Lord Wolfson of Tredegar debates involving the Scotland Office during the 2019 Parliament

Thu 10th Feb 2022
Wed 3rd Mar 2021
We support all the amendments in this group, but we hope that they will not be necessary because we hope that Clauses 57 and 58 will no longer be part of the Bill by the end of Report in this House. I was wondering why the noble Baroness, Lady Williams of Trafford, the Home Office Minister, was not in her place today to deal with these issues. I would like to think that it is because she could not face standing up and supporting these parts of the Bill.
Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, I thank all noble Lords for their contributions to this debate. I have listened to all of them with care. With respect to everyone else, I say that I always listen with care to the noble Lord, Lord Cashman, in particular, as I think he will appreciate from our exchanges on other matters. I got the impression that voices in support of the Government were a little thin on the ground on this matter, but I can assure the noble Lord, Lord Paddick, that my noble friend Lady Williams of Trafford is not doing these amendments not out of any personal reluctance; it was decided some weeks ago that my assistance on the Bill would include this group, and that is why I am doing it. It is fair to say that she has gone above and beyond on the Bill and others.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, just on that point, I was clearly not suggesting that the noble Baroness, Lady Williams of Trafford, did not deserve a break from her duties; she has been committed to this throughout. I said that I hoped that these parts of the Bill might be the reason, but I was obviously implying that they clearly were not.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I think it might be best if we just moved on from that because, respectfully, I am not sure that it was a particularly good comment in the first place.

The measures in the Bill build on the landmark—it really was landmark—legislation brought in by the future Prime Minister, Theresa May, in 2015. On this occasion, I am very happy to acknowledge that it was brought in by the coalition Government; it was a joint effort. Notwithstanding that I am not a Home Office Minister, as the noble and learned Baroness, Lady Butler-Sloss, reminded me on a number of occasions, I can say that the Home Secretary is committed to bringing forward further legislation in the area of modern slavery as a priority, to ensure an efficient and resilient system in tackling modern slavery. That department, which is obviously not mine, will look to introduce those measures when parliamentary time allows.

Lord Alton of Liverpool Portrait Lord Alton of Liverpool (CB)
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In that case, why do we not wait for that legislation and do it comprehensively, rather than put into law things to which there is so much opposition? Does the Minister also accept that, in 2015, a number of really positive changes were made to that Act in your Lordships’ House because the Government chose to listen?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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There were two questions there. Why now? I was going to come to that, because that is a point that the noble Lord made earlier. As to listening to your Lordships’ House, the Government always listen to what goes on in this House. They always listen but they may not always agree.

The noble Baroness, Lady Meacher, I think with some sympathy, referred to me as the “poor Minister” responsible for responding. I am poor in the sense that you do not take this job for the money, I can say that. I also cannot promise the meeting with the Home Secretary. What I can promise is that I will pass on what the noble Baroness said to the relevant people in the home department.

We have heard a number of arguments for removing Clauses 57 and 58 from the Bill. I will deal with those first, because I think that is really the head-on charge that has been put to me. I suggest that these clauses are important provisions to encourage disclosure of information at the earliest stage so we can identify victims and provide them with direct support as early as possible. The noble Lord, Lord Coaker, moving the amendment, asked why the provisions were necessary and quoted the former Prime Minister asking why artificial deadlines were required. The right reverend Prelate the Bishop of Bristol suggested that the clauses would stop people coming forward. Far from deterring victims, these clauses are intended to encourage genuine victims to come forward and get protection and support on the earliest possible occasion.

Baroness Butler-Sloss Portrait Baroness Butler-Sloss (CB)
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I am sorry to interrupt the Minister, but how does he see what he is saying as compatible with the statutory guidance issued only this month?

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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Of course we have considered the statutory guidance, not least because it comes from the Home Department and was issued this month. With great respect, we do think they are compatible. We do not see any contradiction between the aims of the statutory guidance under the 2015 Act and what we are proposing here. As to who will be served with a notice, individuals who will be served with a slavery and trafficking information notice are those who have previously made a human rights or protection claim in respect of removal or refusal of entry. They are therefore potentially subject to removal action.

The noble Lords, Lord Coaker and Lord Alton, asked: why are we doing this? I think that was then refined to: why are we doing this now? That is pretty simple to state. As I have said, we want to identify genuine victims of modern slavery or trafficking within this group as quickly as possible so that they receive both protection from removal and access to the support given during the recovery period.

This may not be the best form of providing statistics, but the number of those detained in the UK following immigration offences in 2020 was obviously affected by the pandemic. However, even prior to this there was a clear rise in the number of referrals to the national referral mechanism, from 3%—501—in 2017 to 16%—1,767—in 2019. In 2019, only a small proportion, about 1%, of individuals detained in the UK following an immigration offence who made a national referral mechanism referral were returned. We published a report last year providing data on some of the concerns we are seeking to address through the Bill and outlining pressures in the system and where referrals of modern slavery are coming from. The reports are available on the government website but, to make it simpler, I will write to the noble Lords, Lord Coaker and Lord Alton, with a copy available, with the URL so they can find the relevant material.

I suggest it is right that we reduce the opportunities to misuse the system for immigration purposes and improve the efficiency of the processes, targeting resources where they are most needed to help victims recover from exploitation and rebuild their lives. We want to address concerns that some referrals are being made intentionally late in the process, to frustrate immigration action and divert resources away from legitimate claimants. It is not right that foreign criminals subject to deportation and those who have absolutely no right to remain in the UK can seek to delay their removal by waiting until the very last minute before raising new claims or putting in endless evidence or information relating to their status in the UK. So what Clauses 57 and 58 seek to do is on the one hand ensure that vulnerable victims receive appropriate and timely support, and on the other hand enable investigative and enforcement activities to take place with reasonable dispatch.

I should point out—this did not feature too much in the debate—that Clauses 57 and 58 are underpinned by access to legal advice, under Clauses 65 and 66, to help individuals understand whether they are a potential victim of modern slavery or human trafficking, and to support a referral into the national referral mechanism if that is the case. As I have said before, a constant theme, particularly in modern slavery measures within the Bill, is that decisions are made on a case-by-case basis, taking a needs-based approach. Therefore, turning to Amendments 151D, 152 and 155, it would be wrong in principle to create a carve-out for any one group of individuals, and to create a two-tiered system based either on age or the type of exploitation claimed. I am sure that this is not the intention of those moving the amendments, but, in the real world, which at some point we must think about, it could incentivise individuals to provide falsified information regarding their age or to put forward falsified referrals regarding timings or type of exploitation to delay removal action.

It was interesting, in the course of what was, with respect, a very forceful speech supporting his amendment, that the noble Lord, Lord Coaker, referred to 12 or 13 year-olds and not, for example, to a 17 and a half year-old. When it comes to children, if we define children as all under-18s, the approach that we want to take is to ensure that decision-makers have the flexibility to approach the claims of all children of different ages and maturities appropriately, and therefore I suggest that a blanket approach is inappropriate.

By introducing a statutory requirement to provide information before a specified date—we are not talking about neat files here—we hope to identify those victims at the earliest opportunity. Clauses 57 and 58 have safeguards built in, and I assure in particular the noble and learned Baroness, Lady Butler-Sloss, that, when considering the “reasonable grounds” decision, the decision-makers in the SCA are already well experienced in taking into account the specific vulnerabilities of children. I also point out to the Committee something that the noble and learned Baroness will know but other noble Lords may have forgotten: namely, that at the “reasonable grounds” stage the threshold is lower for children due to there being no requirement to show means of exploitation. That position will not change.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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I have been biting my tongue, but the Minister talked about the real world, and I do not think that this Government have any concept of what exists in the real world. The Minister has heard examples from the real world, given by noble Lords who understand what is going on. It is not appropriate for the Minister to talk about the real world when he is denying the stories that he has heard today.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I am not denying any stories. I set out statistics earlier on which were absolutely from the real world, and that is the issue that we are dealing with.

Lord Paddick Portrait Lord Paddick (LD)
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My Lords, I apologise for interrupting, but the Minister has cited the statistics that he quoted earlier in answer to the question of why the Government were doing this. He talked about the number of referrals going from 3% to 16%. There could be three explanations for that increase: a rise in modern slavery; more cases being reported, even if modern slavery is not going up; or an increase in misuse. Bearing in mind that the majority of referrals to the national referral mechanism are made by the Home Office, and bearing in mind what he said about very few of the people who are referred being returned— I did not quite get the percentage—it sounds like the majority of those cases are not misuse. What we need are not the statistics that the Minister is relying on but the statistics on how many cases of misuse there are.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I have already said that I will write. I will copy everybody in, particularly the noble Lord, Lord Paddick, with the relevant data. We can have an interesting discussion about potential explanations for it, but what it shows is that there is a significant increase. The question I was seeking to meet was: why do something now, why not wait until a future Bill? The short answer is that we have a manifesto commitment to deal with immigration and asylum issues. It is right that we address all issues at this stage, but, as I have underlined, this is not the Government’s last word on modern slavery. Now I really want to make some progress or we will be here until 3 am again.

Lord Paddick Portrait Lord Paddick (LD)
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Does the noble Lord not accept that 24% of modern slavery cases are UK nationals and have nothing to do with what the Conservative Party put in its manifesto?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am certainly willing to accept that a significant number of modern slavery victims are UK nationals. I do not know whether it is 24%, off the top of my head, but I am willing to have a look at that and come back to the noble Lord. I want to make some progress now, because I think we are going round the same points again and again.

Coming back to the noble and learned Baroness, Lady Butler-Sloss, all child potential victims of modern slavery in England and Wales will be provided with an independent child trafficking guardian to support them in navigating the immigration and national referral mechanism systems. Decision-makers are obviously trained in making those decisions, and the particular needs of children are an important part of that. In fact, I hope what I have just said responds also to some of the points made by the right reverend Prelate the Bishop of Bristol.

Moving to Amendment 153, as the noble Lords, Lord Cashman and Lord Paddick, also recognised, we understand that there will be cases where individuals are unable to comply with a deadline. There might be objective reasons, such as being under coercive control of an exploiter, or subjective ones, such as trauma, mental health issues or mental capacity, which can affect somebody’s ability to recall events. The clauses as drafted provide for this. As I have said on previous groups, we will set out in guidance the details of this approach, giving decision-makers the tools to recognise the effects of exploitation and trauma.

Where a person has raised evidence late, I suggest that it is right that decision-makers consider whether there is any merit in the reasons for that lateness. Credibility is not necessarily determinative of the case, should other factors indicate that the individual is a victim or potential victim of modern slavery. Amendment 154 asks what will be defined as a “good reason” for late disclosure. That has deliberately not been defined in the Bill, as setting out a list reduces flexibility. Decision-makers will be able to consider all relevant factors, which may include everything set out in the list in this amendment.

Clause 58 is underpinned by the provision of legal aid, as I have said. Amendment 172A would provide non-means-tested legal advice on all immigration matters to individuals who might not be victims of modern slavery. This amendment is a wide expansion of the legal aid scheme which is entirely uncosted and ignores the Government’s responsibility to use taxpayer funding wisely, in a way that obtains value for money. Such a wholesale expansion of the legal aid scheme would allow anyone claiming that they are a victim of modern slavery, but who might not be, to receive immigration advice with no financial eligibility checks in place. Legal aid for immigration matters is already available for victims of modern slavery who have a positive decision from the national referral mechanism, and the Bill does not change this. This includes ongoing support from the mechanism if required by the victim. Of course, the exceptional case funding scheme is available on top of that.

The intention of Clauses 65 and 66 is to bring advice on the national referral mechanism into scope from the outset. This builds on what is already available by helping unidentified victims who are within the immigration system to enter the mechanism. Without Clause 66, we will miss the opportunity to identify potential victims when they are receiving legal aid on their removal case.

I have two further short points. I listened very carefully to my noble friend Lord Henley, a member of the Joint Committee on Human Rights. Indeed, I appeared before that committee I think only last week. I have read the report carefully. It is on the Bench with me—it is a thumbed copy, not just a copy from the Royal Gallery. I hope I have set out the reasons for the Government’s approach, even if I apprehend that I may not have convinced him of their correctness.

Finally, I will ensure that the point raised by the noble Baroness, Lady Jones of Moulsecoomb, is passed on. My understanding—and I am newer here than she is—is that a decision on whether and when to repeat an Urgent Question taken in the Commons is for the usual channels. Even if I were a Home Office Minister, and I am not, I could not help on that further.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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I am impressed by the Minister’s argument that the intention is benevolent, but how does he square that with the opening point of the powerful speech of the noble and learned Baroness, Lady Butler-Sloss: that the whole voluntary sector is convinced that this is damaging and unhelpful? As for his criticism that Amendment 154 would limit flexibility, could he reread the amendment and note that the opening line includes the phrase

“include, but are not limited to”

in respect of the list of reasons? In other words, it deliberately retains flexibility.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I hope the noble Lord will forgive me if I reply to his points in reverse order. On the second, of course I appreciate that it is a non-exhaustive list. The point I was making is that even a non-exhaustive list is more prescriptive, when it comes to court, than absolute discretion. When you are arguing a case, even if the statute says A, B, C, D, E on a non-exhaustive basis, you are in greater trouble coming along with F, than if the discretion is free-standing. That is the point I was seeking to make.

Of course, my colleagues in the Home Office engage carefully with the commissioner and other entities in the voluntary sector. Ultimately, it is for the Government to decide what legislation to bring before the House.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, I want to deal with Urgent Questions again, because the Minister answered a different question from mine. I asked why it was advertised so late. He may not know this, but the Greens are excluded from the usual channels, so we would have no way of knowing.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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At this point, all I can do is pass that on, and I will.

Lord Paddick Portrait Lord Paddick (LD)
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On Amendment 172A, I think the Minister said that victims of modern slavery already have access to legal advice, once the national referral mechanism has made an initial decision. If he looks at that amendment carefully, he will see it is entitled “pre-national referral mechanism advice”.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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The noble Lord is absolutely right, which is why I was making the point about it being a fundamental extension of the legal aid system, which is uncosted.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I thank everyone who has contributed to this incredibly important debate. It lasted just over an hour, so I will be brief to allow us to move on; otherwise, we could have a huge debate again in me responding to the Minister. I am sure many of the same points will, quite rightly, come up in the other groups. I hope noble Lords understand and accept that.

I will reiterate the point made by the noble and learned Baroness, Lady Butler-Sloss, and referred to by the noble Lord, Lord Kerr. It is interesting to note that, when a Government are in trouble, they defend themselves against everybody. You know when a Government are in difficulty because they resort to exactly the sort of defence—quite rightly; I have done it myself—that the Minister resorted to: “If only you understood the statistics and appreciated the difficulties”. That officialdom then rains on everything. When everybody else thinks you are wrong, you usually are. I gently suggest to the Government that they have got this wrong.

I am pleased the Minister was honest about this and I thank him for his response. It is clear the Government think the system is being abused and that people are claiming to be victims of modern slavery, either straightaway or late in the day. The Government are determined to shut down this loophole in the system. That is what is going on and it is why the danger that all of us raised about including modern slavery in an immigration Bill or the Nationality and Borders Bill—whatever you want to call it—sets a context that is difficult for modern slavery, to put it mildly.

All that I would say to the Minister is that even if the Government are right in saying that there is a problem here, by trying to deal with the issue as an immigration offence, which is essentially what they are doing, they are driving a coach and horses through the principles of the Modern Slavery Act. That is why people are so upset about it, so disappointed about it, so angry about it and so frustrated about it. They accept that the Government have to deal with immigration and that there are difficulties but this country has been proud of the way in which we deal with victims of modern slavery. Treating them, as they will be, as potential immigration offenders will change the dynamic. There are victims who we do not know and have no idea who they are. Children, whether they are 17 and a half or 13 are going to be impacted. As a consequence of what the Government are doing, innocent victims are going to be penalised in the name of tackling the problem of immigration. That is why people are so disappointed.

In conclusion, I say to the Minister that it must come to something when large numbers of the governing party as well as all the other parties that make up this House, including organisations of all faiths, are arraigned against this measure, along with all the voluntary sector, including the Government’s own voluntary organisation, the Salvation Army. I should have thought that that would have given the Government pause for thinking that maybe they have not got this quite right. Let us hope that between now and Report that they do so, otherwise I can foresee real problems on Report with respect to the clause and the other clauses in Part 5. I beg leave to withdraw the amendment.

Counter-Terrorism and Sentencing Bill

Lord Wolfson of Tredegar Excerpts
I am therefore sympathetic to this amendment, though I heard the noble Lord, Lord Carlile, say that he would not press it to a vote. However, the part of the argument that I have not heard from the Minister is why the alternative provisions would do a better job than the Parole Board, which is well understood by the wider judicial community as well as prisoners themselves. The outcomes of those existing processes would be justiciable and perceived as fairer, but I will listen with interest to what the Minister has to say.
Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, I understand that the intent of this amendment, tabled by the noble Lord, Lord Carlile of Berriew, is to do two things: first, to introduce a role for the Parole Board where, otherwise, the changes in the Bill would make its role superfluous; and, secondly and at the same time, not to reintroduce eligibility for early discretionary release for this cohort.

I will begin by outlining briefly the effect of the amendment in a little more detail. It would replace Clause 27, which restricts early release for offenders convicted of a serious terrorism offence—that is, those listed in Schedule 2 to the Bill—who receive an extended determinate sentence, or EDS, or a new serious terrorism sentence so that they instead serve the full custodial term of their sentence. In its place, the amendment would insert a provision that would change the release provision for all terrorist offenders sentenced to an EDS. Further, and while I understand that this may not be the noble Lord’s intent, this amendment would also apply to those currently serving an EDS for a terrorist offence.

The replacement release provision in the noble Lord’s amendment would continue to restrict early release, but there is an important difference. At the end of the custodial term, the scheme set out in the amendment would instead refer the offender to the Parole Board. The Parole Board would then determine whether the offender represents a grave risk to the public and whether it is necessary for the protection of the public that the offender continues to be imprisoned. Under the scheme in the amendment, this consideration would continue annually until release was granted, or to the end of the extended licence period, when the offender would then be released, unconditionally, into the community. The effect would therefore be that, if release were not granted until the end of the extended licence period, there would be a cliff edge and the offender would at that point be released unconditionally into the community. There would be no period of supervision and reintegration. For the reasons set out by the noble Lord, Lord Marks of Henley-on-Thames, that is a matter of concern.

I have carefully considered the proposed changes, especially as they arise from an amendment from the noble Lord, Lord Carlile. I hope I may be permitted to say that contributions from him on this subject always merit the most careful consideration, and I can assure both him and the House that I have done so in this case. None the less, having undertaken that careful consideration, I must set out the Government’s view that the changes to the release provisions for the EDS, as set out in the amendment, would be contrary to safeguards set out in the European Convention on Human Rights and its case law governing sentencing and release. That case law is usefully summarised in a recent decision of the Supreme Court of this country in Brown v Parole Board for Scotland—we seem to be referring to Scottish cases everywhere today. It is reported at [2017] UKSC 69, in particular the discussions between paragraphs 49 and 55. While every decision of the Supreme Court is obviously a decision of a strong court, that court, for which the noble and learned Lord, Lord Reed, spoke, contained three former and current Presidents of the Supreme Court.

The reason the proposal would be contrary to the case law is that the EDS comprises two distinct parts. The first is a punitive component—namely, the custodial term—imposed for the length a judge considers commensurate with the seriousness of the offending. The second is a separate preventive element—namely, the extended licence—imposed to protect the public from the danger posed by other, future, yet to be determined serious offending. To that extent, we agree with the noble Lord, Lord Carlile, who was right to draw attention to the question of serious risk to the public. That is what the second part of the EDS does.

If the Government were to detain EDS prisoners into their extended licence period for reasons related to their initial offending, that detention would be contrary to the nature and intended purpose of the community supervision component of the sentence, and contrary to the court’s order imposing the EDS. As the noble and learned Lord, Lord Reed, for the Supreme Court, put it in the Brown case,

“the purpose of detention during the extension period is materially different from that of a determinate sentence.”

The noble Lord, Lord Carlile, acknowledged that this amendment would require further development, either in the form of a new sentence or by further alteration to the existing EDS regime. I am grateful for that acceptance. However, I must state that the Government would not support such a proposal, because there is no need for such a new sentence. The EDS and the new serious terrorism sentence are deliberately structured to do two things: to provide punishment and, separately, to aid public protection and reintegration through the licence period. We have no desire to change this overall approach or, to use the metaphor of the noble Lord, Lord Carlile, to change the architecture.

For those who are not dangerous, the sentence for offenders of particular concern sufficiently caters for release with a role for the Parole Board and yet without the risk of an unsupervised cliff edge, which the amendment would introduce. I understand, as the noble Lord, Lord Carlile, noted, that the amendment is born of a desire to introduce a role for the Parole Board. But there is no role for the Parole Board here because it is not necessary. There is no early release and no parole so, accordingly, there is no role for the Parole Board. That is, therefore, my answer to the question put to me by the noble Lord, Lord Marks, who asked why there is no role for the Parole Board. It is for the reasons I have just given. While I suspect that my answer may not leave him persuaded, I hope it means that he is no longer perplexed.

The noble Lord, Lord Ponsonby, asked me whether we are saying that the alternative can do a better job than the Parole Board. I accept that, as the premise behind that question would admit, some Peers consider the Parole Board the only qualified body to deal with the specialised nature of setting licence conditions for terrorist offenders. But in answer to the noble Lord, Lord Ponsonby, I must respectfully reject that approach. The reason the Parole Board is responsible for setting licence conditions when it directs the prisoner’s release is that that is part and parcel of the Parole Board’s decision that the offender can be safely released and managed in the community. The Parole Board decides that the offender can be released and, as part of that, decides the licence conditions that will govern such release.

However, with an EDS for a serious terrorism offence and the serious terrorism sentence, there is no provision for early release before the end of the custodial period. The corollary of that proposition is that release at the end of the custodial period is automatic. Where release is automatic, there is no reason why the Parole Board specifically should consider licence conditions.

Furthermore, offenders will be subject to management under MAPPA—Multi Agency Public Protection Arrangements—through which the police and the probation and prison services work with other agencies to manage the risks posed by offenders living in the community in order to protect the public. In cases under the Terrorism Act 2000—TACT—and TACT-connected cases, that involves the probation service, the releasing prison, counterterrorism police, security services, the Joint Extremism Unit of HMPPS, and social services.

With the creation of the national security division of the National Probation Service, we will see even greater specialism in making such recommendations. That ensures that professionals with a detailed knowledge of the offender are involved in identifying the licence conditions which are necessary and appropriate. The key point is that that happens regardless of whether the final decision-maker on setting the licence is the Parole Board or HMPPS—the governor. While ultimately the board or the governor makes the decision, that decision is always directly informed by those with intelligence of and expertise in managing the offender. I therefore assure the noble Lord, Lord Carlile, that the process is no less rigorous and the outcomes are no different.

The noble Lord, Lord Carlile, asked a specific question about our discussions with the Parole Board. We have shared the Bill with the Parole Board and discussed its implications with it, but there has not been a formal consultation, if that is what the noble Lord was driving at in his question.

For those reasons, which I hope I have explained clearly and fairly, I remain of the view that there is no role for the Parole Board where there is no consideration of early release. That point, combined with the issues I have explained around the legality of this amendment from an ECHR standpoint, leads me to consider this amendment unnecessary. I therefore respectfully urge the noble Lord, Lord Carlile, to withdraw it. Of course, I am happy to continue our conversations with him about this matter, as I am sure we will continue to benefit from an exchange of views about other matters in the Bill also.

Lord Carlile of Berriew Portrait Lord Carlile of Berriew (CB) [V]
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My Lords, I am grateful to all who have spoken in this debate, to the noble Lords, Lord Marks and Lord Ponsonby, for their broad support for what I have suggested, and to the noble Lord, Lord Wolfson of Tredegar, for his detailed response.

When I was at school, I had a teacher who taught us about different forms of argument, one of which is entitled “argumentum ad maiorem”—argument using a greater authority. In those days, I suppose it was something like “Because Sir Winston Churchill said something, it must be right.” The Minister’s argumentum ad maiorem was about the case of Brown v the Parole Board for Scotland, which, it will not surprise your Lordships to know, I have read.

I do not propose to embark on and bore your Lordships with a legal moot about that case. I say simply that I respectfully do not agree with the noble Lord, Lord Wolfson, despite his eminence as a lawyer, about the effect of that case on my proposal. I believe that my proposal, because of the change of the architecture that I suggested, including the fact that the sentencing judge would clearly refer to the potential extension provisions at the time of sentence, would come within the judgment of Brown v the Parole Board for Scotland.

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Moved by
26: Clause 48, page 37, line 13, at end insert—
“(4A) Nothing in subsections (1) to (4) limits the extent within the United Kingdom of any provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006. (4B) Subsections (1) and (2) of section 384 of the Armed Forces Act 2006 (extent outside the United Kingdom) apply to the armed forces provisions as those subsections apply to the provisions of that Act.(4C) The following are “armed forces provisions”—(a) a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006;(b) an amendment, modification or repeal made by or under this Act of—(i) a provision of or made under the Armed Forces Act 2006,(ii) a provision that amends, modifies or repeals a provision of, or made under, that Act, or(iii) any other provision, so far as the provision is applied (by whatever words) by or under that Act.”Member’s explanatory statement
This amendment clarifies that provisions of the Bill which have a limited extent within the United Kingdom (such as amendments of the Sentencing Code) have UK-wide extent so far as they are applied by the Armed Forces Act 2006. It also provides for the provisions of the Bill that relate to the armed forces to extend, or be extended, outside the United Kingdom in the same way as the Armed Forces Act 2006.
Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar
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My Lords, I apologise for the short break in proceedings while I came back to my place. I am afraid that the convention of not moving while the Chair is standing, and social distancing, do not go too well together.

This rather technical amendment to Clause 48 clarifies that the provisions of the Bill have UK-wide extent in so far as they are applied by the Armed Forces Act 2006. That is the burden of proposed new subsection (4A). The amendment also rectifies an oversight in the original drafting of the Bill, to make Section 384 of the Armed Forces Act 2006 apply to provisions in the Bill if they amend or modify the Act, and when they are applied by that Act. This means that they will extend to the Isle of Man and the British Overseas Territories, except Gibraltar, and can be extended to the Crown dependencies. That is the burden of proposed new subsection (4B). That ensures that the same version of the Armed Forces Act 2006 will be in force in all the jurisdictions to which that Act extends.

I apologise for the fact that this amendment has not been brought forward until now. That was an oversight, but I hope that noble Lords will accept that it was an understandable one, given the number of issues that the Bill deals with, and their frequent complexity. The interrelationship between sentencing provisions and armed services issues adds a further element of complexity. The amendment itself, as I have said, does those two things, in proposed new subsections (4A) and (4B). I beg to move.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, Clause 48 deals with the extent of the Bill. It provides that

“A provision of this Act which amends, repeals or revokes an enactment has the same extent within the United Kingdom as the enactment amended, repealed or revoked.”


Under subsection (2), provisions that do not amend, repeal or revoke an existing enactment extend to all four nations—England, Wales, Scotland and Northern Ireland—save for two limited exceptions, in that Clauses 21(2) and 44(2) are of a limited nature, referring to retrospectivity.

It is not easy to extract the purpose of Amendment 26. Someone in the Ministry of Justice has concluded that there are problems under the Armed Forces Act 2006. Proposed new subsection (4A) suggests that, in the context of jurisdiction under the Armed Forces Act 2006, all the provisions of the Bill extend to all four countries. This is so even if an amendment repeals or revokes a provision of an existing Act that does not have that extent.

Under proposed new subsection (4B), the provisions of the Act extend outside the United Kingdom to the extent set out in Section 384(1) and (2) of the Armed Forces Act. That section applies to the Channel Islands, the Isle of Man and overseas territories excluding Gibraltar. British Overseas Territories do not include Cyprus, Belize or Gibraltar itself, which is specifically excluded. Those are all venues where I, as chairman of the Association of Military Court Advocates, know that courts martial take place.

Those are three places, and I am sure there are more, where courts martial take place—not to mention Germany, where the facilities have ceased. Courts martial can, of course, take place anywhere in the world, if properly constituted, and if charges for service offences are brought against anyone who is subject to the Armed Forces Act.

Terrorism exists outside the overseas territories. I would very much welcome clarification as to what happens if a court martial is held outside the United Kingdom, but not within those overseas territories to which the Armed Forces Act applies. I cannot help feeling that I am missing something, but the statement attached to the amendment is not at all clear—even though it states that the purpose of the amendment is to clarify the position. I look forward to the Minister doing so.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab) [V]
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I endorse the question so clearly put by the noble Lord, Lord Thomas of Gresford. Despite the clear explanation given by the noble Lord, Lord Wolfson of Tredegar, I am still struggling with this amendment. Can he tell us the sort of problem that proposed new subsection (4A), which Amendment 26 seeks to insert into the Bill, tries to deal with? What is the lack of clarity with which he was concerned? Can he also indicate whether there are any implied provisions put into the Armed Forces Act by this Bill?

Proposed new subsection (4C)(a) specifies:

“a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006”.

Can he indicate what sort of provision that is aimed at? I would find it really helpful, in relation to proposed new subsections (4A) and (4B), to have an example of a problem that these two provisions would solve.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am grateful to the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Falconer of Thoroton, for their contributions and questions. The position, so far as I can assist the House now, is that the amendment ensures that the provisions of the Bill which amend, modify or are applied by the Armed Forces Act 2006 have the same extent as that Act. That Act extends to the UK, Isle of Man, and British Overseas Territories, excluding Gibraltar, and can be extended to the Crown dependencies.

The Armed Forces Act 2006 is the main piece of primary legislation that establishes a service justice system. It uses a modified form of sentencing law of England and Wales for sentences imposed by the court martial, as the noble Lord, Lord Thomas, stated. The burden of the amendment is to ensure that the Armed Forces provisions in the Bill have the same extent as the Armed Forces Act 2006. This would ensure, therefore, that there is a correlation of the area over which the provisions apply.

On the specific question from the noble Lord, Lord Thomas, on what would happen outside the territories covered by the Armed Forces Act, I am conscious that I would probably be straying into MoD territory rather than MoJ territory. I hope that the noble Lord, Lord Thomas, will allow me to write to him on that so he gets an accurate and complete answer.

As to the point raised by the noble and learned Lord, Lord Falconer of Thoroton, on whether there is an implication in the Bill that is caught by proposed new subsection (4C), perhaps I can send him a letter on that, rather than risk getting the answer wrong, I am tempted to say that these are standard words used in Acts of Parliament about what is implied, but I understand the burden of his question and, if he will permit me, will send him a written response. I hope that I have responded to the points put to me and I commend this amendment to the House.

Amendment 26 agreed.
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Moved by
27: Schedule 13, page 121, line 4, leave out from “section” to “for” in line 5 and insert “1 (release of short-term, long-term and life prisoners)—
(a) in subsection (3A),”Member’s explanatory statement
This is consequential on the amendment at page 121, line 5.