Counter-Terrorism and Sentencing Bill

Lord Stewart of Dirleton Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

Moved by

[Lord Stewart of Dirleton]

3: Clause 29, page 25, line 6, leave out from “is” to end of line 9 and insert—
“(a) a sentence of imprisonment imposed under section 205ZA of the 1995 Act (serious terrorism sentence),(b) a sentence of imprisonment imposed under section 205ZC of that Act (terrorism sentence with fixed licence period), or(c) an extended sentence imposed under section 210A of that Act in respect of a terrorism offence.”Member’s explanatory statement
This amendment expands the scope of new section 26ZA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 by making it applicable also in relation to a person who is serving an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 in respect of a terrorism offence.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, in order to ensure that terrorist offenders in Scotland serve the appropriate custodial period of sentences for terrorism offences when they are imposed consecutively to other sentences, we introduced several amendments in Committee. Following these changes, we are now making a series of minor, technical amendments to provide further clarification and to ensure that the legislation will operate as intended.

The amendments have a variety of complementary effects but, taken together, they ensure that new Section 1B, which was introduced in Committee, operates effectively within the Scottish jurisdiction. Given the complexity of the amendments, we have continued to consider their effect with the Scottish Government, resulting in these final amendments, which have been agreed by all parties.

Many of the amendments simply insert the relevant terminology into the new clauses and deliver consequential changes to ensure the smooth operation of Section 1B. The overall effect is to ensure that terrorist offenders in Scotland serve the appropriate custodial period when they are serving multiple sentences, including for non-terrorism offences, and that offenders who receive multiple sentences for terrorist offences—and therefore multiple licences—will serve only one, aggregated licence period.

I draw your Lordships’ attention specifically to Amendment 31, which ensures that the sentence calculation provided for in Section 1B will apply retrospectively. This will provide clarity in calculating release dates where sentences for both terrorism and non-terrorism offences are imposed, ensuring the effective application of the Terrorist Offenders (Restriction of Early Release) Act 2020 in all cases.

Should noble Lords wish to see an individual breakdown of these amendments and their effect, I would be happy to place in the Library a letter in terms similar to the one I issued following Committee to explain the purpose of each one. I beg to move.

[Lord Paddick (LD) [V]]

My Lords, as the noble and learned Lord has explained, most of these amendments are technical in nature. The first group relates to a person who is serving an extended sentence in respect of a terrorist offence.

Amendments 27 to the end of the group amend Schedule 13. As the noble and learned Lord has explained, in Scotland—unlike in the rest of the UK—multiple sentences being served concurrently or consecutively are amalgamated into one sentence with one release date. This is known as “single terming”. Part 7 of Schedule 13 disapplies single terming for individuals where one of the offences is a terrorism offence, to ensure that the provisions of the Bill apply correctly. The noble and learned Lord did not exactly say that, but that is what he meant.

I had two questions for the Minister. The noble and learned Lord has already answered the first—on Amendment 31. The second is about Amendment 43, which makes changes to Section 24 of the International Criminal Court (Scotland Act) 2001. Can the noble and learned Lord give the House some idea of the extent of this change? How many prisoners serving sentences in Scotland have been sentenced by the international court, and what is the effect of these changes on them?

I gratefully acknowledge the support of the noble Lord, Lord Thomas of Gresford, in advising me on these matters.

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for explaining these measures. It would probably be helpful for a similar letter to that provided in Committee to be placed in the Library of the House so that we can have a clear view about it.

We do not object to any of these amendments. They have a quite significant effect on a very small number of cases, because the consequence for people convicted of a serious offence and a serious terrorist offence is that they may stay in prison for years longer. But that is the policy decision and the consequence of the Bill, and I accept that.

I am slightly anxious that this has happened so late in the process and that what the Bill contains depends on when the music stops. The Bill was introduced in the Commons in May 2020. Ten months have gone by. There has been this quite massive change of effect on a few cases. Can the noble and learned Lord explain how that has happened? I was struck by the noble Lord, Lord Wolfson, saying to the noble Lord, Lord Carlile, that he was happy to continue discussions on the issues. This is good and nice, but the Bill has a cliff edge. I worry that it is very late in the day to make these sorts of changes but, as I said, we do not object to them.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to both noble Lords for their contributions to this very short debate. The noble Lord, Lord Paddick, asked about the number of prisoners affected by this in relation to the International Criminal Court. I do not have that information to hand, but I undertake to supply it to the noble Lord.

The noble and learned Lord, Lord Falconer of Thoroton, raised the lateness in the stage of proceedings at which this amendment has been tabled. I acknowledge the complexity of the statutes involved and the alertness of those in my office, the Advocate General’s office, and in the Scottish Government who are monitoring the position. There has been useful and effective collaboration between them. I will look into the matter raised by the noble and learned Lord and see whether I can provide any further detail as to why these points were identified only at this stage. If I can identify anything specific, beyond my general answer relating to the complexity of the relevant provisions, I will provide it to the noble and learned Lord in writing.

Amendment 3 agreed.

Moved by

[Lord Stewart of Dirleton]

4: Clause 29, page 25, line 10, after “Part” insert “, except sections 1AB, 1A and 1B,”
Member’s explanatory statement
This amendment excludes sections 1AB, 1A and 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 from the scope of new section 26ZA(3) of that Act.

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My final point relates to polygraph testing. I take the point the Government make that there is a very small cohort of terrorist offenders on which to base a statistical approach to the effectiveness of polygraph testing. I accept the point that they made in their recent letter that the comparison with the Domestic Abuse Bill is not appropriate because there are of course so many more domestic abuse offenders. Nevertheless, having said that, and having accepted the Government’s point, it may well be that polygraph testing can be calibrated and used and can have an impact on the way in which these types of offenders are treated. I would be interested to hear from the Minister about the way that the Government see polygraph testing being introduced to part of the process of reviewing this group of offenders. I will not be pressing my amendment to a vote.

[Lord Stewart of Dirleton (Con)]

My Lords, the amendments in this group would all require the Secretary of State to commission independent reviews into various aspects of the operation of the Bill and to lay the resulting reports before both Houses of Parliament. I welcome the considerable appetite for scrutiny of these measures and for the accumulation of data—the facts and statistics that the noble Baroness, Lady Jones of Moulsecoomb, sought. I acknowledge the appetite for review, to which the noble Lord, Lord Ponsonby of Shulbrede, referred. However, while I welcome these things, I must respectfully disagree that the amendments are necessary.

First, as acknowledged within the amendment of the noble Lord, Lord Marks of Henley-on-Thames, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whose remit covers this Bill. Indeed, he has announced his intention to conduct a review of matters within prisons, which we welcome. The benefit of an independent reviewer is that he will not be constrained by the specifications of government and can decide what is most appropriate for his consideration. We have every confidence that he will continue to provide valuable and independent scrutiny following the Bill’s enactment and through the prisons review that he will be undertaking. I remain of the view that there is no need to appoint another reviewer to focus on just some of the provisions of the Bill.

The amendments indicate some areas of particular concern, which I shall seek to address with greater specification. On Amendment 12, the noble Lord, Lord Marks of Henley-on-Thames, has noted a particular interest in the rehabilitation of terrorist offenders while in custody. As he told your Lordships’ House in relation to an earlier group of amendments, he and others, including the noble Lords, Lord Ponsonby of Shulbrede and Lord Carlile, attended the briefing held by officials in the Joint Extremism Unit. I have heard that at least some noble Lords found that a helpful exercise, and I hope others did as well. I understand from engagement, and from the contributions made from the Floor today, albeit electronically, that there was a healthy discussion and a recognition that there is no simple cure or metric for this matter; indeed, that was acknowledged in a contribution by the noble Lord, Lord Carlile of Berriew, on an earlier group of amendments.

It is very difficult to measure the effectiveness of intervention programmes in changing behaviour for any offenders but especially within such a small cohort. Efforts in our prison system to deradicalise and rehabilitate offenders in custody are ongoing, and techniques are developing constantly. However, while rehabilitation will remain central to the work undertaken with terrorist offenders in custody, that goes hand in hand with risk management.

The noble Lord, Lord Marks of Henley-on-Thames, has again raised the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate, and the use of separation centres to this end. The risk was identified that such persons might otherwise become kingpins, looked up to by other persons in the prison estate. We have a set of specialist operational controls for managing counterterrorism risk in custody, as well as a number of population-management controls available for use across the entire prison estate.

I assure the noble Lord and the House that most extremist prisoners can, and should, be managed in the mainstream prison population with appropriate conditions and controls. That having been said, we take the risk of radicalisation within the prison estate seriously and, where deemed necessary, we have used, and will use, the separation centres available to us to prevent persons spreading malicious ideology to other prisoners.

In bringing to a close my submissions on this amendment, I acknowledge on behalf of the Government the anxious and thoughtful concern expressed by the noble Lord and others, following a very constructive series of engagements.

Amendment 13 would require the Government to commission an independent review and publish a report into the use and operation of polygraph testing in the licence conditions of terrorist offenders. Today and, more importantly, in Committee, we discussed in some detail the matter of polygraph testing. As I am sure noble Lords now understand, it is not intended to be used as a stand-alone measure but as part of a package to provide a further source of information to test offenders’ compliance with their conditions of licence. It is not to be used as something to catch an offender out in breach.

That said, I recognise that the use of polygraph testing as a licence condition is a novel matter for the House, which is why the Government have committed to conducting and publishing a review of polygraph testing on terrorist offenders after a two-year period, which will provide more meaningful results and report on most of the criteria outlined by the terms of the amendment. I hope that that will satisfy the noble Baroness, Lady Hamwee, who dwelt specifically on this material in the course of her submission.

I will make one further point on this amendment. The terms have specified that the review may make recommendations on

“regulations, rules and codes of practice”.

Clear rules governing the use of polygraph examinations in a licence condition will be laid by statutory instrument. We currently anticipate that these will be those already in place for the use of polygraph testing in licence conditions for sex offenders, as set out in the Polygraph Rules 2009, which specify the qualifications expected for polygraph examiners, how a polygraph examination should be recorded and how those examinations will be reviewed.

Our review will of course inform whether these require amendment or tailoring in light of factors presented by the specific cohort, so I assure the noble Lord, Lord Paddick, who moved the amendment, and those noble Lords who spoke on it that our plans for the introduction of polygraph testing already account for this concern.

Amendment 24, in the name of the noble and learned Lord, Lord Falconer of Thoroton, would introduce a new clause requiring the Secretary of State to

“commission a review and publish a report”

into a number of measures, most of which are not directly addressed by provisions in the Bill, in the first year of it coming into force. While I recognise the desire to test for unintended consequences of the Bill, I politely disagree that a review on these terms and within this timeframe would be either necessary or add to what is already under way.

I want to set out briefly why, taking each part in turn. Proposed subsection (1)(a) would require a review into

“the effectiveness of current strategies to deal with lone terrorists”.

There is a great deal of work under way to target the terrorist threat, including that of lone terrorists. I point the noble and learned Lord to the Security Minister’s speech at the Royal United Services Institute in November 2020.

The Government’s response to the recent terrorist attacks has been comprehensive and informed by the Independent Reviewer of Terrorism Legislation’s analysis. The Government will shortly bring forward policing and crime legislation to implement a number of recommendations from Jonathan Hall QC’s independent review of the effectiveness of the Multi Agency Public Protection Arrangements—MAPPA—when it comes to the management of terrorism, matters connected with terrorism and offenders of terrorism concern within the community.

The Government recognise that independent analysis can be useful in terms of challenging existing practices and processes. That is why the noble Lord, Lord Anderson, QC, was asked to oversee the operational improvement reviews following the attacks in 2017. I submit that now is not the time for another review.

As part of the constant, ongoing review and improvement of our counterterrorism systems and processes, the CONTEST unit, based in the Home Office, undertook an internal review of lone-actor terrorism last summer, working with operational partners and departments from across government. The review’s findings are sensitive and will not be published, but they have been shared with Parliament’s Intelligence and Security Committee.

Proposed subsection (1)(b) refers to

“the effectiveness and availability of deradicalisation programmes in prisons”.

As I have said, it is difficult to measure their effectiveness, but the primary intervention, the Healthy Identity Intervention—HII—has been accredited by a panel of experts and is informed by the best available evidence. We have also conducted an evaluation of the HII pilot study to assess implementation and delivery. This is publicly available on GOV.UK, and a short-term outcome evaluation of the HII is under way. Although this has been delayed due to the impact of Covid-19, we are committed to publishing it once it has concluded.

We remain committed to keeping our interventions under review and developing the evidence base, which is what so many of your Lordships who have spoken on this matter have sought. As I have said, we will establish a new counterterrorism assessment and rehabilitation centre, which will not only help us to develop knowledge and evidence but will bolster our capacity to deliver interventions by recruiting more specialist psychologists and trained chaplains.

The Government plan to make an oral Statement that will explain more fully the important work to rehabilitate terrorist offenders in prison, including an overview of the new centre’s strategy and programme of work. I hope that noble Lords will agree that these demonstrate this Government’s commitment to transparency and sharing as much as we can.

On proposed new subsection (1)(c) in the amendment, in relation to the polygraph, as I mentioned earlier in this group, we will be conducting an evaluation of its use after two years. This will add to our evidence of its effectiveness and value, which has already been established through independent evaluation, and I submit that a further review is not needed.

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[Baroness Hamwee (LD) [V]]

My Lords, on that last point, I take it that the post-legislative scrutiny referred to is separate from the review of polygraph testing after three years, to which the Minister referred. On that, while I take his point about parliamentary scrutiny of regulations, codes of practice may not be statutory and therefore not subject to that sort of scrutiny. Might the Minister take back the suggestion that, following the very helpful sessions that the MoJ arranged during the course of the Bill on a number of matters, for which we were very grateful, Ministers might consider communicating with—and possibly even consulting—noble Lords in framing the review in three or so years’ time? I do not expect him to make a commitment now, but I would like to put that idea in his and his colleagues’ heads.

[Lord Stewart of Dirleton (Con)]

My Lords, I assure the noble Baroness that that suggestion has lodged in my skull and will have been noted by others, and we will come back to it in due course. On her specific question on whether the post-legislative scrutiny of the Bill is distinct from the review of polygraph testing, I am happy to confirm that that is the case.

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

My Lords, this has been a helpful debate as it has moved forward the process of keeping these new provisions under parliamentary scrutiny. I am very grateful, as I expect all noble Lords are, to the noble and learned Lord, Lord Stewart, for the comprehensive and careful way in which he set out the work of evaluation and research into the evidence concerning the treatment and punishment of terrorist offenders, and the arrangements for them within the prison estate.

The noble Baroness, Lady Jones of Moulsecoomb, expressed the need for constant review. She warned us of the possible dangers of long-term imprisonment and the risk of radicalisation. As well as making a number of points and raising questions about polygraphs, my noble friend Lady Hamwee stressed the distinction between the “talk tough” language of the Government and the more considered, balanced and careful language of officials and Ministers that we hear in private. My noble friend called it “nuanced”. I add that the careful and cautious language she spoke of is also the language of nearly all the professionals in the system to whom we speak, be they in the Prison Service, probation service, inspectorates or elsewhere.

The important point is that longer sentences, while they may be necessary, are neither the only answer nor a complete answer. The “talk tougher” approach, leapt upon with enthusiasm by the press, has struck many of us as having had too little consideration. In his response, the Minister demonstrated that he certainly is determined to take an evidence-based and cautious approach to the issues raised by the Bill, including polygraph testing.

I accept the Minister’s point that the inclusion of these amendments in the Bill is not essential to provide that the work, which he described to us in some detail, is consistently explained to parliamentarians in both Houses. The important point about reviews, which I invite him and others to bear in mind—though not to lodge in their skulls—is that reviews which report to Parliament enable noble Lords here and MPs in the other place to consider and weigh up the evidence as it becomes available.

The Minister was completely right that there is no simple cure, but it is an important part of the role of Parliament to consider the evidence as it develops. The Bill puts before us a set of new and radical measures of particular severity. They need to be kept under constant attention. On the basis that they will get that attention because of work done by the Government and promulgated to Parliament, I beg leave to withdraw my amendment.