Terrorist Offenders (Restriction of Early Release) Bill

Debate between Lord Keen of Elie and Viscount Hailsham

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

[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.

Streatham Incident

Debate between Lord Keen of Elie and Viscount Hailsham

Monday 3rd February 2020 Lords Chamber

[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.

Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration

Debate between Lord Keen of Elie and Viscount Hailsham

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I do not agree with the noble Lord, Lord Kerr, on the matter of alchemy. Nevertheless, I agree with much of what he had to say. These further agreements inject a greater element of urgency into the whole process that is to be carried on and underline that this process will be carried on in good faith. That being so, there remains the outlier risk that a solution will not be found by December 2020. We remain confident that it will be. But in the event that it is not, the backstop will continue for a period. Wherein lies the disaster?

[Viscount Hailsham (Con)]

Does my noble and learned friend agree that, if at the end of this week the House of Commons discusses a delay to the Brexit date, a short delay would be entirely useless? Does he agree that what is required is a substantial delay of the kind advocated by the noble Lords, Lord Kerr and Lord Hannay, or the noble Lord, Lord Armstrong yesterday? As existing members of the European Union, we could discuss and negotiate our future relations with the European Union either within or without. Does he agree that that does not necessarily involve Brexit or, necessarily, a further referendum? Indeed, it might involve a Government of national unity to negotiate.

Legal Aid, Sentencing and Punishment of Offenders Act 2012: Review

Debate between Lord Keen of Elie and Viscount Hailsham

Monday 12th November 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we are conscious of the importance of access to justice. I thank the noble Lord and those who sat with him on his commission for their contribution to the debate, but I will not anticipate the outcome of a review that will be published by the end of the year.

[Viscount Hailsham (Con)]

My Lords, I no longer practise at the criminal Bar, so I have no present interests to declare—but I know very many people who do, and I can tell my noble and learned friend that there is a real sense of crisis in the criminal Bar. Does my noble and learned friend accept that unless the Government urgently and fully address the anxieties expressed by the Criminal Bar Association—of which I was a member—and articulated fully in the book The Secret Barrister, there is a real danger that the independent criminal Bar will cease to exist, which would be a very great loss to the administration of justice in this country?

[Lord Keen of Elie]

My Lords, of course we have the highest regard for the independent criminal Bar and are concerned to ensure that it is sustained in a suitable way—but, again, I will not anticipate the outcome of the present review.

Privately Financed Prisons

Debate between Lord Keen of Elie and Viscount Hailsham

Wednesday 27th June 2018 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I welcome what my noble friend said about contracts. Will he ensure that contracts make explicit and enforceable provision for useful out-of-cell activities?

[Lord Keen of Elie]

My Lords, individual terms of contract make provision for appropriate facilities to be made available to those prisoners who are in private facilities. There is a system of management oversight by the Ministry with regard to the discharge of those obligations by private providers.

Worboys Case and the Parole Board

Debate between Lord Keen of Elie and Viscount Hailsham

Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

I note the observations of the noble Lord. Clearly, the role of the CPS in the conduct of the prosecution of Worboys is a matter of some concern. The CPS takes these decisions independently and clearly, that independence has to be respected. Worboys was the subject of an IPP sentence, albeit one that was liable to open the door to review before the Parole Board. I cannot give an undertaking at this time of any formal inquiry into the role of the CPS with regard to the original prosecution decisions that were taken, but I note what the noble Lord has said.

[Viscount Hailsham (Con)]

My Lords, I welcome what my noble and learned friend has said about the action that has been taken. With regard to enhancing the role of the Secretary of State at the meetings of the Parole Board, I suggest that in complex cases he gives consideration to using a special counsel, who might, after all, also be able to articulate the views of the victims. I remind him of the practice that was adopted when I was a very junior Minister in the Home Office reviewing the tariffs in life sentence cases, which was to obtain the up-to-date observations of the trial judge, if available—and, if I may say so, the Lord Chief Justice.

[Lord Keen of Elie]

I note the observations of my noble friend Lord Hailsham. Clearly, these considerations will be taken into account in the review process that is being carried out.

Prisons: Action Plans and Special Measures

Debate between Lord Keen of Elie and Viscount Hailsham

Wednesday 24th January 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the provision of healthcare within prisons is generally carried out by way of partnership between the prison and the health service. It is on that basis that it is continued. There are ongoing issues over the review of such partnerships.

[Viscount Hailsham (Con)]

My Lords, while endorsing the remarks made by the noble Lord, Lord Ramsbotham, may I suggest that the Ministry of Justice formulates its own action plan to address the continuing incarceration of prisoners held on IPP? Part of that action plan should include releasing those prisoners who have served their minimum term, unless there is some overarching concern about public safety.

[Lord Keen of Elie]

I am obliged to my noble friend. The matter of IPP prisoners is under consideration by the Ministry at the present time. It has of course been highlighted by the recent case of Worboys, which should not be seen, I would suggest, as an indication that we have dropped this matter. We are concerned with the issue of IPP prisoners.

Transparency of the Parole Board and Victim Support

Debate between Lord Keen of Elie and Viscount Hailsham

Tuesday 9th January 2018 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, when I was a junior Minister at the Home Office I had to deal with the release of patients from special hospitals and of life prisoners on tariffs. Does my noble and learned friend agree that risk can never be wholly excluded, and that the question the Parole Board has to determine is whether, given proper and appropriate safeguarding provisions, the risk is an acceptable one? Does he also agree that while the principle of transparency is an important one, prisoners have a right to a degree of privacy? There will be many issues—relating, for example, to their mental or physical health—that cannot be properly put into the public domain.

[Lord Keen of Elie]

I acknowledge the observations made by my noble friend, and they are well founded. The test applied to release by the Parole Board in the case of an IPP prisoner is particularly high and has to be overcome by the prisoner himself addressing the onus. The onus rests on the prisoner to satisfy the Parole Board. However, I entirely accept that we can never exclude risk in this context. These are individuals who have been responsible for violent, and very often violent and sexual, crimes. They do pose a risk. It is a question of determining whether their incarceration should be indefinite or whether society has reached a point where it can decide that the risk is so diminished that they can be safely allowed back out into the community. We in this country do not believe in indefinite imprisonment, nor have we ever done so.

On the question of transparency, I acknowledge that the individual prisoner will have certain basic human rights that have to be respected, but it is necessary for us to take a proportionate approach to that issue, remembering that there are also victims here, not just the perpetrator.

Data Protection Bill [HL]

Debate between Lord Keen of Elie and Viscount Hailsham

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I follow what the noble Lord, Lord Low, said, which is of considerable importance. In doing so, I address Amendment 55, which has not yet been spoken to by the noble Lord, Lord Stevenson. I have both an observation and suggestion to make and I would be very grateful if he could let me have his views on them.

I suggest to your Lordships that Amendment 55, as it stands, goes too far, in that it gives great power to the commissioner, who is in no way subject to parliamentary control. Given the nature of the powers to determine appropriate guidance and practice, that is undesirable, on the face of it. That said, I have considerable sympathy for the proposition that the commissioner should be involved in the formulation of policy and in identifying amendments to the list. One way to address that is as follows: under subsection (6) of the clause we are dealing with, the Secretary of State has a power to make regulations that amend the list, which is itself subject to affirmative procedure. If we were minded to do so, we could make it explicit that the power exercised by the Secretary of State under subsection (6) should be used after representations made to him or her by the commissioner, and furthermore that, in any event and at all times, the power to amend the regulation should be used after consultation with the commissioner. If we went down this road, it would enable the commissioner to play a proactive role in shaping a very important list; in any event, it would involve the commissioner in the policy-making process.

[Lord Keen of Elie]

It may have gone unnoticed in Committee, because we considered no fewer than 432 amendments, but I say this in the context of Amendment 55—to be spoken to by the noble Lord, Lord Stevenson—and in the light of observations made by the noble Viscount, Lord Hailsham: the then Amendment 181 amended Clause 169 to ensure that when regulations are made to amend the list of codes of practice, the Secretary of State must consult the Information Commissioner.

[Viscount Hailsham]

That is extremely helpful and I am grateful to hear it, but I do not think that it says that the commissioner can be proactive in the regulation. The point made by my noble and learned friend is that the Secretary of State must involve the commissioner in discussions but it does not make it explicit that the commissioner can be proactive by making suggestions to the amendment of the list. My suggestions are twofold and I would be grateful if the noble Lord, Lord Stevenson, would share his thoughts on the matter.

Criminal Justice: Interpretation and Translation Services

Debate between Lord Keen of Elie and Viscount Hailsham

Wednesday 29th November 2017 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, may I support the noble Baroness in her remarks? Does my noble and learned friend agree that the provision of honest and professional interpretation in criminal courts is absolutely central to the proper construction of many cases? Does he also agree that that applies to many civil cases as well, particularly family work and immigration? What public provision is now made for those classes of case, and if none, would he consider the position further?

[Lord Keen of Elie]

I agree with both the propositions advanced by my noble friend. We have no difficulty at present with the provision of interpretation services in respect of these matters.

Personal Injury Claims: Motor Vehicle Incidents

Debate between Lord Keen of Elie and Viscount Hailsham

Wednesday 1st March 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, there are two distinct issues to be addressed in this context. The reforms with regard to whiplash will, on the basis of completed impact assessments, result in very considerable savings in motor insurance premiums of the order of £1 billion. It is estimated by the industry that this will result in an average reduction in motor insurance premiums of about £40. The major operators within the motor insurance industry have undertaken to pass those savings on to the motorist, the consumer. However, the changes in the discount rate will inevitably impact on the cost of insurance, including motor insurance, and that will give rise to certain increases. One may offset the other, but I add that the Lord Chancellor indicated when announcing the change to the discount rate that this will be the subject of consideration and indeed a consultation, which is due to commence no later than Easter.

[Viscount Hailsham (Con)]

My Lords, I begin with a declaration of interest: I do not now practise as a personal injury lawyer but I have done in the past. Does my noble and learned friend recognise that the reduction in the Ogden tables to a discount rate of minus 0.75 will inflate the damages that are recoverable in personal injury cases to an extravagant and unconscionable extent, which is bound to inflate the numbers of fraudulent or unjustified personal injury cases in motor claims to the prejudice of all drivers? That being so, may I welcome the fact that these proposals are going to be looked at again, I hope constructively?

[Lord Keen of Elie]

My Lords, the way in which the discount rate is calculated will be examined with some degree of urgency. However, I do not accept that the discount rate will result in the inflation of the value of damages claims. It was designed originally to ensure that those claims would be properly calculated so that those who suffer life-changing injuries are properly compensated for the future.

Serious Disturbance at HM Prison Birmingham

Debate between Lord Keen of Elie and Viscount Hailsham

Monday 19th December 2016 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, while those who have been involved in the disturbances must clearly be punished appropriately, does my noble and learned friend accept that what has happened demonstrates the evils associated with overcrowding and the lack of purposeful activity? Does he agree that we must take urgent steps to reduce the prison population? In the short term, I suggest an urgent review of all the IPP prisoners who have served their tariff. I also suggest that he consider executive release for those short-term prisoners who have served a substantial part of their predicted period in custody.

[Lord Keen of Elie]

I am obliged to my noble friend. With regard to those serving IPP sentences, further considerable progress is being made. For the first time, during 2015, more than 500 IPP prisoners were released, compared with only 200 or 300 in previous years. In 2015-16, 38% of IPP oral hearings completed by the Parole Board resulted in a release decision. For the first time, the number of IPP prisoners has fallen below 4,000, and we are continuing to increase our efforts with regard to those prisoners. So far as the prison population is concerned, there are from time to time strains; there are from time to time pressures on prison capacity. However, as I have said, steps are already being taken in the form of the opening of new prison estate in the new year, which will relieve any such pressure. On sentencing policy, there are no further steps at this stage that I can comment on, but clearly we have in consideration the question of how the prison population is maintained. So far as work is concerned, increased efforts have been made to provide useful, constructive work for those within the prison estate, not only so that they can work during their period of sentence but so that they have an opportunity to move into work as they move through the gate of the prison at the end of their sentence. However, we must remember that something like half the prison population enter prison with unacceptable levels of numeracy and literacy. There are formidable challenges ahead. We are prepared to meet them—and intend to.

Orgreave: Inquiry

Debate between Lord Keen of Elie and Viscount Hailsham

Wednesday 13th July 2016 Lords Chamber

[Lord Keen of Elie]

My Lords, that will be a matter for the new Home Secretary.

[Viscount Hailsham (Con)]

My Lords, may I reinforce the caution shown by my noble and learned friend? While it may be the case that individual police officers were guilty of misconduct or overreaction, the primary responsibility for what happened rests on the leaders of the mining community, who brought very large numbers of people to the site and were prepared to use force and threats of force in order to implement policies that were as much political as industrial. Had they succeeded, that would have subverted the principles of democratic government.

[Lord Keen of Elie]

I think the factual circumstances of the incident at Orgreave are well known, and I would not seek to elaborate upon them.

Euro 2016: Fan Violence

Debate between Lord Keen of Elie and Viscount Hailsham

Tuesday 14th June 2016 Lords Chamber

[Lord Keen of Elie]

I compliment those fans on their musical harmony and passivity.

[Viscount Hailsham (Con)]

My Lords, would it not be desirable for the Russian Government to provide the kind of assistance to the French Government that the United Kingdom Government are providing? Will my noble and learned friend tell the House what steps we are taking to encourage that?

[Lord Keen of Elie]

I am not sure that at this stage the Government would wish to encourage the Russians to place police officers in France for the purposes of the championship.

Police: Armed Officers

Debate between Lord Keen of Elie and Viscount Hailsham

Wednesday 8th June 2016 Lords Chamber

[Lord Keen of Elie]

I concur with the observations of the noble Lord. The policy in this country has long been that the police should not generally be armed, so those authorised to carry firearms are entitled to consideration for the difficult tasks that they have to perform. Recently the Shaw report has been under consideration. It deals with the question of how we should respond in cases involving the use of firearms and similar weaponry. That report continues to be under consideration at present.

[Viscount Hailsham (Con)]

My Lords, has my noble and learned friend seen the suggestion in the press that the equipment with which our British armed police have been provided is not adequate to meet the threat from terrorism? Is he able to reassure the House by saying that that criticism either is unfounded or, if it is founded, is being addressed rather rapidly?

[Lord Keen of Elie]

Police equipment and firearms selection is a matter for the chief officers of the various regions, but they have access to expert advice from the Home Office Centre for Applied Science and Technology. In the light of that advice, they determine and assess the weapons that they require.