Counter-Terrorism and Sentencing Bill

Lord Thomas of Gresford Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

[Lord Naseby (Con) [V]]

My Lords, I have a very different view from the opponent of the clause standing part. The UK Government, regardless of who is in power, obviously recognise at this point in time that the fundamental dimensions of this Bill are about the safety of the United Kingdom against terrorism. Our problem is that we are still a very open nation.

Whether it is in Afghanistan, the Middle East or Asia, in all those parts of the world we take an active role in promoting democracy. We see it occasionally with refugees who come to this country. Genuine refugees are welcome, but hidden within the alleged genuine refugees are, too often, terrorists or quasi-terrorists. It is against that background that my noble friend on the Front Bench is rightly introducing this Bill in Committee. If people think I am exaggerating, I have had personal death threats from the IRA. I happened to represent Northampton South, which had an IRA cell in the early 70s. Colleagues may know that I have been deeply involved in Sri Lanka for 50 years, and I am sorry to report that some number of illegal entrants to our country were active members of the LTTE Tamil Tigers. So the challenge is there, and we need to recognise it.

I praise those in our party who have decided the time has come to look again at the sentencing of terrorism. The problem is made worse by the misunderstanding—whether it be genuine or otherwise—of the difference between human rights and the original European Convention on Human Rights, which, of course, was the basis of our Human Rights Act. That is fine, but it should not cover elements where a war took place. Again, I cite Sri Lanka, because that was a ghastly war between a democratically elected Government and a terrorist movement, proscribed by the United Kingdom Government in in its last few months in 2001. The law that looks after the rights in that context is international humanitarian law.

It may surprise colleagues to know that under the generosity of previous Governments, we in the UK allowed the number two man running the Tamil Tigers to have an office in Camden. Okay, he was a British citizen, but he was in charge throughout the period when I was involved, and his wife—an Australian lady, now, obviously, with joint British citizenship—was involved in recruiting child soldiers. We had these people living in our midst. I say to my noble friend on the Front Bench: well done in bringing the Bill forward. Clause 1, to me, is absolutely fundamental to it, and I wish it a safe and swift passage.

[Lord Thomas of Gresford (LD) [V]]

My Lords, it is a privilege, as always, to follow the noble Lord. I respect his point of view and the experiences he has had. I am sure he will appreciate we are concerned with the rule of law and preserving the reputation this country has for justice done in the proper way.

Terrorist activity is an aggravating factor in sentencing. Section 30 of the Counter-Terrorism Act 2008 enables courts to increase the sentence if it is established that the offence has a terrorist element. But the 2008 Act limited the use of this provision to the specific offences in Schedule 2, which were those most commonly connected with terrorist attacks or ancillary to them. The primary offences listed involved murder, manslaughter, violence to the person and explosives, nuclear, biological material and hijacking offences. The proposal in Clause 1 extends the offences that can be aggravated by a terrorist element to include any offence in the whole criminal calendar punishable with imprisonment for more than two years. This is an enormous widening of the provisions of the 2008 Act. The main feature of these provisions is that the issue of whether there is a terrorist element in an offence is not determined by a jury, notwithstanding the fact that these cases will inevitably be heard on indictment in the Crown Court.

The decision that there is a terrorist connection becomes part of the sentencing process, to be determined by the trial judge alone after conviction. Could the Minister explain the process the Government envisage? Would it be the equivalent of a Newton hearing, with a separate trial of the issue in which evidence is called and arguments heard on which the judge’s decision is based, or would the judge be entitled to come to a conclusion based on the evidence he has heard in the trial before the jury? It is an important decision. It is not just that his finding will add years of imprisonment to the individual defendant but, as my noble friend Lord Marks said a moment ago, it will trigger the terrorism notification requirements and the restrictions on early release contained in the Terrorist Offenders (Restriction of Early Release) Act 2020.

Surely, in the traditions of the criminal law of this country, a suspect believed to be involved in terrorist offences should be charged with those offences. It should be for the jury to decide whether there is sufficient evidence to sustain such charges. It cannot be right to charge the suspect with lesser offences and allow the judge to add the icing to the cake. There is no way in which this clause can be satisfactorily amended; consequently, the only thing to do is throw it out.

Let me give a pertinent example which everybody will understand after the events of last year. Suppose a jury finds a Whitehall protestor guilty of occasioning actual bodily harm to a rival protestor outside the gates of Downing Street, by punching him on the nose and stealing his flag. Under this clause, the judge could find proved, after the jury’s verdict, that the use of force to influence the UK Government and intimidate the public was for the purpose of advancing an ideological cause and therefore well within the definition of terrorism in the pursuit of, shall we say, exiting the European Union. Does the Minister—whom I welcome to his seat in the House of Lords—agree?

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

I join noble Lords in welcoming the noble Lord, Lord Wolfson of Tredegar, to his place in the House of Lords. I am sure he will make an enormous series of contributions to our debates on justice issues—not just criminal justice, but civil justice. He is very welcome.

This is a very important Bill. I think everyone in the House, certainly on this side, is very keen that the Government be given legitimate tools to fight terrorism as hard as possible. One legitimate tool must be the use of greater sentences, where appropriate, for people who commit terrorist offences. In principle, we on this side are not against the idea of expanding the circumstances in which an offence can be regarded as aggravated because of a terrorist connection, which is what Clause 1 does.

Also, in principle, I do not think it necessarily wrong for the judge to be given very substantial powers to make judgments on what the appropriate sentence may be. The most obvious example of this relates to murder, where the judge in effect has the power to determine whether the offender should be given a whole life sentence, which will obviously have huge ramifications for what happens to that defendant. Indeed, such a decision had to be made quite recently on the conspirator convicted in relation to the Manchester Arena bombings —he was given a whole-life sentence by Mr Justice Baker. That was a very significant occasion.

I am very keen to discover precisely what process the Government have in mind for how a decision will be made on what are more or less serious offences than the normal ones. What process is envisaged in which a judge can decide whether an offence is aggravated by terrorism in the sense envisaged by Clause 1? In principle, I think a fair process can be envisaged and it may not be wrong for the judge to decide that rather than the jury. However, I am very interested to hear what the Government have to say about it.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I will also speak to Amendments 3, 17, 18, 21, 22, 23, 24, 25, 26, 73, 74 and 75. I will also signal my intention to propose the removal of Clauses 33, 34 and 35.

Clause 33 was intended to provide explicit provision so that Scottish Ministers might impose a polygraph condition as a licence condition for specified released terrorist offenders. Clause 34 was intended to provide explicit provision so that the Northern Ireland Department of Justice might impose a polygraph condition as a licence condition for specified released terrorist offenders. Scotland does not currently have express provision for polygraph testing, but Scottish Ministers have broad powers to set licence conditions under Section 12(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Northern Ireland does not currently have express provision for polygraph testing, but the Department of Justice has broad powers to set licence conditions under Article 24 of the Criminal Justice (Northern Ireland) Order 2008 and Rule 3(2)(e) of the Criminal Justice (Sentencing) (Licence Conditions) (Northern Ireland) Rules 2009.

Through discussions on the legislative consent of the Scottish Parliament and the Northern Ireland Assembly on the provisions of the Bill, it became apparent that while this clause would enable a fully comparable UK-wide approach to polygraph testing on licence, pursuit of this provision in Scotland and Northern Ireland was not strictly necessary and could result in Scottish and Northern Irish Ministers withholding their consent for the Bill. The Government remain of the view that polygraph examinations are a useful additional tool in supporting the effective management of terrorist offenders, and we hope that the Scottish Parliament and the Northern Ireland Assembly will see the demonstrable benefits of its introduction in England and Wales.

This Government will continue to legislate on reserved matters but, as an expression of our respect for the existing powers of the Scottish Government and the Northern Ireland Assembly in relation to the setting of licence conditions, and as a demonstration of this Government’s reasonable approach to those discussions, we have now agreed to remove the provision on the clear understanding that, should this Scottish Parliament or Northern Ireland Assembly or a future one change its view on polygraph testing, it will be able to implement the measure without additional legislation being required.

Clause 35 was intended primarily to provide supplementary provisions to Clauses 33 and 34 that would restrict the circumstances in which the devolved Administrations could impose mandatory polygraph examinations as a licence condition for certain terrorist offenders. As a result of the removal of Clauses 33 and 34 from the Bill, Clause 35 is no longer needed. The clause was intended to ensure that regulations could be made to ensure that polygraph conditions were confined only to those offenders’ licences where it was necessary and proportionate to do so, to ensure standards for the examinations and that appropriate records and reports kept in relation to testing were consistent across the UK. Polygraph examinations are already carried out on sexual offenders in England and Wales. The conduct of those polygraph examinations is governed by rules made under Section 29(6) of the Offender Management Act 2007. Amendments 2, 3, 17, 18, 21 to 26 and 75 are consequential on the removal of Clauses 33 to 35.

Amendment 73 is necessary to ensure that the measures that permit introduction of polygraph testing in a licence condition for terrorist offenders in England and Wales are commenced two months after the Bill receives Royal Assent. Previously, when explicit provision was sought and set out for Scotland and Northern Ireland as well as for England and Wales, we had agreed that the provision should be commenced via regulation to allow sufficient time to develop the relevant infrastructure in those jurisdictions. As explicit provision is no longer made for those jurisdictions through this Bill, and polygraph testing is already used by the probation service for sex offenders in England and Wales, the same delay is not now required. As such, the usual commencement of two months after Royal Assent is appropriate. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I have many reservations about the value of polygraph tests. They rely on measuring several physiological processes—pulse rate, blood pressure, perspiration and so on, the changes that may take place in the course of questioning. However, the emotional and physiological responses recorded may arise from such factors as simple anxiety about being tested or fear of being judged deceptive, or a host of things—perhaps the state of one’s digestion after food. There is an inherent ambiguity in the physiological responses. The reluctance to use polygraph evidence is precisely because the response may mimic the response expected of a person seeking to deceive.

What is meant by “failing” the polygraph test? Failing the test means exhibiting a certain physiological response to a question. What is truth? The examiner cannot know whether that response means that the answer is a lie. However, there is no punishment for failing the test—whatever that means—or for exhibiting that response. That does not breach the terms of the offender’s licence. The individual will not be returned to prison. Alterations may, however, take place in the conditions of his licence, and those could be onerous.

The irony is that, in the course of questioning, the person being questioned may provide information truthfully that will have an adverse effect on him. He has not failed the test because his body does not react to his telling the truth, but he has provided information that may lead to his punishment. He has of course lost his right to silence, a right first developed in the late 17th century as a check to arbitrary rule. It has been regarded over centuries as fundamental to the fairness of the criminal law in this country and in the common-law countries all over the world.

Faced with the terrorist atrocities that we have seen in this country, the loss of the right to silence may seem a worthwhile price. Obviously that is not the immediate view in Scotland, nor in Northern Ireland. Let us face the dilemma: the proposals for England and Wales do not involve imprisonment for a lie but possible imprisonment for telling the truth or, since it is mandatory to answer the questions, even for remaining silent. Faced with legal and moral issues such as this, the drafters of the Domestic Abuse Bill, which is proceeding this week here also, as the Minister will know, decided that it was appropriate to proceed with a three-year pilot before finally rolling out the use of polygraphs generally in that field. Why is a different approach taken in this concurrent Bill?

It is interesting to note that the case studies in the MoJ memorandum on these proposals indicate that the information provided led to warrants being issued and physical evidence obtained in the offenders’ respective homes to contradict what they had said. However, there is no indication how often that has occurred or how many times such activity has proved nothing, and nothing has come of it. Will the Minister deal with that in his reply?

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

Like the noble Lord, Lord Thomas of Gresford, I too have considerable doubts about the reliability of polygraph material. This series of government amendments tabled by the noble Lord, Lord Wolfson of Tredegar, indicate some degree of shambles on the part of the Government. They are withdrawing the polygraph provisions for Scotland and Northern Ireland. Had they consulted the Scottish Government and the Northern Ireland Executive prior to the initial publication of the Bill, they would have seen what the Scottish Government and the Northern Ireland Executive had to say about them.

In the light of what was said by those two Governments, why did the UK Government introduce these provisions? It is plain from what the noble Lord, Lord Wolfson, is saying that the Scottish and Northern Irish Administrations do not want them. There is a reference to the various provisions that might allow them to introduce them as licence conditions. However, neither of the Administrations have indicated that they want these powers, so why on earth were they introduced in the first place and when was it that the UK Government decided to respect those views? If they did not consult those two Administrations before, why not?

Separate to that, on the use of polygraphs, what advice have the Government sought from police forces in England and Wales? To what extent would those police forces be confident about using polygraph testing?

Moving on, the effect of Amendment 73 would be that Clause 32, which sets out the conditions for polygraph testing for terrorist offenders in England and Wales, would come into force two months after Royal Assent rather than by regulations. Why have the Government reduced the degree of scrutiny available to the introduction of polygraphs by removing the need for regulations? Separately, what provisions are available in the Bill to stop the use of polygraphs if they prove to be ineffective?

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

My Lords, Clause 4 and my Amendments 4 and 5 concern the imposition of serious terrorism sentences of detention in a young offender institution for offenders aged 18 or over when the offence was committed and under 21 when convicted. A serious terrorism offence is defined in Clause 2 and that definition is carried into the Sentencing Code through new Schedule 17A. Part 1 of the new schedule lists a number of very serious terrorism offences, while Part 2 lists other broadly serious offences where the judge determines that there is a terrorism connection. On Part 2, I repeat the points I made earlier on Clause 1, although here they are applied with less force because the offences are, by and large, much more serious so the aggravation of the sentence is likely to be less severe.

The structure of the sentence for a serious terrorism offence for young offenders is defined, as it is for adults aged over 21, as the aggregate of a custodial term and an extension period during which the offender is to be subject to a licence. A serious terrorism sentence is to be imposed where there is a significant risk to the public of serious harm caused by the offender in future terrorism offences where the court does not impose a life sentence and where the multiple deaths condition as defined in the Bill is met, so these are indeed very serious offences. The term of the sentence is defined as a minimum custodial period of 14 years and an extension period of between seven and 25 years. There is a very limited exception to the requirement to impose a serious terrorism sentence on detention where there are exceptional circumstances that relate to the offence or to the offender which justify not imposing the sentence.

I accept entirely that these are very serious offences so the sentences are very serious indeed, but for young offenders aged 18 they are what might be called “no hope” sentences. A period of 14 years in prison in a young offender institution would take the young offender to the age of 32.

There may be many cases where such a sentence is justified, but there are—or may be—others where it is simply too great. Our Amendment 4 would provide for a minimum term of 10 years instead of 14 years, without affecting the judge’s discretion in an appropriate case to impose a custodial term of longer than 10 years if that would be the appropriate sentence for the offence under the general provision of the Sentencing Code. Amendment 4 is balanced by Amendment 5, which adjusts the minimum term on licence upwards from seven years to 10 years.

The rationale behind these amendments is that there is a wealth of evidence for a number of propositions. For younger people in particular, the effect of very long custodial terms is particularly destructive, depriving them of their chances of education and building productive lives. For young people in particular, even those convicted of terrorist offences, there is hope of rehabilitation, deradicalisation and using educational opportunities to help turn their lives around and give them chances to make worthwhile lives for themselves even at the end of a long custodial sentence. Young people in particular benefit from the help and support to be offered by the probation service and others to offenders released on licence, and may benefit to a greater extent than older offenders from both deradicalisation programmes and education—vocational and general—which they might undertake on licence to help them come to terms with the real world on their release after what is anyway a very long sentence.

I therefore suggest that it would be of advantage to society, and to us all, to rebalance the division of a serious terrorism sentence, so as to have a greater period on licence to follow a minimum period in custody, which, while still very long, would be somewhat less draconian than presently proposed, and would not affect the right of the judge to impose a longer sentence in an appropriate case. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I am always intrigued by the thought processes that must be brought into play in fixing a minimum sentence in a Bill. I would like the Minister to outline what consultation there has been concerning the minimum sentence of 14 years for a young offender between the ages of 18 and 21—a “no-hope sentence”, as my noble friend Lord Marks described it a moment ago, and I completely concur with everything that he said. I cannot imagine that it is a Minister who initially chooses the minimum number of years for imprisonment. Somebody in the Ministry of Justice must have drunk his cup of coffee and plumped for a figure to put in for the Minister to sign off on. I do not suppose he will ever have met a young offender—“Let’s just say 14 years sounds good.”

I want to contrast this with the role of a sentencing judge whose sentencing discretion is not bound by statute. The judge sitting in a serious case of terrorism would not be there if he had not had a lifetime of experience in the criminal courts, developing his instinct and his trained capacity to weigh the seriousness of one case against another. Other experienced practitioners and academics who have studied criminology have provided the judge with sentencing guidelines. They give him a guide to the accepted range and indicate what aggravating or mitigating factors he should have in mind. In addition, the judge will have the benefit of counsel’s submissions and a probation report from an experienced officer that will give him an insight into the background of the defendant. There may also be medical reports and, sometimes, witnesses prepared to speak up on the young man’s behalf.

This clause introduces an arbitrary minimum sentence as the guideline unless there are “exceptional circumstances”. There are no guidelines as to what those exceptional circumstances are: if the past is any guide, we will have to wait for the Court of Appeal to lay them down. The minimum sentence is chosen by a civil servant who, in all probability, has never been inside a court. So we get an arbitrary 14-year minimum sentence and an arbitrary seven years on licence. What is the evidence that this is the correct balance? Who said that? Why cannot a judge be left to do his job?

It seems to me that the only purpose of a minimum sentence is to make a single day’s headlines to the effect that the Government are being tough on crime, and specifically on terrorism. There is no question of looking at the individual who is before the court, and considering his future, his welfare, his rehabilitation or whatever. In putting forward this amendment, my noble friend is testing the rationale for the balance in the Bill, and I look forward to a full exposition from the Minister in due course.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the noble Lord, Lord Thomas of Gresford, concluded his remarks by saying that the amendment was “testing the rationale” of these sentences, and that is indeed clearly the case. The first amendment reduces the minimum term in custody and the second increases the period on licence. Both the noble Lords, Lord Thomas and Lord Marks, referred to these as “no-hope sentences”. I understand the sentiment they expressed on these extremely long and very serious sentences being given to children—but they are not really no-hope sentences, are they? YOT and, more likely, probation and the Prison Service will have been working with these people for many years to give them hope that, when they get out of prison and are on licence and, eventually, off licence, they can go on to lead a constructive life.

Now this is a very tall hurdle. I understand that; we are dealing with the most serious sentences that one can imagine. Nevertheless, that is the role of probation and it is very important, I would say, for the young person to see that there is hope at the end of the period, because it is far more likely that, if they see that hope, they will engage constructively with people in prison and carry on that constructive intervention when they leave on licence. So I have some questions for the Minister. What assessment has been done of the likelihood of reform of offenders—is there any data on that? Also, what is the number of young offenders now in custody who are likely to be in custody as a result of this legislation? Are there any examples of where longer custodial sentences have helped young people to go on to lead lives in which they no longer offend?

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We believe in judicial discretion, for all the reasons mentioned by my noble friend Lord Thomas of Gresford in relation to the previous group, and for all the reasons which we discussed in the previous short debate. We do not believe that Parliament or any Minister can foresee what circumstances might persuade a judge to exercise less severity in these very serious offences. However, I suggest that the use of the word “exceptional” introduces a straitjacket, and I make that suggestion on the authorities because the use of the word “exceptional” places the judge in the position of having to make a finding that the circumstances are exceptional: that is, that they are so far away from the norm as to justify a finding, effectively, of fact that they are an exception. Without such a finding, he cannot use any discretion. The lack of discretion, I suggest, can be inimical to the interests of justice, and for that reason I invite the Committee to agree ultimately to a different formulation and invite the Government to consider a formulation that allows just a bit more flexibility than the Bill as drafted permits. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

[Inaudible]—is in relation to the necessity for the judge at trial to have full discretion in passing sentence. I do not wish to repeat that, but I will add a particular comment. When a judge is faced with a provision such as this, he has to define those circumstances which influence him. He has to set out in his sentencing remarks precisely what factors influence him. Things have moved very considerably over the decades away from the swift disposal of a defendant by a judge with very little comment. What he says is important not just for the defendant to understand why he is being sentenced in that way but of course, if there should be any appeal on sentence, for the Court of Appeal to understand precisely what it was at the time that the judge had in mind. “Exceptional” circumstances is too great an imposition on the judge’s discretion and I believe that my noble friend’s proposal that it should be “significant” is right.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the noble Lords, Lord Marks and Lord Thomas, have explained their thinking behind the amendment to replace “exceptional” with “significant” to give more discretion to the judge. As the noble Lord, Lord Thomas, said, in any event a judge will explain the reason for finding exceptional or significant reasons for reducing a sentence.

My questions are for the Minister. What does he believe are exceptional circumstances, and what exceptional circumstances would justify a lesser sentence? In what circumstances would such lesser sentences be appropriate?

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[Lord Stewart of Dirleton (Con)]

My Lords, I shall speak also to Amendment 9 in this group. Both are minor technical amendments to Clause 23. Amendment 8 would make a minor amendment to Clause 23, which introduces the terrorism sentence with fixed licence period in Scotland. The amendment would add the sentence of detention without time limit to the “waterfall” list of sentences of imprisonment and detention that a court can impose in relation to an offence. This would ensure that the new terrorism sentence was available only where a court did not impose a sentence in this list, which includes the indeterminate sentence of detention under Section 208, making the order of sentencing options clear.

Amendment 9 would simply remove a now redundant reference to new Section 205ZC(6) in subsection (4) relating to the new terrorism sentence introduced in Clause 23 due to an amendment to that provision on Report in the Commons. Subsection (4) defines the meaning of the aggregate term in relation to a sentence of detention in respect of the new terrorism sentence in Scotland, as it applies to offenders of at least 16 years of age but under 21. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the Minister’s words brought to mind many waterfalls that I know and love in Scotland, but I will forgo the opportunity to comment on Scottish criminal law. I am sure that both these minor and technical amendments are perfectly justified and I have no more to say about them.

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

I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for the clarity with which he introduced these two technical amendments. Perhaps I may ask two questions. First, on Amendment 8, what would the implications have been had this amendment not been made? I was not clear from what he said whether it would change any position. Secondly, in relation to Amendment 9, how many further convictions would have been included without the decision to limit the availability of the new sentence to cases of conviction on indictment?

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

These are three simple amendments dealing with the sentencing framework for England, Scotland and Northern Ireland. The Bill as drafted removes the chance of parole for anybody, irrespective of their age, if they have committed a dangerous terrorist offence. As I have made clear, we on this side of the House are keen that there be strong penalties, because the aim is to prevent terrorism. However, we do not think it right that the possibility of parole be removed altogether for those people convicted when they are under the age of 21.

There are three reasons for that. First, the possibility of change must be higher when you are under 21. We are not starry-eyed about this, but that possibility should be there. Secondly, it will make prisoner management easier, as all prison governors attest. Thirdly, you avoid the possibility of the detention of someone over a very long period of time, and the sense that that person has served his sentence will create a recruiting sergeant in certain communities.

Each case has to be looked at on its merits; release would occur only when the Parole Board was satisfied. Occasions when mistakes have been made are all too well known and, indeed, have inspired this Bill. But if the aim is to provide as much security as possible for the community as a whole, then removing the chance of parole for anybody under 21—and it is only a chance of parole—is a mistake. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

The law has always distinguished between the adult and the young offender in many ways. Policy has always been to make every effort to rehabilitate the young before they become hardened criminals. It is even more important not to turn them into hardened terrorists.

“What works?” asked the noble and learned Lord, Lord Stewart of Dirleton—the Scottish wing of the strike force. A large incentive when persuading offenders to amend their ways is the fact that they have their chance, before the Parole Board, to have release if it is appropriate and safe.

The outcome of prison is the person who walks out of the gate at the end of the sentence. What has happened to him inside? Has he been radicalised or rehabilitated? Some go in with no particular ideology and are radicalised. Others go in radicalised and must be given the opportunity to change their lives. They should be managed with the personnel and tools described by the noble and learned Lord, Lord Stewart.

Young people can rehabilitate if they are given the courses and programmes that exist to enable them to gain skills to support themselves outside the prison environment. The longer the sentence, the more difficult that is. Prisoners convicted of terrorist offences provide a further problem. Have they retained the beliefs that got them into trouble in the first place? Or are they still radicalised? I was pleased to hear of the theological and ideological interventions that are promised to deal with problems such as those.

I support these amendments, because I believe we should continue that long-held view that young people should be treated differently and given a chance to turn their lives in a different direction.

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[Lord Naseby (Con) [V]]

My Lords, the Bill makes a welcome change to the sentencing, release and monitoring of terrorism offenders by toughening up the law. This is a time of higher risk—something that has not been referred to by our noble friends the lawyers. I am no lawyer, but I study the Middle East and south Asia in some depth, and I have lived abroad for a number of years. I have very good contacts in those parts of the world and, in my judgment, the risk of terrorism at this time is higher than we have ever experienced.

I might say as a side issue that I get concerned when organisations such as Human Rights Watch, Amnesty International and others call vociferously for the deletion of Clauses 37, 38 and 40. I am, frankly, not impressed by their objectivity. I wish I could be, but they and others I could mention, such as Freedom from Torture, do not in my experience bring objectivity to these types of cases. I contrast that with the work of the International Committee of the Red Cross, the ICRC—although it is not involved in these cases on the whole—and Médecins Sans Frontières, both of which are involved in issues relating to torture, and they are very objective in their assessments.

It is objectivity that one wants. The British public has to understand and be convinced that any change that is made will help to deal with terrorism. I think, on having looked at the Bill, that Clause 27 is right. It is all very well for noble Lords to say that the numbers who abscond or the cases where people are released early are small, but the number of people who were killed in Manchester was not small. In most places where there is terrorist activity, the numbers are not small. I see my role in the upper House as being one where I look after the British public. It is not a risk assessment. The only risk is that someone will reoffend. When facing the challenge of that situation, I do not think that we can suggest to the British public that some of these men and women who have carried out heinous crimes should be released early on an objective risk assessment.

I make one other point. As it happens, I am doing a bit of work on national service, something which older Members of your Lordships’ House may well have done in the Army, the Royal Navy or the Royal Air Force. In my case, I was a pilot in the air force. I think of myself at the age of 21. We were all 18 years old when we did our national service. We were young men who were risking our lives and we were ready to fight; many lost their lives. I wonder whether 21 is too high an age; I personally would drop it to 18, which was the age at which you had to do your national service. However, that goes rather wider than what we are considering here.

As far as I am concerned, the Government are taking absolutely the right road. We have to toughen up on sentencing and we have to toughen up on early release and the monitoring of offenders because the risks at this point in time are very real.

[Lord Thomas of Gresford (LD) (V)]

My Lords, by coincidence I am once again following the noble Lord, Lord Naseby. I would remind him that there have been high-risk periods before. His words reminded me of the Brighton bomb case, in which I took a part. The person I represented had been involved in a bombing campaign that covered some 28 seaside resorts, and the Brighton bomb case was the final one. When I look at Clause 31, I reflect on that case, because that clause, like the other clauses we are dealing with, is the one which says that there should be no parole for terrorism offences committed in Northern Ireland. In the Brighton bomb case, those who were convicted and sent to prison within weeks of the Belfast agreement were returned to Northern Ireland to serve out their sentences there—and within a very short time they were released. We have faced problems like this before.

The benefits of a two-thirds release system have been outlined by previous speakers: they encourage people to behave while in prison and to engage in deradicalisation and rehabilitation courses. That is done to persuade the Parole Board that the individual is safe to be released—to advance by hope and decrease hopelessness, as my noble friend Lord Marks put it. The Parole Board ought to have a role in this, and I was impressed by the views expressed by the noble and learned Lord, Lord Falconer, that perhaps the Parole Board should at least have a role in advising on the conditions of release as opposed to the governor taking on the role, as is being proposed.

There are dangers in automatic release at the end of a sentence. No doubt the full sentence has been completed, but the automatic release at the end of that time without any Parole Board involvement is a danger, as my noble friend Lord Marks and the noble Baroness, Lady Prashar, have argued. I do not think that the solutions that have been developed and put into the Bill are necessarily the right ones, so I support my noble friend in his attempt to have these clauses removed.

[Lord Ponsonby of Shulbrede (Lab) (V)]

My Lords, we have had interesting debates on both this and the previous group. In closing the previous group, the Minister said that the proposed lack of involvement of the probation service in this particular group of prisoners was a consequence of the sentencing structure and was not a reflection on the Parole Board itself. I understand the point he has made, but what has been said repeatedly on both groups is that there is expertise in the Parole Board. My noble and learned friend Lord Falconer asked whether there were two elements here. One is the possibility of early release, while the second is a point raised again just now by the noble Lord, Lord Thomas, about the conditions of release for a prisoner who has served their whole term. I do not understand why that level of expertise should not be accessed when considering these types of prisoners.

I shall make a couple of other brief points which are different from those which have been made by other noble Lords. They arise from briefings that I have had from the trade unions. The Prison Officers’ Association believes that removing hope from prisoners puts its staff at risk. It is a point that the association makes repeatedly and is an important one to feed into this debate. The second point has been made by the National Association of Probation Officers—that is that the workload of probation staff working on the ground in prisons is so high that they are not managing to deliver to their required standards. They are being allocated around 70 prisoners each. I understand that the Minister has talked about these various programmes, and I know that we are talking about a very extreme group of prisoners. Nevertheless there is the practical working position of prison officers, probation staff and others in prisons to consider in trying to make these institutions work and to reduce recidivism when prisoners are released.

Even so, both the group of amendments we are speaking to now and the previous group illustrate the potential for changing the Bill to bring the Parole Board back in. That would reduce the potential risk to the public.