will serve two-thirds of their sentence in prison and the remainder on licence. Retaining them in prison for longer will provide reassurance to victims, protect the public and restore public confidence in the administration of justice. It will also provide longer periods for these offenders to undertake rehabilitative activity in prison and prepare effectively for their release and resettlement in the community.

Automatic release from a fixed-term custodial sentence is a long-established measure. The Criminal Justice Act 1991 made a clear distinction between long-term and short-term prisoners. Short-term prisoners would be released automatically at the halfway point of their custodial sentence. Under Section 33(2) of that Act, long-term prisoners could be released automatically only at the two-thirds point of the custodial period. The 2003 Act removed this distinction between sentence lengths, requiring all standard determinate sentence prisoners to be released at the halfway point.

This order is the first step in restoring that distinction, beginning with those sentenced to standard determinate sentences of seven years or more, where the offender has been convicted of a serious sexual or violent offence, as specified in parts 1 and 2 of Schedule 15 to the 2003 Act, and for which the maximum penalty is life. Moving the release point to two-thirds for these offenders will correct what this Government consider to be an anomaly in the current sentencing and release framework.

Take the example of an offender convicted of rape. They could receive a standard determinate sentence, or, if they are determined by the courts to be dangerous, an extended determinate sentence. If they are given an extended determinate sentence with a custodial term of nine years, they could spend the whole custodial period behind bars if it was necessary for the protection of the public, but the Parole Board could consider them for release on licence after two-thirds of that period—namely, six years. However, if they were not assessed to be dangerous but had still been convicted of this very serious offence and sentenced to a standard determinate sentence of nine years, currently, they would be released after four and a half years. This measure will bring the two sentencing regimes closer into line, so that the offender could be released only after six years, ensuring that offenders committing these grave offences serve time in prison that truly reflects the severity of their crime.

We are starting with those sentenced to seven years or more because this strikes a sensible balance between catching those at the more serious end of the scale and allowing time for the change to embed sustainably. While the measures will apply to anyone sentenced to a standard determinate sentence of seven years or more for a relevant offence after the orders commence, the effects will not begin to be felt until nearly four years later—that is, until we approach the stage at which the first affected prisoners reach the halfway point of their sentence and remain in prison rather than being released. The impact will be felt gradually; our best estimates are that this will result in fewer than 50 additional people in custody by March 2024, rising to 2,000 over the course of 10 years.

The House’s Secondary Legislation Scrutiny Committee has drawn attention to the impact of this measure. I am content to offer assurances that this Government will act to ensure that the additional demands on HM Prison and Probation Service will be met. We will continue to invest in our prisons, both to build the additional capacity of 10,000 places announced by the Prime Minister—as well as the 3,500 places already planned at Wellingborough, Glen Parva and Stocken—and to undertake maintenance across our prison estate to manage the anticipated increase in demand. We have also invested significantly to increase staff numbers, recruiting between October 2016 and September 2019 an additional 4,581 full-time equivalent prison officers, thereby surpassing our original target of 2,500. We will continue to recruit officers to ensure that prisons are safe and decent, and to support both the current estate and planned future additional capacity.

Our impact assessment is based on assumptions that judicial and offender behaviour will continue unchanged, although of course, that cannot be certain. We are putting in place mechanisms with our partners across the criminal justice system to monitor the impact of the additional officers and give us the ongoing and future insight necessary to allow us to plan the prison estate. As these offenders spend more of the sentence in prison, correspondingly less time will be spent under probation supervision in the community.

These measures will enable us to take swift but sustainable action ahead of the wider package of reforms that the Government intend to bring forward in the sentencing Bill. They are not retrospective and will apply only to those sentenced in England and Wales on or after 1 April 2020.

Not proceeding with legislation would mean continuing with a system which fails properly to ensure that serious offenders serve sentences that reflect the gravity of their crimes and continue to be released halfway through their custodial period. In our view, that is not in the public interest, nor does it promote confidence in the justice system. I beg to move.

[Lord Beecham (Lab)]

My Lords, for some time this country has had the dubious distinction of having among the highest number of prisoners relative to population in Europe, with the numbers having risen by almost 70% in 30 years, with the vast majority of those, some 60%, being imprisoned for non-violent crimes. Moreover, the length of sentences has increased substantially, with 2.5 times as many people being sentenced to 10 years or more in 2018 as in 2006. On average, those receiving mandatory life sentences spend 17 years in custody, an increase of four years since 2001, while the average minimum period imposed for murder rose from 12.5 years in 2003 to 21.3 years in 2016. And yet, typically, the Prime Minister chooses to play to the gallery by reviewing sentencing policy without any consultation beyond the inner workings of the Ministry of Justice, and emerges with proposals for a draconian increase in the length of sentences which is likely to increase substantially the problems faced by an overworked and understaffed Prison Service, and indeed by the majority of prisoners.

As the Prison Reform Trust has pointed out:

“No evidence is given about the re-conviction of people currently released from these sentences”


and there is a risk that

“the people affected will spend a shorter period under the supervision of the probation service after release.”

The trust points out that reconviction rates are indeed lower for those serving more than four-year sentences, but there appears to be no evidence that sentences of seven years or more lead to any further reduction in reoffending on release.

The trust also reveals that the Ministry of Justice’s own research discloses that, when they are given the full facts of individual cases,

“the public tends to take a more lenient approach than sentencing courts.”

Moreover, they are likely to be confused by the fact that, when two convictions lead to consecutive sentences of less than seven years but with a total of more than seven years, the new provisions will not apply. And, of course, it is in any event open to the trial judge to impose longer sentences where this is deemed necessary.

As the trust rightly points out, there are other and better approaches to combating potential reoffending, not least by tackling the problems of the understaffed probation service. It rightly points out that the Chief Inspector of Probation has raised the issue of unacceptably large case loads for officers responsible for the supervision of long-serving former prisoners. Typically, no detail has been supplied of the additional costs of providing the offender management of those in custody that the new regime will require. Can the Minister supply any information about the relevant staff numbers and the costs involved?

For that matter, is he able to provide an estimate of the costs likely to be incurred by local authorities to meet the needs of families struggling for even longer periods without the income of an imprisoned partner or parent? What assessment has been made of the impact on prisoners’ employment possibilities after serving longer sentences and the consequential cost of benefits if, as seems increasingly likely, they find it even more difficult to find employment after a longer period of imprisonment?

Other financial questions arise. Four years ago the Government declared that they would provide an extra 10,000 prison spaces. All of 200 have been created. How many places will be required now to meet the need created by this order? How long will it take to provide them? What is the estimated cost of their provision and of the necessary increase in staffing? To what extent does the estimated increase in prison numbers of 3,200 by March 2023 reflect this new policy—or did that increase precede the policy contained in this order?

The last decade has seen a shocking worsening of conditions in our prisons. Sexual assaults quadrupled between 2012 and 2018; 117 prisoners have died having used or possessed new psychoactive substances; self-harm incidents rose from 23,158 in 2012 to a staggering 55,598 in 2018, with women disproportionately affected; and assaults rose dramatically, tripling to more than 10,000 on staff between 2013 and 2018. Yet staff numbers were cut by 26% between 2010 and 2017-18—albeit with some partial restoration since then. But—this is surely alarming—54% of the officers who left the service last year had served less than two years. What, if any, attempts were made to understand the reasons for this drastic loss of staff in such a short period and to avoid its repetition? Currently, 35% of staff members have been in post for less than two years and only 46% have served for more than 10 years. What, if anything, is being done to address this disturbing position and what, if any, is the difference between privately and publicly managed prisons in those respects?

In 2018, 58,900 people were sentenced to prison, 69% of them for non-violent crimes. Of those who received custodial sentences, 46% served six months or less. Is it not time to review the utility of such sentences against alternative measures? Would it not be better to secure greater investment in the probation service and the youth service as an approach to tackling the problem?

Should it not be a priority to promote purposeful activity for those sentenced to imprisonment? Just two in five prisons received a positive rating for this in 2017-18, while the quality of teaching and learning in prisons has declined, with the number of those rated as good reduced to 42%. Some 62% of those in prison had a reading age of 11 or lower in 2017-18. What will the Government do to address this serious situation, which is mirrored in a significant fall in the number participating in education while in custody?

There are serious matters to be addressed in our Prison Service. Will the Minister use his influence to persuade the Prime Minister to address them rather than play to the gallery with a populist approach that at best will achieve nothing and is likely to make matters worse, not just for prisoners but for prison staff and society as a whole?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am grateful for all the contributions to the debate, which has ranged widely and not simply confined itself to the terms of the present order. That is entirely understandable and appreciated. I have listened with interest and concern to the many contributions. I will touch on some as I go through, more on the basis of topics than anything else.

I emphasise that we are dealing here with steps that we can take by way of this order in the context of our bringing forward a sentencing Bill that will be the subject of detailed consideration both here and in the other place. However, this is what we can do at present under the 2003 legislation.

In answer to the proposition that we are increasing sentences, I suggest that this is a process of restoration, not of increase; we are restoring the position to what it was prior to 2003. There is also the technical question of how we deal with consecutive sentences, because there was a concern about the state of the law before that.

My noble friend Lord Hailsham talked about relevant courses for safe release, and he makes a good point. It is more applicable to extended, rather than standard, determinate sentences, but I am conscious of his point. That touches on a wider issue of concern, that of rehabilitation. We all aspire to secure rehabilitation; who would say, “Yes, we want to imprison people for long periods but we’ve no desire to rehabilitate them. We’d rather they came out of prison just as dangerous and violent as they were when they went in”? Of course we aspire to rehabilitate. Although it may have gone unsaid in some quarters, we all understand what a challenge that genuinely is for the prison population that we have, but we are concerned to try to achieve it.

If we extend the sentence, as this instrument proposes, it will take some pressure off the probation service, but I do not seek to overstate that. Reducing the period for which someone is on licence will take some degree of pressure off the service, but that is perhaps marginal.

The noble Lord, Lord Ramsbotham, talked about us now adding 2,000 prisoners to an overcrowded population. However, with respect, that is the impact on prison numbers by 2030; we will not see any immediate impact from this for four years. It is a gradual process, and we are in the position of already dealing with the question of prison numbers by reference to capacity and staff. Indeed, in August 2019 it was announced that we would expend some £2.5 billion in this area, and in 2020-21 we will expend somewhere in the region of £156 million on the existing prison estate. Those are considerable sums of money.

The noble and learned Lord, Lord Thomas of Cwmgiedd, raised the question of new Treasury money—I think I quote him correctly. I confess that that is more a matter for the alchemist than the Minister. New Treasury money is, again, one of those aspirations that every Minister may have, but securing it is very different from talking about it. But we are expending considerable sums on the prison estate and will continue to do so.

In passing, I recognise the importance of access to justice in all its forms, as we all do, but we must be proportionate in how we go about that. There are various demands on the public purse; we cannot just assume that we have unlimited funds available, even in legal aid, for example.

Of course, there are changes we can aspire to. Indeed, the noble Lord, Lord Hogan-Howe, talked about the introduction of further technology. I am sure that is an area where exploration would pay dividends over the 10-year period we are talking about, up to 2030.

These instruments are an important first step towards reforming sentencing and release measures for offenders, particularly those who cause the greatest harm to society. In these circumstances, we consider that they will ensure an improvement in the perception of how sentencing operates. Indeed, a noble Lord mentioned that some victims of crime have little idea of how the sentencing of a prisoner who has committed a violent crime actually works. It is important to bring greater transparency to that, while ensuring that when a violent prisoner, or a prisoner who has committed a violent offence, is released, they are still subject to a period when they receive the required support from the probation service, and are still under licence and can be returned to prison if they commit a further offence.

I commend the instrument to the House.

Motion agreed.