Terrorist Offenders (Restriction of Early Release) Bill

Debate between Viscount Hailsham and Lord Anderson of Ipswich

Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Anderson of Ipswich]

My Lords, I want to pick up on the point just made by the noble Lord, Lord Marks, about the independent reviewer. As a former independent reviewer myself, I am temperamentally rather inclined to the merits of independent review. However, in his note of 19 February on this Bill, Jonathan Hall said:

“I consider that the effect of sentences passed under the Terrorism Acts falls within my remit as Independent Reviewer of Terrorism Legislation, and therefore I would propose to report on the impact of these changes (and of the changes likely to be made by the more sizeable Counter-Terrorism Sentencing Bill later in the year) in one of my forthcoming annual reports, most likely my report on the Terrorism Acts in 2020.”


Perhaps I may ask the Minister, when he responds, to confirm whether it is his impression, as it is mine, that reviews of that nature fall within the existing remit of the independent reviewer. Perhaps I may also ask the noble Lord, Lord Marks, to comment on whether, in the light of that fact, his amendment will really add anything at all.

[Viscount Hailsham]

My Lords, I rise very briefly to express my views on this amendment. I have a lot of sympathy in general with the proposition that we need a review. However, I cannot support it on this occasion for two reasons.

The first is, I admit, wholly pragmatic; this is going to go nowhere. This matter was discussed in the House of Commons. The noble Lord, Lord Marks, will know that there were two amendments, creating a new Clause 1 and a new Clause 3. The latter in the House of Commons was in exactly the same terms as the noble Lord’s amendment and was barely discussed. I think that new Clause 1, which was a Labour Party amendment, also received no effective discussion. So it will not go anywhere, and I personally am not in favour of parliamentary ping-pong on this matter, rather for the reasons advanced by my noble friend Lord Cormack.

The second reason is rather longer: this does not go nearly far enough. Indeed, such a review could stand in the way of the kind of review that I would hope to persuade your Lordships is desirable. We have a counterterrorism and sentencing Bill coming forward. For that purpose, it is absolutely essential that there is very wide consultation prior to the consideration by Parliament of that Bill. That could be called a review but is essentially a consultation, and it has to address at least four substantive matters.

First, there is the complexity of the existing sentencing and sentence arrangements. These were described very eloquently by the noble and learned Lord, Lord Judge. It is a hugely complex area. There is huge scope for consolidation and simplification. That should be addressed in a pre-Bill consultation process.

Secondly, we need to know much more about how terrorism prisoners are being managed in the prison estate, and in particular the degree to which Mr Acheson’s actual recommendations are being implemented. To the extent that they are not, we need to know the reasons why.

Thirdly, almost everybody who has spoken in these three debates has welcomed the Parole Board filter that is being introduced. But the Parole Board can only act on information that it receives. It is absolutely essential that there is provision within the prison system for making suitable information available. That means a whole range of things, such as having experienced probation officers; having experienced prison officers —which is very important, because too many are retiring and being replaced by very young ones; appropriate courses; meaningful out-of-cell activity; and not churning prisoners from prison to prison within the estate. We have to know about all of this. The noble Lord, Lord Ramsbotham, has made this point on many occasions. Provision of all of these things in prisons is lamentable. We are going to see really large sums of money being dedicated to the Prison Service. But if the Government are serious about increasing the number of prisons, the money will actually go on buildings, not to the provision of the courses and information that will be absolutely essential to enable the Parole Board to make an effective decision.

My last point is that, down the track, the Parole Board will release prisoners who go on to commit very serious offences—probably multiple murder. It will almost certainly happen and will be a tragedy. At that point, there will be immense public opinion calling for prisoners to be kept in prison indeterminately. If I may say so, that is the point that my noble friend Lord Cormack was addressing. My point is that that pressure will arise. I personally believe that it may be necessary to introduce some form of post-sentence control-order process, as mentioned by the noble Lord, Lord Macdonald. That may be necessary, but I think it should take the form more of the old control-order regime, rather than indeterminate sentences of the kind identified by my noble friend Lord Cormack.

Whatever the case, we need to consider it now, not in the context of emergency legislation. If there is emergency legislation, there will be immense pressure for indeterminate sentences, and I have a very strong feeling that that is profoundly wrong and that we should not do it. The consultation that will precede the introduction of the counterterrorism and sentencing Bill should address what happens if the Parole Board does release offenders who go on to commit multiple murder. It is much better to do this over a slightly longer period, without the urgency of emergency legislation, than to do it in the latter context.

Therefore, I say to the noble Lord, Lord Marks, that I am not against reviews, but I think his review is far too narrow and could stand in the way of the much bigger review that I think is essential.

Northern Ireland (Executive Formation) Bill

Debate between Viscount Hailsham and Lord Anderson of Ipswich

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I shall speak to Amendments 2 and 3 but I do not intend to press Amendment 2, which on reflection adds nothing of substance to Amendment 3. These amendments, which are identical to those moved with cross-party support in Committee, provide that Parliament is to sit at specified intervals between September and, at the latest, December to consider the progress reports already provided for by Clause 3.

Amendment 3 serves a useful purpose in the context of this important Bill. As pressure is exerted to reconvene the Executive, there is every reason for both Houses of this Parliament to review and interrogate such progress as is made. The strong interest of this House in the content of those reports is demonstrated by the amendments agreed on Monday and by those which are yet to be considered today. But the greater significance of Amendment 3 lies less in the subject matter of the debates for which it provides than in the more fundamental fact that Parliament must be in session for such debates to take place.

If enacted, these amendments will express Parliament’s expectation of being consulted on not just these reports but an even more pressing political issue: the future of our relationship with the European Union. If Parliament were to endorse a no-deal Brexit, as it has not done to date, then from my point of view there could be no democratic argument against it. But for that decision to be left to our next Prime Minister, elevated to that office by members of his own party and freed of any requirement to obtain the consent of Parliament, would be another matter altogether. Before the beginning of the current leadership campaign, the notion that Prorogation might be used for the express purpose of silencing Parliament on Brexit could safely have been dismissed as fantasy but, extraordinary though it may seem, that prospect has not been disavowed by the leading candidate and, if reports are to be believed, cannot even now be ruled out.

The situation is uniquely grave because if we are driven over the cliff on 31 October, there is no way back up. An event that occurs while Parliament is prorogued cannot simply be reversed once Parliament is sitting again. So even a short Prorogation, if suitably timed, would permanently deprive Parliament of its voice on this most significant of political issues. Advice to Her Majesty to prorogue Parliament in such circumstances would subvert the principle that the Government are accountable to Parliament and present the monarchy with a highly unwelcome dilemma: no one could safely predict the possible consequences. It is not surprising, therefore, that the Attorney-General is reported to have told Cabinet last month that Prorogation would be unconstitutional and improper. My noble friend Lord Pannick, who cannot be in his place today, described it on Monday as “unlawful” and “a constitutional outrage”.

The legal effects of Amendment 3 will no doubt depend on the circumstances. It would be a matter for any court that may be called on to consider the matter. Others of your Lordships are better placed to judge their political force, but that too would surely be substantial. The Minister helpfully accepted on Monday that it was right and proper for this House to find a means to hold the future leader of this country to account, but when challenged on his statement that,

“there are other means by which it can be done”,—[Official Report, 15/7/19; col. 38.]

explanation came there none. That put me in mind of Iris Murdoch, who wrote, in a rather different context, that we can pass,

“in a second from the time when it was too early to struggle to the time when it was too late to struggle”.

Your Lordships now have an opportunity to assert the necessary role of Parliament in these strange and alarming times. I invite your Lordships to do so by supporting Amendment 3.

[Viscount Hailsham (Con)]

I shall speak very briefly to Amendment 3A in this group, which is in my name. It might be for the convenience of the House if I say that it is not my intention to move this amendment, largely because it does not add substantially to the amendment in the name of the noble Lord who just spoke with great eloquence. Suffice it to say that I very much support his amendment and if he is minded to test the opinion of the House, I shall vote in favour of it.

Northern Ireland (Executive Formation) Bill

Debate between Viscount Hailsham and Lord Anderson of Ipswich

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Anderson of Ipswich]

The noble Baroness makes another very good point. I refer to 1948 simply to say, first, that prorogation has been controversial in the past, and, secondly, that it pales into insignificance compared with what we are now asked to contemplate.

Those who contemplate prorogation not only are heedless of the sovereignty of Parliament but risk plunging the monarchy into the heart of an intense political dispute. We saw how this could happen in Canada in 2008, when the Governor General, as the representative of the Crown, was required to adjudicate on a request for prorogation that was widely seen to be politically motivated, and only granted it subject to an undertaking given by the Prime Minister. I appreciated the dry understatement of Catherine Haddon of the Institute for Government when she said last week:

“A constitutional showdown between Parliament and the executive of the order of the Civil War is definitely something that the palace would prefer not to be dragged into”—


but she made a serious point.

If agreed, these amendments will serve two purposes: the sending of a political message and the sharpening of a legal challenge such as that already mooted by Sir John Major, should it be needed as a last resort. My noble friend Lord Pannick made a powerful case in the Times last month for the proposition that the courts, if invited, would come to the rescue of parliamentary sovereignty, as they did on the basis of the noble Lord’s submissions in the Miller case. Over 30 years, I have learned to bet against the noble Lord only rarely and I would not do so on this occasion. One who has done so is the legal academic Robert Craig, who recently suggested that the courts would decline to intervene because,

“there is no particular statutory provision that would be frustrated by prorogation”.

To the extent that there may be merit in that view—and I accept that absolute certainty in this area is difficult to achieve—that is all the more reason for supporting these amendments.

I regret that it has been necessary to table them in the context of this Bill, but they will put beyond doubt the resistance of Parliament to an undemocratic and profoundly discreditable device. I beg to move.

[Viscount Hailsham (Con)]

My Lords, I rise very briefly to support the amendment which the noble Lord, Lord Anderson, has argued for so eloquently. This amendment, to which I set my name, has only one purpose: namely, to make it more difficult—

Counter-Terrorism and Border Security Bill

Debate between Viscount Hailsham and Lord Anderson of Ipswich

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Davies of Stamford]

The noble Viscount has reinforced my point with greater eloquence than I could have done.

[Lord Anderson of Ipswich (CB)]

My Lords, it is an uncomfortable fact that the law as it stands has not been as effective as it might have been in prosecuting radicalisers who have stopped short of inviting support for a proscribed organisation but whose words have none the less been instrumental in encouraging others to support terrorist groups, often by actions, not just words. I shall not rehearse the saga of Anjem Choudary and the many unsuccessful attempts to prosecute him over the years. Clauses 1 and 2 attempt to fill a gap in our law by extending the proscription offences. For that reason I look sympathetically on their general thrust although, like the noble Lord, Lord Carlile, I support Amendment 5.

For my part, I could not vote for an extension of the already strong proscription offences in circumstances where substantial numbers of proscribed organisations— 14 by the Home Office’s own admission, and no doubt more in Northern Ireland—are proscribed despite failing to satisfy the statutory condition for proscription, which is being concerned in terrorism. That would expose people to the risk of long prison sentences for expressing opinions supportive of organisations that have long since laid down their arms and committed to peaceful engagement, but which however remain proscribed because no one associated with them has been willing to go to the expense, or indeed attract the associated publicity, of going to court to get them de-proscribed. My support for Clauses 1 and 2 will therefore depend on the outcome of Amendment 59, which would introduce the meaningful review of proscription orders and which noble Lords will consider on another occasion.

[Viscount Hailsham]

My Lords, I shall speak briefly to Amendments 3, 4, 5 and 6. I accept that there may well be a need to further criminalise the overt support of proscribed organisations; I do not dissent from that view. However, we have to accept that what we are proposing in the Bill is an infringement of human rights—the right to free speech. The noble Baroness, Lady Hamwee, is entirely right about that. We therefore need to apply the test of proportionality: to weigh up the evil in one hand and then look at the consequences of what is proposed in the other. It is in that context that I would be very much happier—I now speak directly to my noble friend on the Front Bench—if we were to look again at the concept of specific intent. I would be very much happier if what we were providing for was that the offence was establishable only on proof of specific intent. I find myself very much in support of Amendments 3 and 4 because they seem to satisfy the test of proportionality.

To comment briefly on Amendment 5, I find myself entirely in agreement with the noble Lord, Lord Carlile. Anyone who advocates the de-proscription of a proscribed organisation seems to fall foul of the general language of this part of the Bill, and that should not be the case. It is perfectly proper as part of public debate to argue that a specific organisation should not be proscribed. I therefore hope—