Counter-Terrorism and Sentencing Bill (First sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Thursday 25th June 2020 Public Bill Committees

[The Chair]

I think that we had better move on. Alex Cunningham.

[Alex Cunningham (Stockton North) (Lab)]

Q It is a pleasure to serve under your chairmanship, Mr Robertson.

I, too, am grateful for the work that you do, Jonathan. I want to ask you a number of questions away from TPIMs; my hon. Friend the Member for St Helens North will deal with that issue. You have produced three notes on the Bill, and I want to address questions from two of them—it might be helpful for the notes to be entered as written evidence.

Point 10 of your first note states:

“The requirement of a minimum mandatory sentence for all adult offenders, however young, puts in doubt whether judges can properly reflect the fact that an adult of 18 years and one month may not be any more mature than a child of 17 years and 11 months (for whom these sentences are not available). Age may or may not result in ‘exceptional circumstances’ being found, which is the only basis on which the 14-year minimum can be avoided.”

That strikes me as a cautionary note, and I invite you to talk a bit more about that. How specifically will this piece of legislation be different for younger offenders?

[The Chair]

Mr Cunningham, can you please clarify which document you are quoting from?

[Alex Cunningham]

I am referring to the Independent Reviewer of Terrorism Legislation’s “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (1)”.

Jonathan Hall: I have identified what is really a policy choice for Parliament. As a matter of fact, I can say that an increasing number of quite young people are being caught up in terrorism, including new forms of terrorism—not just conventional Islamist, extremist or right-wing terrorism, but other new emerging forms, such as the incel movement or even things at the very boundaries of what you might consider terrorism that are very violent. It is not impossible that young people will be caught up in this.

The point I am making—I have referred to an authority from England and Wales and I think I have also referred to the approach in Scotland—is that there is recognition that people who are young and immature are probably more susceptible to change than adults. I suppose it is a choice for Parliament, but the age for a mandatory minimum sentence—meaning no prospect of early release, and effectively putting to one side the possibility of reform—might be raised to 21, rather than that being for those in the 18-to-21 bracket. I understand that in Scotland there is a debate over whether it should be as far as 25.

All I can do is identify the choice that has been made and point out that when it comes to sentencing, traditionally it is recognised that people are not necessarily that different when they are one month over 18 as opposed to one month under 18.

[Alex Cunningham]

Q But the bottom line is that with young people, perhaps, there is greater change. You have said that there may be greater opportunity for reform there than with those who are considerably older.

Jonathan Hall: That is what judges are increasingly finding.

[Alex Cunningham]

Q In paragraph 13 of the same report, you talk about imprisonment for public protection orders possibly being used for this cohort of offenders, but you go on to say:

“Conversely, determining whether a 7-year, 15-year or 25-year licence is appropriate at the point of sentencing for dangerous individuals who have committed the most serious offences may be asking courts to engage in guesswork.”

What would be your advice to the Committee on that particular issue?

Jonathan Hall: I have imagined putting oneself in the position of the sentencing judge, who is faced by someone who has carried out a very serious attack planning offence, risking multiple casualties, and let us say they are 25 or 30. As I think I have said before, it is very hard to judge terrorist risk. It is particularly hard for sentencing judges, because they operate on an open basis; they are not going to look at secret intelligence, for good reasons. So the judge’s task is particularly difficult at the point of sentence, and it seems to be quite difficult for a judge to work out sentencing for a 25-year-old who has committed a really serious attack planning offence. When they are released from prison, are they going to be worth monitoring for seven or for 25 years? Again, it is a choice for Parliament.

What I have identified, I suppose, is that if one were going to impose a mandatory sentence, there might be thought to be more sense in imposing an indeterminate sentence—in other words, where someone has fallen into this category of really serious offending, realising that they could be a risk for life and keeping them in prison for life, unless and until they are seen as safe to be released, and then once they have been released, keeping them on licence for life and giving the flexibility to the authorities, which includes, I should say, where eventually someone, one hopes, is no longer a threat, to roll that up and bring that licence to an end; because there is a slight risk of storing up trouble for future generations if you have increasingly long periods for licences. When they are no longer necessary, how do you bring them to an end? I do not think there is that scope at the moment. To answer your question—I am sorry to have gone on so long about that—

[Alex Cunningham]

Q That is okay. There is the younger person dimension in this area as well.

Jonathan Hall: Very much. One of the final points I make in my note about removing the Parole Board’s role is that, again, if it is right that children are more likely to change, and as a matter, perhaps, of fairness, one ought to give them the opportunity, then removing the opportunity to say, at the halfway or two-thirds point, “I have now genuinely changed; that was me then and this is me now,” where it can be shown to the satisfaction of the Parole Board, does seem a little bit—I would not necessarily say “unfair”, but it fails to recognise the difference between adults and children.

[Alex Cunningham]

Q The Minister addressed the issue of the Parole Board and the lack of its role for people given these determined sentences. I wonder whether there is potential for some form of role there. The Minister’s Bill basically dismisses the Parole Board and leaves it to everybody else. Do you have a view about how we could perhaps persuade the Minister that there is a real role for the expertise that the Parole Board brings to this situation?

Jonathan Hall: I do not want to get into the role of persuading anyone. If you like—

[Alex Cunningham]

Q I was just being mischievous.

Jonathan Hall: The practical point is one I have addressed, which is that identifying terrorist risk is really difficult. The role of the Parole Board is quite an important part of identifying terrorist risk, and if you don’t have that role then you lose that insight.

[Alex Cunningham]

Q There has been some discussion out there in the world, where people are discussing the Bill, about the sentencing code and what the definition is of an act of terrorism. It is defined in section 69 of the sentencing code, which says that

“an offence has a terrorist connection if the offence—

(a) is, or takes place in the course of, an act of terrorism, or

(b) is committed for the purposes of terrorism.”

Do you think that is clear enough to aid the courts, or do the Government need to provide more clarity in the definition?

Jonathan Hall: I think it is clear enough. It is taken from the Counter-Terrorism Act 2008. It is now being incorporated into the new sentencing code and it has worked well.

[Alex Cunningham]

Q The Law Society has provided us with a brief brief, in which it addresses the issue of polygraph testing. It says, for the record: “The Law Society does not agree that polygraph conditions should be placed on individuals released on licence.” That is quite a bold statement. The Law Society suggests that we should ensure that the Bill is not a stepping-stone towards the wider introduction of polygraph testing. May I invite you to talk about polygraph testing, because you did refer to it in your note, and ask what your view of it is when it is used in this particular context within the Bill?

Jonathan Hall: It is consistent with my point about not losing sources of information. Because it so difficult to identify whether someone will commit a terrorist offence, and as the Usman Khan case perhaps demonstrates, there are difficulties in managing released terrorist offenders or predicting what they might do. Polygraphs provide an additional source of information.

I came at this subject reasonably fresh; I read the literature on the use in England and Wales with sex offenders. I can see that the number of clinically significant disclosures is really material, and it seems to me that it would be very sensible to use that in the same way—so you ask, “Have you been on the internet?”, as a closed question—for terrorist offenders.

So, it is an additional source of information, which I think it would be sensible to use. It would do two things. One is that in certain cases it would allow the authority to find out when they are being gamed and played by manipulative and deceptive dangerous offenders. On the other hand, to some extent it would reduce the burden of the authorities. That is because the police and probation service face really difficult choices in this area. There will be a natural caution, for example, about removing someone’s licence condition. However, if you can use a polygraph test and satisfy yourself that someone is telling the truth, then it may allow you to remove some conditions and allow someone to normalise. And although that sounds odd in the context of terrorist offenders, ultimately you want people who are released to engage in a normal way in society—in other words, allowing them to get jobs and to live in their home area, and the like.

[Alex Cunningham]

Q That was very helpful. Finally, there is the need for additional expertise in the field, whether that is to do with the probation service or elsewhere, for the management of offenders under the 25-year licence, which will be considerable. Is that something that you have considered?

Jonathan Hall: I know, from when I did the review of the multi-agency public protection arrangements, that a lot of resources are being put into this area, and there are special probation officers trained in counter-terrorism. I do not think I can comment on how much resource you need for 25 years, but a lot of resource is being put into the area, which is to be welcomed.

[Alex Cunningham]

Q The Government have tabled some 17 pages of amendments to the Bill, which you may not have seen yet; they were only published on Tuesday.

Jonathan Hall: I have not seen them.

[Alex Cunningham]

The question is probably useless, then. I was going to ask whether they had reassured you that things had changed for the better, but clearly you have not seen them.

Jonathan Hall: No. I am sorry; I have not seen them.

[Joanna Cherry (Edinburgh South West) (SNP)]

Q It is a pleasure to serve under your chairmanship, Mr Robertson. Mr Hall, may I add my thanks to you for your service to all of us as parliamentarians? It is much appreciated, as were the notes that you prepared in advance of the Bill.

I will start by asking you a couple of questions about the effect of the proposed sentencing changes in Scotland. You have produced a “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (3)” that deals with the effect of the proposed sentencing changes in Scotland and Northern Ireland. In particular, in paragraphs 8 and 9, you raise the question of how what is proposed for Scotland under clause 6 of the Bill impacts on the existing sentence in Scotland called an order for lifelong restriction. Can you tell us about that?

Jonathan Hall: Scotland has a unique sentence. It has a very respected body called the Risk Management Authority, and if a risk assessment is made under the auspices of the authority that shows that someone is a real risk, the High Court in Scotland can pass an indeterminate sentence with a punishment part, but with the consequence that someone is liable to be detained until they are safe enough to be released, when they are released but very carefully monitored.

I do not know whether this was intended or an oversight, but it seems paradoxical that, as things currently stand, if a judge in Scotland found that the criteria for a serious terrorism sentence were made out, he or she would have to pass a determinate sentence, if they did not otherwise pass a life sentence, even if ordinarily they might want to pass one of these orders for lifelong restriction. One would have thought that an OLR would provide more protection for the public than a determinate sentence. I do not know whether that has been dealt with in the amendments that have just been referred to.

--- Later in debate ---

[Chris Philp]

Q Thank you for making that extremely clear. I am sure that the Committee will pay close attention to the advice being given to us through you by the security services. I have one more question on TPIMs, relating to the current two-year expiry date and the proposal to make them annually renewable. They will not be indefinite unless the threat is indefinite. Do the security services for whom you speak see a threat to the public as a consequence of the gaps that we have heard Mr Hall describe: the 12-month gap in one case and the 16-month gap in the other?

Tim Jacques: Because we jointly manage TPIMs once imposed, I can speak on this. Yes, we do see an increase in the threat if that gap occurs, and that gap has occurred, as Jonathan has pointed out previously.

[Alex Cunningham]

Q There is a very helpful question on our briefing paper about the danger that measures perceived as oppressive and disproportionate may alienate individuals who could otherwise be rehabilitated. Do you have a view on that, particularly in relation to younger people, who might be a little immature?

Tim Jacques: I certainly have a view on that. From a policing perspective—I do not think it is any different for our operational partners—there are two trains in place here: one is punishment and incarceration, which was mentioned earlier; and the other is rehabilitation, desistance and disengagement. Ultimately, the best outcome is the latter: we change the individual’s mindset and view of the world, and mitigate the risk that they pose to the public in an enduring manner. Anything that promotes that prevent, disengagement and deradicalization position is to be welcomed.

Both those options are considered with TPIMs, and indeed with most of the work that we undertake. Both protect the public, if successful. We are conscious of that and drive both of them. Counter-terrorism policing operates across all the Ps of the Government’s counter-terrorism strategy, called Contest, and prevent and pursue are included in that.

[Alex Cunningham]

Q Specifically on rehabilitation, do you think we need to amend the Bill to give younger people an opportunity to appear before the Parole Board. Should they be managed differently?

Tim Jacques: I cannot comment in detail on the Parole Board element of it. If we can encourage people via the use of TPIMs and the programmes that TPIMs include, that would be a good thing, but the intricacies of sentencing and release are beyond my expert knowledge.

[Alex Cunningham]

Q There is much talk in the Bill about polygraphing. Do you believe that introducing polygraphs in this area will drive the benefits that the Minister hopes for? Are you satisfied that the science around them is good enough, and that they provide real value?

Tim Jacques: There are two elements, as I understand it, where polygraphs are introduced: one is in licence conditions and the other is the use of TPIMs. I can certainly talk about the latter, but maybe not the former.

It is safe to say that the science around polygraphs is not absolutely fool-proof. For that reason, we and the CPS agree that we would never seek to use them as evidence in a criminal prosecution in the UK. By introducing polygraph measures in these circumstances—in TPIMs—you may end up with that evidence through disclosure, not for criminal prosecutions.

The reality is that polygraphs are untested in the terrorist space, but we would welcome the ability to pilot them. We would not necessarily be seeking mandation on every single TPIM. It says “if required”, and again that should be an operational decision for us. They are untested, which is why they are not used in criminal proceedings. They have utility in the management of sex offenders, as Jonathan pointed out, and they may well have utility in the management of terrorist offenders. We would be happy to try that and see where it takes us.

[Alex Cunningham]

Q So you would want to see a trial, rather than wholesale introduction?

Tim Jacques: Our point has always been that polygraphs are something that may have utility. If the Bill enables that utility, we would be very happy to try that, but whether to use them is an operational decision. They are untested, but the Bill enables them to be tested.

[Alex Cunningham]

Q Do you have any concerns about the fact that this cohort of offenders will be released into the community without the involvement of the Parole Board? They are just taken out and simply released, although I know that other work will go on. How do you feel about the fact that there will not be the expertise of the Parole Board behind any decision for them to be released into the community?

Tim Jacques: I do not want to dodge the question, but these people will come out of prison at some point. My understanding of the measures in the Bill is that they will come out later, rather than sooner. We have to manage and mitigate the risk as and when they come out. We have to manage them when they come out, and they are going to come out at some point. That is the point for us.

[Joanna Cherry]

Q I have just a couple of brief questions. You have mentioned three potential justifications for lowering the current standard of proof. You will be aware that the Independent Reviewer of Terrorism Legislation does not consider that there is any justification, but just let me cover a couple of the points that you raised. Jonathan Hall tells us that at present there is something called a new variant TPIM, which has been used by the security services, and that is a means of using the existing law to reduce the administrative and litigation burden on the authorities, which really means that when fewer measures are imposed on individuals, it is not necessary to establish in evidence every chapter and verse of an individual’s terrorist-related activity before a TPIM can be imposed. Mr Hall seems to envisage that the existence of these new variant TPIMs is sufficient to reduce the sort of administrative and motivation burden on the authorities that you have described in relation to sensitive material and a rapidly increasing risk. Do you see his point?

Tim Jacques: I do see his point, yes. The new variant, as Jonathan describes it, is about using fewer measures and can include, of course, not relocating the subject, which was a matter of discussion earlier. Because each measure has to be justified as necessary and proportionate to the Home Secretary and then approved by the court, of course each one of the measures and the case for each one of the measures can be, and very often is, challenged on behalf of the subject. In simple terms, the fewer measures there are, the less opportunity there is for challenge and the less need for administrative work to deal with that. That is where that comes into play. It is MI5’s view that potentially there is further opportunity for them to get engaged in that if there is a lower standard of proof, and for disclosure of sensitive material potentially.

--- Later in debate ---

[Joanna Cherry]

I would like to add to what Julie Marson said. I do not think we can say often enough how much we and our constituents appreciate the risk that police officers put themselves in. You are there for us. I think all political parties would want to associate themselves with that. Thank you.

Tim Jacques: Thank you.

[Alex Cunningham]

On a point of order, Mr Robertson. Given that the Government have tabled 17 pages of amendments to the Bill, would it be in order for us to invite Mr Jonathan Hall to provide a further note on the Bill?

Counter-Terrorism and Sentencing Bill (Second sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Thursday 25th June 2020 Public Bill Committees

[The Chair]

Order. I have to interrupt there, Mr Dawson, because I am conscious of the time.

[Alex Cunningham (Stockton North) (Lab)]

Q Thank you very much, and good afternoon. I want to address the issue of young people—that seems to be my theme of the day. The independent reviewer said that, when it comes to these sentences, age—the only basis on which the 14-year minimum sentence can be avoided—may not result in exceptional circumstances being found. I see that as a cautionary note. Do you have a view on that?

Peter Dawson: Yes. There is evidence that the Committee may want to look at on this. There has been a movement for about a decade called the Transition to Adulthood Alliance, which has looked very hard at evidence of maturation in young people—the physiological evidence.

There does now seem to be general acceptance that for most young people the process of maturing certainly does not conclude before the mid-20s. There is a consensus, really, that if you are interested in dealing with people according to their maturity, you should look at the age of at least 25. It is even more marked, of course, for children under the age of 18.

Tragically, many of the people who are committing offences of this nature are very young. That does not take away from the fact that they are young and very immature—very susceptible to being led astray and very likely to change dramatically from the moment they commit the offence to their mid-to-late 20s, when that maturation has happened. The risk—

[Alex Cunningham]

Q Let me interrupt you because we need to crack on. How could the Bill be improved to take into consideration the factors that you have just raised?

Peter Dawson: The Bill should have a different sentencing framework for children and for young adults. At the moment, the law defines a young adult as someone aged between 18 and 20. It is not for this Bill to do, but at some point that should change to between 18 and 24. At least taking account of the detention in a young offender institution provisions would allow some recognition of the fact that young adults are different from more mature people.

[Alex Cunningham]

Q I am grateful for your written submission to the Committee. You were talking about parole and the Minister mentioned it earlier. What role could there be for parole in the new regime that the Government are proposing?

Peter Dawson: I would simply leave the extended sentence provision as it is and have a discretionary release element in the sentence of particular concern. We know that parole works well. Of course there are cases where people go on to offend, but that is rare and the Parole Board has a very good record of success in relation to people who do not commit serious crime in future. We have an institution that works. Let us take advantage of it because of the impact it has on the management of the sentence and the likely future behaviour of the person.

[Alex Cunningham]

Q Again, the question has to be about what needs to change in the Bill to take into account the issues that you have raised.

Peter Dawson: There needs to be a discretionary release element in all extended sentences with no exclusion for terrorist offences and no exclusion for the new sentence. The new sentence needs to be designed in a way that includes a discretionary release element. It is for Parliament to decide where that falls; I would say that the obvious thing to do would be to have the discretionary release at the halfway point and a possible release on licence at the two-thirds point, although I understand that Parliament may want to reflect the perilous nature of the offences with a different division of the sentence.

[The Chair]

Maybe we should move on. I call Joanna Cherry.

--- Later in debate ---

[The Chair]

We can squeeze in one last question, if you are quick, Mr Cunningham.

[Alex Cunningham]

Q In your written evidence, you say:

“The expansion of SOPCs and the expansion of the number of offences able to be identified as having a ‘terrorist connection’ will need careful monitoring for their impact on prison security and on people from minority faith and ethnic communities”.

How can we improve the Bill to achieve that careful monitoring?

Peter Dawson: It may not be something that the Bill can achieve, but I think it is reasonable to ask the Government, after the Bill becomes law, to provide a report on what the impact has been. I entirely take the point that the nature of terrorism at the moment means that certain communities are likely to be more heavily represented, but the point is that all criminal justice agencies need to go beyond that to guard against the unconscious bias that will otherwise creep in.

This is not about Parliament’s intention and it is not about the equality assessment. It is about the behaviour of people on the ground who are not properly aware, when faced with someone from the Muslim faith, that, overwhelmingly, prisoners from the Muslim faith have not committed offences connected with terrorism and would not dream of doing so. Most prisoners see their religion as something that provides structure and help in their life, not something that motivates them to perform criminal acts. None of that is well understood generally, and I am not sure that it is always well understood in prisons. So that unconscious bias—that unwitting prejudice—risks disadvantaging people in all sorts of different ways, from the way complaints are handled to their privilege level in the prison—

[The Chair]

Order. Mr Dawson, I am afraid I will have to call you to a halt as we have run out of time. Thank you very much for your evidence to the Committee.

Examination of Witnesses

Les Allamby and Dr Hannah Russell gave evidence.

--- Later in debate ---

[Alex Cunningham]

Q Your counterpart, the Law Society of England and Wales, said in its written evidence that it does not agree that the polygraph condition should be placed on individuals released on licence, and it goes on to say that a negative polygraph reading on its own should not be sufficient to justify a recall to prison. Do you share that view?

Michael Clancy: I have great respect for the Law Society of England and Wales’s positions most of the time. As you will have seen from our memorandum of comments, we have reservations about the use of polygraphs. In particular, we think that there is an issue about the reliability of polygraphs. They have been used in England and Wales, but they have not been used in Scotland. One point that I would like to pick up on is that the adaptation of Scottish criminal procedure through the Bill to provide for polygraphs is something we would have liked to see further consultation on, with greater explanation of how this would work before it is fully imported into the legal system in Scotland. I know that considerable advances have been made in neuroscientific technologies, such as the use of polygraphs, but in many instances in the United States—I draw your attention to the Supreme Court case of US v. Scheffer in 1998—there were considerable concerns about the reliability of polygraphs. That concern has persisted since that time, to such an extent that we have to be quite careful about citing American jurisdictions, because some of them do not allow for any—

[Alex Cunningham]

Q Okay, we can leave that one there and move on to a question about parole. As you know, the Parole Board does not have a role where somebody has been given a determinate sentence. Do you have any concerns about the fact that the Parole Board has been taken out of the equation and will not have a role with those particular offenders?

Michael Clancy: Of course, the Parole Board for Scotland is not referred to much in the Bill—only in a couple of instances. We would need to take a further look at exactly how the implications of the Bill work for the Parole Board for Scotland, which has its own particular arrangements. I will therefore pass on that question as to its effects on the Parole Board for England and Wales.

[Alex Cunningham]

Q Finally, the provisions are the same for young people as they are for adults. Do you have a view on that?

Michael Clancy: As you will have seen from other evidence that has been submitted, the aspect of children and young persons is quite significant for Scotland. I refer in particular to paragraphs 21 to 27 of the submission by Jonathan Hall, the Independent Reviewer of Terrorism Legislation, which clearly discuss the effects on children and young people in Scotland. He says:

“The proposed application of the serious terrorism sentence to offenders aged 18 to 21 in Scotland raises starkly the question of whether there is a bright line between offenders above and below…18. This is because the Scottish Sentencing Council is currently consulting on its third draft guideline, ‘Sentencing Young People’ and proposes that special sentencing principles should apply to offenders up to the age of 25.”

For all who are interested in the Bill, it would be helpful to know the extent to which the Government have been able to consult with the Scottish Sentencing Council about the provisions affecting children and young people in Scotland, particularly as they are carrying out the current review.

[Alex Cunningham]

That is helpful. Thank you.

[Joanna Cherry]

Q Good afternoon, Mr Clancy. Can I follow up on your reference to Jonathan Hall’s notes? You will have seen that Jonathan Hall has also prepared a note—his third—on the implications for sentencing in Northern Ireland and Scotland, which I think you referred to in the written evidence you lodged. That is correct, is it not?

Michael Clancy: Yes, I believe so.

--- Later in debate ---

[The Chair]

Otherwise, we will have too much.

[Alex Cunningham]

Q We have heard very different views on the use of polygraphs. The assistant chief constable, Ted Jacques, said this morning that maybe a trial would be a good idea before it is rolled out in this particular piece of legislation, and Les Allamby said it is untested in this environment, which I suppose is one and the same thing. Is 80% accuracy good enough to recall somebody to prison?

Professor Grubin: Nobody is recalled on the basis of a failed polygraph test. That is the important point which people often misunderstand.

[Alex Cunningham]

Q But the Government seem to be depending on it now.

Professor Grubin: No. The sex offender work is, in effect, a pilot for this, because even though the risks are different the underlying principles are the same: there are individuals who are a cause for concern and you have time to intervene if you are picking up warning signs. If they are making disclosures that indicate that the risk is increasing, that would be grounds for recalling them to prison, but that is because of something they have told you. If they told you in another setting, if they said it in an interview with a probation officer, they would be recalled on that basis as well. If they simply fail a polygraph test but they do not make any disclosures, nothing happens to them. The questions on which they failed are explored further and to say, “Maybe this is wrong, maybe one in five times it is wrong, but maybe there is something there that we have missed and we have to have a closer look.” That is followed up by further interviewing with the offender. There may be other investigations that are put in place. We have a lot of examples, with the sex offender work, where that has happened. I would say, in a way, that the sex offender work is just a very large pilot for this application.

[Alex Cunningham]

Q It is interesting that you should major so much on disclosures, because, as you know, the Bill takes away the role of the Parole Board in determining sentences. That is the source of a tremendous amount of data for the authorities. Do you have a view on that?

Professor Grubin: I am not quite clear what you are asking. In terms of the disclosure, this is after they have been released so the tests are not being run in prison, they are being run in the community, so any issues with the Parole Board I do not think are directly relevant to the polygraph testing.

[Alex Cunningham]

Q Okay. Finally, on young people, I have reservations about the Bill applying to young people in the same way and the same applies to polygraph tests. I wonder if you would like to comment on that directly in relation to young people, bearing in mind more general issues about mental health and the effects of such a regime.

Professor Grubin: There are two aspects: one is mental health and one is young people. I share your concerns regarding young people. It depends on what sort of age we are talking about. Certainly, I have had discussions about what an appropriate age might be. I am very clear that certainly any individual below the age of 16 should not be subject to a polygraph test.

[Alex Cunningham]

Q So a child of 17, it is okay for them to be subject to polygraph testing?

Professor Grubin: You say “subject”—that is probably not the right word. The reasons why you would not want to use it under 16 are, first, we are not sure that brain development means the polygraph will work in the same way as it does with adults. We know there is a big change in brain development around the time of puberty. Around the age of 16, I think things are adult-like enough to mean that polygraph testing will be valid.

[Alex Cunningham]

Sorry to interrupt you, but colleagues in Scotland are suggesting that you do not have full maturation until the age of 25.

Professor Grubin: It is actually a bit older than that—I have seen 29. It is not a question of full maturation; it is a question of whether the brain has matured enough so that the polygraph works in similar way to how it works with adults. Again, there is a lot of confusion about what a polygraph detects. It does not detect lies; we know that. It detects activity within the autonomic nervous system that reflects cognate processing in response to questions. By the time somebody has reached the age of around 16, that looks similar to an adult’s.

[Alex Cunningham]

Q And the mental health issues?

Professor Grubin: That is an issue for training and oversight. There is an important thing for me with polygraph testing. A lot of the criticisms of it are not about polygraph but bad practice and the limitation of polygraph. It is very important that examiners understand issues around mental health and mental illness. If there are problems, they can either adapt their testing to take that into account or not do the test, depending on what the circumstances are.

[Alex Cunningham]

Q That is helpful, but what do we need to do to improve the Bill to make sure that the issues you have just mentioned about mental health, mental health capacity and illness are taken into consideration?

Professor Grubin: I am not sure that that is something you can legislate for, apart from saying that there needs to be proper training and proper supervision. My concern always is that, being Government, one day somebody will want to save a little bit of money and will say, “We don’t really need this supervision quality control. They can just get on with it.” That is where I think danger lies. Provided that there is proper supervision, I do not know how much further you can legislate.

[Alex Cunningham]

That is helpful. Thank you.

[Joanna Cherry]

Q Professor Grubin, your evidence is fascinating. I think the reference to the pilot project earlier might have been in relation to jurisdictions where polygraph testing is not currently used. You will gather from my accent that my jurisdiction is Scotland—I have a legal background—and we do not use it there. You say it is part of a suite of risk management measures, so it is not pivotal but part of a suite. The previous witness pointed out that Jonathan Hall has written about Scotland’s very highly respected Risk Management Authority, and at present it does not use polygraph testing. If it were to be introduced in Scotland, it would require a pilot and various steps to be taken before it could be rolled out. I think that that is what he was referring to.

Professor Grubin: I was a member of a risk management authority for a number of years, so I know how they work and what they look at. When you talk about piloting, are you looking to get disclosures that will have the same levels of accuracy? There is no reason why a Scottish offender should be any different from an English or American one. The polygraph should work in the same way. There is a lot of experience now on how to implement. From my point of view, this is one of the few things where we have been able to scale up from pilot studies to actual implementation and to continue to keep its integrity and keep it working. I do not see why any of that would be any different in Scotland. I appreciate there are resource and training issues, but that would not be a reason not to pilot it. That would be a reason to get the training and implementation issues in place.

--- Later in debate ---

[Laura Trott]

Q I have a quick follow up to that. In terms of the formulation of questions, with the sex offender work that has been done so far, how has that worked most effectively? What lessons can be learned from that when we think about applying it in terrorism offenses?

Professor Grubin: It is very similar. In sex offender testing, the majority of questions relate to their licence conditions and they are asked specifically about those conditions. You have to remember in a polygraph test and a screening test you get, at most, three relevant questions, so if they have 15 licence conditions you are only going to be able to test three of them. You can ask about all of them during the pre-test interview and, of course, the examinee won’t know which ones he will be asked on the test, which is why you get disclosures.

By and large, they are about licence conditions, and I would think that with this group that is what they would be. The things you would be interested in are undisclosed internet devices, have they been in contact with certain individuals, have they travelled to certain places and those sorts of question. The sex offenders are also asked about fantasies, but I am not sure that you would be particularly interested in that with this group.

[Alex Cunningham]

Q My hon. Friend the Member for Brentford and Isleworth talked about people with disabilities in relation to polygraph testing. You said that the success rate goes down to about 60%. Is that a fair success rate to be used as part of the evidence for a recall to prison?

Professor Grubin: Either I have either misunderstood you or you have misunderstood me. Were you referring to intellectual disability?

[Alex Cunningham]

Yes.

Professor Grubin: I think what I said was when IQ gets down to around 60; I did not say that the accuracy was around 60. I said that it becomes less accurate as the IQ lowers and that we typically would not test somebody with an IQ below 60.

[The Chair]

Minister, I think I promised I would come back to you.

Counter-Terrorism and Sentencing Bill (Third sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Tuesday 30th June 2020 Public Bill Committees

[The Chair]

Thank you. We move on to the shadow Minister, Alex Cunningham.

[Alex Cunningham (Stockton North) (Lab)]

Q Good morning, Mark. I want to reiterate the Minister’s thanks to the people out there who are working so hard—your colleagues in the prisons. I have a prison in my constituency, and I get an insight into the pressures that are facing not just prisoners and their families but prison officers and their families as well.

You recently made a film called “The forgotten service”. In that film, you talk about the lack of support for prison officers, particularly around mental health, and there are other issues as well. Somebody responded to that film by saying—I hope the Chair will forgive the swear word in the middle—

“I left 3 months ago from the high security estate, after 18 years I had seen enough. Too much political bullshit, ridiculous workload, rubbish managers causing dramas, and good managers having to pick up all the pieces”.

Few would disagree that the main measures in the Bill are right, but what needs to happen in prisons to ensure that they can cope with the ramifications of it?

Mark Fairhurst: Mental health is a massive issue at the moment. We are getting more and more members suffering from PTSD. When you take the sentiments in that statement from that member of staff who left the service, I can echo every one of those.

What you have got to understand is that staff on the frontline are doing an absolutely fantastic job. They will monitor individuals’ behaviours and make a referral. The current system goes through a three-stage referral process, with the ultimate decision being made to remove someone from the main population to a separation centre at stage three. Very few of those referrals from staff get approved, because of the red tape and the legal challenges. It seems to staff on the frontline that the legal challenges are the major stopping point and buffer to removing people, who are a real danger in the normal population, to a separation centre.

You will eventually have complete apathy from staff, who keep referring people they think should be separated from the main population and keep getting knocked back. That has a knock-on effect, because, day after day, they have to deal with people who are threatening them, who are underhand, who are trying to radicalise people. Day after day, they know that if they make a referral, there is a good chance that that person will not be moved from the main population.

[Alex Cunningham]

Q Yes, but what actually needs to happen in prisons to overcome some of these challenges that officers are facing?

Mark Fairhurst: You need mental health support. You need some sort of counselling service on site five days a week during the working week. You need training to help staff cope, to spot the signs of radicalisation and danger. There is good training on offer if you work in a separation centre, but not for the main body of staff who work on the wings. You need to recognise that staff are under stress, so you need to rotate their jobs so that they are not in a high-stress situation year after year. We need more staff on site to assist us as well, to help prevent trouble breaking out.

[Alex Cunningham]

Q That is helpful, Mark. I am sorry to keep cutting across you, but we have not got very much time. I want to talk about capacity. In answer to the Minister, you mentioned that a terrorist offender could be offered one of two radicalisation programmes. What is capacity like in the system for providing that sort of programme?

Mark Fairhurst: Spaces in the high-security estate, where most TACT offenders are housed, are at a premium. We have very few spaces at all in a high-security estate. We do have spaces on courses for deradicalisation programmes, but they are not mandatory; the offender has the choice of whether they wish to attend one. That is another issue: do we want to make these courses mandatory, and where is the incentive to go on a course if you know you will not be released early?

If we are going to increase sentences, I suspect that we will need extra headroom. We will certainly need the other two separation centres open, because of the rise of the far right, and we will certainly have to think about a high-security prison—perhaps specifically to house terrorist offenders. Although there are only approximately 230 in play at the moment, it may be an idea to separate them totally.

[Alex Cunningham]

Q Okay. The Minister talked about the fact that the Parole Board would not have any role to play in the future for these determinate sentences. Would you like to comment on that? Will there be a full set of expertise available to prepare society and those who will deal with prisoners outside, if the Parole Board, with its expertise, does not have a role?

Mark Fairhurst: I would like the Parole Board involved more, because it is an independent scrutiny body, but the measures we have in place at the moment are adequate. They work really well with the intelligence gathering from the shop floor, with the assessments and with multi-agency experts, including the security services. I do not think there is much more we can do, but I have no objections to the Parole Board being involved more as an independent scrutiny panel.

[Alex Cunningham]

Q That is helpful. I have one more question. Young people will be subject to the same legislation as older, more mature people. Do you have any thoughts on that with regards to rehabilitation and their future?

Mark Fairhurst: This is another issue. If you look at people under the age of 18 and at female offenders, do we have the capability to house them in a secure environment, or are we going to throw them into the adult estate? Throwing a young person into the adult estate due to the nature of their offence could have an adverse effect, so we need to come up with programmes for young offenders who commit terrorist crimes. I do not think we have that capability at the moment, but rehabilitation of a young person has more chance of success than rehabilitation of someone who is seasoned and radicalised. I feel that we have a big opportunity to make a difference in that field.

[Alex Cunningham]

That is very helpful. Thank you.

--- Later in debate ---

[The Chair]

I suspect that your evidence is extremely useful to the Committee, but I have to ask for slightly shorter answers, please.

[Alex Cunningham]

Q Mark Fairhurst suggested that the radicalisation programmes are far from fit for purpose. You have suggested that yourself. You have also talked about the various different issues that a prisoner may be facing. Can you develop a little bit more what needs to happen? You talked about investing significantly, so there must be insufficient resources in the system. What actually needs to happen?

Professor Acheson: The amount of skill and training required to staff separation units—we know that only one out of three is running at the minute—is significant. If you are putting our frontline prisoner-facing staff, who will have the most influence and impact on individual terrorist offenders, in that sort of environment, it will take a huge amount of training, not only in the skill to deal with those prisoners, but in psychological resilience and so on. We know what seems to work in relation to violent extremism across Europe: it is the development of long-term, high-quality relationships, which are pro-social and expand far beyond the prison gates. That is very expensive, and it takes a lot of support to put that in place and to maintain it.

[Alex Cunningham]

Q We have talked about the fact that the Parole Board will not have a role for prisoners who have a determinate sentence. Would you like to comment on that, because of the level of expertise that they bring to that package you were describing earlier?

Professor Acheson: This is not a very auspicious time to talk about the Parole Board, but it is very good at managing ordinary offenders, and statistics would bear that out. I have said this earlier, and I do not want to repeat myself, but I do not believe the Parole Board is philosophically or organisationally the best suited to managing that risk. It is very good at managing ordinary offenders, but we have a new cohort coming through of profoundly different, ideologically motivated offenders, either through Islamism or through extreme right-wing philosophies, and we probably need a different, multi-agency approach to managing that risk all the way through the system.

[Alex Cunningham]

Q During these evidence sessions, I have been concentrating on the fact that young people will be treated the self-same way as older prisoners in relation to determinate sentences. Do you have a view on that, particularly as the immaturity of a younger person may lead them to act in a particular way, but their opportunity for rehabilitation is probably greater?

Professor Acheson: I agree that the potential is greater, but I think sometimes we confuse vulnerability with dangerousness, and we use that in relation to young people and women. We have some very dangerous extremist offenders in either camp—very few of them, but we do have a small number—and we must not conflate the two.

In general terms, and I speak as somebody who worked for the Youth Justice Board, we need, where we can, to ensure that the disposals that are at the judge’s discretion, including detention and training orders and some non-custodial interventions, are still considered heavily before penalising people who, as you have said, may be just immature.

[Alex Cunningham]

Q I watched a film with you in it, where you were talking about the circle of trust and accountability. Would you like to develop that in a quick answer?

Professor Acheson: The circle of trust and accountability is a system devised by Mennonites, I think, in Canada, where one of their community had been convicted of a high-profile sex offence and was returning to the community. That group of people said, “How can we welcome this person back into our community”—because that was the Christian ethos—“but also keep our kids safe?” They devised a system where there was community involvement in a circle around the individual, which managed to help him to reintegrate properly but protected the community as well.

I am very keen on that idea being replicated for terrorist offenders after release in the community, as a parallel to the state’s responsibility to keep people safe. In other words, there could be a community response like that one, where we are getting members of the community involved in protecting national security. We miss a trick in this country—research backs this up—in that we do not, particularly in relation to Muslim communities, enlist ordinary members of the community who have some standing and some credibility in supporting the reintegration of terrorist offenders.

Those offenders will suffer many of the same challenges that sex offenders do: shame, difficulty in finding somewhere to live and difficulty in finding something to do. All those things would point towards further offending and delay disengagement, so I am very keen on the concept being looked at in relation to released terrorist offenders here.

[Alex Cunningham]

Q We are a long way from anything like that happening in the UK.

Professor Acheson: I think we probably are. We are outriders in that respect in relation to the rest of Europe, which does heavily involve non-governmental organisations and community groups, for example, in reintegration. We have seen that in the Molenbeek suburb in Belgium, which is responsible for producing quite a number of jihadis, where the community has been involved and works in partnership with, although separate from, the statutory bodies whose first priority is safety and security. That is a necessary but insufficient way of dealing with the problem.

[Kenny MacAskill]

Q Mr Acheson, you are well sighted on the Scottish system with the Risk Management Authority and the order for lifelong restriction. You talked about good regime designs not being punitive, but the imposition of a significant sentence without the opportunity for early release must appear to be so. Do you think that the order for lifelong restriction is perhaps the better option for many who are convicted by a court, rather than a mandatory sentence?

Professor Acheson: I am not sure which would work better. I am certainly on record as saying that I support the Government in much longer sentences for terrorist offenders, primarily because it is a unique opportunity to incapacitate an ideologically motivated offender and bring services around that individual. Those services need to be extended through the gate and into the community.

We need to focus on this as a national security issue that we need to deal with in a different way, so lifelong restriction may have its merits. The key thing is that we make sure that support and control exist around offenders who are being released and who may go back into extremist offending, so that in whatever way we apply restrictions on their liberty—including TPIMS, for example—we do it in a proportionate way. There is absolutely an argument that punitive measures increase alienation. I think that might be a trade-off, in some respects, for people with whom we may never be satisfied that they are safe to release. We have to embrace the idea that there will be a few offenders who must be kept in prison indefinitely, because they either cannot or will not recant a hateful ideology, and they have the means to mobilise that into violence in the community.

--- Later in debate ---

[Chris Philp]

Q Thank you. Would you agree that the historical involvement of the Parole Board in offering the possibility of early release does not really have any meaningful impact on prisoner rehabilitation or behaviour? Or to the extent that it does, that it may simply stimulate false compliance—pretending to comply with deradicalisation programmes in the hope of securing early release?

Professor Silke: It is a complicated question. In general, I agree with Mark Fairhurst’s point that the potential for early release is an important incentive for behaviour in custody. If we lose the potential for early release, we are losing a tool from the toolbox, and we need to question whether that is sensible, or whether there are advantages in keeping it in some shape or form.

Does false compliance happen? Yes, it certainly does, but if we look at reoffending stats, compliance seems to be genuine in most cases. Nobody has a 100% effective intervention for dealing with these types of prisoner or any other type of prisoner, so we should never expect an intervention to be 100% accurate. However, the stats suggest that what is happening in prison with most terrorist prisoners is currently effective, and so if we are making changes to the regime and to the interventions, we need to have a careful think about what the knock-on consequences might be.

Personally, I prefer still to have the potential for early release at some stage as a tool in the toolbox for these serious offenders. I think it can make a difference in some cases. From my perspective, the Parole Board usually brings a serious and considered assessment of the available evidence in a particular case, which is often very welcome. Again, by removing that from the equation, are we losing something that has value?

[Alex Cunningham]

Q Good morning, Professor Silke. Are the current deradicalisation programmes in prisons fit for purpose? If not, what needs to happen?

Professor Silke: The problems are relatively new. My view is that they work far better than most members of the general public want to think. Again, the proof is in the very low reconviction rates that we see after people have been released. If it is working in the vast majority of cases, that is an encouraging sign. If there are failures, we need to look into that. One thing that the Bill does not do in its current format is try to identify what is different about the failures compared with the rest of the prisoners who are being released—what went wrong in their cases compared to the others? I am not sure that we are getting at that at the moment.

The evidence base around both risk assessment and interventions for terrorist prisoners is in development. It is massively better today than 10 years ago, and I think it will continue to improve. I know that the Ministry of Justice is involved in a range of programmes to improve the evidence base around ERG and healthy identity intervention, which I strongly welcome. Many Governments are involved in similar efforts overseas.

[Alex Cunningham]

Q You talked about the potential for early release and how important that can be. I do not think any of us here are advocating that the more senior offenders should not serve the full 14 years, but do you think that the Bill has the right approach to terrorist offenders under 21?

Professor Silke: That is a very good point. There are differences between very young offenders and the older, more established offenders, and I am not sure that that necessarily comes across strongly in the Bill. That is probably an area where our understanding is more limited than it should be. It needs more attention and research.

[Alex Cunningham]

Q The Bill does not recognise that they are any different, in the way it is formatted at the moment. How could we improve it?

Professor Silke: One of the things we will need to do is refine it, in terms both of risk assessment and intervention, to tailor it more for younger offenders. At the moment, there is a question mark over whether what is currently available has young offenders firmly enough in its sights.

[Alex Cunningham]

Thank you.

[Kenny MacAskill]

Q Professor Silke, I do not know whether you are aware, but in Scotland there is a sentence called the order for lifelong restriction, which is indeterminate but allows for release or indeed for detention to continue. Given your views on the benefit of some sort of early release being available for those who show remorse or rehabilitation—indeed, the avoidance of people being released at the end of their determinate sentence because they have served it—do you think that an order for lifelong restriction may be a more appropriate sentence for some terrorists in Scotland?

Professor Silke: Honestly, I do not know enough about how it works to make an informed assessment of it. I am always cagey about anything indeterminate, which might imply indefinite detention. The advantage of having a fixed term, rather than something quite open-ended, is that at least you know exactly what you have to work with.

Counter-Terrorism and Sentencing Bill (Fourth sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 4th sitting: House of Commons
Tuesday 30th June 2020 Public Bill Committees

[The Chair]

Members should feel free to take their jackets off if they are so inclined. We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available on the table. It is helpful to proceedings if hon. Members who want to push an amendment, other than the lead amendment in a group, to a vote could indicate that to me in advance. If they could supply your speaking notes to the Hansard reporters, I think they would be most grateful.

Clause 1

Offences aggravated by terrorist connection

[Alex Cunningham (Stockton North) (Lab)]

I beg to move amendment 35, in clause 1, page 1, line 8, at end insert—

“(ab) In subsection (3), after ‘if’ insert ‘the court has found beyond reasonable doubt that’”.

This amendment determines that a court must decide beyond reasonable doubt that an offence has a terrorist connection.

It is a pleasure to serve under your chairmanship yet again, Mr McCabe. Hansard should have our notes, as we have already forwarded them.

We support the Bill but, as hon. Members can see, we have identified some ways in which we believe it could be made better. We will get into the details of that over the coming weeks. Terror attacks have shaken this country: people have lost their lives; people have lost their livelihoods; loved ones have been lost; people have suffered life-changing injuries. Nothing we do or say in this House can bring back those people who have died or heal those people who have been so badly injured, but we can try to ensure that justice has been achieved.

In his speech on Second Reading, my right hon. Friend the Member for Tottenham (Mr Lammy) talked specifically about some of the terror incidents that we have seen in this country and the conclusions we can draw from them. Two possible conclusions were that prison sentences are not long enough and that deradicalisation programmes in prison are not working.

That is why Labour seek to work with the Government on this Bill, starting with amendment 35. We hope to make the case for why we believe there are some amendments that would improve the Bill. Ensuring that Government legislation does not discriminate unfairly against protected characteristics is a key part of what we will try to achieve throughout the process.

Terrorism is often conflated with Islamic extremism, yet the fastest-growing terrorist threat comes from the far right. We want to ensure that the legislation is fair and proportionate. It must go hand in hand with a coherent deradicalisation strategy alongside the Bill, working to minimise the risks of an offender committing further terrorism offences once they leave prison.

Many of the amendments that we will ask the Committee to consider are simply probing amendments to better understand the Government’s thinking, and to give the Minister more time to think about the different issues as we progress through this stage of the Bill. However, there are other amendments that we believe the Government should adopt, if the Bill is to achieve what it sets out to do and be seen to be fair. We will go further into the detail, but I hope we can have healthy and robust debate about how to move forward, and prove to the public out there that politicians from different parties can work together.

Amendment 35 determines that a court must decide “beyond reasonable doubt” that an offence has a terrorist connection. The purpose of this probing amendment is simply to clarify that the finding of a terrorist connection for the new offences that the Bill brings into scope will be subject to the same “criminal standard of proof” as is currently the case, and would effectively amend section 69(3) of the sentencing code, covering offences aggravated by terrorist connections.

We believe we should spell out in the Bill the need to ensure that there can be no reasonable doubt about the connection, because it can have serious ramifications for the offender and the legal system. The House of Commons Library briefing on the Bill states, under the provisions in clause 1:

“If the court determines that there was a terrorist connection, it must treat that as an aggravating factor when sentencing the offender. The presence of an aggravating factor may result in a higher sentence (within the statutory maximum) than would otherwise be the case.”

The Library briefing paper goes on to say:

“The finding of a terrorist connection can also trigger terrorist offender notification requirements and may result in the court ordering forfeiture in a wider range of cases.”

The briefing goes on:

“Such a finding also engages the restrictions on release contained”

in the Terrorist Offenders (Restriction of Early Release) Act 2020, which

“requires that all determinate terrorist or terrorism-related offenders must be referred to the Parole Board at the two thirds point of their sentence before they can be considered for release.”

The Bill’s equality statement acknowledges that

“Asian/British Asian and Muslim individuals within the Criminal Justice System (CJS) have been disproportionately affected by terrorism legislation relative to the percentage of Asian/British Asian and Muslim individuals in the total population.”

The equality statement goes on to the say that the provisions in the Bill are

“unlikely to result in indirect discrimination within the meaning of the Equality Act”.

However, the Lammy review highlighted evidence of disproportionate outcomes for BAME individuals at the sentencing stage and in decision making by judges and magistrates.

While the review found decision making by juries to be largely fair and proportionate, the same was not found when considering decision making by sentencers. That is relevant to the clause, given that the finding of a terrorist connection is at the discretion of the judge, taking account of any representations made by the prosecution or the defence. That is concerning, given the findings of the Lammy review, which are currently being discussed on the Floor of the House. We believe that BAME individuals may be at increased risk of discrimination, with their crime considered to have a terrorist connection.

Amendment 35 would amend section 69(3) of the sentencing code to require that the court must find “beyond reasonable doubt” that an offence has a terrorist connection. The House of Commons Library briefing paper, which colleagues will have read, says that clause 1 would

“greatly increase the number of non-terrorist offences that can be found to have a terrorist connection”,

whereas currently only specified offences can be found to have such a connection. The widening of what can be found to have a terrorist connection will, I fear, disproportionately affect ethnic minorities. That is why we must press the Minister on how he will guarantee decisions are made on the measure of “beyond reasonable doubt”.

There is also the question of what case law is used to guide sentencers as to what constitutes terrorism, as well as what constitutes a connection to it. Some of the commentators on the Bill are not entirely convinced about what the Government are trying to achieve. I can understand that, as there are already a lot of specific terrorism offences.

Unamended, the Bill seems to create the potential for sentencers to grow their own definitions, both of “terrorism” and “connection”. Can the Minister give examples of where the absence of the provision addressed in clause 1 has resulted in an injustice or an insufficient response? There are concerns that the provision could do more damage than anything else. A wrongfully determined terrorist connection could fuel or develop a grievance against the authorities that might not have existed before. We cannot ignore the impact a wrongful terrorism sentence would have on an individual’s life. We cannot take that sort of chance. We must be sure; we must be beyond reasonable doubt.

[Taiwo Owatemi (Coventry North West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I share the concern expressed by my hon. Friend the Member for Stockton North in relation to the burden of proof and the potential implications of the Bill in disproportionately convicting ethnic minorities by widening the scope of what a terrorist connection is under this legislation.

This is a sensitive subject. Terrorism and the actions of extremists have instilled fear, caution and a sense of doubt in many communities across our country. An act of terror and of any extremist is abhorrent. Those individuals should indeed be brought before a court of law and tried for their crimes, not least because of their direct action causing injury, committing murder or traumatising those who come anywhere near their path and because of the wider implications that will be felt across the country and the world in our age of quick-fire communications and social media.

In my generation, I have seen this in how the Oklahoma bombing instilled fear; in how 9/11 changed the world; and in how 7/7 changed my perspective and that it could happen here at home. The murder of Lee Rigby proved that even those who protect us are not always safe. The slain nine churchgoers at Emmanuel African Methodist Church and the Manchester concert bombings showed that no one, even those in the most innocent of settings, is off limits. The hateful act of violence that took Jo Cox proved that our own political discourse has taken an awful turn.

These acts by rampant extremists and the murderous death toll that they leave behind, the radical ideas that brought them to this path and the many plots that have been foiled that we will never know about show us that these crime, or crimes yet to be committed, are heinous. They also prove that we must determine, as this amendment seeks to do, that these crimes or plots are not small and should be taken with the utmost seriousness.

I have three concerns about widening the terrorist connection provision under this legislation and lowering the burden of proof. First, we are leaving it to sentencers to determine their own definition of what constitutes a terrorist connection. Secondly, it creates a form of suction like a vacuum that will imprison even more ethnic minorities and put them behind bars under terrorist legislation which will see them lose their freedom longer than they need to. Thirdly, and even worse, it potentially radicalises them while they are in prison.

There is a danger, as seen in clause 1, that by allowing any offence to be capable of having a terrorist connection, one’s judgement will inevitably come into play. This punishment carries a sentence of two or more years. It would not be amiss to say that everyone holds biases, including those who administer our laws and hand down sentences. By widening the scope and effectively leaving it open to interpretation, the Government want us to believe that we will capture individuals who may have slipped through the net thus far as ordinary criminals or should have been convicted of terrorism. Can the Minister point us to data that back this assumption? The likelihood is that we will just imprison people for the sake of being seen to be attacking the issues of terrorism and extremism.

We are already aware that ethnic minorities are disproportionately sent to prison under our legal system. We are also acutely aware that black and Asian men, particularly those of Islamic faith, are more likely to be seen as threats and harbouring extremist views. The Lammy review conducted by my right hon. Friend the Member for Tottenham highlighted some concerns about how our criminal justice system sees these individuals. The odds of receiving a prison system were around 240% higher for black, Asian and minority ethnic offenders compared with white offenders. Research commissioned by the review also found that at the magistrates court, black, Asian, mixed and Chinese women were all more likely to be convicted than white women.

The number of Muslim prisoners has more than doubled over the past 17 years. In 2002, 5,502 Muslims were in prison. By 2019, this had risen to 13,341. While in prison, Muslim prisoners described having their faith viewed by prison authorities through a lens of risk, according to the research, which also found that prisoners believed that this put them at greater threat of being radicalised. Given the biases in the system and the extraordinary likelihood of women from ethnic minorities receiving a prison sentence, what do the Government think this legislation will mean for ethnic minorities? Do they really think that lowering the burden of proof and expanding the scope of what constitutes a terrorism offence will do anything to keep these young men and women away from the hands of those who wish to radicalise them?

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

It is a pleasure to serve under your chairmanship, Mr McCabe, in our line-by-line consideration of the Bill. I thank the shadow Minister for his opening remarks, in which he expressed general support for the objectives of the Bill. I hope that we can, as he said, provide an example of constructive cross-party working, although I am sure he will have many questions about the detail. As the shadow Minister has said, and as the hon. Member for Coventry North West said in her speech, the threat that terrorism poses is a serious one, and one of our heaviest responsibilities as Members of Parliament is to protect our fellow citizens from such attacks, but in a way that is lawful, fair and just.

Amendment 35 seeks to specify a beyond-reasonable-doubt standard of proof in making the terrorist connection, as clause 1 does. I am happy to confirm for the shadow Minister that existing criminal court procedure already requires the criminal standard of proof to be met in making a determination of a terrorist connection, or indeed any finding of fact in relation to sentencing. If, after conviction by a jury, there is a finding of fact to be made by the judge prior to sentencing in what is known as a “Newton” hearing, under existing procedures the criminal standard of proof is applied. On the request that the shadow Minister and his colleagues make, I am happy to confirm that it is already inherent in the operation of our criminal justice system, and rightly so, for all the reasons that the shadow Minister and the hon. Member for Coventry North West have outlined. I trust that on the basis of that assurance they will see fit not to press the amendment, given that the provision they call for is already enshrined in law.

One further point: both the shadow Minister and the hon. Member for Coventry North West raised the question of what happens if the judge makes an error or exhibits some form of conscious or unconscious bias. That is extremely rare, but, if it did happen, there are of course appeal rights against both the sentence and any erroneous finding of fact associated with it. If a defendant or, by this point, an offender who has been convicted feels that the sentence is genuinely unfair or that an unfair determination has been made of a terrorist connection, they can appeal, so a safety mechanism by way of appeal also exists. I hope that on that basis the shadow Minister will not press the amendment to a vote.

[Alex Cunningham]

I am grateful to the Minister for his explanation. He believes that the matters are already covered in existing law, but perhaps he will accept that later in the Bill we will be discussing how we make sure that what has happened over a period of time has in fact demonstrated that the judges have got it right. In other words, we will revisit this matter with a view to seeking a form of review of how the legislation is working to ensure that we do not have the particular problems that might well be possible. I am also grateful to him for reminding us that in criminal proceedings we still have an appeal process in this country, and I am sure that that would operate appropriately. On the basis of what the Minister has said and on the basis that we will seek reassurance through a review process later in the Bill, I am content to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Alex Cunningham]

I beg to move amendment 36, in clause 1, page 3, line 30, at end insert—

‘(8) Before this section comes into force, the Secretary of State must commission an analysis of the impact of this section on people with protected characteristics, including but not limited to—

(a) the impact on people from minority faith groups, including the numbers received into prison and the length of the sentence served;

(b) the impact on people from BAME communities, including the numbers received into prison and the length of the sentence served; and

(c) the consequences of any disproportionate impact on people with protected characteristics on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences.

(9) A copy of the analysis must be laid before both Houses of Parliament.”

This amendment requires the Secretary of State to commission an analysis of the equality impact of extending the ability of the court to identify a terrorism connection.

[The Chair]

With this it will be convenient to discuss amendment 42, in clause 21, page 18, line 23, at end insert—

‘(3) Before this section comes into force, the Secretary of State must conduct an analysis of the impact of this section on people with protected characteristics, including but not limited to—

(a) the impact on people from minority faith groups, including the numbers received into prison and the length of the sentence served;

(b) the impact on people from BAME communities, including the numbers received into prison and the length of the sentence served; and

(c) the consequences of any disproportionate impact on people with protected characteristics on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences.

(4) A copy of the analysis must be laid before both Houses of Parliament.”

This amendment requires the Secretary of State to commission an analysis of the impact of extending sentences for offenders of particular concern on people with protected characteristics.

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[Alex Cunningham]

These amendments would require the Secretary of State to commission an analysis of the impact of this section of the Bill before it comes into force on people with protected characteristics, as well as the consequences of any disproportionate impact on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences. With this amendment, we seek to address the issue that was highlighted by the probing amendment and to clarify whether the same criminal standard of proof would apply to determining a terrorist connection for all offences, as is currently the case for listed offences. In particular, we seek to determine whether the clause may have a disproportionate impact on people from minority faith and BAME communities, including on the numbers who are received into prison and the length of the sentence served.

There are significant risks involved in expanding the number of individuals who fall under the provisions of separate terrorism legislation, particularly if the imposition of additional sanctions is seen as neither fair nor proportionate and is found to have a disproportionate impact on minority faith and BAME communities in particular. As I said during my speech on amendment 35, the equality statement on the Bill acknowledges that

“Asian/British Asian and Muslim individuals within the Criminal Justice System (CJS) have been disproportionately affected by terrorism legislation relative to the total percentage”

of those individuals “in the total population.”

In 2016, a Ministry of Justice study of Crown court decision making found that, under similar criminal circumstances, the odds of imprisonment for offenders from self-reported black, Asian, Chinese or other minority ethnic backgrounds were higher than for offenders from self-reported white backgrounds. My hon. Friend the Member for Coventry North West spelled that out in some detail.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I do not know whether my hon. Friend was in the Chamber to hear the urgent question asked by my right hon. Friend the Member for Tottenham about the Lammy review, but he pointed out that, when the review was done in 2017, the proportion of BAME people in prison was 41%; it is now 51%. Does my hon. Friend have any thoughts about that?

[Alex Cunningham]

Unfortunately, I was not in the Chamber for that statement, but I bow to the superior knowledge of my boss and my Whip on this matter. It is absolutely essential that we never lose sight of the facts that my hon. Friend has just outlined.

Unfortunately, when it comes to magistrates courts, systematic scrutiny of magistrates’ decisions is hindered by the absence of reliable data collected on a number of key issues. For example, magistrates courts keep no systematic information about whether defendants plead guilty or not guilty, although there are similar disparities at the Crown court level. Magistrates courts also do not keep proper records of defendants’ legal representation, which means that no one knows whether particular ethnic groups are more or less likely to appear in court facing criminal charges without a lawyer.

The cliché suggests we are all equal under the law, but it would be foolish to deny that our justice system has a certain bias. We must make sure that when we amend or introduce legislation, we do so with our eyes and ears open. Particular attention needs to be paid to the equality impact of the Bill, to ensure that the House is as informed as possible about its impact. We must also ensure that the provisions do not have a disproportionate effect on minority faith or racial groups.

During the oral evidence session, one of my questions was to Peter Dawson from the Prison Reform Trust. We talked about the expansion of sentences for offenders of particular concern and how they would work. Peter Dawson said in written evidence:

“The expansion of SOPCs and the expansion of the number of offences able to be identified as having a ‘terrorist connection’ will need careful monitoring for their impact on prison security and on people from minority faith and ethnic communities”.

I asked:

“How can we improve the Bill to achieve that careful monitoring?”

Mr Dawson replied:

“It may not be something that the Bill can achieve, but I think it is reasonable to ask the Government, after the Bill becomes law, to provide a report on what the impact has been. I entirely take the point that the nature of terrorism at the moment means that certain communities are likely to be more heavily represented, but the point is that all criminal justice agencies need to go beyond that to guard against the unconscious bias that will otherwise creep in.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 38, Q88.]

Other witnesses talked about similar things during the evidence sessions. It is important that we do not lose sight of that.

Along with the expansion of sentences for offenders of particular concern, the clause has the potential to increase significantly the number of individuals in prison who are subject to separate terrorist sentencing. Many of those individuals are vulnerable to radicalisation and they have experienced a steady accumulation of institutional discrimination.

The danger with these provisions is that they could create a significant population of individuals in prison and under supervision in the community who will receive longer sentences and be subject to more onerous and lengthy supervision requirements and forfeiture orders than others who may have received shorter sentences for equivalent offences because the terrorist connection to their offence has not been identified.

That could place those individuals at greater risk from people who would seek to exploit that sense of grievance, in order to radicalise them in support of an extremist ideology. It could also undermine the effective management and supervision of this group in prison, increasing the currently small number of people designated as terrorism offenders to a substantial proportion of the population. This morning, we heard from a representative of the Prison Officers Association, who talked in some detail about the difficulties that prison officers now face in trying to manage particular groups in the prison establishment.

It is right that we commission analysis of the impact of our legislation and if such an analysis proves that there is a disproportionate impact on certain groups, Ministers need to act to correct any discrimination and, if required, change the law. Amendment 42 would require the Secretary of State to commission analysis of the impact of extending sentences for offenders, which is a particular concern regarding people with protected characteristics, and for that analysis to be laid before Parliament before the section comes into force.

Clause 21 replaces schedule 13 of the sentencing code, with the schedule set out in schedule 6 to the Bill. That schedule lists offences that require the imposition of an SOPC where an extended sentence or life sentence is not imposed. This will bring a wider number of offences into the SOPC regime, removing the possibility of those committing such offences from being eligible for a standard determinate sentence. That would mean that only the most minor terrorism offences—those with a maximum sentence of two years or less—would not require an SOPC where an extended determinate sentence is not imposed.

The Bill will also create new sentences—the equivalent of an SOPC for adult offenders in Scotland and Northern Ireland, and for under-18s throughout the UK. Clause 21 addresses a problem created by the TORER Act, which made all terrorist offenders serving a custodial sentence eligible for release two thirds of the way through their sentence, subject to the discretion of the Parole Board. There remained an issue with offenders who were not granted a release until the end of their sentence, and who, as a result, would be released into the community without any form of supervision. The amendment would address this anomaly by requiring that terrorist offenders in the UK would have a minimum period of supervision on licence of 12 months following release, even if they serve the full custodial part of their sentence in custody.

The combined impact of the TORER Act and the provisions of this clause, along with the provisions of clause 1 that allow for the court to determine a terrorist connection for any offence, is to significantly increase the number of individuals subject to separate and more onerous terrorist-sentencing legislation. This includes a longer period in custody, release subject to the discretion of the Parole Board, and a minimum 12 months’ supervision in the community.

There are significant risks involved in increasing the number of individuals who fall under the provisions of a harsher sentencing regime, particularly if the imposition of additional sanctions is seen as being neither fair nor proportionate, and is found, as I have said, to have a disproportionate impact on minority, faith, and BAME communities in particular.

The amendment also seeks to determine the consequences of any disproportionate impact on people with protected characteristics of efforts by the prison authorities to rehabilitate offenders convicted of terrorism offences. Many of those vulnerable to radicalisation have experienced a steady accumulation of institutional discrimination. The danger with the provisions is that they could create a significant population of individuals in prison and under supervision in the community who will receive longer sentences and who will be subject to those more onerous and lengthy supervision requirements than others who receive shorter sentences for equivalent offences. I have already covered that point. That could place them at greater risk from people who seek to exploit that sense of grievance to radicalise them in support of an extremist ideology. It could also undermine the effective management and supervision of this group in prison by increasing a currently small number of people designated as terrorism offenders to a substantial proportion of the prison population.

--- Later in debate ---

[Alex Cunningham]

The Minister says that nothing in the Bill would lead to further discrimination. I should hope that that would be the case for any legislation we pass. However, the fact remains that there are certain groups within our society—BAME and other groups—who are disproportionately disadvantaged in the legal system. The amendment asks the Minister to recognise that there could be even more of that as a direct result of the provisions of the Bill.

[Chris Philp]

Where there are concerns of the nature of those raised in the Lammy review, which I think the shadow Minister or the hon. Member for Coventry North West mentioned earlier, the Government are committed to responding to those. Indeed, in a sense, we are in the wrong room in Parliament today to raise that, because there was an urgent question earlier on exactly that topic, to which the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk) responded.

The Government are committed to acting in response to the Lammy review to make sure that no unconscious biases discriminate against any particular group. I have not had a chance to read the Hansard of the debate, and I suspect the shadow Minister has not either, but based on the conversations that I have heard taking place in the Ministry of Justice, I think that the Government generally and the Ministry of Justice in particular are committed to taking action where needed. I would have expected the response of my hon. Friend the Member for Cheltenham to the urgent question an hour or two ago to have confirmed that.

[Alex Cunningham]

The fact remains that the Lammy review talked about a whole range of provisions that were supposed to be implemented, but very few of them have been. Some have been partially implemented and others have not. Can the Minister simply accept that we are failing as a Government and a Parliament to ensure that discrimination does not exist in our system? We are simply not taking the action to do that. Does he further accept that the more legislation we have where particular groups of people, BAME or otherwise, feel that they are being discriminated against, the greater the discord in society?

[Chris Philp]

Recent events obviously tell us how important it is to maintain social cohesion and confidence in the criminal justice system. The hon. Gentleman raises a point that goes far beyond the scope of the Bill, but it is a fair point none the less. If he listens to what my hon. Friend the Member for Cheltenham, my fellow Justice Minister, said in the House of Commons Chamber earlier, he will see that the Government are resolved to act where necessary to address issues of that kind.

The substance of the Bill is obviously public protection. It makes no distinction between any kind of terrorism, whether rooted in a twisted religious ideology or a far-right ideology, or terrorist acts committed for any other reason. The Bill, as with all Bills, as the hon. Gentleman says, is even-handed between different kinds of offence and different kinds of offenders. Where we need to do more systemically, not just in relation to the Bill but across the whole range of the criminal justice system, to make sure that everybody gets a fair hearing and fair treatment, the Government will do that. I hope that the response of my hon. Friend the Member for Cheltenham to the urgent question earlier will give assurance on that point. No doubt there will be many more opportunities to debate it.

[Alex Cunningham]

rose—

[Chris Philp]

On the specific question of amendment 36 to clause 1 and amendment 42 to clause 21, which call for an impact assessment prior to the commencement of those clauses, I repeat what I said earlier. We have already done that. It has been published as the impact assessment together with the Bill and the equality statement that went with it. The obligation being requested by the amendments has already been discharged, but of course we must remain mindful, as the shadow Minister eloquently said, of potential unconscious biases. We must be vigilant and make sure that our justice system is not in any way besmirched by them. I am confident that the measures my hon. Friend the Member for Cheltenham laid out earlier will achieve that.

[Alex Cunningham]

I am sorry that the Minister would not give way, because I wanted to press him on that particular matter. We have several days of debate, so we have plenty of time to deal with these issues. It is a bit disappointing.

[Chris Philp]

I apologise; I did not realise that the hon. Gentleman was trying to intervene. Had I realised, I would, of course, have given way.

[Alex Cunningham]

Fair enough; I accept that.

The Minister was talking about how the Bill is important for public protection and I agree. It is essential to protect the interests of the public, but if the Bill results in a growing number of terrorists in prison, and if we are releasing into the community people who are still radicalised—or even new people who they managed to radicalise when they were in prison—perhaps public protection will not gain in the way that the Government hope.

I accept the Minister’s statement that he believes the law covers that, but I am disappointed that we cannot accept that a review, although it might cost a few pounds and take some time to commission, would at least give us some information to enable us to understand how well or how badly the legislation is working. I accept what he said, however, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

We touched on many of the purposes of clause 1 in our debate on amendments 35 and 36. Very briefly, clause 1 seeks to give judges the power to make a factual finding after conviction that a particular offence has a terrorist connection, to the standard of proof beyond reasonable doubt, as has been discussed, rather than simply referring to a fixed schedule of offences. If, for example, somebody commits an offence that is a serious offence but is not currently on the list of terrorist offences, the finding of terrorist connection can none the less be made. That has consequences in the rest of the Bill, and we will debate them in due course.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 2

Meaning of “serious terrorism offence”: England and Wales

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Chris Philp]

Under the Sewel convention, where a provision in UK legislation touches on a matter that is devolved to one of the nations of the United Kingdom, one applies for a legislative consent motion. Most of the Bill, relating as it does to terrorist offences, is reserved to the UK Government, but some relatively limited elements of it touch on matters that are ordinarily devolved. For them, we will of course seek a legislative consent motion under the Sewel convention. In that context, we have made contact with the Scottish Government in Holyrood and with the Northern Ireland Administration—in particular, with Justice Minister Naomi Long. We have entered into fairly extensive correspondence, which is ongoing, about the provisions in the Bill. The Justice Minister in Northern Ireland has raised various matters, which she has asked questions about, asked for clarification about and wanted to discuss further. Those discussions and that correspondence are ongoing.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 4

Serious terrorism sentence for adults aged under 21: England and Wales

[Alex Cunningham]

I beg to move amendment 37, in clause 4, page 5, line 32, at end insert—

“(7) The pre-sentence report must—

(a) take account of the offender’s age;

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(8) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (7) and consider whether they constitute exceptional circumstances under subsection (2).”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 45, in clause 6, page 9, line 20, leave out subsection (11) and insert—

“(11) In forming an opinion for the purposes of subsections (1)(d) and (6), the court must consider a report by a relevant officer of a local authority about the offender and the offender’s circumstances.

(11A) Where the offender is under 21 years of age, the report must—

(a) take account of the offender’s age; and

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender;

and the court must take these factors into account when forming its opinion under subsection (6).

(11B) In considering the report, the court must, if it thinks it necessary, hear the relevant officer.”

Amendment 46, in clause 7, page 10, line 13, at end insert—

“(2A) Where the offender is under the age of 21, in forming an opinion for the purposes of paragraph (2), the court must consider and take into account a pre-sentence report within the meaning of Article 4 which must—

(a) take account of the offender’s age; and

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.”

[Alex Cunningham]

I am sure that these amendments come as no surprise to the Minister and other members of the Committee, given my interrogation of our witnesses during the oral evidence sessions over the past few days. This area needs particular attention from the Government, and I intend to press the amendment to a vote—unless, of course, the Minister comes up with an appropriate answer. On the basis of all this kindly co-operation and friendliness that we are sharing, and our intention to prove to the public that we can work across parties, perhaps he might surprise me a little.

Amendment 37 would require that when a court considers a serious terrorism sentence for a young adult under the age of 21, the pre-sentence report must take account of the offender’s age and consider options other than a serious terrorism sentence for rehabilitation and reducing harm. It means that the court must also take into account the issues raised in the pre-sentence report and whether it constitutes exceptional circumstances under proposed new section 268B(2).

We need a basic recognition in the Bill’s sentencing framework that, simply put, young adults and adults are inherently different, not only in terms of maturity, but in their potential for rehabilitation. Regarding the level of maturity, numerous organisations, such as the Howard League, have advocated for this proposal. It has been recognised in reviews such as the Lammy review, and by the Justice Committee. Why is it not recognised in the Bill?

As we have said from the outset, serious terrorist offences deserve a serious sentence, but it is still important to consider the age of the offender when other offences of a non-terrorist nature are committed. Although the amendment is specific to under 21s, in line with the Bill, evidence of maturation suggests that young adults up to the age of 25 ought to be considered as a separate group requiring a distinct response from criminal justice agencies.

The work in this area continues apace, and I have no doubt that Ministers may well have to address their approach to all manner of sentences for people up to the age of 25 when we can all be satisfied that the science proves, beyond reasonable doubt, that they ought to be treated differently. We had a considerable amount of evidence on that. I asked Peter Dawson from the Prison Reform Trust for his view on the different factors relating to young people. He said:

“The Bill should have a different sentencing framework for children and for young adults. At the moment, the law defines a young adult as someone aged between 18 and 20. It is not for this Bill to do, but at some point that should change to between 18 and 24.”

I think that is his opinion. He continued:

“At least taking account of the detention in a young offender institution provisions would allow some recognition of the fact that young adults are different from more mature people.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 34, Q75.]

We also discussed that issue with Jonathan Hall, the Independent Reviewer of Terrorism Legislation, who said that the point he was making was that

“there is recognition that people who are young and immature are probably more susceptible to change than adults.” —[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 10, Q15.]

I asked him whether the bottom line was that with young people, there was perhaps a greater chance of change; he had said that there might be greater opportunity for reform than with those who are considerably older. Mr Hall responded:

“That is what judges are increasingly finding.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 10, Q16.]

I want to refer to a little more of Jonathan Hall’s evidence. He said that he believed that a younger person dimension needed to be considered in the Bill:

“One of the final points I make in my note about removing the Parole Board’s role is that, again, if it is right that children are more likely to change, and as a matter, perhaps, of fairness, one ought to give them the opportunity, then removing the opportunity to say, at the halfway or two-thirds point, ‘I have now genuinely changed; that was me then and this is me now,’ where it can be shown to the satisfaction of the Parole Board, does seem a little bit—I would not necessarily say ‘unfair’, but it fails to recognise the difference between adults and children.”—[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 11, Q18.]

The current science and evidence tend to relate to people under 21, some of whom are a long way from full maturity. Analysis from the Royal College of Psychiatrists states that in terms of brain physiology, the development of traits such as maturity and susceptibility to peer pressure appear to continue until at least the mid-20s. That view was supported by the Justice Committee, which reported in 2016 that the growing body of evidence drawing on criminological, neurological and psychological research had led the Committee to conclude that young adults’ characteristics and needs made them distinct from older adults in terms of both their needs and their outcomes. There is no distinction in the Bill that recognises what the Justice Committee had to say.

The “Judging Maturity” report by the Howard League for Penal Reform also cited research that found the following:

“For the purposes of informing sentencing practice, the neurological and psychological evidence that development of the frontal lobes of the brain does not cease until around 25 years old is particularly compelling. It is this area of the brain which helps to regulate decision-making and the control of impulses that underpins criminal behaviour.”

As the Minister knows, I support trusting the experts where there is a significant trend. The trend of opinion from experts seems to be that we need to recognise the differences in maturity and development of young adults. In 2016, the Justice Committee reported:

“Dealing effectively with young adults while the brain is still developing is crucial for them in making successful transitions to a crime-free adulthood.”

Research into the success of interventions aimed at tackling radicalisation suggests that approaches that encourage young people to engage in education and training may be particularly beneficial, and that early interventions to encourage young people to undertake that education and training can be capable of successfully challenging radicalisation.

We talk a lot about rehabilitation, but we do not do enough of it. Labour Members do not want young offenders to be condemned to a life with no opportunity for rehabilitation when it has been reported to be successful in early adulthood. We can reform and rehabilitate, but doing so is a choice.

[Bambos Charalambous]

My hon. Friend is making an excellent speech on this point. On the point about young people’s brains still developing, there is potential for grooming and undue influence by adults. With the Justice Committee, I visited a young offenders institution in Kent, where a young woman who was being held for terrorism offences had been influenced by her mother. Will he comment on that?

[Alex Cunningham]

Indeed, that is very much the case. I am grateful to my hon. Friend, because he reminds me of some evidence we heard this morning about young people being more susceptible to being radicalised. Another important point raised this morning was that our prison system is not yet properly equipped to deal with young offenders in a suitable environment that prevents radicalisation. They are housed—wherever they are—with people who have committed similar offences, who will be aiming to build on their insecurities and their immaturity to encourage them into further wrongdoing. We must never lose sight of that important point. That is why I will talk about young people throughout our proceedings on the Bill, because young people have to be given a chance.

I will talk about this later, but if a 20-year-old is sentenced to14 years in prison, that will make them 34 on their release. Add another 25 years to that, and they are almost pensioners before they are clear of the shackles of the state. They have not been given the opportunity to reform, because they are constantly looking over their shoulder, perhaps with an attitude of, “Why on earth should I change when the authorities are always on my back?”

[Julie Marson (Hertford and Stortford) (Con)]

We talk about children as victims in this context, but the experts who gave evidence told us that these young people are also extremely dangerous. They said that rehabilitation is extremely important—of course that can take place in prisons—but that sentencing has other objectives, such as the protection of the public, including young people walking the streets who also deserve the protection of the law.

[Alex Cunningham]

The hon. Lady is entirely correct. We must, first and foremost, protect the public. We need to understand that we may never be able to rehabilitate some young people, and they may be a problem to society for the rest of their lives. However, there will also be young people in the system who have done some horrible, terrible and tragic things but who can be rehabilitated and recognise that they got it wrong. They should be given the opportunity to live their life to its full extent.

--- Later in debate ---

[Ruth Cadbury (Brentford and Isleworth) (Lab)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I rise in support of amendments 37, 45 and 46, standing in the name of my hon. Friend the Member for Stockton North. I want to cover some general principles in what is my first opportunity to speak in this Bill Committee. Like the Government, we are committed to keeping the public safe and we share the desire to ensure that attacks such as those at Fishmongers’ Hall and in Streatham never happen again—attacks where convicted but released terrorists were able to kill and maim innocent people.

We recognise the importance of adequate and appropriate punishment in sentencing, but punishment and sentencing must go alongside rehabilitation. As my right hon. Friend the Member for Tottenham said on Second Reading:

“We must not lose faith in the power of redemption—the ability of people to renounce the darkest chapters of their lives and move towards the light.”—[Official Report, 9 June 2020; Vol. 677, c. 213.].

For that, those offenders need an effective deradicalisation programme tailored to their motivation and circumstances, and they need hope—hope that before too long they can rejoin their family; that they can get meaningful work. They could even steer others away from the path they took before. I point out that programmes have operated in prisons in Northern Ireland with convicted paramilitaries on both sides of the troubles. In the later years of the troubles, those men became beacons of peace and reconciliation, educating young people towards positive paths.

Some contributions on Second Reading sometimes felt like support for a policy that almost veered on “Lock ’em up and throw away the key”. However, as many submissions and expert witnesses to this Committee have said, removing hope from these offenders and the opportunity to prove they are safe does not make the rest of us safer. I might add, even locking up people indefinitely, as the hon. Member for Hertford and Stortford said earlier, does not protect us anyway. It does not prevent them from radicalising others. It spawns martyrs, not to mention the cost to the public purse of incarcerating prisoners for ever longer periods. As we heard this morning from the Prison Officers Association, there is also the danger to prison officers of attacks from angry men who have no hope of release in the foreseeable future.

I fear that some aspects of the Bill are born from a reaction to the terrorist atrocities in the last seven months and have been brought in without due research into what might work to further reduce the risk of attack from radicalised individuals, whether they are of a Daesh/ISIS persuasion, from the far right or, as a number of terrorists in the UK still are, rogue Irish paramilitaries.

The Fishmongers’ Hall and Streatham attacks were both committed by offenders who had been released automatically halfway through their sentence with no involvement of the Parole Board. Of course, with Labour support, the Government have now brought in the Terrorist Offenders (Restriction of Early Release) Act 2020, which ends the automatic early release of terrorist offenders and ensures that any release before the end of a sentence is dependent on a thorough risk assessment by the Parole Board. I am therefore not quite sure why the Government want to take the Parole Board out of sentencing now, without any adequate alternative provision being put in place.

Before I make some specific remarks, Dave, the father of Jack Merritt, who was killed in the Fishmongers’ Hall attack, wrote poignantly about how his son would have perceived the political reaction to his death, because of course Jack Merritt worked in the criminal justice system on the rehabilitation of offenders. Dave wrote:

“What Jack would want from this is for all of us to walk through the door he has booted down, in his black Doc Martens. That door opens up a world where we do not lock up and throw away the key. Where we do not give indeterminate sentences, or convict people on joint enterprise. Where we do not slash prison budgets, and where we focus on rehabilitation not revenge. Where we do not consistently undermine our public services, the lifeline of our nation. Jack believed in the inherent goodness of humanity, and felt a deep social responsibility to protect that.”

As I said, I support the amendments in the name of my hon. Friend the Member for Stockton South—

[Alex Cunningham]

Stockton North!

[Ruth Cadbury]

My apologies.

Amendments 37, 45 and 46 relate to under-21s. I wish that they went a little older, possibly to 25, because they consider the issue of maturity. I declare a certain interest because for many years I was a trustee and, latterly, the chair of the Barrow Cadbury Trust, which initiated and funded the Transition to Adulthood Alliance about 15 years ago. Over a number of years, the alliance worked with a number of non-governmental organisations, the Ministry of Justice, Ministers, Opposition Members and so on to the point where maturity has now been introduced into sentencing practice and several other areas of the criminal justice system. I fear that we are going to lose that in this Bill.

When considering maturity, it is really important that we work on the basis of all the research that my hon. Friend the Member for Stockton North mentioned and use that research to reduce the risk of serious harm to members of the public and to enhance the rehabilitation of the offender. The Committee has heard powerful evidence, particularly this morning, about the different motivations that people have for becoming terrorists or terrorist sympathisers, such as political, religious or psychiatric.

Sentences and rehabilitation must take account of the different motivations of different offenders. As we heard this morning, we probably also need to have tailored support, which needs to come into the pre-sentencing reports. One of the amendments says that the court must also take account of reports from local authority officers who have worked with the offender prior to the point of considering sentencing.

[Alex Cunningham]

I thank my hon. Friend for her comprehensive speech. She talks about resources and specialised facilities. The evidence we heard from some people in earlier sittings suggests that the system is not fit for purpose. Would she welcome from the Minister, as I would, a statement about how the Government will ensure proper provision for rehabilitation in our prison system?

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[Chris Philp]

I will speak to the amendments relating to younger offenders. There are a couple of things to be clear about first of all. For the sake of absolute clarity, offenders who are under the age of 18 are not subject to the 14-year minimum prison sentence. Only offenders over the age of 18 are subject to those provisions. The amendments relate to offenders aged between 18 and 21, so we are discussing a very specific cohort.

I agree and concur with many points that the shadow Minister and the hon. Member for Brentford and Isleworth made about rehabilitation, and about the increased opportunity for rehabilitation for younger people. It is of course the case that younger people are more open to change—particularly as their brains mature—than older people, and it is right that we try to work with them to achieve that. I would not dispute that as a general principle, but clause 4 as drafted applies to an extremely small subsection of those offenders aged between 18 and 21. It by no means applies to the generality of offenders, including terrorist offenders, aged 18 to 21. It applies to that narrow subsection who have committed a serious terrorist offence, as we have discussed already, but it also requires a finding by the judge, following a pre-sentence report—something the shadow Minister referred to in his amendment and in his speech—of dangerousness. What a finding of dangerousness means in law is that there is a significant risk of the offender causing serious harm by committing further serious terrorism or other specified offences.

There are already two hurdles to jump: a serious terrorist offence, followed by a finding of dangerousness based on a pre-sentence report. However, there is also a third hurdle that must be jumped before a younger offender aged 18 to 21 would fall into the scope of this clause, which is that, at the time of committing the offence. they were aware, or should have been aware, that their offence was very likely to result in or contribute to multiple deaths. That is a well-established test dating back to section 1 of the Terrorism Act 2000. We are talking about an extremely small subsection of offenders aged 18 to 21 and a very small subsection even of terrorist offenders—those who meet all three of those criteria.

[Alex Cunningham]

I wonder whether it really is true that it is such a small cohort of offenders, because the Bill opens up the number of offences that can be considered severe enough for this sentence to be passed. There may currently be very few, but this new law extends the offences quite considerably—in fact, in some ways, it leaves it quite open for people to determine that a terrorist offence or a terrorist connection is involved. Surely there is more opportunity now for people to be serving this sort of sentence.

[Chris Philp]

The provisions open it up for judges to make a finding of a terrorist connection, but the impact assessment for the Bill refers to a potential increase in the prison population of 50 people. Of course, that is for all ages over 18; if we consider how many of those estimated additional 50 places might be occupied by people aged between 18 and 21, one might reasonably assume that the number at any one time will certainly be less than 10 and possibly even less than five. That is an estimate, but none the less, it appears in the impact assessment.

[Alex Cunningham]

It might be helpful, as the Bill progresses, if the Minister could publish some of the facts and the evidence for the claim he has just made about the 50 people and the relatively small number of younger people.

[Chris Philp]

I think the number 50 appears in the impact assessment, and I would be happy to look into the basis for that estimate. As for the number of younger people, that was something that I spontaneously generated, based on the fact that we are talking about a three-year range from 18 to 21, whereas the number of offenders will generally cover all ages, from 18 upwards.

The point I am making is that, while I accept the generality of what the shadow Minister and the hon. Member for Brentford and Isleworth say about the need to have hope and to have an opportunity to rehabilitate, we are talking about a very small number of very serious offenders, who have been assessed as dangerous following a pre-sentence report and who have engaged in activity likely to cause multiple deaths. In those very serious circumstances, I think it is appropriate, and I think the public would also think it is appropriate, that we protect the public for an extended period, as this Bill does.

If we are talking about other offenders, including terrorist offenders who do not meet that level of seriousness—there are many—all the comments made about rehabilitation and the chance to reform do legitimately apply. Indeed, we heard in evidence earlier today that the proven reoffending rate on release for that sort of offender is between 5% and 10%, which is an extraordinarily low figure compared with other cohorts. That suggests that the rehabilitation work done in prison is effective, as I think our last witness this morning suggested.

It is important, given the assessment of dangerousness that is made, that the pre-sentence report fully reflects the offender’s ability to change and the changes to the brain and so on that take place around the early 20s. That is a point that my hon. Friend the Member for Aylesbury, who is not with us this afternoon as he is attending the Justice Committee, has made to me. I will discuss with the Minister of State, Ministry of Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer)—I would not like to get my north, south, east and west muddled up—who is the prisons and probation Minister, whether there is any more we can do to make sure that these pre-sentence reports fully reflect the points that the shadow Minister and the hon. Member for Brentford and Isleworth have made about people’s ability to change. Those points are relevant in the context of assessing dangerousness, because if someone is undergoing changes, they may be less dangerous than someone who is fixed in their ways. I will take up that point with my hon. and learned Friend.

[Alex Cunningham]

The Minister may well be considering whether he is prepared to take the risk with this small cohort of people. As my hon. Friend the Member for Brentford and Isleworth outlined earlier, these individuals, who could reach middle age before there is any prospect of the state being off their back, are susceptible to further radicalisation in prison and might radicalise others. Surely, therefore, there is an element of risk that needs to be considered so that we can try to balance things.

[Chris Philp]

The cohort that I have described are dangerous, have been found to be dangerous by a judge following a pre-sentence report and have tried to kill multiple people. With this very small number of very dangerous people, who are endangering the lives of our fellow citizens, it is appropriate to prevent them for an extended period of time—a minimum of 14 years—from attacking our fellow citizens in the future. It is a truly exceptional and small cohort.

Speaking of the word “exceptional”, if there are circumstances in relation to these people that a judge thinks are truly exceptional—some extraordinary extenuating circumstances—and that, despite the fact that they have done the terrible things I have described and despite the finding of dangerousness, merit different treatment, the judge has open to them the possibility to make a finding that there is an exceptional circumstance and can derogate from the 14-year minimum. We would expect that to be extremely unusual—indeed, truly exceptional, as the word implies.

Given how dangerous and damaging this very small number of people are, and given our obligation to protect the public, this measure is couched appropriately. There is the ability to not make a finding of dangerousness, having read the pre-sentence report. There is also the ability for the judge to find that an exceptional circumstance applies. That provides more than adequate protection, bearing in mind how dangerous these people are.

As for other offenders, however, I take the point about the need to rehabilitate; rehabilitation is often successful, as we have seen from the figures. As I said, I will talk to my hon. and learned Friend the prisons and probation Minister to make sure that all the relevant information is collected in probation reports, which will help a judge when making a determination on the question of dangerousness.

I would like to briefly respond to a point made by the hon. Member for Brentford and Isleworth about indeterminate sentences and throwing away the key, as she put it. Of course, the coalition Government legislated—I think it was in 2012—to get rid of the former sentences of imprisonment for public protection, which had been introduced in the early 2000s, whereby people could be left in prison forever, despite not having been given a life sentence. Those sentences were replaced with extended determinate sentences, so the coalition Government, which of course was Conservative-led, legislated to remove, or significantly reduce, that problem of locking people up and throwing away the key, which the hon. Member referred to in her speech.

I hope that I have explained why this measure is appropriate, bearing in mind the small numbers and the extreme danger that these people represent, and I express my support for the Bill as it is currently drafted.

[Alex Cunningham]

I am grateful to the Minister for his response. However, I am not convinced that we are talking about only a handful of people. The fact that this piece of legislation grows the number of offences that could potentially fall into this cohort suggests that many more people could be caught up in it in the longer term—some of them perhaps not quite such serious offenders as some of those the Minister has described this afternoon.

The Minister says he agrees that we should have an eye to rehabilitation and that we should work hard to achieve rehabilitation. However, if I am right and he is wrong, and we do have dozens or perhaps even more young people falling into this category because of the way the Bill is drafted, there surely need to be some protections there and some opportunity for a pre-sentence report to explore specific issues around age and maturity before reporting to a judge who will make the ultimate decision.

On the basis that this measure could affect many more people than the Minister suggests, and that some of them might not be the most serious offenders, I wish to press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Chris Philp]

In my response to the amendment, I described the effect of the clause and the tests to be applied. If those tests are met, the minimum sentence of 14 years will be imposed, followed by a licence period of not less than seven years and not greater than 25. I beg to move that the clause stand part of the Bill.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5

Serious terrorism sentence for adults aged 21 or over: England and Wales

[Alex Cunningham]

I beg to move amendment 38, in clause 5, page 7, line 35, after “25 years.”, insert—

“(5) Where—

(a) a prisoner is subject to a licence for an extension period under this section, and

(b) the qualifying period has expired,

the Secretary of State shall, if directed to do so by the National Probation Service, order that the licence is to cease to have effect.

(6) Where—

(a) the prisoner has been released on licence for an extension period under this section;

(b) the qualifying period has expired; and

(c) if the prisoner has made a previous application under this subsection, a period of at least twelve months has expired since the disposal of that application,

the prisoner may make an application to the National Probation Service under this subsection.

(7) Where an application is made under subsection (6) above, the National Probation Service—

(a) shall, if it is satisfied that it is no longer necessary for the protection of the public that the licence should remain in force, direct the Secretary of State to make an order that the licence is to cease to have effect;

(b) shall otherwise dismiss the application.

(8) In this section, ‘the qualifying period’, in relation to a prisoner who has been released on licence, means the period of ten years beginning with the date of his release.”

The main area of concern that has led to the amendment relates to the maximum 25 years on licence specified by the Bill. We of course accept that we cannot have a cliff-edge situation whereby someone leaves prison without any further monitoring, particularly offenders in this cohort. There must be a licence period once the offender leaves prison. The issue is whether a licence period of up to 25 years is reasonable and whether it is a proportionate way of addressing the problem. There is also the concern over the lack of any review mechanism.

A licence for 25 years is equivalent to a licence for life. As well as severely curtailing the human rights of the offender after they have already completed their full custodial sentence, a licence for life also fundamentally constrains their ability to play an active part in society. For example, it would be a constant barrier to employment and—who knows?—perhaps new relationships. We would essentially be telling people that there is no point in them rehabilitating or contributing to society, because they will always be under suspicion—always under the careful watch and restriction of the state. A life on licence reduces individuals’ capability to reform and take positive action. It can have a detrimental impact on the joys of life that can keep an individual on the straight and narrow.

There is also the issue of the administrative burden on an already overworked National Probation Service, which has a financial cost, and which requires additional trained probation officers to deal with those released on licence. I would be interested to know where the idea for a term of 25 years on licence comes from. Is the Government’s intention simply that anyone convicted and sentenced to a determinate sentence of 14 years, with 25 years on licence, should have a life sentence, with the state constantly on their case and without any prospect of being released from it? If so, the Minister should say so. Can he confirm that there is logic in the period that he has decided on? Has he looked at the costs and at whether 20-year licenses, which would naturally be less expensive for the state, might be just as effective?

As I have said, the main area of concern that these amendments address is the maximum 25 years on licence specified by the Bill, which is effectively a licence for life under an indeterminate sentence for public protection. However, unlike the licence for life, the Bill does not allow for the licence to be terminated in certain circumstances. That creates an issue of unfairness, as well as a huge administrative burden, at a cost to the public purse.

I agree with the Independent Reviewer of Terrorism Legislation, Jonathan Hall, who said:

“determining whether a 7-year, 15-year or 25-year licence is appropriate at the point of sentencing for dangerous individuals who have committed the most serious offences may be asking courts to engage in guesswork.”

I personally would not feel confident in making such a decision. Would the Minister?

As I said earlier, there is a concern about existing case law and guidance available for sentencers on identifying terrorism connections when sentencing. We cannot expect sentencers to feel truly comfortable and informed if the frame of what licence they can impose is so broad. It is worth reiterating that a 25-year licence period is not so different from a licence for life. However, whereas licences for life imposed on imprisonment for public protection prisoners could be terminated in appropriate cases, that does not apply to serious terrorism sentences. It feels like the principle of rehabilitation is again being somewhat missed.

I spoke earlier this afternoon about young people. Is it the Minister’s intention that they are effectively to remain on licence until within a few years of the state retirement age? A 14-year term for a 20-year-old means that they will be 59 before they are free of the licence. Will the Minister clarify the merits of 25-year licensing and address young people in particular?

I am a strong believer in people doing their time for violent offences, but with a strong focus on rehabilitation. Our amendment would give them some hope that their good behaviour has paid off after time. Perhaps we need to give people sight of a future where they would live their lives in a very different way—an honest and crime-free way. What, if anything, can the Minister offer those people—particularly younger ones?

[Chris Philp]

The shadow Minister posed a question: why a maximum of 25 years? Therein lies the answer.

[Alex Cunningham]

Maybe I misunderstood, but I thought the 25 years was mandatory.

[Chris Philp]

No, it is a maximum. The licence period is between seven and 25 years; within that, the judge has discretion to choose the most appropriate length of time. The point that I was about to make is that it is up to judicial discretion to decide the appropriate length of time. We ask the judge to make that determination, as we do when setting any licence condition. That is the way the licence system works at the moment. The judge sets the licence period at the point of sentence.

The shadow Minister, quoting the independent reviewer, asked, “How can the judge know in advance what a suitable length of time may be, looking potentially as far as 25 years into the future?” The answer to that question is that although the licence period cannot and in my view should not be varied by the Probation Service acting administratively—that is for the judge to decide—the Probation Service can, and frequently does, vary the terms of the licence conditions; as an offender behaves better over time and matures, or as their radical or criminal behaviour more generally changes as they get older, the licensing conditions can be and are relaxed. The Probation Service does that as a matter of routine, and I would expect and hope for that to happen as time passes.

Were we to give the Probation Service the ability to change the length of licence period, it would be overriding a judicial decision, which is wrong in principle and would possibly infringe article 6 of the European convention on human rights, which says that the Government should not be allowed to interfere with or alter a sentence handed down by the court.

The shadow Minister mentioned the arrangements for terminating licence conditions for indeterminate sentences—that is, the old imprisonment for public protection I referred to previously. As the name implies, those IPPs are indeterminate and indefinite. A judge has not imposed a time limit, so they could go on for the duration of somebody’s life. Some termination mechanism is needed.

Where a judge has made a decision—and it is up to the judge to choose, at their discretion, somewhere between seven and 25 years—it is right that licence condition is applied for that length of time. However, to reassure the Committee and the shadow Minister, I should say that the Probation Service can, as appropriate, relax and change those licence conditions as time passes. That is the right way of handling the issue.

[Alex Cunningham]

I accept the Minister’s explanation and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

We have covered many of the operative provisions. They are rather similar to the ones we debated in clause 4, in relation to people under the age of 21.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6

Serious terrorism sentence: Scotland

Counter-Terrorism and Sentencing Bill (Fifth sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 5th sitting: House of Commons
Thursday 2nd July 2020 Public Bill Committees

[The Chair]

Members are free to remove their jackets, if they so wish, but must turn their electronic devices to silent. Mr Speaker does not allow tea or coffee to be consumed during sittings. Social distancing is still recommended here; we have been asked to suspend the sitting if there are any problems. Finally, will Members please give their speaking notes to the Hansard reporters? That would be very helpful. We will begin with clause 11.

Clause 11

Minimum term order for serious terrorism offenders: England and Wales

[Alex Cunningham (Stockton North) (Lab)]

I beg to move amendment 39, in clause 11, page 12, line 42, at end insert—

“(7) Before this section comes into force, the Government must publish an analysis of the impact of the introduction of minimum term orders for terrorism offenders on sentencing for other offences.

(8) A copy of the analysis must be laid before both Houses of Parliament.”

This amendment requires the Government to publish an analysis of the impact of the minimum terms on sentencing for related offences.

It is good to see you in the Chair again, Mr McCabe. The Labour party is not in principle against a minimum 14-year sentence for those convicted of serious terrorist offences. We are aware that it is a particularly small cohort who have been found guilty of some absolutely heinous crimes in order to find themselves in this category of offender. Indeed, the Ministry of Justice’s own impact assessment sets out that as few as 50 offenders could fall into this category, although, as I have said time and again, the Ministry of Justice can provide no evidence to back up that figure. None the less, as I have said throughout our discussions, the changes to legislation that this House makes must be underpinned by supporting evidence, and the amendment would do just that.

The amendment would require the Government to publish an analysis of the impact of the introduction of minimum term orders for terrorism offenders on sentencing for other offences, and to lay a copy of the analysis before Parliament prior to this section coming into force. The impact assessment estimates that the potential impact of measures increasing minimum terms for terrorist offenders given life sentences

“may result in fewer than 50 additional prisoners…annually”.

I am not entirely convinced by that assessment and ask that the Government conduct an analysis of the measures on wider sentencing practice.

In Tuesday’s sitting, the Minister was at pains to stress the figure of 50 additional prisoners caught up by his new proposals, with only a handful of them being under the age of 21, and said he would provide the rationale behind the numbers. Nothing arrived in my inbox yesterday, so I assume it is still a work in progress for the Minister. I would have thought it perfectly easy for him to support his numbers with evidence before now, but perhaps he will provide that full explanation in his response.

I have outlined in previous sittings my concern about the impact of the creation of new offences with a terrorist connection. We all need to be satisfied that the Government have got the numbers right, because if they have not the ramifications will be considerable.

As I have said throughout our discussions, the changes to legislation that this House makes must be underpinned by supporting evidence. We need to know whether minimum terms are working effectively. Have they made our country safer? Are they really a valuable tool in working with offenders? As I have spoken about at length, our justice system does not treat everyone fairly, even if it is our intention to do so. Given that it does not treat everyone fairly, we must consider the impact of our decisions on all groups, particularly those with protected characteristics. We as lawmakers need to obtain and understand evidence that increasing the length of time that individuals spend in custody leads to significant gains in public protection beyond delaying the possibility of an offence being committed.

In its written evidence, the Prison Reform Trust stated that increasing the length of the custodial period could undermine public protection by eroding protective factors. A key example is family contact associated with a reduced risk of reoffending on release. Perhaps the Minister can answer that challenge from the Prison Reform Trust. It is of course only right that the Minister talks about the number of offenders who will be caught up in his proposed new laws, because it is important to understand how many will be subject to additional impediments to their attempts to live anywhere near a normal life when they are released on a licence of up to 25 years.

The Government’s own impact assessment specifically sets out that the MOJ is aware that separating offenders, especially younger ones, from their families will negatively impact on their rehabilitation. We need answers from the Minister on that point. Yet we face a situation where the MOJ does not know the total number of offenders who will be caught up in this cohort. In addition, the MOJ does not know how many of those offenders will be young adults or under-18s, and it cannot provide any evidence-based reason for introducing the minimum sentence. The only thing that the MOJ seems sure of is that removing protective factors can impact on rehabilitation. It is important that the Minister gets those numbers right, because they have a major impact on how offenders are managed within the system and on whether or not the system will be properly equipped to deal with them.

I believe that the Government have said that the cost of these new measures will be around £60 million a year, but how has that figure been arrived at? The Minister holds tight to his figure of £50 million a year, but even if he is right, that is £50 million every single year and the number will build up to around 700 terrorist offenders in the prison system, all of them needing particular management in an already stretched service, which so many people tell us is under-resourced, lacks the expertise it needs and has rehabilitation programmes for terrorist offenders that, at best, need considerable improvement.

The need for analysis is probably even more important for us to understand the effects on young people and the potential impact of the determinate sentences. When he spoke on Tuesday against our amendment to have specific pre-sentencing reports that take age into consideration, the Minister made much of the fact that only a very small number of young people will be caught by his new measures. I do not want to repeat myself too often, but we still await an explanation as to where the Minister gets his estimates from, even if it is a very small number of people who will be affected.

For the sake of argument, let us say that the Minister is right, and for the sake of illustration, let us assume that it is eight young people a year who will be affected. Before a young person sentenced under the Minister’s new law is released, there are likely to be more than 100 people in the prison system who have been convicted of an offence with a terrorist connection. We really need to understand what that means for the offenders, for the Prison Service and for society.

[Julie Marson (Hertford and Stortford) (Con)]

Does the hon. Gentleman agree that we can be assured that the Bill will have a disproportionate impact on a certain sector of people—namely, those convicted of plotting or executing mass maiming and murder?

[Alex Cunningham]

The hon. Lady is right up to a point, but some of the people under discussion will not have been responsible for killing people. A lot of them are covered by the charge of plotting, and there is the new range of terrorist offences. The crimes to which she refers are already covered by legislation. People who commit such terrible crimes are already subject to a life sentence, so in this particular situation we are talking about a different category of people.

I was saying that we need to understand what these changes mean for offenders, the Prison Service and society. For example, does the necessary amount of specialist prison provision required to incarcerate these offenders actually exist? That is not just about the number of prison places; it is about having the expertise available to manage and engage these offenders. We heard a lot of evidence from Mark Fairhurst about the need for proper provision and the fact that, at the moment, we have only one centre to deal with these particular terrorists. We are supposed to have three such centres, but we do not yet know when the Government will come forward and tell us when the new centres will be up and running.

What are the Minister’s proposals for housing younger offenders? Again, we need the prison places, but we also need the support services. Do they already exist, or is he proposing to develop more of them? If he is going to develop more of them, when will they be available? Even in the next two or three years, based on the Minister’s numbers, perhaps 20 or 30 young people will need specialist accommodation. They need specialist support services. Where are those services coming from? They do not exist at the moment, as I hope that the Minister will acknowledge, so will he ensure that they will in future so that we can for and deal with these people appropriately? We must not have a situation in which younger offenders—albeit among the most serious ones, as described by the hon. Lady—end up in the adult prison system because there is nowhere else for them to go.

I would welcome a specific comment on the issue when the Minister responds. I know that he has some tidying-up amendments for later in the development of the Bill, but I want to understand specifically what will happen with younger offenders and whether it is possible that some of them will end up in the adult estate.

It should be clear to the Minister why he should not be shy about commissioning analysis better to understand the issues that we face. Everyone talks about the importance of data and making decisions based on evidence. The amendment provides the Minister with an opportunity to do just that, and the Opposition are pleased to offer the Minister our assistance.

Also, if the Minister had the analysis, it would be easy for him to demonstrate to the House that he had got his decisions right. When he faced challenges from the Opposition on the success or failure of his new measures, he would have the analysis at his fingertips. I know that, financially, the Justice Department is skint. It has suffered heavy cuts disproportionate to those for other Departments during the past 10 years or so, and we have seen the results of that. The latest figures show that the number of criminal cases yet to reach the courts has now exceeded half a million, with hundreds of thousands more tribunal cases also outstanding. Perhaps it is the lack of resources that has meant that the Lord Chancellor cannot crack on and plan Nightingale courts to go alongside the Nightingale hospitals—the money to do so simply is not available. He did write to me yesterday, telling me that some additional money will be available. But it is a very small amount of money compared with the challenge that the system faces. This Minister’s accepting the amendment might result in the use of some resources, but the right action in this respect could save considerable sums in the longer term, and as I have made clear, the Justice Department really needs the resources.

Our ask is simple. We believe that there are real benefits for the Government in carrying out the analysis described in the amendment. Let us have in Parliament the evidence suggesting that these measures are a necessity and actually keep the public safe. I hope that the Minister will take these points and accept that longer sentences do not necessarily reduce the risk of reoffending. Several of our witnesses made that clear and even suggested that minimum sentences may in fact be counterproductive. The Minister might be reluctant to adopt the amendment—I will be surprised if he is not—but I look to him to come up with answers to the real issues that it covers.

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

Good morning. It is good to see you in the Chair again, Mr McCabe. Let me start by responding specifically to the amendment, and then I will try to pick up one or two of the more general points that the shadow Minister, the hon. Member for Stockton North, raised in his speech.

Amendment 39 does not propose any very wide form of analysis, aspects of which the hon. Gentleman referred to. It in fact proposes a very specific form of analysis, which is an impact assessment on the effect of these minimum term orders on other offences. It asks us to do an analysis that says, “If we introduce a minimum 14-year term to be served by those with life sentences, what effect will it have on unrelated offences? What effect will the minimum terms have on unrelated offences in relation to non-terrorist crimes?” If I may respectfully say so, given that the Bill is about terrorist offences and nothing in the Bill has any impact at all on non-terrorist offences, I do not think that the analysis proposed by amendment 39 is particularly germane. The Bill will not make any difference at all to any other, non-terrorist offences, so I do not think that analysis would have any results or effect.

[Alex Cunningham]

I appreciate the Minister giving way so early in his speech. The Bill creates a host of new offences, which will capture more people. It is important that he addresses the effect on other offences, which could all of a sudden become terrorism-related offences and therefore be subject to a very different sentencing decision by a judge in a court.

[Chris Philp]

My reading of the term “other offences” in line 3 the hon. Gentleman’s amendment is offences not caught by the scope of the Bill.

Let me turn to the questions that the hon. Gentleman asked and the numbers he raised. We have published an impact assessment and equalities assessment, as we discussed at some length in the previous sitting. He asked where I got the numbers of younger offenders from. I now have some information about the under-18 cohort, which he and other Members are concerned about. Currently, there are only three terrorist offenders in prison under the age of 18. I hope that illustrates the very small numbers involved.

On the question of whether we are unreasonably widening the scope of what constitutes a terrorist offence, my judgment is that most terrorist offences would be caught under the existing list of terrorist offences. It would be relatively unusual for a terrorist act to be committed outside the current list of offences, and for it to be necessary to make the terrorist connection. It could happen, and we are rightly legislating for that, but the existing list of terrorist offences is relatively comprehensive, so I do not think that the scope increase that the hon. Gentleman is referring to will have a dramatic impact on what are already small numbers. It is of course important that we give the judge the opportunity—the power—to make that connection where somebody commits an offence not on the current list; it is logically conceivable that that could happen.

Let me turn to the number—the 50. We can extrapolate how many of those 50 are aged between 18 and 21, as we discussed in the previous sitting. I do not think that number is the annual flow or the number of convictions per year. As I understand it, it is the impact on the total prison population. Given that these sentences are quite long, one would expect that the annual flow into the system affected by these serious terrorism sentence provisions would be somewhat lower than that.

Those numbers illustrate powerfully that we are talking about an extremely small number of people. As my hon. Friend the Member for Hertford and Stortford said in her well-pitched intervention, we are talking about people who have committed a serious terrorist offence and have been found to be dangerous—in other words, the judge thinks that they pose an ongoing, serious risk to the public. Their actions either caused or were likely to cause multiple deaths, and, in the context of clause 11, the judge views the offence as so serious that a life sentence is appropriate. I hope that gives the Committee a clear sense that these numbers are extremely small and, thankfully, particularly small in relation to young people. We should take this opportunity to pay tribute to the tremendous work that our counter-terror police and the security services do to keep those numbers so very small.

Other remarks were made about funding. That is probably outside the scope of the clause, but I will address it very briefly, if I may have your indulgence for one minute, Mr McCabe. I am sure that if I stretch the bounds of your indulgence, you will call me to order. Counter-terrorism funding rightly increased substantially earlier this year in response to the enhanced level of threat. Spending on Her Majesty's Prison and Probation Service of course includes work on rehabilitation, and that also received a significant funding increase in the spending review in September 2019. I am sure that everyone here would welcome that increase in expenditure.

The shadow Minister mentioned a number of outstanding cases in the legal system. I think the number he quoted relates to magistrates courts. Of course we are in the middle of—hopefully coming towards the end of—a serious pandemic, which inhibited the operation of the courts system. Prior to the coronavirus epidemic, waiting times in the magistrates court were about eight weeks. The outstanding case load in the Crown court was certainly a great deal lower than it was in 2010. Obviously, coronavirus has caused an increase in the outstanding case load. We are working hard to address that with the new Nightingale courts. There are, I believe, 10 sites working on extending sitting hours. By the end of July every court in the country will be back up and running, and we are rolling out the cloud video platform, so that hearings can take place by video. I commend to the Committee the court recovery plan that was published two or three days ago. I hope that that demonstrates the herculean national effort currently under way to reduce the outstanding case load that has built up during the coronavirus epidemic.

[Alex Cunningham]

I most certainly welcome the increased expenditure in the area in question. It is essential that the Government look to increasing it further, because there is no doubt, from the evidence the Committee received, that the system is not adequate to receive the people who will be caught up in the range of new laws. It was good to hear the Minister try to clarify some of the numbers. The figure of only three people aged under 18 is significant. However, according to the analysis, there would be up to 50 people a year, over a long period. Does the Minister want to correct me?

[Chris Philp]

I will double check that number, but my understanding, which I will check, is that as a consequence of the measures the total prison population will increase by 50, which is different from an extra 50 people extra flowing in each year. However, I will come back to the hon. Gentleman on that.

--- Later in debate ---

[Alex Cunningham]

I appreciate that, but I thought I read it was 50 per year. I may of course be mistaken, but I look forward to the Minister clarifying that.

If the vast majority of criminal offences are committed under existing legislation, I wonder why we are here, other than to increase the determinate sentence to 14 years. Perhaps in a later speech the Minister will return to the matter. We may well return to it in future, but for the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 11, as we have been discussing, amends section 323 of the sentencing code, which makes provision for the setting of a minimum term—a tariff—for discretionary life sentences. It will make sure that, where a life sentence is handed down to an adult offender who is convicted of a serious terrorist offence—which can be considered as a serious terrorism case—for the purpose of setting a minimum term, the provisions of this clause will apply.

The minimum term in a discretionary life sentence is the period that must be served in custody before an offender can be considered for release by the Parole Board. Offenders who are subject to a discretionary life sentence are subject to a life licence following the release. Clause 11 adjusts section 323 of the code so that, where the court considers an offender who requires a life sentence for their offending and has committed a serious terrorism offence, as found in schedule 17A to the sentencing code, an equivalent consideration is made to that for the serious terrorism sentence by requiring the court to consider it as a serious terrorism case.

A serious terrorism case is one where an adult offender has committed a serious terrorism offence and meets the criteria that we discussed previously for a serious terrorism sentence—that is, the court considers them dangerous; they present a serious future risk of harm, which in this context means the prospect of death or serious personal injury resulting; and in the opinion of the court they meet the risk of multiple death condition, which we discussed earlier in connection with serious terrorism sentences. The clause therefore requires the courts to set a minimum term of 14 years, unless exceptional circumstances apply.

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Clause 12

Minimum punishment part for serious terrorism offenders: Scotland

Question proposed, That the Clause stand part of the Bill.

--- Later in debate ---

[Chris Philp]

This clause sets out a number of offences that, from the commencement date of this provision, will be included in the list of offences eligible for receiving an extended determinate sentence in England and Wales. Adding these offences will ensure that the sentencing regime in England and Wales is consistent in the type of offences it considers serious enough to be eligible for an extended determinate sentence. To make this change, the clause adds the offences specified within the provisions to part 1 of schedule 18 of the sentencing code. These offences all carry a maximum penalty of life, and include the making of explosives, developing biological weapons, endangering the safety of aircraft, using nuclear materials and hijacking or destroying ships. As such, they are of comparable seriousness to other offences already in scope for the extended sentence. Adding these offences to the list will correct the anomaly created by their omission and will ensure that these serious offences and others are eligible for an extended sentence as well.

Question put and agreed to.

Clause 15 accordingly ordered to stand part of the Bill.

Clause 16

Increase in extension period for serious terrorism offenders aged under 18: England and Wales

[Alex Cunningham]

I beg to move amendment 40, in clause 16, page 16, line 29, at end insert—

“(4) Section 255 of the Sentencing Code is amended as follows.

(5) After subsection (2) insert—

“(3) The pre-sentence report must in the case of a serious terrorism offence under section 256(4)(b)(iii)—

(a) take account of the offender’s age;

(b) consider whether options other than an extension period of eight to ten years might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(4) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (3).”

(6) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.

(7) The report of the first review must be laid before Parliament within one year of this Act being passed.”.

[The Chair]

With this it will be convenient to discuss amendment 41, in clause 17, page 17, line 4, at end insert—

“(4) Section 267 of the Sentencing Code is amended as follows.

(5) After subsection (2) insert—

“(2A) The pre-sentence report must in the case of a serious terrorism offence under section 268(4)(b)(iii)—

(a) take account of the offender’s age;

(b) consider whether options other than an extension period of eight to ten years might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(2B) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (2A).”

(6) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.

(7) The report of the first review must be laid before Parliament within one year of this Act being passed.”.

[Alex Cunningham]

Amendments 40 and 41 serve a similar purpose to amendments 37, 45 and 46, which we debated earlier. Hon. Members will recollect that, such was our strength of feeling on the need for the age of young people to be taken into consideration in the pre-sentencing report, and then by the judge in deciding what type of sentence to impose, we put clause 37 to a vote. The decision to do so was strengthened by the Minister’s failure to justify his estimates of the numbers that would be caught by the new offences and, therefore, sentences. We talked about that earlier. He dismissed our earlier amendments by claiming that there would be only a handful of young people caught by the measures. However, as hon. Members will have heard, I addressed our concerns about the lack of evidence of the numbers when I spoke to amendment 39—though I think there is more evidence to come from the Minister on that topic.

--- Later in debate ---

[Chris Philp]

I must say, the shadow Minister has painted for me a truly horrifying picture, namely membership of the Liberal Democrats followed by crushing defeat at a general election. Let that be a lesson to anyone who, like my former hon. Friend the Member for East Surrey, considers anything so foolish as a move to the Liberal Democrats. Looking around this Committee, that is something we can all agree on.

The first question raised by these amendments is whether there is an option for an extension period other than eight to 10 years. I am looking at amendment 40 to clause 16(3)(b). The way the legislation is currently drafted allows the judge the discretion to choose the extension period—the licence period—of anything between one and 10 years. All that these clauses do is increase the maximum from eight years—as it is now—to 10 years, but that is not mandatory; the judge can choose to have an extension period as low as one year. The choice for judicial discretion that the shadow Minister is calling for already exists without the amendment. Instead of the choice being between one and eight years, as it is now, the choice will become between one and 10 years, as we propose, but judicial discretion will still exist.

The pre-sentence report that the amendment calls for will exist already. There is always a pre-sentence report for offences of this nature. In deciding what length of extension period is appropriate, the judge will already have due regard to that pre-sentence report. They will also have due regard to that pre-sentence report in making their finding, or otherwise, of dangerousness.

On the question of a review of how things are going, I certainly do not fear any sort of review after the event. We have a standing procedure that legislation should be reviewed after—I think, typically—three years, to see how it is functioning. I would expect this legislation, as other legislation, to be subject to that same scrutiny process. I am sure that no one in the House would be shy to propose changes if, in due course, anything appeared to be amiss.

On that basis, in particular the first two points—

[Alex Cunningham]

I realised that the Minister was getting to the point at which he would sit down, but I asked specifically for him to address the issue of how young people who have committed this type of offence will be accommodated on the estate. Can the fears expressed by many individuals be properly addressed?

[Chris Philp]

Such young people will not move on to the adult prison estate until they turn 21, so that immediately provides some reassurance, I hope. The more general point that the shadow Minister makes, and has made before—and our witnesses made—is on the importance of rehabilitation. They are points well made. We should not simply lock people up and throw away the key; even with such serious offenders, who will rightly spend a great deal of time in prison, we should work on rehabilitation.

Part of the additional resources announced in the September 2019 spending review and this year’s March Budget will go to Her Majesty’s Prison and Probation Service. I have spoken to the Prisons and Probation Minister about young people, an issue that my hon. Friend the Member for Aylesbury has also raised with me, and it is an area where effort, focus and attention are being paid, and will be further in future. That point about rehabilitation is well made, but it is being addressed. I am sure it is a topic that Members will return to. I have forgotten whether this is an intervention or a speech, but on that basis, I politely and respectfully ask the shadow Minister to withdraw the amendments.

[Alex Cunningham]

It is lovely to have a guarantee from the Minister that no young person will end up in the adult estate—

[Chris Philp]

While under the age of 21.

[Alex Cunningham]

The Minister qualifies that by saying “under the age of 21”. I appreciate that, and I assume that the word “guarantee” can be applied in this particular circumstance, despite the fact that some of our witnesses were concerned that we do not have sufficient facilities within the system to house 18 to 21-year-olds and some even younger than that.

In an earlier debate, I believe on Tuesday, the Minister appeared to accept that the pre-sentence report regime could be improved. In fact, he made a commitment to speak to his colleagues in the Home Office, to see whether they might find ways to ensure that the pre-sentence report covers some of the issues that I raised in Committee. We have not heard from the Minister about that, but perhaps in a later speech we will.

[Rob Butler (Aylesbury) (Con)]

On that point, does the hon. Gentleman accept that standard practice in all pre-sentence reports is for the judge to consider not only the physical, chronological age, but maturity, so some of those concerns should, as a matter of course, be addressed?

[Alex Cunningham]

The hon. Gentleman has greater experience of this area than I do, and I bow to his superior knowledge, but the important thing is that we look carefully at the reports, in particular in relation to that cohort of young people, to ensure that every single opportunity is presented to the judge so that the judge gets the right answer. With that, although we will return to the issue of young people at a later stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

As we have discussed, the clause extends the maximum possible licence period for serious terrorist offenders aged under 18 when given an extended sentence of detention. It gives the courts the option to increase the maximum—I say maximum—extended licence period from eight to 10 years.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17

Increase in extension period for adult serious terrorism offenders aged under 21: England and Wales

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Chris Philp]

The clause sets out a number of offences that will be included in the list of offences that are eligible for receiving an extended determinate sentence in Scotland, from the date of commencement. The offences to be included are terrorist offences with a maximum penalty of more than two years, which is specified in part 1 of schedule 5ZC, and non-terrorist offences carrying a maximum penalty of life, as specified in part 2 of that schedule, in cases where a terrorist connection has been found by the court under section 31 of the Counter-Terrorism Act 2008. It also applies to under-18s convicted of terrorist and terrorism-related offences in Scotland. The clause makes that change by amending section 210A(10) of the Criminal Procedure (Scotland) Act 1995 and inserts a schedule into that Act.

[Alex Cunningham]

We have talked a lot about numbers in this Committee. Will the Minister enlighten us on how many people will be caught up in these provisions?

[Chris Philp]

These provisions relate to Scotland. In order to avoid providing the Committee with erroneous information, it would be safest if I write to the hon. Gentleman with that information.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Schedule 5

Terrorism offences attracting extended sentence: Scotland

Question proposed, That the schedule be the Fifth schedule to the Bill.

Counter-Terrorism and Sentencing Bill (Sixth sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 6th sitting: House of Commons
Thursday 2nd July 2020 Public Bill Committees

[Ruth Cadbury]

What the hon. Gentleman says would be fine if we had that review of the Prevent programme and the programmes in prison. As several of my colleagues have said, the Bill does not provide for a review of those processes, so we have one side without the other, and that is a cause of concern for me and some of the witnesses.

[Alex Cunningham (Stockton North) (Lab)]

Further to the matter that the hon. Member for Aylesbury just raised, do we have a commitment from the Government to undertake a full review of the methods that he described?

[Ruth Cadbury]

That is what I was going to say. I think there needs to be a review of this, as and when it is implemented.

--- Later in debate ---

[Kenny MacAskill]

It is a pleasure to serve under your chairmanship, Mr Robertson. Amendments 48, 49 and 50 were tabled in the name of Scottish National party Members but were put forward by the Law Society of Scotland, trying to achieve the best interests. That is obviously the position of the Government, but there is a distinctive legal jurisdiction. I know that yesterday the Prime Minister referred to the fact that there was no border between Scotland and England, but administratively and legally there most certainly is—the Minister has commented on that both today and yesterday.

Indeed, there is also the issue of polygraphs, which these amendments relate to. They are something that is currently unknown within the Scottish legal jurisdiction. They are something that, to be fair, the Scottish Government are sceptical about, but so are the legal profession and the judiciary. However, it is accepted that this is a reserved issue. It is a Government policy, and they are entitled to bring in that policy and it will have effect. Therefore, I think we are required to ensure that Scotland is able to deal with it adequately and appropriately.

These amendments are put forward on the basis of seeking to improve the legislation or seeking assurances from the Minister that the issues causing concern are being or will be dealt with. To be fair, the amendments are not simply tautological in any way; they are, in fact, a point of principle. We know that legislation is significant, and that the interpretation of words matters. It will produce a significant difference in the outcome, and it is not a matter that we can simply leave to a future court. In bringing the amendments forward, we seek clarification on the matters of concern. “Must”, as I say, is not tautological, in our view, but gives a clear indication that it is mandatory. “May”, while it may very well end up being the likely situation, certainly leaves it much more discretionary, even if it is not entirely absent.

As I say, the amendments were tabled on the basis of seeking clarification that Scotland will be able to act within the separate structures that we have, accepting the requirement and will of the Government, but that we take into account various issues and, in particular, the ability to protect the rights of the accused or, indeed, the released person in future issues that may come before them, to ensure that it is not counterproductive for them, and indeed that the system that we are operating is able to operate as efficiently as possible.

[Alex Cunningham]

We welcome this amendment in the name of the hon. Members of the Scottish National party, and we agree that the results of any polygraph must not be disclosed for use in a criminal matter. Put simply, they are far too unreliable to be used as evidence or an indicator of a person having committed a crime. We do not determine a verdict by the toss of a coin and Members will recollect the oral evidence given by Professor Acheson, who, in answer to a question about our operating regime for polygraph tests from the hon. Member for East Lothian, said:

“I must say I am not a great fan of the polygraph solution. Polygraphs are a very good way to demonstrate a physiological response to nervousness. Most people who take polygraphs are going to be nervous, so it is a very inexact science. I think it is probably slightly better than tossing a coin.”––[Official Report, Counter-terrorism and Sentencing Public Bill Committee, 30 June 2020; c. 80.]

We should not be using a method as unreliable as a polygraph to determine whether a person has committed a crime. So I join the hon. Member for East Lothian in asking the Minister to give assurances here and now that the use of polygraph testing for offenders released on licence will not become a stepping-stone towards the introduction of polygraph testing across the justice system.

As colleagues may have noticed, I have submitted a new clause on the issue of polygraphs so I shall reserve most of my comments for the stand part debate later today, but we do need some clarification and assurance that we are not moving in the direction of an unreliable method of fact-finding like polygraphs.

What knowledge and evidence do the Government have on the reliability of polygraph tests, and why are they intent on their use in this context? As Professor Acheson said in his oral evidence,

“Polygraphs are a very good way to demonstrate a physiological response to nervousness”—

I am aware that I am repeating myself—and I, for one, would certainly be nervous undertaking a polygraph even if I knew I had not committed a crime, which makes me question whether polygraphs provide anywhere near the necessary level of assurance. We need a much more robust system if we are to start making decisions around a person’s future. We are not entirely dismissive of the place of polygraphs or the potential role that they can play, but we would not want to see the burden of proof rely heavily, or even moderately, on a polygraph result.

I plan to go into further detail in later examination of the Bill, once we reach the new clauses, on the impact of polygraph licence conditions on those with protected characteristics. In the meantime, it would help if the Minister were able to clarify the Government’s position on polygraph tests, including plans for future use.

[Miss Sarah Dines (Derbyshire Dales) (Con)]

On a point of order, Mr Robertson. There was an unintentional mistake earlier, about Professor Acheson saying that the polygraph was only “slightly better” than the toss of a coin. Those who were here last week listening to the professor will remember—it is in the Hansard record at column 83—that I called him out on that. He said that I was “quite right” to do so and that it was a “useful” test. It is tricky, I know, when looking back on evidence on a hot afternoon. It was a mistake, I think.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss new clause 6—Reports on polygraph licence conditions for terrorist offenders—

“(1) Before section 32 comes into force the Secretary of State must lay before Parliament a report in accordance with subsection (4).

(2) Before section 33 comes into force the Scottish Ministers must lay before the Scottish Parliament a report in accordance with subsection (4).

(3) Before section 34 comes into force the Department of Justice must lay before the Northern Ireland Assembly a report in accordance with subsection (4).

(4) The form of the reports is an analysis of the expected impact of the appropriate section of this Act on people with protected characteristics, including but not limited to—

(a) the impact on people from minority faith groups, including the numbers received into prison and the length of the sentence served;

(b) the impact on people from BAME communities, including the numbers received into prison and the length of the sentence served;

(c) the consequences of any disproportionate impact on people with protected characteristics on efforts by the prison authorities to rehabilitate prisoners convicted of terrorism offences; and

(d) the impact on people with physical and mental disabilities.

(5) No later than the anniversary of the appropriate section coming into force in each subsequent year, the Secretary of State, Scottish Ministers and Department of Justice must each lay a further report updating the analysis under subsection (4).”

[Alex Cunningham]

I want to address new clause 6, and will be brief as I have covered much of what I wanted to say with reference to the SNP amendments. I will do the same on clause 35.

The new clause is simple enough. It would build in safeguards for people with protected characteristics, which includes people from minority faith groups and the BAME community, including on the numbers received into prison and the length of the sentence served, by ensuring that the Government commission reports on the impact of the relevant provisions on the distinct groups. The report would also cover the consequences of any disproportionate impact on people with protected characteristics on prison authorities’ efforts to rehabilitate prisoners convicted of terrorism offences, as well as the impact on people with physical and mental disabilities.

We can all accept—and the evidence given to the Committee bears it out—that polygraph tests are far from being the holy grail in general, never mind when they are applied to the people covered by the amendment. It is worth noting that some of the evidence contained more detail. Professor Silke—I hope I will quote him correctly this time—was clear in his evidence. He said that there could be a role for polygraph tests, but discouraged Ministers from going headlong into a full roll-out:

“There are potential benefits to using polygraphs within an enhanced framework, recognising that they do have their limits. I support the calls that are being made, if polygraphs are being introduced, for running a pilot programme first before implementing them across the estate.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 30 June 2020; c. 86, Q182.]

Rather than going full steam ahead and introducing a regime of polygraph testing for everyone in the category in question, will the Minister launch the pilot that Professor Silke and other witnesses favour? That would help to address some of the issues that I have been concerned about, and that I raise in the new clause.

The Minister will be pleased to hear that I shall not rehearse again the injustices against certain groups that sadly remain very much part of the justice system, but I ask him to be mindful of the reality and to recognise that data is critical if we are to overcome those injustices.

[Chris Philp]

I would say two things about a pilot. First, as I said before, polygraph use has been running for a number of years now for sex offenders in England and Wales, and it has been found to be useful. It is used quite widely around the world, as Professor Grubin mentioned in his evidence.

In particular, the use of polygraphs for monitoring licence conditions is designed first to prompt the disclosure of information and secondly to provide information that might be followed up. Bearing that in mind, I do not think that the biting effect of the polygraph findings is of sufficient severity to require further pilot work, particularly as the technique is used already.

As to BAME communities, that is something we debated at some length a short time ago, as the hon. Gentleman said, but I would observe that the application of the technique applies to everyone equally, regardless of colour and creed.

In relation to the review, there is a standing convention that legislation is reviewed three years after coming into effect. I am sure that the effectiveness of the provision will form part of such a future review.

[Alex Cunningham]

That is very helpful. I will not press the new clause.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Clause 33

Polygraph licence conditions for terrorist offenders: Scotland

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 56, in clause 52, page 43, line 4, after “32” leave out “to” and insert “, 34 and”.

Amendment 57, in clause 52, page 43, line 4, at end insert—

“(3A) Section 33 comes into force on such day as Scottish Ministers may by regulations appoint.”

This would have the effect that provision in the Bill that relate to polygraph testing would only become operational if the Scottish Government asked for those provisions to be implemented.

--- Later in debate ---

[Kenny MacAskill]

I am happy to accept the Minister’s reassurances. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Alex Cunningham]

Again, I will be brief. I am aware that an amendment that I have tabled cannot be selected for debate, so I am content to address clause 35 stand part instead.

We accept that polygraphs have their uses, albeit very limited. Most notably, we recognise that polygraph examinations have been used with some success in the management of sexual offenders since 2013 by the National Probation Service. The Minister spoke about that and convinced us that, for that reason, we do not need a pilot for the Bill.

However, as has been said over and again in the evidence sessions and in debate, they are far from 100% accurate. While they give an indication, when used in the right conditions, that can detect traits associated with lying, they are far from infallible. The Bill allows the Secretary of State to impose mandatory polygraph examinations on high-risk offenders who have been convicted of terrorist offences or offences related to terrorism. Specifically, it allows for mandatory polygraphs to be taken three months post release and every six months thereafter unless the test is failed, after which the offender would have to take them more regularly.

However, the Government seem shy of spelling out the detail of how their proposed regime will work, leaving it to secondary legislation in the shape of regulations, which are mentioned in subsection (9). I, for one, am always a little wary of the Government when they opt for that route.

The Minister needs to provide a robust explanation of why he does not want that detail in the Bill. Is it a case of having insufficient detail at this stage to work out exactly what he wants to achieve with polygraph testing, or does he share everyone else’s reservations about the application of the test? I hope that he will explain why there has to be a delay. I am sure that if the Minister looked at the legislation relating to the application of polygraph tests to sex offenders, he could cut and paste the wording, and tidy it up to suit this legislation, so there is no excuse for it not being in the Bill.

The Ministry of Justice has committed to a review of the value of polygraphing terrorist offenders and those convicted of offences related to terrorism after two years, which we very much welcome. However, as I said earlier, we would welcome that kind of commitment in the Bill, and a clear statement that people with protected characteristics will be covered specifically. It would help the Committee were the Minister to spell out how he expects such a review to be conducted, what he expects out of it, and whether he would adopt the need to achieve the specific things that I have spelled out.

I reiterate that Labour does not object to the use of polygraphs as set out in the Bill, but we should see the detail from the Government on exactly what they want to do. They ought to spell it out in the Bill. I hope that the Minister will reflect on that, and perhaps accept that it would be an easy job to cut and paste from the other legislation and to table an amendment on Report that provides the clarification we seek.

[Chris Philp]

The shadow Minister asks why we do not specify in the Bill the full detail about how the polygraphs will be used, and why that will be done in secondary legislation. Of course, that is extremely common. It is usual for matters of great detail to be done via secondary rather than primary legislation, in order to avoid, in the first instance, filling the Bill with a great deal of operational matters.

There is also the possibility that operational best practice may change in due course. If scientific evidence develops, or as practice evolves, there may be things that we could do differently or better. Clearly, if it was set out in primary legislation, it would take a great deal of time to change the detail. We would have to wait for a Bill to come before Parliament with the matter in scope, which could take some years. There are quite a few things that the Government have been wanting to do for a while, and we have been waiting three or four years for the right Bill to come along, including some in the Ministry of Justice. Of course, such changes can be made more deftly and more quickly by secondary legislation.

If the shadow Minister wants to see the sort of detail that he can expect, the existing regulations made under the 2007 Act to implement polygraph testing for sex offenders will give him a great deal of information. Obviously, we will study those very carefully when making regulations under clause 35. If he wants further detail, he can certainly find it in the existing regulations.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36

Release on licence of terrorist prisoners repatriated to the United Kingdom

Question proposed, That the clause stand part of the Bill.

Counter-Terrorism and Sentencing Bill (Seventh sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 7th sitting: House of Commons
Tuesday 7th July 2020 Public Bill Committees

[The Chair]

With this, it will be convenient to discuss new clause 12—Additional provision in relation to polygraphs when applicable to individuals under 25—

(1) Where, in accordance with section 28 of the Offender Management Act 2007, as it applies to terrorist offenders, or Schedule 1 to the Terrorism Prevention and Investigation Measures Act 2011, a polygraph session is required of an individual aged between 18 and 25, that polygraph session must be attended by a counsellor.

(2) For the purposes of this section, a counsellor is a person who can assess the appropriateness of the application of the polygraph session and support the person to which the polygraph condition has been applied.

(3) Where the counsellor has concerns about the appropriateness of a polygraph session, these shall be reported to the Secretary of State.

(4) The Secretary of State shall lay in Parliament a report that includes—

(a) a summary of the concerns raised by counsellors on an annual basis; and

(b) a description of the actions proposed or taken to address the concerns raised.”

[Alex Cunningham (Stockton North) (Lab)]

It will be a pleasure to speak under your chairmanship, Mr Robertson.

New clause 12 would require that a counsellor be present during the time that any individual aged between 18 and 25 is having a polygraph test. As subsection (2) of new clause 12 says:

“a counsellor is a person who can assess the appropriateness of the application of the polygraph session and”—

This is the most important part of all—

“support the person to which the polygraph condition has been applied.”

It is only right that we ensure that someone is present for the participant in a clearly stressful situation. The young person undergoing the polygraph test may not have the knowledge, the confidence or even the ability to speak out if they are not comfortable. Having a counsellor present would provide an extra layer of support and establish more confidence in the process. The counsellor would be required to report

“concerns about the appropriateness of a polygraph session…to the Secretary of State.”

That would mean that the Government would remain on top of any key or alarming issues that arise with polygraph tests, the equipment or even the testers, to ensure that their use is fair and proper in relation to young people.

The new clause would require the Secretary of State to lay in Parliament an annual report containing a summary of the concerns raised by counsellors and setting out the actions proposed or taken to address them. As colleagues will be aware, from time to time we have discussed the use of polygraph tests and how the Government plan to use them in the future. It is a contentious issue and one that we must keep under regular scrutiny. The reason that we specify that there should be a counsellor present when the person undergoing the polygraph is under 25 is in response to the evidence that has already been presented to this Committee that there is a difference in maturity between those under 25 and those over 25. That is why we believe that this extra level of safeguarding—this is a safeguarding issue—is important. I would prefer that we were too cautious and that we focused on ensuring that people undergoing a polygraph test have the appropriate measures in place to provide a sense of trust in the process than that we were not cautious enough and did not put any protective measures in place.

This is a reasonable new clause, with the safeguarding of young people at its heart. I hope that the Minister will be able to recognise what a positive change it would make. Perhaps this time he will also recognise that younger people are different, and that he and we have a duty to protect them.

[Chris Philp]

It is worth reminding the Committee that the purpose of using polygraphs in this context, rather like the monitoring of licence conditions that we discussed earlier in our proceedings, is simply to seek to prompt new disclosures that might otherwise not happen, or to elicit an indication that might suggest that further investigation by the relevant authority should be undertaken. The purpose of using polygraphs is nothing more nor less than to achieve those very limited objectives.

The provisions of the new clause might be somewhat beyond the scope of the Bill, because it would apply not just to the people we are talking about here, but to sex offenders where polygraphs are used. When the Domestic Abuse Bill receives Royal Assent—it had its Third Reading last night—it would apply to domestic abuse offenders as well, so the scope is significantly beyond just terrorism.

The central point of the new clause is to ensure is that people under the age of 25 have some kind of counsellor present during a polygraph test. The main assurance I can give the Committee and the shadow Minister is the fact that, as we heard from Professor Grubin in his compelling evidence, the people who administer the polygraph tests are highly trained. The regulations that we already use in relation to sex offenders, and that are likely to form the basis of the regulations here, require high levels of training and quality assurance for those who administer the tests. They are expert people who are selected and trained very carefully, and they use their powers and authority in a carefully managed and circumspect manner. I hope the fact that the person who administers the test is well trained and carefully regulated gives the Committee and the shadow Minister confidence that the proposed additional measure of having a counsellor present is an extra level of protection that is essentially nugatory, bearing in mind the expertise of the person doing the test in the first place.

[Alex Cunningham]

The Minister, apart from the fact that he does not think the safeguarding is necessary, has just made a grand speech in support of my amendment. He has recognised very clearly that, although there may be experts, there are issues that need to be addressed. He actually talked about how the scope of the amendment would go far beyond the issues covered in the Bill. That is a good thing. Why should young sex offenders or young offenders covered by the Domestic Abuse Bill not also have the protection of having a counsellor present at their session? I will not push the new clause to a vote, but I believe that the Minister needs to start to focus very specifically on young people. We will return to the issue of young people on Report, because the Minister seems to dismiss the fact that a small number of young people are different. He does not recognise the difference. We will withdraw the new clause for now, but we will most certainly return to this issue.

Question put and agreed to.

Clause 41 accordingly ordered to stand part of the Bill.

Clause 42

TPIMs: drug testing measure

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 42 adds a new drug testing measure to schedule 1 of the TPIM Act 2011. A TPIM subject will be required to submit to drug testing by way of providing a relevant sample. Under the clause, testing is limited to testing for the presence of specified class A and class B drugs. These drugs are the same as the class A and class B drugs specified in the Criminal Justice and Court Services Act 2000. The definition of “permitted sample” sets out an exhaustive list of the non-intimate samples that may be taken, mirroring the definition of “non-intimate sample” in section 65 of the Police and Criminal Evidence Act 1984. Drug testing under the clause may be carried out only by a constable at a police station, but the clause contains a power for the Secretary of State to make regulations prescribing additional or alternative testers and places of testing.

Question put and agreed to.

Clause 42 accordingly ordered to stand part of the Bill.

Clause 43

TPIMs: provision of information

Question proposed, That the clause stand part of the Bill.

Counter-Terrorism and Sentencing Bill (Eighth sitting)

Alex Cunningham Excerpts

Committee stage & Committee Debate: 8th sitting: House of Commons
Tuesday 7th July 2020 Public Bill Committees

[Chris Philp]

I beg to move amendment 1, in clause 50,  page 41, line 30, at end insert—

“(7) In the Criminal Justice and Court Services Act 2000—

(a) in section 77 (supplementary and consequential provision), at the end insert—

‘(3) The provision which may be made under subsection (1) in relation to section 61 of this Act (abolition of sentence of detention in young offender institution etc) also includes provision amending or repealing—

(a) any provision of the Counter-Terrorism and Sentencing Act 2020,

(b) any provision of an enactment that was inserted or amended by, or by regulations made under, the Counter- Terrorism and Sentencing Act 2020’;

(b) in section 78(2) (meaning of ‘enactment’), after ‘in this Part’ insert ‘other than section 77(3)’.”

This enables the power in section 77 of the Criminal Justice and Court Services Act 2000 to make amendments consequential on the abolition by that Act of sentences of detention in young offender institutions to be used to deal with references to such sentences inserted by the provisions of this Bill.

Government amendment 1 enables a power in section 77 of the Criminal Justice and Court Services Act 2000. This power is to make any amendment that arises as a consequence of sentences of detention in a young offender institution being abolished by the Act. Should the DYOI be abolished, the power will be used to deal with references to DYOI sentences inserted by the provisions of the Bill.

[Alex Cunningham (Stockton North) (Lab)]

The amendment in the name of the Minister seeks to amend clause 50 to make reference to sections 77 and 61 of the Criminal Justice and Court Services Act 2000. Despite his introduction, it is unclear what the Minister’s intentions really are. As members of the Committee will be aware, sections 59 and 61 of the 2000 Act allow for the abolition of the special sentence for the detention of a young adult in a young offender institution. The explanatory note to the 2000 Act—passed under a Labour Government, mind you—sets out the policy reason behind that:

“it is now widely accepted that 18, and not 21, is the age of”

maturity, and

“there is no logic in having a separate sentence for those aged between 18 and 20 years old, and those aged 21 and over.”

That almost kills my arguments of the last few days—but it does not, because, despite the provisions being in place for two decades, the 2000 Act to which the amendment refers is yet to be implemented. I, for one, am quite happy about that, but it prompts the question of why the Government’s amendment draws on a 20-year-old piece of outdated legislation. What is the Minister’s intention?

In the 20 years since the 2000 Act was passed, a considerable amount of work has been done on the age of maturity, and it is now widely accepted, as I have said on numerous occasions, that 25 is considered by many to be a more suitable age of maturity. As such, it would be deeply concerning if the Government had any ambition at all to enact the Criminal Justice and Court Services Act. The impact of doing so would be that offenders as young as 18 would be held in prison alongside adults potentially double their age or more. That could be hugely damaging, not only to the individuals but to the hope of rehabilitation too.

The Minister has provided the Committee with a guarantee that he has no intention of housing young offenders caught up in the provisions in the Bill alongside adult prisoners. Many may see this as a technical matter, but there are some very real dangers, as I have alluded to, and I am sure the Committee would welcome a further reassurance from the Minister that the Government have no intention whatsoever of using the Criminal Justice and Court Services Act to imprison young people alongside adults.s

[Chris Philp]

I understand this to be a technical amendment to ensure legislative consistency between the Bill and the Criminal Justice and Court Services Act. I am not aware of any plans to change the current detention arrangements. I do not believe that the reference is designed to pave the way to do that. It is just a technical amendment to ensure legislative consistency.

[Alex Cunningham]

Will the Minister be specific? He says he does not think that there is any intention, but it could lead to young people being imprisoned alongside adults. Will he give that assurance to the Committee again? Not understanding or not being aware of something is not good enough.

[Chris Philp]

I am not the Prisons Minister, I am the Courts Minister, but I am not aware of any plans at all in the Ministry of Justice to change the current detention arrangements. None have been brought to my attention, either generally or in connection with the Bill. I can go and double-check with the Prisons Minister, and I will write to the hon. Gentleman, if he would like me to do that.

Amendment 1 agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

--- Later in debate ---

[Chris Philp]

Clause 53 gives the shortened title for the Bill when it is cited, which will be the Counter-Terrorism and Sentencing Act 2020.

Question put and agreed to.

Clause 53 accordingly ordered to stand part of the Bill.

New Clause 1

Review of deradicalization programmes in prisons

“(1) Within one year of this Act being passed, the Secretary of State must publish and lay before Parliament a comprehensive review of the impact of the provisions of this Act on the effectiveness and availability of deradicalization programmes in prisons.

(2) The review must include an assessment of the following matters—

(a) the effectiveness of existing programmes at reducing radicalization and terrorist offending;

(b) how individuals are assessed for their suitability for a programme;

(c) the number of individuals assessed as requiring a place on a programme;

(d) the number of individuals assessed as not requiring a place on a programme;

(e) the average length of time individuals assessed as requiring a place on a programme have to wait to start a programme; and

(f) whether there is sufficient capacity and resource to meet demand for places on deradicalization programmes in prisons.

(3) The review must consider how the provisions of this Act have affected the matters listed in subsection (2).”—(Alex Cunningham.)

This new clause requires a review of the impact of the Act on deradicalization programmes in prisons.

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the Clause be read a Second time.

We have talked in great detail about the many provisions in the Bill, but we have also talked about the many missing provisions, best evidenced by my hon. Friend the Member for St Helens North, who discussed Prevent and the need for an end date for the report on its effectiveness to come into place.

One key area where we could do better in is the deradicalisation programmes in prison. While the minimum sentencing for terror offences has been increased, there is a suggestion that we could simply be delaying inevitable further offences unless we take action to use the offender’s time in prison to deradicalise them. We can only do that if there is an effective deradicalisation programme in place.

We have heard evidence that few people convicted of terrorism offences go on to commit further crimes, but some do. We have also heard evidence that these programmes are not entirely fit for purpose; perhaps, with these new longer minimum sentences, they really need a good overhaul. That is why the new clause has been tabled: to ask the Secretary of State to conduct a review of the impact of the provisions of the Bill on the effectiveness and availability of deradicalisation programmes in prison. Perhaps the Government could just tag it on to the Prevent inquiry and get two for the price of one.

The impact assessment for the Bill claims that longer incapacitation of terrorist offenders will enable

“more time in which to support their disengagement and rehabilitation through the range of tailored interventions available while they are in prison.”

However, the amount of time during which individuals have access to deradicalisation programmes in prison is not a key factor in determining their success or otherwise; rather, it is the effectiveness and the availability of the programmes in prison that has come under increasing scrutiny.

We need to know what is happening in prisons. What programmes are being delivered, who are they delivered to, who are they delivered by, when are offenders undertaking the programmes, how many deradicalisation programmes one offender in for a minimum sentence is expected to cover, and how is the success of programmes delivered? Those are just some of the questions that such a review would look into.

We need to understand the effectiveness of the programmes, where they work, where they do not and what can be improved. Currently, the main deradicalisation programme in prisons is called the Healthy Identity Intervention, which delivers one-to-one, individually tailored sessions. It is supplemented by the Desistance and Disengagement Programme, which can be offered to both prisoners and those released on licence.

Neither the Healthy Identity Intervention or the Desistance and Disengagement Programme courses have undergone any form of evaluation process to date, so perhaps the Minister will agree that a formal review is long overdue. It is a key part of our justice system, and rehabilitation should be at the centre of that, because people are released back into society. Putting someone back into society who has not been rehabilitated simply increases their chances of reoffending.

I remember the evidence from some of our witnesses—in particular from Mark Fairhurst who, at the start of his evidence, spoke of the role of key workers, the Parole Board and a range of professionals working with the offender. It was all very positive and very much to be welcomed. He went on, however, to say that an extended sentence, where an offender serves their whole sentence in prison,

“incentivises people not to behave correctly or to go on deradicalisation courses.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 30 June 2020; c. 69, Q145.]

All the more reason why Ministers should understand more about how the deradicalisation system works for the offender and for society.

I would particularly like to see data on the average length of time for which an individual has been assessed as needing to undergo a deradicalisation programme before they actually undertake it. I am concerned that in such cases time is of the essence. The offender is likely to feel incredibly hostile to a system that has just imprisoned them. There cannot be an indefinite wait for them to be put on to a programme if they are willing to do it. Not getting on with it just allows more time for further radicalisation and mistrust of the legal and justice system.

In addition to that evidence, Professor Andrew Silke, who has studied efforts to deradicalise those in prison for terrorism offences, has reported that some prisoners who said that they were willing to participate in a programme were never put on one before their release. That could easily be rectified. We cannot and must not take chances. We need to ensure that the programmes are readily available as and when they are needed, and that there are no delays due to capacity issues or availability.

Where insufficient resources or structures are found in prisons, the Secretary of State must take action to resolve that. They must provide the resources to ensure that it is not a lottery and that no risks or gambles are being taken on the rehabilitation of a terror offender. It is really surprising that the Bill has nothing to say on what measures will be taken to ensure that effective deradicalisation programmes are available to individuals in prisons who need them. Arguably, simply by increasing the length of time that people spend in custody the provisions of the Bill risk further alienating them and giving them grounds for grievance against the authorities, placing them at greater risk of radicalisation.

[Ruth Cadbury (Brentford and Isleworth) (Lab)]

I apologise for not being present to hear my hon. Friend’s earlier speech, which I gather was excellent, as I was in the House. Does he agree that deradicalisation programmes are even more important for young offenders? The data and evidence produced over the years and provided to this Committee shows that younger offenders—certainly under-25s—are more susceptible to influences, so deradicalisation, when done effectively, is even more effective in reducing reoffending when young offenders are eventually released.

[Alex Cunningham]

I am grateful to my hon. Friend for that intervention. I have no doubt that she is correct. Young people are far more able to change their ways and benefit from the programmes. It is therefore essential that these programmes are in place. That is why I have spent most of my time in the past couple of weeks talking specifically about young people and how they differ from older people.

We all agree that rehabilitation is desirable and preferred, and a core cog in our justice system. Let us commit ourselves not only to talk about it, but to learn about it and ensure we deliver an effective system. The evidence so far to the Committee has suggested that it is not always effective. We need to deliver on that.

I am hopeful that the Minister will accept that a review is needed and that we need a greater understanding, just as we will have with the Prevent strategy. We need that greater understanding to ensure that the terror offenders have the support—and it is support—that they need in prison, so that when they are released into society, they can be the sort of citizens that we need them to be.

[Chris Philp]

I am grateful to the shadow Minister for raising this extremely important issue. As we heard in evidence a couple of weeks ago, most people who come out of prison having served a terrorism sentence do not go on to reoffend, as the shadow Minister said. I recall that the figure we were given was that only 5% to 10% of those prisoners released go on to commit subsequent terrorism offences. Thankfully, that is a low rate of recidivism, although it is very serious when it happens.

The shadow Minister asked why there are not more deradicalisation measures in this legislation. That is because most of our deradicalisation work and programmes are done operationally inside the Prison and Probation Service; they are not specified in legislation. Let me say, however, that a great deal is being done in this area. The Healthy Identity Intervention programme is one area to which the shadow Minister has referred.

We have doubled the number of specialist probation officers. As per earlier legislation, we are creating a new counter-terrorism assessment and intervention centre, set up as part of the new counter-terrorism StepUp! programme; it represents a major shift in our capability to intervene with terrorist offenders, including young terrorist offenders in exactly the way the shadow Minister was discussing earlier.

--- Later in debate ---

[Alex Cunningham]

Will the Minister give way?

[Chris Philp]

I was in full flow, but okay.

[Alex Cunningham]

The Minister was in full flow and doing very well, but I am interested in the statement he made that the Government have already doubled the probation capability in this area. I invite him to explain what he meant by that statement and say what the timescale is for this new centre, which sounds as if it is on the money.

[Chris Philp]

The proposals that have been made will double the number of probation officers who specialise in counter-terrorism and deradicalisation work. The new counter-terrorism assessment intervention centre will do the work I was just describing, including identifying the risk people pose and getting the right specialists to work with them to reduce their risk while they are in prison. That has to be the right approach. That is a significant change and evolution in the way in which we deal with this particular cohort.

The shadow Minister mentioned the programme that is already in place—the Healthy Identity Intervention programme—which I think has merit as well.

It is a one-to-one programme that supports desistance and disengagement from extremism by targeting the social and psychological drivers of that behaviour. That intervention is delivered by highly trained psychologists and probation officers in prisons, but also—critically—with offenders on licence after they have left prison.

2.45 pm

The work being done already is valuable; the enhanced work via the new counter-terrorism assessment intervention centre that I described will go even further. I hope that illustrates the direction of travel. We want to do more in this area, for the reasons discussed, and ongoing evaluation of that will be part and parcel of the Government’s approach. There will be the normal three-year review of the legislation, of course—I suspect I may make that comment more than once as we discuss the coming 11 new clauses. That standard three-year review will be a useful and valuable checkpoint to see whether the measures that I have just described are having the desired effect.

[Alex Cunningham]

I would say that 5% to 10% of people reoffending in a terrorist way is 5% to 10% too many.

[Chris Philp]

indicated assent.

[Alex Cunningham]

The Minister is nodding his head. He may have misinterpreted what I am trying to achieve with the new clause. He was saying that he does not want the detail of how we do deradicalisation in the Bill, but that is not what I am asking. I am asking for a review of how the process is working in prisons; I am not asking for details on how deradicalisation is done to be in the Bill.

The Minister originally said that the probation capability had already been doubled within the service, but in response to my intervention he said that that was a plan yet to be properly implemented. He also talked about the specialist centre, but did not answer the question of what the timescales were. There are an awful lot of unknowns here.

The Minister said that he hoped that what he had to say indicated or illustrated the direction of travel. It did, but we do not seem to be getting anywhere fast, and for that reason I wish to press the new clause to a Division.

Question put, That the clause be read a Second time.

--- Later in debate ---

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

When I became shadow Justice Minister for courts and sentencing, one of the things that I was most interested in was how our justice system treats women in particular. We know that women are less likely to commit violent offences and make up about 5% of the overall prison population in the UK—although, having said that, I should say that the figure has doubled in recent times. Is that because women are committing more violent offences than ever before? No, it is not. According to Women in Prison, 80% of women entering prison have committed a non-violent offence. In 2017, 30% of all prosecutions of women were for evading the television licence fee. Just 4% of prosecutions of men were for the same offence.

We can debate the failures and merits of imprisonment as an effective or even moral punishment for a non-violent offence, but we are here to talk about counter-terrorism and sentencing. We want to put the issue down of the differences in sentencing between men and women. We need to consider the impact of our policies on all people. The new clause would require the Secretary of State to lay before Parliament a review of the effects of the Bill on women, including the differential effects on sentencing, on the release of terrorist offenders, and on the prevention and investigation of terrorism. The review must also consider the impact of the Bill on the physical and mental health of women.

Many women lose their homes and possessions when going to prison and are consequently released homeless. We often focus much on sentencing and punishing people for their crimes, but we do not do nearly enough, or invest anywhere near enough, to ensure that people get on the right track when they leave prison. When they leave prison and are homeless, and perhaps imprisonment has damaged relationships with their family and friends, they may feel that returning to crime is their only option. If an individual returns to crime because they do not have the support to build a better life for themselves, it is we who have failed.

The issue is not just about accommodation and material possessions. Only 9% of children whose mothers are in prison are cared for by their fathers in their mother’s absence. Just 5% of children remain in their family home when a mother goes to prison. We cannot apply a one-rule-fits-all approach, because one rule does not fit all, and we must recognise the difference in circumstances, outcome and impact that sentencing women has compared with sentencing men.

The review would help us as lawmakers to establish where further policy developments are needed to address any unexpected or undesirable impacts of the new legislation. That could then have an impact on the length of sentence that a woman terrorist received. We would like to know the impact on children if a mother is sentenced to prison for a terror offence. What happens to children to ensure that they do not develop a distrust of the justice system, which can lead to radicalisation? How do we introduce measures that are sensible, proportionate and smart?

I hope that the Minister will be able to tell me what research the Government have done on how approaches to women’s sentencing and licensing differ from those of men in the context of the Bill, and how the Government are recognising and acting on that difference.

[Chris Philp]

To state the obvious, the measures in the Bill apply equally to men and women. No distinction is made between them. A full equalities assessment was undertaken as part of the preparation for the Bill and has been publicly published. Indeed, it suggests that men will far more affected by the Bill than women, because far more men, unfortunately, commit terrorist offences.

That assessment of gender impact in the context of the Bill has been undertaken already, but Ministers and other public servants operate under further statutory obligations that will ensure that the Bill is implemented in an even-handed manner. For example, section 149 of the Equality Act 2010 places a duty on Ministers and the Department to have due regard to the need to eliminate unlawful discrimination, harassment, victimisation and other prohibited conduct. Moreover, article 14 of the European convention on human rights is engaged.

I understand that there are wider issues to do with sentencing and how female offenders are treated. Those are perfectly legitimate questions, but as far as the Bill, which is about terrorism, is concerned, men and women are treated equally. We have had the equalities impact assessment already and, for the purpose of terrorism legislation, that goes far enough. I am sure that we will debate on many occasions the wider questions of sentencing and prisons policy in relation to men and women, but as far as this Bill is concerned, that has been adequately addressed.

[Alex Cunningham]

I am grateful to the Minister for his explanation. If the Government recognise all their other statutory obligations in relation to women, that is a positive thing. On that basis, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 3

Financial impact assessment report

“(1) The Secretary of State must, within three years of this Act being passed, lay before Parliament a report on the financial impact of the provisions of this Act.

(2) That report must separately consider the financial impact of—

(a) extended sentences on the prison estate;

(b) extended licence periods;

(c) any increased staffing resources required for Her Majesty‘s Prison and Probation Service;

(d) the extended offenders of particular concern regime; and

(e) adding polygraph testing to certain offenders’ licence conditions.

(3) The report may consider other financial matters.

(4) The report must compare the financial impact of the Act with the Impact Assessment for the Counter-Terrorism and Sentencing Bill published by the Ministry of Justice on 18 May 2020.”

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

New clause 3 would require the Secretary of State to lay before Parliament a report on the financial impact of the provisions of the Bill. In that report, the financial impact must be considered, as set out in new clause 3, as consisting of:

“(a) extended sentences on the prison estate;

(b) extended licence periods;

(c) any increased staffing resources required for Her Majesty‘s Prison and Probation Service;

(d) the extended offenders of particular concern regime; and

(e) adding polygraph testing to certain offenders’ licence conditions.”

As the Minister knows, Labour backs the Bill, but we are a little disappointed at the Minister’s considerable reluctance to examine the consequences of the Bill with the reviews and reports that we have called for—not to take up his time, but to inform him and his successors. Above all, however, we know that for the provisions in the Bill to be implemented and effective, there needs to be the resource behind it and the financial support to address the issues that we have raised in Committee, even if they are not addressed in the final Bill, such as deradicalisation programmes.

The Ministry of Justice has estimated that the Bill will only result in an extra 50 prisoners and reckons that the cost will be contained to around £16 million a year. During an earlier discussion last week, we talked about numbers—about which numbers were right and which might be difficult or misunderstood. The Minister replied:

“We can extrapolate how many of those 50 are aged between 18 and 21, as we discussed in the previous sitting. I do not think that number is the annual flow or the number of convictions per year. As I understand it, it is the impact on the total prison population. Given that these sentences are quite long, one would expect that the annual flow into the system affected by these serious terrorism sentence provisions would be somewhat lower than that.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 2 July 2020; c. 133.]

When I challenged him on that number, asking whether it was an annual number or in fact the total number over a long period of time, he said:

“I will double check that number, but my understanding, which I will check, is that as a consequence of the measures the total prison population will increase by 50, which is different from an extra 50 people extra flowing in each year.” ––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 2 July 2020; c. 134.]

[Chris Philp]

Will the hon. Gentleman give way?

[Alex Cunningham]

I will give way when I am ready, but I am going to refer to the Minister’s letter, because he has written to me; I appreciate that he took the time to do so. He said in that letter:

“Our impact analysis has identified that, in steady state, the provisions may result in fewer than 50 additional prisoners per year, and fewer than 50 additional probation caseload. These are based on historical volumes of convictions and assumes that trends in sentencing remain stable. These impacts relate solely to the effect of longer periods in custody on the number of prison places required, and longer periods on licence with their associated effects on probation caseloads, not to an increased number of sentences.”

I believe that there is a recognition there from the Minister that there is a cumulative effect and that the number is not less than 50; in fact, there could be considerably more people in the system, particularly after a given number of years, and perhaps especially so after 10 years.

I now give way to the Minister.

[Chris Philp]

I think what I said in my original speech and intervention was correct. As a result of the changes in the Bill, we think that at any one time there will be 50 more people in prison than would otherwise be the case. I think I said that in my original speech, and it was correct.

[Alex Cunningham]

That leaves me rather confused. The Minister says that his original speech was correct, and I assume that he is also saying that his letter to me was also correct, but as far as I can see those two things conflict. In his letter, he said that

“Our impact analysis has identified that, in steady state, the provisions may result in fewer than 50 additional prisoners per year”.

I emphasise that: “per year”. He goes on in his letter to give a bit more detail; perhaps quoting this will be helpful. He says, in a paragraph towards the end of his letter that I will read in full:

“For further insight, the most recent Home Office statistical publication on the ‘Operation of police powers under terrorism legislation’ shows in the year to December 2019”

—that is, in one year—

“there were 65 individuals charged with a terrorism or related offence, of which 2 (3%) were under age 18 and 10 (15%) were aged 18-20. Twenty-two of those charged were convicted in 2019, of which 1 (5%) was under 18 and 4 (18%) were aged 18-20. We do not expect the Bill to have a notable impact on such small volumes.”

That was the number of charges per year, and 22 people were convicted in 2019. If 22 people are convicted in each of the next four or five years, that is 100 additional people alone. I cannot quite understand what the figures really are. Are they correct in the letter or in the Minister’s original statement to the House?

[Chris Philp]

I think they are correct in both. There is the stock, and there is the flow. The stock is the number of extra people in prison as a consequence of the measures, which could be 50. The flow is the number of people going into prison each year who might be affected by these provisions, which will be less than 50.

On the numbers that the hon. Member just quoted—the various convictions that occur—not all of those will necessarily be affected by the provisions in the Bill. I realise there are a lot of numbers floating around, but those figures are internally consistent. I would be very happy to sit down in a cold, dark room and go through them again. There is consistency.

What was interesting in those figures in the letter were the numbers on young people, which the shadow Minister has mentioned quite frequently. I included those in the letter to illustrate the point that I had estimated in Committee a few days ago. I said I thought the numbers were very small. The numbers that the shadow Minister just read out verified the fact that the number of people between 18 and 20 who are caught up in this is, thankfully, very small.

[Alex Cunningham]

I am grateful to the Minister for that intervention. I think it is I who needs a dark room somewhere to try to settle my head on this issue, but it would be a good idea if we could have specific clarification from the Minister at some time in the future.

I acknowledge the relatively small numbers—very small numbers—in this illustration of young people, but it does not matter whether it is one young person or a hundred. We need to treat them in a very different way from the way we treat people in the adult population, either by allowing them to have a counsellor present when they undergo a polygraph test or through the way that pre-sentencing reports are prepared for them prior to sentencing.

Bearing in mind that we do not know what numbers we are playing with now, can the Minister tell us whether the financial cost that has been identified for the new provisions will cover the additional cost of housing prisoners; the additional cost of creating spaces for new prisoners; the additional cost of having more than one specialist centre; the additional cost of having further specially trained prison officers; the cost for probation services of expanding the sentence for offenders of a particular concern regime; the impact of longer licensing on the National Probation Service; the new use of polygraphs; and the impact on youth offender teams? Such measures always have ripple effects, so we ask the Secretary of State to lay before the House within three years a report on the real financial impact of all these things.

There should never be an issue of resources when it comes to justice matters. We should ensure that prisons are properly staffed and that those staff are properly supported, be it for their personal security or to provide them with adequate services when they suffer mental illness as a result of their job—services that we heard are currently inadequate.

We should recognise the challenges that the justice system is facing. The Minister has tried to reassure us that the Government have a handle on the crisis in the courts, with hundreds of thousands of cases yet to reach them. Justice is being chronically underfunded. The Lord Chancellor simply does not have the resources he needs to do his job properly, so I struggle to have much faith that the measures in the Bill would be properly backed up financially.

I am sure the Minister will try to reassure me that all will be well and that there is plenty of cash to meet all the costs that the Bill will result in. Good! He could demonstrate his confidence in his statement by commissioning the report covered by this new clause.

[Chris Philp]

It is a pleasure to respond to the points that the shadow Minister has just made. I think I answered the points about numbers in my intervention on his speech, so let me speak to the financial cost. The financial cost of the measures proposed in the Bill has been comprehensively assessed in the impact assessment. Because the numbers are so small—an increase in the prison population of 50, or far fewer than 50, per year—the actual financial impact will be extremely small in the context of Her Majesty’s Prison and Probation Service’s budget. Let us remind ourselves that around 80,000 people are in prison, so an additional 50 will not represent a substantial impact in that context

When discussing the previous new clause, I spoke a little about the wider deradicalisation work, the new team and the increased investment in specialist officers who work with radicalised prisoners. An extra £90 million for this year was announced for counter-terrorism policing—catching people in the first place and preventing terrorist atrocities from taking place—which is a substantial increase in spending on exactly the police who are active in this area, so the resourcing is being increased. The total budget for the prison and probation service is substantially higher this year than last year, which I think will be welcome.

On a review, the Bill will clearly have a very small financial impact on the prison and probation service’s total budget. Were we to review this along with the other 11 proposed reviews before us, we would do nothing but reviews all day. The financial review will probably be well caught up in the general financial reviews we conduct anyway and the debates we have on prison and probation funding. I do not think a further review would shed any additional light on that.

--- Later in debate ---

[Alex Cunningham]

I just wonder what probation officers and prison officers will have to say in a few years’ time when they are still telling us that there are insufficient prison and probation officers in the system. That is bound to have an impact in this area as well.

The Minister listed all these wonderful initiatives—the new centres, new initiatives, the different things that are going to happen. These things cost money; I think £16 million was the figure in the in the paperwork. I just wonder how far that will actually go.

I am also interested in whether the £90 million the Minister referred to is not in fact related directly to what will happen as a result of this Bill. However, there is no doubt that that additional money is needed. We need to be able to empower our authorities to secure more convictions. The Minister’s letter, in 2019, stated that one in three people charged with a terror offence were actually convicted according to the Government’s own statistics.

However, I accept that there are other reviews and things as far as financial things are concerned, so we will leave the matter there. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 4

Role of the Parole Board

“(1) The Secretary of State must make an oral statement to the House of Commons on the effects of the provisions of this Act on the functions of the Parole Board.

(2) That statement must be made before the provisions relating to—

(a) life or indeterminate sentences for serious terrorism offences, and

(b) removal or restriction of early release for terrorist prisoners come into force.

(3) The statement must explain—

(a) the intended role for the Parole Board in the release of prisoners affected by the matters in subsection (2);

(b) what, if any, expert assessment of such prisoners will be undertaken before they are released;

(c) who will carry out any such expert assessments;

(d) whether any steps will be taken to compensate for any loss of intelligence gathering from a reduction in Parole Board interviews.”.—(Alex Cunningham.)

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

The new clause asks for an oral statement, not a review. The Minister is probably relieved that he would not have to carry out yet another review, but on the basis that he is not carrying out any, I do not know why it has proven a problem to him.

The new clause would require the Secretary of State to make an oral statement to the House of Commons on the effects of the provisions of the Bill on the functions of the Parole Board. The statement must be made before the provisions come into force relating to the life or indeterminate sentences for serious terrorism offences and the removal or restriction of early release for terrorist prisoners. It must also explain the intended role for the Parole Board in the release of prisoners affected by the matters in subsection (2); what, if any, expert assessment of such prisoners will be undertaken before they are released; who will carry out any such expert assessments; and whether any steps will be taken to compensate for the loss of intelligence gathering from a reduction in Parole Board interviews.

The Minister may well say that there is no need for such a report or statement, most likely because he has sacked the board from its role in relation to offenders given indeterminate sentences. That would be sad, and I hope the Minister will take some time between now and Report in a couple of weeks’ time to reflect on how the Parole Board’s expertise could have a role in the assessment and rehabilitation of this particular group. The Parole Board has an unparalleled wealth of experience in managing offenders and assessing risk. We must ensure that experience is used, rather than abandoned.

As well as being asked to assess risk, the Parole Board plays a vital role in providing an incentive for prisoners to reform, and to respect each other as well as prison officers. It also provides intelligence vital to the work of the police and security agencies. I know that the prospect of early release is a key tool—probably the key tool—in the work of the Parole Board, but that is not a good enough single reason to turn our backs on it. The Bill intends to do away entirely with the Parole Board for those convicted of serious terrorist offences, yet we have been given no specifics as to what will replace its role. The Ministry of Justice assures us that no prisoner will be released back into the public realm without being risk-assessed, but we have heard no further detail as to how those assessments will take place, who will carry them out, or how frequently they will be conducted. Quite simply, the Bill removes a vital piece of the rehabilitation and monitoring of prisoners, and nothing has been offered to replace it.

Those who work for the Parole Board are experts in their field, and there is huge concern among Opposition Members that no assessor will be able to meet the standard of scrutiny currently offered by the Board. Ad hoc assessments conducted by unknown persons using unknown methods is just not good enough, and risks leaving us with prisoners released into communities under the supervision of services that will not have the benefit of the expertise that Parole Board members bring. That is an unacceptable risk, and we need assurances from the Government about what their plan is. Can the Minister explain what these assessments will look like, what qualifications the assessor will have, and how they will be appointed? Can he also explain the rationale for removing the Parole Board’s role, and why he thinks this new system that has yet to be clearly defined is better placed to carry out those assessments? Parliament deserves to understand the rationale behind these Government plans.

[Chris Philp]

The changes we made back in February, through the Terrorist Offenders (Restriction of Early Release) Act 2020, extend the remit of the Parole Board. Previously, terrorist offenders who were released early at the half-way point when serving standard determinate sentences would have been released with no prior consideration by the Parole Board. Now, the Parole Board will consider them prior to release at the two-thirds point, or subsequently if not referred at that point, so those changes dramatically expanded the Parole Board’s involvement with terrorist prisoners. Secondly, the Parole Board will of course still be involved with terrorist prisoners serving indeterminate sentences.

There is one remaining cohort: the very small minority of serious terrorist offenders who we have been debating during consideration of this Bill, those who will serve their full sentence in prison and will not be considered by the Parole Board prior to their release. The shadow Minister asked about the process that will take place in relation to that small minority of prisoners. As we touched on while taking evidence, a whole range of measures are taken to make sure those prisoners are properly managed and risk-assessed. The existing multi-agency public protection arrangements are at the core of that: they have been well-documented and well-reviewed, including by Jonathan Hall, so we know exactly what they are. Those measures also include the work done by the Prison and Probation Service, both in prison and afterwards on release, and work done in conjunction with CT policing.

Where the Parole Board will not be involved in a prisoner’s release decision, all those agencies will continue to be heavily involved in their risk assessment, working with the prisoners on deradicalisation where that is possible and managing them in prison and then in the community afterwards where it is not possible. I think we asked one of our witnesses, although I forget which one, whether they had confidence in those arrangements—MAPPA, the prison service, the probation service and the police—and the witness was very clear that they did. I have confidence in them as well.

[Alex Cunningham]

I am grateful to the Minister for reminding us about those different cohorts and how they have been dealt with. Of course, the Opposition very much supported the provisions that were introduced earlier this year. As for this particular cohort, although I still think it is regrettable that there is no role for the Parole Board in working with some of our most dangerous offenders, I see no sense in pressing the clause to a vote. I therefore beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 5

Review of effects on children and young offenders

“(1) The Secretary of State must, within one year of this Act being passed, lay before Parliament a review of the effects of the provisions of this Act on children and young offenders.

(2) That review must detail any differential effects on children and young offenders in—

(a) sentencing;

(b) release of terrorist offenders; and

(c) the prevention and investigation of terrorism.

(3) The review must consider the impact of imprisonment under this Act on the physical and mental health of children and young offenders.

(4) The review must consider the influences on children and young offenders who commit offences under this Act, including but not limited to—

(a) the internet;

(b) peer-pressure; and

(c) vulnerability.

(5) When conducting a review under this section, the Secretary of State must consult with Scottish Ministers.

(6) The review may make recommendations for further changes to legislation, policy and guidance.

(7) For the purposes of this section, young offenders include adults aged under 25.”—(Joanna Cherry.)

This new clause would require the Secretary of State to review the effects of these measures on children and young offenders. It would also require the Secretary of State to consult with Scottish minister when conducting the review.

Brought up, and read the First time.

[Joanna Cherry (Edinburgh South West) (SNP)]

I beg to move, That the clause be read a Second time.

It is a pleasure to serve under your chairmanship, Mr McCabe. I apologise if I am interrupting the flow of the hon. Member for Stockton North as we go through the new clauses, but I suspect that he will sympathise with this one, which I move on behalf of the Scottish National party. I remind colleagues that sentencing is a devolved matter, and that there will have to be a legislative consent motion in relation to the Bill, but clearly the Bill has implications for sentencing across the United Kingdom and Northern Ireland.

New clause 5 would require the Secretary of State to carry out a review of the effects of the provisions of the Bill on children and young offenders, to lay that review before the House within one year of the Bill being passed, and to consult with Scottish Ministers when conducting it. The clause reflects concerns already expressed by the hon. Member for Stockton North and by some of our witnesses about the impact of the legislation on children and young people. In support of it, I will refer to four aspects of the evidence that the Committee has received in writing or orally.

The first relates to evidence from the Independent Reviewer of Terrorism Legislation, Jonathan Hall, which we heard on the first day of evidence, 25 June—in particular, his responses to questions 15 and 16, which were asked of him by the hon. Member for Stockton North in reference to one of several notes that Jonathan Hall has prepared on the Bill. The hon. Gentleman asked him about point 10 of the first of those notes, titled “Note on Counter-Terrorism and Sentencing Bill: Sentencing Reforms (1)”, in which Mr Hall says:

“The requirement of a minimum mandatory sentence for all adult offenders, however young, puts in doubt whether judges can properly reflect the fact that an adult of 18 years and one month may not be any more mature than a child of 17 years and 11 months”.

Of course, those sentences are not available for a child, but they are available for those defined as over 18. Mr Hall went on to say:

“Age may or may not result in ‘exceptional circumstances’ being found, which is the only basis on which the 14-year minimum can be avoided.”

The hon. Member for Stockton North put it to Mr Hall, in question 15, that that struck him as a cautionary note, and he invited him to elaborate upon it. Mr Hall said:

“I have identified what is really a policy choice for Parliament. As a matter of fact, I can say that an increasing number of quite young people are being caught up in terrorism, including new forms of terrorism—not just conventional Islamist, extremist or right-wing terrorism, but other new emerging forms, such as the incel movement or even things at the very boundaries of what you might consider terrorism that are very violent. It is not impossible that young people will be caught up in this.

The point I am making—I have referred to an authority from England and Wales and I think I have also referred to the approach in Scotland—is that there is recognition that people who are young and immature are probably more susceptible to change than adults. I suppose it is a choice for Parliament, but the age for a mandatory minimum sentence—meaning no prospect of early release, and effectively putting to one side the possibility of reform—might be raised to 21, rather than that being for those in the 18-to-21 bracket. I understand that in Scotland there is a debate over whether it should be as far as 25.

All I can do is identify the choice that has been made and point out that when it comes to sentencing, traditionally it is recognised that people are not necessarily that different when they are one month over 18 as opposed to one month under 18.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 10, Q15.]

The hon. Member for Stockton North said:

“But the bottom line is that with young people, perhaps, there is greater change. You have said that there may be greater opportunity for reform there than with those who are considerably older.”

Mr Hall replied:

“That is what judges are increasingly finding.”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 10, Q16.]

The hon. Member for Stockton North has mentioned this afternoon that there might be a greater opportunity for young people to reform their ways and be deradicalized than there is for middle-aged and older people.

My second piece of evidence is Mr Hall’s third note on the Counter-Terrorism and Sentencing Bill, which deals specifically with the effect of the proposed changes in sentencing in Scotland and Northern Ireland. In particular, in paragraphs 21 to 26 Mr Hall talks about children and young people, and states:

“Striking features of the proposed legislation concern its application to children and young offenders.

The proposed application of the serious terrorism sentence to offenders aged 18 to 21 in Scotland raises starkly the question of whether there is a bright line between offenders above and below the age of 18. This is because the Scottish Sentencing Council is currently consulting on its third draft guideline, ‘Sentencing Young People’ and proposes that special sentencing principles should apply to offenders up to the age of 25.”

Paragraph 23 of the note states:

“Even if the Sentencing Council guideline does not ultimately go as far as 25, the application of the minimum mandatory sentences to those in the 18 to 21 bracket, and even more so the removal of the role of the Parole Board…for dangerous serious terrorism offenders for both adults and children, appears inconsistent with the distinct youth criminal justice regimes which have developed in each part of the United Kingdom.”

Mr Hall says:

“The current trend in Scotland is towards a welfarist approach to youth criminal justice, reflected in the Scottish government’s Youth Justice Strategy in June 2015. In Northern Ireland, following a recommendation by the Criminal Justice Review…the Youth Justice Agency was established to administer youth justice in Northern Ireland.”

He continues:

“There is a risk in Northern Ireland, as elsewhere, that young offenders may be manipulated by terrorist groups or other unscrupulous individuals operating in the real world or online.”

He concludes at paragraph 26:

“As part of my role I receive regular briefings on counter-terrorism detention. I am aware of children, including quite young children, being arrested and detained for serious offences. Age does not necessarily inhibit capability (particularly technical capability) and intent. The internet, peer-pressure, and vulnerability are all significant factors in the types of offences committed and ideologies espoused. I question whether children who receive extended sentences for serious terrorist offences are so different from children who commit extended sentences for other serious offences, as to justify removing the Parole Board’s role.”

That is a fairly detailed exposition of the concern that the Independent Reviewer of Terrorist Legislation has about the impact of the Bill on children and young offenders.

My third piece of evidence is the written evidence from the Law Society of Scotland. On page 6 it echoes the concerns of the Independent Reviewer of Terrorism Legislation, and draws attention to the fact that the Scottish Sentencing Council is currently consulting on sentencing young people and considering changing the definition of a young person by raising the age to 25. That consultation opened on 28 February and will close on 21 August. Views are being sought on the sentencing of young people, with a recognition that that is complex and challenging and a suggestion that the sentencing of young people requires a more individual approach, with a need to take the unique circumstances of the young person into account.

The Law Society of Scotland states in its evidence that the

“introduction of mandatory minimum sentencing gives rise to concerns about the effect on young persons”,

because, as Jonathan Hall has said, they are more responsive to internet peer pressure and more vulnerable—those are significant factors in their offending.

Peter Dawson, the director of the Prison Reform Trust, has extensive experience of working in the system as a governor and deputy governor. In his oral evidence session, I asked him to elaborate on something that he had told the Minister at the beginning of the session:

“You said that some aspects of the Bill may undermine public protection. Can you summarise what you meant by that?”

Mr Dawson replied:

“There are two aspects in particular. One I have spoken about: the absence of a process for some of the people affected. There is probably nothing more to say on that.

The second is probably rather more controversial because it is about the length of sentences. The Government, in explaining the Bill and justifying a 14-year minimum, say that that gives time for work to be done with the offender during the sentence. That is much longer than is needed for that work to be done. The difficulty with very long sentences, across the board, is that they destroy what is known in the trade as protective factors—they destroy the things that are most likely to help someone out of crime in the future.

Relationships are an obvious example. For somebody who is convicted in their late teens or early 20s and who is not released until their mid to late 30s, the opportunity to build a life that is worth living, in which they can contribute to or play a part in society, has very often been destroyed. All of the things that the rest of us do during that period in our lives have not happened and may not happen once that person is released. It is a disgruntling process. Long sentences are justified for the most serious crime, but the longer we make them, the more harm we do and the more difficult it is for the person to live the rest of their life in the way that we all do.” ––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 34, Q78.]

I then asked Mr Dawson:

“How important is rehabilitating terrorist offenders for the ongoing protection of our constituents and the public at large?”––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 25 June 2020; c. 35, Q79.]

He said, “It is essential.” I read from that that Mr Dawson was drawing on his long experience to say that we are potentially creating real difficulty for ourselves by applying minimum mandatory sentences to children and young people. Those who are convicted in their late teens and early 20s will not get out until their mid to late 30s. During that time, most of us are maturing, learning how to participate in the labour market, forming significant relationships, and possibly having children or taking on responsibility for children in our wider family and friendship circles. Those convicted young people will be unable to do any of those things, which may prevent their deradicalisation.

Drawing on the evidence from Jonathan Hall, the Law Society of Scotland and Mr Dawson, I think that there is real and well-founded concern about the potential impact of minimum mandatory sentences on children and young people, which happens against the backdrop of divergent approaches to youth justice across these islands—I have explained what is happening and is being contemplated in Scotland, and what is happening in Northern Ireland. It is against the backdrop of those—in my submission—well-placed concerns that I seek to amend the Bill to mandate the Government to carry out, within one year, a review of the effect of the provisions on children and young offenders.

We would probably all accept that children and young people are different from middle-aged and older people and that we perhaps have a special responsibility towards them. In this context, with particular regard to the evidence given by Mr Dawson and Jonathan Hall, we have a responsibility to the public to try to rehabilitate children and young people who become involved in terrorism. There seems to be strong evidence that there is more chance of rehabilitating them than there is with older people.

There are two good reasons to have this review: our responsibilities to children and young people in general and, perhaps more importantly, our responsibility to the public, and British citizens at large, to do what we can to try and deradicalise convicted terrorists. We know we are much more likely to be able to do that with children and young people. I will be interested to hear what the Minister has to say in response to my new clause.

--- Later in debate ---

[Conor McGinn]

His colleague’s time, I note, but I think this is something we can work on together. My colleague, the shadow Home Secretary, has written to the Home Secretary on this matter, so while awaiting a response to that, which hopefully we will receive before Report, I will not push the new clause to a vote on this occasion.

We have approached all these amendments in the spirit of wanting to work together with the Government. As the Minister rightly says, while we are focusing here on how we can improve things, that should not for a minute be taken as an indication that we have anything other than incredible gratitude for the work that has been done to prevent what could have been many more catastrophic and devastating attacks. In that spirit, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 9

Assessment of the mental health of individuals serving a sentence affected by this Act

“(1) Where an individual is serving a sentence affected by this Act, they must be subject to an annual assessment of their mental health for the duration of their sentence and their term on licence.

(2) Where an assessment under subsection (1) indicates—

(a) a mental health condition; or

(b) a deterioration in a mental health condition since the previous assessment

the Secretary of State must take measures to treat such a mental health condition.”

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

New clause 9 would require a mental health assessment of an individual who has committed a terror offence to be carried out annually for the duration of their sentence and their term on licence. It would also require that where a mental health condition is found, or where there has been a deterioration of a mental health condition since the previous assessment, the Secretary of State must take measures to treat the mental health condition.

I am not a mental health professional and I do not claim to understand the psychology behind why somebody commits or plans to commit an act of terrorism, but it strikes me as eminently sensible to carry out regular mental health assessments of those who have committed an offence under the Bill, not because there is any correlation between having a mental health condition and committing acts of terrorism, but because mental health conditions can turn people into who they are not. By treating mental health conditions, we can provide support and reduce the chance of further criminal acts being carried out when a prisoner is released.

This is not just about preventing terrorism; it is about how we treat each other as people. It is common for people to wander down the wrong path. Of course, some paths are much more dangerous than others and it is right that people are appropriately sentenced for their crimes, but I can only imagine what it is like to be in prison for years on end. A few hours in my local Holme House Prison in Stockton is certainly enough for me. I cannot fathom what impact being in prison for a long sentence has on an individual’s mental health year after year, and time spent in prison without receiving treatment can make an existing mental health condition much worse. The individual released into society after their prison sentence has been served is left to struggle with their mental health condition. It is a recipe for disaster, but we can take simple precautions to address the problem.

Prisons and the Government have a duty of care for the physical and mental wellbeing of people in our prisons, and they should stay on top of any identified mental health conditions in order to best support offenders in their rehabilitation, so that they can make the most of deradicalisation programmes and rejoin society without any mental health illnesses blocking their way. That way, we can ensure that we have covered all the bases, that we are providing what should be basic necessities, such as mental health treatment, and that we are helping people on their way to becoming citizens who can contribute positively to society.

I recognise that mental health services in this country need much more resources, and they are often inadequate for people in the general population. That is another task for the Government: to establish high-quality mental health services for all. The new clause could take the pressure off community health services in the longer term by ensuring that people convicted of terrorist charges are as healthy as they can be when they return to society. I look forward to hearing what the Minister has to say.

[Chris Philp]

Let me again thank the shadow Minister for raising a very important point. We know mental health can often contribute to, or perhaps even cause, significant portions of offending, including some elements of terrorist offending—not all terrorist offending, but certainly some. It is certainly an important area that we need to be very conscious of.

It is already a fundamental aspect of the health and justice system that we have processes in place to identify, assess and then treat offenders with a wide range of mental health needs, both in custody and throughout the criminal justice process. The intervention that the shadow Minister calls for is already inherent in the way the system operates. The NHS long-term plan already stipulates that all prisoners, not just terrorist prisoners, receive an early reception screening and an assessment within the first 24 hours of entry into the prison system, followed by a second screening within seven days. Decisions about whether to provide mental health treatment are made on the basis of identified clinical need. The mental health teams that work in this area have clear clinical pathways describing such referrals. Prisoners in custody, but also those out on licence, are monitored for mental health issues. Where mental health problems are identified, they are referred and treated, including if there is a change in their condition—a deterioration, as the new clause describes it.

Regarding the capacity to provide treatment, I am sure that as constituency MPs we are all aware of the importance of building mental health treatment capacity. I was pleased that over the past year or two, recent announcements in relation to NHS funding have included a lot more funding for mental health treatment facilities in the NHS, which will treat prisoners as much as they will treat people who are not in custody. The spirit of the new clause is an entirely reasonable one, but it is already inherent in how the system operates that people are medically screened and monitored, with appropriate treatment following, as it should. I acknowledge the importance of identifying and treating mental health conditions in all offender cohorts, including terrorist offenders.

[Alex Cunningham]

I am grateful to the Minister for his helpful response, but if mental health services in prisons reflect mental health services in wider society, I am worried, because we know how inadequate mental health services across our country currently are. That is something to which the Government need to give extra attention. The Minister has talked about extra investment in mental health, which is welcome; however, even though I will withdraw the new clause, I suggest that at some time in the future he comes to the House and talks about some of the issues around mental health in prisons, so we can gain a greater understanding of what is and is not happening. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 10

Review of legislation: National Probation Service

“(1) Within 18 months of enactment, the Secretary of State must commission a review and publish a report on the impact of the provisions in the Act on the National Probation Service.

(2) A review under subsection (1) must consider—

(a) the probation support provided to offenders convicted for terrorist offences;

(b) how probation support provided to offenders convicted for terrorist offences has varied since implementation of this Act;

(c) the—

(i) type; and

(ii) number

of specialist staff employed by the National Probation Service to work with terrorist offenders;

(d) the—

(i) training;

(ii) assessed skill level; and

(iii) assessed experience

of specialist staff employed by the National Probation Service to work with terrorist offenders;

(e) the turnover of probation staff;

(f) the average length of service of probation staff;

(g) the non-staff resources provided to manage offenders convicted for terrorist offences; and

(h) the adequacy of the operating budget of the National Probation Service.

(3) A report under subsection (1) may make recommendations to improve the probation support to terrorist offenders.

(4) Where a report has made recommendations under subsection (4), the Secretary of State shall respond within 2 months.

(5) The Secretary of State must lay a copy of the report under subsection (1) before Parliament.

(6) A Minister of the Crown must, not later than 3 months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.”—(Alex Cunningham.)

Brought up, and read the First time.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

I would be doing a disservice to the many probation officers and others working in the service if I did not raise the issue of what has happened to our probation service in recent times. I am personally delighted that probation is no longer out there with a load of private organisations, but has been brought back in house. I hope that the necessary improvements will take place so we can deliver an effective probation service in future.

New clause 10 would require the Secretary of State to commission and publish a report on the impact of the Bill’s provisions on the National Probation Service, its support for terrorist offenders and various specialist staffing and resource matters, and to respond within two months to any recommendations made in the report.

The work of the probation service is to assess and monitor risk, but it is also to provide support while trying to change an individual’s mindset so that they have a second chance, are less likely to reoffend, and can take up a positive role in society. It is true that terror offences can pose problems in this area: many individuals convicted of such offences are motivated by strong political views and actively do not want to change. This is one of the reasons why it is appropriate to have specialism within the probation service. At the same time, it is important to not lose sight of the rehabilitative purposes of probation, even if those sometimes have to be secondary to the risk management purpose.

Let us remember that there are particular issues that affect the rehabilitation of terror licensees, even if they are strongly engaged with desistance. Those include rejection by family and community, a sense of hopelessness and that they will never be trusted again, and fear on the part of educational and volunteer organisations and employers. Community-led organisations that do not focus exclusively on terror licensees sometimes have the best chance of getting honest and sustained engagement from that challenging group. If no one is ever speaking to those people in such a way that their barriers come down, how are we actually going to know what is going on? How are we going to know what interventions are needed to stop reoffending?

Very long licence periods such as those proposed in the Bill are, in practice, very similar to life or other indeterminate sentences, and have the same consequences for probation staff and for the rehabilitation prospects of licensees. They increase workloads for highly specialist and rare probation staff and can make rehabilitation and risk assessment more difficult by reducing the incentives to engage and co-operate. Specialist probation officers are thinly spread and consequently hold very high case loads of terror-related cases—more than 120% the normal rate. That level is appallingly high and the Government recognise that it needs to come down.

Research shows that more time spent with offenders is essential for proper assessment and rehabilitation, but that is not possible with such high case loads. More time requires more money. I have already addressed the need for financial reports on the impact of the Bill in new clause 3. The very long licence cases, such as lifers and those with indeterminate sentences, are a special challenge for probation staff because they never really come off their case loads, even as more new cases are constantly added.

On Second Reading, the Secretary of State referenced doubling the size of the probation terrorism unit. However, as I said earlier today, it is not clear exactly what difference that will make to the service’s capacity, given that the provisions in the Bill will change demand in ways that are hard to predict. It is not even clear what he meant by doubling the unit. I hope the Minister will tell us a little more. I invite him yet again to tell us what that means, what the Government are going to do and when that is going to happen.

Longer licences will significantly increase demand on the probation service, while ending some early releases could help to spread the resource. The general issue with increasing the number of probation specialists is that they can only be recruited from experienced staff. In recent years, the service has been hollowed out and huge amounts of experience lost. Lots of generalist roles will need to be backfilled with newly qualified staff before the more experienced staff can move into specialist roles.

I have a host of questions for the Minister this afternoon. What modelling has the Department done of the expected net effect of the changes the Bill makes on the total probation case load in the years and decades to come? How many new staff will be required to join the terrorism unit to manage the increasing case loads? That will have to be factored into the current recruitment drive. Have the Government assessed the extent of overtime and emergency working that may be needed in the terrorism-related probation unit until sufficient numbers of trained staff are available? Have Ministers considered the consequences for standards of monitoring and for staff welfare and retention? Will the Government commit to reducing the case load of specialist probation officers, not just in line with other probation staff, but by significantly more in recognition of currently higher case loads and the difficulty of those cases? Will they set up a strategy and targets to achieve that?

As there is with other counter-terror work, there can be a lot of secrecy around the work of counter-terror probation staff. Our professional officers do their best in the most difficult of circumstances and often go beyond what can reasonably be expected of them, yet mainstream probation staff often have little knowledge or confidence in their ability, for example, to recognise the early signs of extremism. It may turn out that some recent incidents have occurred despite contact with non-specialist probation staff. Not every probation staffer can be a specialist, so there may be a need for some amount of counter-terror training for all, so that signs can be spotted even where no terrorist link or offence has been identified in the past. Will there be counter-terror training for all probation officers? The growth in far-right extremism may mean that we need more people to be able to spot that early on. Have the Government considered establishing counter-terror as a more formal and funded specialism in probation, like integrated offender management?

We have already talked about the impact of the Bill’s removal of early release and the fact that that might lead to lower engagement with rehabilitation and deradicalisation programmes. That would make the task of probation staff even harder. The National Probation Service needs some serious attention from the Government, but I hope that, having brought the service back totally in-house now, we will see those improvements in future.

Without an effective and fully funded service, the intentions behind the Bill fall to pieces. That is why we have tabled the new clause requiring the Government to review the impact of the Bill on the National Probation Service. We cannot simply increase the responsibility and case load and consider the matter closed, because if there are more than the estimated 50 new prisoners, we will have other things to consider. There will be the longer sentences and longer licences as well, all creating more work, but without the resource to back it up. Let us be clear: effective probation working is essential to monitor the risks that offenders on licence pose; it is no less essential than counter-terror policing or intelligence work, yet the probation service is again under-resourced at a much lower level, and is paid far less attention than some other services.

I have asked the Minister a wide range of questions and I look forward to his detailed responses. Ultimately we need him to tell us exactly what action his Government will take to sort out the issues raised and ensure that the National Probation Service can get on with its day-to-day role, before we turn to the particular issues raised by the Bill.

[Chris Philp]

Clearly, the probation service is important and I pay tribute to the thousands of men and women who work in that service helping to rehabilitate offenders, and by so doing keep the public safe. Several questions have arisen, some of which would probably be better directed at the Prisons and Probation Minister, but I will attempt to answer some of them to give the shadow Minister a flavour of what is going on.

First, in terms of overall resourcing levels, the spending review last September laid out a significantly increased funding package for the Prison and Probation Service, which is, as we speak, flowing to the frontline. Another spending review is coming this autumn, and the hon. Gentleman will no doubt study that carefully to see what is in it for the Prison and Probation Service, and indeed the Courts and Tribunals Service, but the spending review last September was good news for the probation service in terms of financial support.

The shadow Minister also referred to community rehabilitation companies coming in house. The restoration of a comprehensive National Probation Service run directly by the Ministry of Justice is something that I suspect everybody involved in the criminal justice system will welcome, and it will provide an opportunity to do a lot more with the offender cohorts that the hon. Gentleman referred to in his speech.

Earlier this year—I think it was in January—a host of announcements were made in relation to counter-terrorism, one component of which was the extra £90 million for counter-terrorism police. It was also announced that we would double the number of specialist probation officers who focus on terrorist prisoners. We will also be creating the new counter-terrorism assessment and intervention centre that I talked about a little earlier. I am not sure whether all prison and probation staff will have counter-terrorism training. I will have to let the hon. Gentleman know, but given that only 200 or so prisoners out of a population of approximately 80,000 are in for terrorist offences, he can draw his own conclusions about the numbers. However, I will check with my colleague, the Prisons and Probation Minister, and come back to him on that specific point.

In relation to the new clause itself and the desire for a review of the probation service, once again there are already good mechanisms in place to review the probation service. I point in particular to Her Majesty’s inspectorate of probation, whose duty it is to conduct on an ongoing basis—not just after 18 months, but the whole time—precisely the kind of review that the new clause calls for. I hope that the hon. Gentleman is content to rely on the excellent work that Her Majesty’s inspectorate of probation does in conducting the analysis that he calls for in his new clause.

[Alex Cunningham]

I very much welcome the increased resources that the Minister says are flowing into the frontline, but everything that we have heard from him today suggests that that is a work in progress. We do not yet know how many new probation officers are being trained; we do not know when the new centre to which he alluded will open; and we do not know how we will end up with more than one facility to accommodate terrorist offenders in future.

I hope that the Minister will consider writing to members of the Committee to tell us exactly where we have got to with all the new investment and where the money is being spent; how many probation officers we had before the funding was made available and how many we have now; and what the timeline is to complete the doubling of the resource in the service. Similarly, I would like to understand when the new facilities will actually be available, because if we are going to accommodate people in prison for a longer time, we must ensure that there are appropriate centres.

I see no sense in pressing the new clause to a vote. As the Minister said, people out there are working extremely hard and we pay tribute to them, but we must always be mindful that, due to the lack of resource, the probation service is not operating in the way that professional officers would like. I hope that the Minister’s confidence in the new resource package will bear the fruit that we all want to see. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 11

Review of legislation: Effectiveness of inter-agency cooperation

‘(1) The Secretary of State must commission a review and publish a report on the effectiveness of agencies working to manage an individual who is serving a sentence affected by this Act.

(2) A review under subsection (1) must consider—

(a) the effectiveness of the transition when an individual who is serving a sentence affected by this Act is transferred from the responsibility of one agency to another;

(b) the procedural safeguards that are put in place to ensure an effective transition; and

(c) the processing and transfer of information and intelligence from one agency to another.

(3) For the purposes of this section “agencies” includes but is not limited to—

(a) police;

(b) the prison system;

(c) intelligence services;

(d) probation services;

(e) mental health services;

(f) local authorities; and

(g) housing providers.

(4) The Secretary of State must lay a copy of the report before Parliament.

(5) A Minister of the Crown must, not later than 3 months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.’—(Alex Cunningham.)

Brought up, and read the First time.

[The Chair]

I call Joanna Cherry.

[The Chair]

Well, this is what happens when you follow someone else’s damned notes. It does not say his name here, but who I am to argue? I call Alex Cunningham.

[Alex Cunningham]

I beg to move, That the clause be read a Second time.

If the hon. Lady would like to deliver my speech, I would be quite happy to sit down and shut up. I think she suggested earlier that I was talking a bit too much.

[Joanna Cherry]

Never!

[Alex Cunningham]

Oh, never? Well that is fine. Maybe it is because we share the same accent and she feels at home when she hears me speak, although I think there is a certain anglification in my accent these days.

[Joanna Cherry]

Certainly not!

[Alex Cunningham]

I am very relieved to hear that, and I am sure that, as a fellow Scot, you will also appreciate it, Mr McCabe.

The new clause would require the Secretary of State to commission a review and publish a report on the effectiveness of the agencies working to manage offenders who have committed offences under the provisions in the Bill. I know how fond the Minister is of my reviews, and this one would consider the effectiveness of the transition when an offender is transferred from the responsibility of one agency to that of another; the procedural safeguards that are in place to ensure an effective transition; and the processing and transfer of information and intelligence from one agency to another.

Tackling and responding to crime is not and cannot be the responsibility of a sole agency. The police do not arrest, convict, sentence, look after, monitor and assess people, and nor should they. Different agencies with different responsibilities working together are a key part of our checks and balances. By not giving anyone so much responsibility that they cannot fulfil their obligations, we ensure that they can perform their role in the system to a high standard. To ensure that there is a seamless transition from one agency to another, and that organisations are fully aware of their responsibilities, there needs to be effective communication.

The purpose of the new clause is to find out how agencies communicate with each other and how effective those methods are. We would like to know if there are communication issues between the agencies; we have already seen the horrific consequence of communication breakdown, when crucial information is not properly shared. We also need to find out what problems the Secretary of State can act on to rectify. We cannot afford to get this wrong. If there are failures in communication, it can fail the whole process—the justice system itself fails.

--- Later in debate ---

[Chris Philp]

I sense a certain appetite for brevity, so I will endeavour to achieve that in my response. I entirely agree with the points about the importance of inter-agency working. Many different agencies will encounter offenders or potential offenders at different times, and it is of course critical that they work together.

For that very reason, following the terrible attacks at the end of last year, the Government commissioned Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation, to carry out a review of the effectiveness of multi-agency public protection arrangements—exactly the kind of cross-agency working to which the shadow Minister refers. I believe that report is now with my colleagues, who are carefully considering its findings. We will publish the report, which is on exactly the topic that the shadow Minister wants us to review, at the earliest opportunity, so this may be an area where the shadow Minister not only gets a report but gets it perhaps earlier that he would otherwise have expected, which is a nice note to end on.

The shadow Minister is quite right that cross-agency working is important. We intend to make sure that it happens in the effective way that it should, and Jonathan Hall’s report will be an important part of that.

[Alex Cunningham]

Success at last. I can leave the Committee Room a happy man. I will not press the new clause to a vote, but it is important. Communications are central. Across all public services, we see a lack of communication leading to all manner of horrors in our society—children dying, terrorists recommitting offences; all manner of things happen because the communication is not right. It is clear that the Minister understands the importance of this. I look forward to Jonathan Hall’s report; I am sure that it will be good bedtime reading. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

Question proposed, That the Chair do report the Bill, as amended, to the House.

[Chris Philp]

On a point of order, Mr McCabe. Before you conclude the final sentence of this Committee proceeding, I shall quickly take this opportunity to thank all Committee members for their service over the last few weeks in considering this incredibly important Bill, which touches on the safety and security of our constituents. Nothing more powerfully illustrated that than the very moving speech given earlier by my hon. Friend the Member for Hertford and Stortford on the experience of her friend Louise, which I think all of us will vividly remember. It reminds us how important the work we are doing here is.

I believe that, with this Bill, we are taking a significant step forward, largely in a spirit of cross-party co-operation from all corners of the House, as it should be for something as important as national security and the safety of our constituents. Of course, we have our differences elsewhere, but on this topic we seem to be mostly on the same page, which is extremely welcome.

I thank everyone who has supported this process. I thank the Whips on both sides for getting us through the Bill a little earlier than expected, which is welcome. I thank Mr McCabe and Mr Robertson for chairing the Committee proceedings with such aplomb, and for correcting the shadow Ministers and me when we occasionally erred from the path we were supposed to be following.

I thank the witnesses who took the time to give us evidence earlier in the proceedings. It was genuinely useful, and the fact that we spent a lot of time in our earlier debates dissecting that evidence shows just how illuminating it was. I do not think any of us will forget Professor Grubin, but I certainly will not be volunteering to hook myself up to any of his machines in a hurry.

[Chris Philp]

Do not tempt me.

Finally, I thank the phenomenal public servants who have supported the preparation of the Bill and the wider work that goes on, in particular members of my private office—I can see Andrew sitting over there—and all the people working in the policy, legal and financial teams at the Ministry of Justice. They are incredible civil servants who have been working so hard to put this Bill together, including working over the weekend to respond to the various amendments that arrived on Friday. A huge thank you to everyone in the Ministry of Justice and the Home Office for the work they have done on this Bill.

It is appropriate to conclude by thanking those people on the frontline in the constant struggle to keep us and our fellow citizens safe—the police, the Prison Service, the probation service and the security service. Our thanks is due to them most of all. On a daily basis, they put themselves in harm’s way, to keep us safe. I put on record my gratitude to those outstanding public servants.

[Alex Cunningham]

Further to that point of order, Mr McCabe. I would like to reflect what the Minister has said and, first and foremost, thank you and Mr Robertson for conducting our proceedings professionally and getting us through the business quickly.

I also specifically thank the Clerks to the Committee. They understand the things that I am trying to say and they can put them into the jargon that is required to appear on the amendment paper. I am very appreciative of that. I have come to the realisation that they understand more about what I am trying to get across than I do myself.

I thank Committee colleagues for some robust debate and a few corrections along the way. I thank the staff who had to work over the weekend. I pass on my thanks to them and I am sorry if I was the cause of all that additional work. At least we had reasonable responses from the Minister, and I welcome that. With that, I will simply sit down.

[Joanna Cherry]

Further to that point of order, Mr McCabe. I will not detain people for long, other than to add my words of thanks to those that have been given already. I would particularly like to thank the Clerks to the Committee for their assistance in framing amendments. I thank the Whips for the assistance that they have given me and a third party in relation to this.

I acknowledge the powerful and moving speech we heard earlier. When I woke up this morning, the first thing I remembered was that that event was 15 years ago, but the way in which we were reminded of that as a Committee was particularly powerful and very personal. I thank the hon. Member for Hertford and Stortford for that.

Question put and agreed to.

Bill, as amended, accordingly to be reported.

Counter-Terrorism and Sentencing Bill

Alex Cunningham Excerpts

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Tuesday 21st July 2020 Commons Chamber

[Alex Cunningham (Stockton North) (Lab)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to discuss the following:

New clause 2—Review of deradicalisation programmes in prisons—

“(1) Within three years of this Act being passed, the Secretary of State must publish and lay before Parliament a comprehensive review of the impact of the provisions of this Act on the effectiveness and availability of deradicalisation programmes in prisons.

(2) The review must include an assessment of—

(a) the effectiveness of existing programmes at reducing radicalisation and terrorist offending;

(b) how individuals are assessed for their suitability for a programme;

(c) the number of individuals assessed as requiring a place on a programme;

(d) the number of individuals assessed as not requiring a place on a programme;

(e) the average length of time individuals assessed as requiring a place on a programme have to wait to start a programme; and

(f) whether there is sufficient capacity and resource to meet demand for places on deradicalisation programmes in prisons.”

This new clause requires a review of the impact of the Act on deradicalisation programmes in prisons.

New clause 3—Financial Impact Assessment Report—

“(1) The Secretary of State must, within three years of this Act being passed, lay before Parliament a report on the financial impact of the provisions of this Act.

(2) That report must separately consider the financial impact of—

(a) extended sentences on the prison estate;

(b) extended licence periods;

(c) any increased staffing resources required for Her Majesty’s Prison and Probation Service;

(d) the extended offenders of particular concern regime; and

(e) adding polygraph testing to certain offenders’ licence conditions.

(3) The report may consider other financial matters.

(4) The report must compare the financial impact of the Act with the Impact Assessment for the Counter-Terrorism and Sentencing Bill published by the Ministry of Justice on 18 May 2020.

(5) A Minister of the Crown must, not later than 3 months after the report has been laid before Parliament, make an oral statement in the House of Commons on his plan to address the financial and non-financial issues identified in the report.”

This new clause requires a review of the financial impact of the Act.

New clause 4—Report on extended sentences for terrorist offenders: Scotland—

“(1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.

(2) After section 210A(4) insert—

‘(4A) The report under section 210A(4), where it applies to a person convicted on indictment of a terrorism offence, must—

(a) take account of the offender’s age;

(b) consider whether options other than an extended sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(4B) The court must take account of any points made by the report in relation to the matters in subsection (4A).’

(3) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.

(4) The report of the first review must be laid before Parliament within one year of this Act being passed.”

New clause 5—Report on extended custodial sentences for terrorist offenders: Northern Ireland—

“(1) The Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)) (extended custodial sentences) is amended as follows.

(2) In Article 9, after paragraph (2), insert—

‘(2A) The pre-sentence report under paragraph (2), where it applies to a person convicted on indictment of a terrorism offence, must—

(a) take account of the offender’s age;

(b) consider whether options other than an extended custodial sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(2B) The court must take account of any points made by the report in relation to the matters in paragraph (2A).’

(3) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.

(4) The report of the first review must be laid before Parliament within one year of this Act being passed.”

New clause 6—Review of effects on children and young offenders—

“(1) The Secretary of State must, within one year of this Act being passed, lay before Parliament a review of the effects of the provisions of this Act on children and young offenders.

(2) That review must detail any differential effects on children and young offenders in—

(a) sentencing;

(b) release of terrorist offenders; and

(c) the prevention and investigation of terrorism.

(3) The review must consider the impact of imprisonment under this Act on the physical and mental health of children and young offenders.

(4) The review must consider the influences on children and young offenders who commit offences under this Act, including but not limited to—

(a) the internet;

(b) peer-pressure; and

(c) vulnerability.

(5) When conducting a review under this section, the Secretary of State must consult with Scottish Ministers.

(6) The review may make recommendations for further changes to legislation, policy and guidance.

(7) For the purposes of this section, young offenders include adults aged under 25.”

This new clause would require the Secretary of State to review the effects of these measures on children and young offenders. It would also require the Secretary of State to consult with Scottish ministers when conducting the review.

New clause 7—Review of legislation: Northern Ireland—

“(1) On an annual basis from the day of this Act being passed, a report that reviews the application of the provisions of this Act in Northern Ireland must be published and laid before both Houses of Parliament by the Secretary of State.

(2) Annual reports under subsection (1) must be produced in consultation with the Northern Ireland Minister for Justice and the Northern Ireland Executive.”

This new clause ensures that all measures in the Bill as they pertain to Northern Ireland shall be reviewed annually with the Northern Ireland Minister for Justice and the Northern Ireland Executive, and a report shall be published and laid before both Houses of Parliament.

New clause 9—Review of polygraph testing on terrorist offenders—

“(1) Before sections 32 to 35 come into force, the Secretary of State must, within 6 months of this Act being passed, conduct a pilot of the use of polygraph testing on terrorist offenders.

(2) The outcome of the pilot must be reported to Parliament within 12 months of this Act being passed.

(3) This report must include—

(a) data on the number of terrorist offenders who have been subject to polygraph testing during the pilot;

(b) an explanation of how the results of polygraph tests have been used during the pilot;

(c) an analysis of the effect polygraph testing has had on the licence conditions of terrorist offenders;

(d) data on the number of terrorist offenders who were recalled to prison on the basis of polygraph test results;

(e) a recommendation from the Secretary of State as to whether sections 32 to 35 should enter into force following the pilot; and

(f) evidence of independent research on the reliability and value of polygraph testing of terrorist offenders.”

This new clause requires the Secretary of State to conduct a pilot test of the use of polygraph testing on terrorist offenders and report the outcome to Parliament, in addition to setting out evidence for the reliability of polygraph tests based on independent research.

New clause 10—Review of sections 1 to 31—

“(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 31 of this Act to be carried out in relation to the initial one-year period.

(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to the imprisonment for offences of terrorism to conduct the review.

(3) The review must be completed as soon as practicable after the end of the initial one-year period.

(4) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—

(a) produce a report of the outcome of the review, and

(b) send a copy of the report to the Secretary of State.

(5) The Secretary of State must lay before each House of Parliament a copy of the report under subsection (4)(b) within one month of receiving the report.

(6) In this section, “initial one-year period” means the period of one year beginning with the day on which this Act is passed.”

This new clause would require an independent review of the impact of sections 1 to 31 of the Act to be conducted after one year.

Amendment 30, in clause 4, page 5, line 35, at end insert—

“(7) The pre-sentence report must—

(a) take account of the offender’s age;

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(8) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (7) and consider whether they constitute exceptional circumstances under subsection (2).”

Government amendment 6.

Amendment 31, in clause 6, page 9, leave out lines 21 to 25, and insert—

“(11) In forming an opinion for the purposes of subsections (1)(d) and (6), the court must consider a report by a relevant officer of a local authority about the offender and the offender’s circumstances.

(11A) Where the offender is under 21 years of age, the report must—

(a) take account of the offender’s age; and

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender and the court must take these factors into account when forming its opinion under subsection (6).

(11B) In considering the report, the court must, if it thinks it necessary, hear the relevant officer.”

Amendment 32, in clause 7, page 10, line 15, at end insert—

“(2A) Where the offender is under the age of 21, in forming an opinion for the purposes of paragraph (2), the court must consider and take into account a pre-sentence report within the meaning of Article 4 which must—

(a) take account of the offender’s age; and

(b) consider whether options other than a serious terrorism sentence might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.”

Government amendments 7 and 8.

Amendment 33, in clause 16, page 16, line 29, at end insert—

“(4) Section 255 of the Sentencing Code is amended as follows.

(5) After subsection (2) insert—

‘(3) The pre-sentence report must in the case of a serious terrorism offence under section 256(4)(b)(iii)—

(a) take account of the offender’s age;

(b) consider whether options other than an extension period of eight to ten years might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(4) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (3).’

(6) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.

(7) The report of the first review must be laid before Parliament within one year of this Act being passed.”

Amendment 34, in clause 17, page 17, line 4, at end insert—

“(4) Section 267 of the Sentencing Code is amended as follows.

(5) After subsection (2) insert—

‘(2A) The pre-sentence report must in the case of a serious terrorism offence under section 268(4)(b)(iii)—

(a) take account of the offender’s age;

(b) consider whether options other than an extension period of eight to ten years might be more effective at—

(i) reducing the risk of serious harm to members of the public, or

(ii) rehabilitating the offender.

(2B) The court must take account of any points made by the pre-sentence report in relation to the matters in subsection (2A).’

(6) The Secretary of State must at least once a year conduct and lay before Parliament a review of the effectiveness of the provisions of this section and their impact upon offenders.

(7) The report of the first review must be laid before Parliament within one year of this Act being passed.”

Government amendments 9 to 16.

Amendment 5, page 21, line 30, leave out clause 24.

Amendment 52, in clause 27, page 23, line 24, after “unless”, insert

“the terrorist prisoner was at least aged 18 at the time of the commission of the offence for which the prisoner is serving the sentence, and”.

This amendment provides that only certain adult terrorist prisoners are excluded from eligibility for early release in England and Wales.

Amendment 53, in clause 28, page 24, line 12, after “unless”, insert

“the terrorist prisoner was at least aged 18 at the time of the commission of the offence for which the prisoner is serving the sentence, and”.

This amendment provides that only certain adult terrorist prisoners are excluded from eligibility for early release in Scotland.

Amendment 1, in clause 30, page 26, line 16, leave out “whether before or”.

This amendment would remove the retrospective application of this provision.

Amendment 2, in clause 30, page 26, line 17, leave out from “(2)” to end of line 20.

This amendment would remove the retrospective application of this provision.

Amendment 54, in clause 30, page 27, line 14, after “terrorism sentence” insert

“and the terrorist prisoner was at least aged 18 at the time of the commission of the offence for which the prisoner is serving such a sentence”.

This amendment provides that only certain adult terrorist prisoners are excluded from eligibility for early release in Northern Ireland.

Amendment 55, page 28, line 17, leave out clause 32.

This amendment will remove from the Bill clause 32, which extends the current polygraph testing requirements to adult terrorist offenders released on licence in England and Wales.

Amendment 56, page 29, line 8, leave out clause 33.

This amendment will remove from the Bill clause 33, which extends the current polygraph testing requirements to adult terrorist offenders released on licence in Scotland.

Amendment 57, page 30, line 25, leave out clause 34.

This amendment will remove from the Bill clause 34, which extends the current polygraph testing requirements to adult terrorist offenders released on licence in Northern Ireland.

Amendment 58, page 33, line 7, leave out clause 35.

This amendment will remove from the Bill clause 35, which extends the current polygraph testing requirements to adult terrorist offenders released on licence.

Amendment 35, in clause 52, page 43, line 40, leave out “to” and insert “, 34 and”.

This amendment would remove section 33 from the list of provisions that are brought into force through regulations by the Secretary of State.

Amendment 3, in clause 52, page 43, line 40, leave out “to 35” and insert “, 33 and 35”.

This amendment would remove section 34 from the list of provisions that are brought into force through regulations by the Secretary of State.

Amendment 4, in clause 52, page 43, line 42, at end insert—

“(3A) Section 34 comes into force on such day as the Department for Justice of Northern Ireland may by regulations appoint.”

This amendment would mean section 34 could only be brought into force through regulations by the Northern Ireland Executive.

Amendment 36, in clause 52, page 43, line 42, at end insert—

“(3A) Section 33 comes into force on such day as Scottish Ministers may by regulations appoint.”

This would have the effect that provision in the Bill that relate to polygraph testing would only become operational if the Scottish Government asked for those provisions to be implemented.

Government amendments 20 to 29.

--- Later in debate ---

[Alex Cunningham]

In Committee, Members had a robust debate about many aspects of this Bill, which we support but believe can still be improved. I start with new clause 1 and the probation service.

We cannot begin to tackle terrorism without recognising the important role that the probation service plays in keeping people safe. New clause 1 requires the Secretary of State to commission a review and publish a report on the impact of the provisions in the Bill on the National Probation Service. It would have to consider the probation support provided to offenders convicted of terrorist offences, how probation support provided to offenders convicted for terrorist offences has varied since implementation of this Bill, the type and number of specialist staff employed by the National Probation Service to work with terrorist offenders, the turnover of probation staff, the average length of service of probation staff, and the non-staff resources provided to manage offenders convicted of terrorist offences.

For the probation service to be fully functioning and effective, it must have the resources it needs. The Minister said that the spending review last September laid out a significantly increased funding package for the Prison Service and probation service, which is supposedly flowing to the frontline, but the National Probation Service is in a far from satisfactory state, and we know about the disaster that ensued when large parts of it were privatised. Thankfully privatisation is no more, but we still have to get the service right.

The NPS has a workforce including 6,500 probation officers and a budget of more than £500 million. Earlier this year, Her Majesty’s inspectorate of probation painted a picture of a service in crisis, with hundreds of vacancies, overstretched officers and managers, and crumbling, overcrowded buildings, including hostels for recently released offenders. Inspectors rated all of its divisions as requiring improvement on staffing. None of the areas are fully staffed. There were high rates of staff sickness—an average of 11 days per person, 50% of which related to mental health difficulties. There are 650 job vacancies nationwide in the probation service—a full 10% of the establishment.

Although the probation service is not in the Minister’s portfolio, I am sure he will agree that that is not satisfactory. We can only hope that things are improving. In Committee, the Minister talked about the welcome resources being invested in the service and about the spending review coming this autumn. Can he confirm that he is satisfied that there are sufficient resources to achieve what he wants, or are Ministers bidding for more from the spending review? Perhaps more importantly, will he confirm that the necessary support will be put in place to bring the National Probation Service up to full strength, to tackle the issues raised in inspection reports, and to provide staff with the support they need for their mental and physical ill health, to help them back to work and while they are there, and put an end to the high sickness rate? All those things put pressure on the service and the ability of staff to cope with offenders day to day—in this context, with some of the most dangerous ones.

In Committee, I also asked about whether all probation officers will have counter-terrorism training, and the Minister addressed that in a letter to me. He said:

“Governors and front-line staff are being given the training, skills, and authority needed to challenge inappropriate views and take action against them…Staff are also trained how to recognise aspects of an offender’s behaviour which might indicate terrorist sympathies. Over 29,000 prison staff have been trained.”

We all welcome that.

The increased workloads for highly specialised and rare probation staff are a cause for concern. Research shows that more time spent with offenders is essential for proper assessment and rehabilitation, but that is not possible with such high case loads. The very long license cases, such as lifers and those with indeterminate sentences, are a special challenge for probation staff because they never really come off their case loads, and more new cases are constantly added. Specialist probation officers are thinly spread and consequently hold very high case loads of terror-related cases—over 120% of normal. That level is appallingly high, and the Government recognise that it needs to come down. Their recruitment of more specialists to manage counter-terrorism offenders is also to be welcomed. That said, the general issue with increasing the number of specialists in probation is that they can only be recruited from experienced staff, and with high sickness levels and a 10% vacancy rate, how can Ministers be confident that they can provide a quality service, not just for those convicted of terrorism or related offences but offenders in general?

There is a danger that huge amounts of experience are being lost and that lots of generalist roles will need to be backfilled with newly qualified staff before the more experienced staff can move on to specialist roles—and that in a service where a full third of all employees have less than three years’ experience in probation. I asked this in Committee, but I do not believe an answer was forthcoming, so can the Minister now tell me what modelling the Department has done on the expected net effect on the total probation caseload over the years and decades to come as a result of the changes in this Bill? Ad hoc measures are not good enough; there need to be properly considered measures and funding given to the probation service to make it an effective mechanism to tackle terrorism and do one of our country’s most difficult jobs.

I turn to the related issue of de-radicalisation programmes in prison, and new clause 2. When someone has committed a terror offence and has gone to prison, there is an expectation that this person will be kept away from mainstream society for the purposes of keeping the public safe, and an expectation that their time in prison will be used effectively. This means that all efforts will be made to ensure that the individual does not return to the same destructive path that they were on prior to being arrested. In order to achieve this, there needs to be a properly structured and expert-driven de-radicalisation programme available for all those who are identified as being in need of enrolling on such a programme.

For the purpose of informing Members who were not members of the Committee, I will reiterate a number of points I made during that time. Although the minimum sentencing for terror offences has been increased, there is a suggestion that we could simply be delaying inevitable further offences unless we take action to use the offender’s time in prison to de-radicalise them, and we can only do that if there is an effective de-radicalisation programme in place. While we heard in evidence that many good things are happening in our prisons around de-radicalisation, there were also concerns expressed about the adequacy of the programmes and their availability.

That does not just concern Committee members and witnesses. At last Tuesday’s Justice questions, the hon. Member for Newbury (Laura Farris) pressed the Minister, the hon. and learned Member for South East Cambridgeshire (Lucy Frazer), on how programmes could be improved. Helpfully, the Minister replied:

“Twenty-two trained imams are doing de-radicalisation programmes in our prisons, but those are not the only measures that we are introducing. We have increased our training for prison and probation officers to deal with terrorism and we are bringing in new national standards for managing terrorists on licence. We want more counter-terrorism specialist staff and we want more places in approved premises as a transition from prison to the community.”

When I challenged her on the inadequacy and quality of the provision, she said:

“we continually evaluate the programmes that we operate within our prisons.”—[Official Report, 14 July 2020; Vol. 678, c. 1361.]

If that is really the case, and if the Government are so confident that the programmes have been successful, what do they fear from commissioning a formal review of them and reporting to the House?

We really do need to know what is happening in prisons in relation to this. What programmes are being delivered? Who are they being delivered to? Who are they being delivered by? When are offenders undertaking the programme? How many de-radicalisation programmes is one offender in for a minimum sentence expected to cover? How is the success of these programmes measured? We need to understand the effectiveness of the programmes, where they work, where they do not, what can be improved, and what the Government are going to do to drive those improvements.

Neither the healthy identity intervention nor the desistance and disengagement programme courses, which form the main part of the programmes, have undergone any form of evaluation process to date. In Committee, the Minister said that most of the de-radicalisation work and programmes are done operationally inside the prison and probation service, and are not specified in legislation. He said that Ministers need the flexibility of being able to change guidance through statutory instruments, and I accept this. But we were never asking for the programme details to be placed in the Bill through this new clause—a new clause that would, I think, help to secure the public’s trust in our approach to tackling terrorism. This new clause is not about clearly outlining deradicalisation programmes in legislation; it is about reviewing how effective our deradicalisation programmes are, so it is only right that they are reviewed, with the results laid before Parliament.

That brings me on to the general financial impact of the Bill, new clause 3 and the resources it will need behind it for it to be successful and properly implemented. In Committee, the Minister told me that the impact assessment estimated an additional 50 people in prisons. Although I still believe that is an underestimation, bearing in mind the rise of far-right terrorism and other groups whose members will end up in the system, I will not rehearse those arguments yet again. I believe the cost of implementing this Bill is estimated to be about £16 million a year, but I do not think that honestly reflects the impact it will have on all service areas. Who knows, but providing the mental health support our prison and probation staff desperately need will be costly, and if we do not have that investment from elsewhere in the Department’s budget, we are not going to see the all-round service we all want delivered. So will the Minister confirm that he has covered the additional cost of creating space for new prisoners, the additional cost of having more than one specialist centre, the additional cost of having further specially trained prison officers and the cost for probation services of expanding the sentence for offenders of particular concern regime?

[Matt Rodda (Reading East) (Lab)]

My hon. Friend is making a detailed and comprehensive speech, examining many of these difficult issues, which we all face. I have reflected on what he has been saying, and I believe that the way to approach these difficult issues is by having an open mind and asking a series of questions, rather than coming at any of these things with pre-conceived ideas. I am grateful for his thought and his incisive questioning of the Government, in a spirit of cross-party co-operation.

[Alex Cunningham]

I am grateful to my hon. Friend for that. He rightly says that this is about having an open mind. I was trying to persuade the Minister and the Conservative Members in Committee that they should have an open mind on a number of issues, because we are facing real challenges on deradicalisation programmes, the resources within the probation service and the fact that young people are going to be treated exactly the same as adult prisoners in the system—I will be coming on to that later.

We also want to understand whether the resources are available for the use of polygraphs and to deal with the impact on youth offender teams. I have already talked about the impact of longer licensing on the National Probation Service. Such measures as are in this Bill always have ripple effects, so we ask the Secretary of State to lay before the House, within three years, a report on the real financial impact of all these things. There should never be an issue of resources when it comes to justice matters, and a review would not only identify where there are issues, but arm the Secretary of State with the evidence he needs to resist further cuts to his Department’s budget and instead win some additional resources.

We should ensure that prisons are properly staffed and that those staff are properly supported, be it for their personal security or to provide them with adequate services when they suffer mental illness as a result of their job—services that we know are currently totally inadequate. I asked about these measures in Committee, but we still need reassurances. This is about not just funding for prison places, but the wider financial impact on society, especially when offenders get released from prison and need help rebuilding their lives. That is a particular concern for those who are young and may leave prison with no support system. These provisions do not come cheap, and I hope we are going to get some clearer answers on meeting the costs of the different services that I have laid out.

Throughout Committee, I stressed the importance of recognising that young offenders are different from older, adult offenders and that their age ought to be taken into consideration when they are being sentenced, even for the most terrible of crimes. That is why we tabled amendment 30, parallel amendments for Scotland and Northern Ireland and the remaining new clauses in the name of the Leader of the Opposition, myself and others.

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[Joy Morrissey (Beaconsfield) (Con)]

May I ask why an actual age is not included in amendment 30? There is an allusion to an age, but not a specific age. Will he outline why that was not included in the amendment when it was drafted?

[Alex Cunningham]

Personally, I thought the amendment was clear. It lays down very specific issues in relation to young people. That is why we tried to detail in Committee that young people are different and need to be treated differently.

[Joy Morrissey]

If we are talking about the age at which a person is convicted of a crime and serves this type of sentence, it would have been clearer if an age was included in the amendment, whether that was 13, 15 or 18, just to further the case for why young offenders should be given a less severe sentence.

[Alex Cunningham]

The hon. Lady tempts me to start to rehearse all the arguments around the age of maturity. We know that children up to the age of 18 are treated differently under the law, much as the group between 18 and 20 are supposed to be treated differently. There is more and more evidence all the time. In particular, there have been some studies in Scotland—I am looking at the hon. and learned Member for Edinburgh South West (Joanna Cherry) for the SNP—that are starting to talk in terms of, “Maybe we should be looking at 25 as the age of maturity.” That is all the more reason why we have to think carefully about how we treat young people in the justice system, because young people ought to be treated differently. They have a better chance of being rehabilitated, and it is important we give them that chance.

[Alicia Kearns (Rutland and Melton) (Con)]

I am slightly confused by the suggestion we should be extending to 25 years old when there are Members of Parliament who are under 25. Is he suggesting that somehow different rules should apply to them or that they are not yet at the age where they can appropriately represent their constituents?

[Alex Cunningham]

We are talking about issues of maturity here, not when somebody can be an elected a Member of Parliament. I think that Members can be elected at the age of 18 now. I do not see the point that the hon. Lady is making.

[Joanna Cherry (Edinburgh South West) (SNP)]

Looking at the evidence that we heard during the Bill Committee, am I right in understanding that the greater possibility of rehabilitating young people is what is being looked at here? It is about where we define youth. Does it stop at 18, or 21, or—as we are now looking at in Scotland in our consultation—25, in terms of not maturity generally but the ability to rehabilitate?

[Alex Cunningham]

I am grateful to the hon. and learned Lady, who has explained that far better than I could ever hope to; I very much appreciate that. Perhaps there are some MPs who need rehabilitating as well, Madam Deputy Speaker, but that is another matter.

Is it right for a person, even if they are young, who has committed a serious offence to be put in prison for a particular period of time to protect the public, without their age being considered? We have to balance this properly. How long is long enough for punishment for a young person, and how long is too long to prevent the individual being effectively rehabilitated? Those who commit serious offences will be released from prison at some point. Surely the Minister agrees that we can lessen the time that an individual spends in prison with the aim of it being core to their rehabilitation; it is indeed preferable to a longer sentence, where hostility and deep-seated mistrust of the state simply develops and grows.

We know that this legislation cuts out the role of the Parole Board from any involvement with offenders sentenced under it. I think that it is lamentable that this also applies to young offenders, who, if involved with a specialist group of experts, could benefit tremendously from that. It is not straightforward when dealing with young people, and we should not pretend it is. We need to be smart, cautious and measured. Sadly, there are always some people, young or otherwise, who will never respond to a second chance, and the judges in their cases will act accordingly, but I want the judges to be better equipped than they are at present so that when they see there is a chance that a long fixed sentence for a young person is not appropriate and does not offer the best chance of rehabilitation, they have the flexibility to do something else.

As I said in my opening remarks, there is a need for specific requirements for Northern Ireland, but I will content myself with a few short remarks on new clause 7. My hon. Friend the Member for St Helens North (Conor McGinn) has been speaking in detail with the Northern Ireland Justice Minister, Naomi Long, and all the Northern Ireland parties about how we ensure that the measures in the Bill are compatible with the unique and well-established practices in terrorism-related sentencing and policing in Northern Ireland and, as we all know, are particularly sensitive to the political dynamics in Northern Ireland while ensuring that people in that part of the UK are kept safe and secure.

The mechanism proposed in new clause 7 would give some measure of assurance to the devolved institutions that their views are being heard by the Government. The Minister was reluctant to accept this amendment in Committee, but I hope that he will look at it much more closely.

Throughout the proceedings on this Bill, I have been very grateful to have formal and informal discussions with the Minister and to receive letters clarifying some of the issues raised in Committee. Last week, in response to my query about a technical amendment relating to section 61 of Criminal Justice and Court Services Act 2000 and sentences served in young offender institutions, the Minister confirmed to me and the Bill Committee that there were no plans to change the way young adults were accommodated in the prison estate. That I very much welcome, and I would be bold enough to ask him to reiterate his guarantee that section 61 will not be enacted.

As I said at the outset, I have, throughout the Bill’s progress, talked about young people being different and the need for them to be dealt with appropriately, so I was very surprised to have it confirmed to me by the Minister that some 18, 19 and 20-year-olds were not only in the same prison as older offenders but on the same wing and sharing the same social spaces. I am assuming that this mixing does not apply to terrorist offenders, but even if it does not, that practice is totally unacceptable. I would welcome news of a plan to deal with that very real issue, which today is putting younger prisoners at considerable risk.

In conclusion, I reiterate our support for the Bill and hope that the Government will act to address the very real issues that colleagues and I have raised.

[Madam Deputy Speaker (Dame Rosie Winterton)]

Colleagues will be aware that there are a number of speakers who want to get in this afternoon. Sir Robert Neill has withdrawn, so I will go straight to Joanna Cherry, but after that, if colleagues speak for about five minutes, that will enable us to make some progress.

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[Alex Cunningham]

I am interested that the hon. Gentleman has addressed the issue of the probation service, because I talked about the crisis that exists in that service. Is he satisfied that it is operating in the way it needs to be to cope with the current business it has to deal with, let alone the increased activity arising from this Bill?

[Alexander Stafford]

I thank the hon. Gentleman for that intervention. I am reassured that the Prison Service and the probation service are doing all they can to address this. Of course we want to put more into the probation service and to make sure that prisoners of all sorts are properly looked after, and I believe that this Government and this Bill have that at their very heart.

Furthermore, we must guard against a flurry of statutory reviews, which are costly, time-consuming and unnecessarily bureaucratic. As previously outlined by Ministers, there are already various routes of scrutiny of how the probation service and the Bill are functioning. Parliament has great power to question and to debate, and there is no lack of scrutiny in this regard. The Government have accepted that it is important to keep a close eye on these matters and to ensure a close, continued dialogue with all the Bill’s stakeholders.

New clause 2 would require a

“review of the impact of the…Act on…deradicalisation programmes in prisons.”

It is said that there is limited evidence of the impact of longer prison terms on reoffending, but in fact the evidence available to us indicates that prisoners in custody for longer periods do come to terms with their offending and are able later in their sentences to undertake constructive remedial activities. I believe that long sentences do work.

We also want to protect our young people and keep them safe from the evils of radicalisation. There is no dispute over that, but new clause 6 would mandate the Secretary of State to review

“the effects of the provisions of this Act on children and young offenders.”

It is worth remembering that the young people in question are very few in number. In 2019, only four of the 22 people convicted of terrorist offences were aged between 18 and 20, and not all of those four would even meet the criteria for the serious terrorist sentence. Therefore, we are talking about astonishingly small numbers for those aged between 18 and 20. Given those statistics, the Government position is that it may be the case that nobody of that age will be affected by the Act, and as such requiring a review by statute does not seem sensible or a good use of time.

These amendments address important concerns and certainly come from a good place. I thank those who have tabled the new clauses for throwing a spotlight on the National Probation Service, deradicalisation programmes and the radicalised children and young offenders. However, I believe the best mechanism to deal with these issues is the scrutiny provided by parliamentary debate. I agree that we must follow the aforementioned matters closely, and I firmly believe that we have all the tools needed to do that. In the context of this Bill, statutory reviews are not necessary or particularly effective. I greatly welcome this Bill, as laid down by the Government on behalf of the people of Rother Valley, and I greatly commend and approve of the Government’s dealing with terrorism and the robust way we are dealing with terrorists, both in this country and abroad. We must not let them come to our shores and if they are on our shores, we must stamp them out and stamp them out effectively. So I look forward to this Bill being passed.

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[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

Many hon. Members today have reminded the House that our first duty as Members of Parliament is public protection. The very moving contribution of my hon. Friend the Member for Hertford and Stortford (Julie Marson), and the story of her friend, Louise, who was caught up in the terrible terrorist atrocity of 7 July 2005, very powerfully reminds us of that. On that awful day, 52 members of the public were murdered and 784 were injured.

We have heard powerful testimony from other Members who have had personal, first-hand experience of terrorism, including the hon. Members for North Down (Stephen Farry) and for Strangford (Jim Shannon), whose family members suffered at the hands of terrorist murders. My hon. Friend the Member for Rutland and Melton (Alicia Kearns) said that in her professional career prior to coming to this place, she had first-hand experience of the victims of terrorism. That testimony should remind us how important our duty is. By taking this Bill through Report stage, we are discharging that duty to our constituents.

It is worth pausing to say how constructive the discussion on this issue has been, on a cross-party basis, on the Floor of the House here today and previously at Second Reading and in Committee. It is an example of this House and our political system working at its best. Members from all sides of the House can be very proud of the way we have conducted the debate on this extremely important Bill.

Let me turn now to some of the comments raised by colleagues this afternoon, starting of course with my opposite number, the hon. Member for Stockton North (Alex Cunningham), who gave a characteristically detailed speech opening the proceedings. He started by commenting on new clause 1 on the probation service, which stands in his name and those of his hon. Friends.

Let me just take the opportunity to reassure him and other Members, once again, that probation service resources were significantly increased in the spending review last September. Moreover, earlier this year, counter-terrorism police resources were increased by £90 million and we are in the process of doubling counter-terrorist specialist probation officers, in addition to those very large numbers who have been given special training.

In addition, we are deepening multi-agency public protection arrangements. We are also establishing a counter-terrorism step-up programme, so I believe our work in the probation sphere is something all of us can take great confidence in.

[Alex Cunningham]

The Minister is right to mention the additional funds and so on that have been forthcoming, and we very much welcome them, but we have a probation service in crisis. Would he like to comment specifically on the fact that there is a high sickness rate and a 10% vacancy rate? How on earth can they do their job properly if we do not have sufficient of them?

[Chris Philp]

Numbers in the prison and probation service have been increasing over the past few years. As I said, a great deal of extra money was provided in September last year, and that will most certainly have a further positive impact.

I move on to new clause 2, which the hon. Gentleman also commented on, and the question of deradicalisation. We heard evidence in the Public Bill Committee on 30 June, which some Members will recall, from Professor Andrew Silke, Professor of Terrorism, Risk and Resilience at Cranfield University. He told us that, overall, he thinks that the UK’s approach to deradicalisation,

“is seen as one of the better available approaches…internationally”. ––[Official Report, Counter-Terrorism and Sentencing Public Bill Committee, 30 June 2020; c. 84, Q175.]

That is, again, something we can take great confidence and pride in. Initiatives such as the healthy identity intervention programme, which Professor Silke expanded on at some length, are very effective. That is one of the reasons why reoffending rates for these terrible terrorist offences are only between 5% and 10%.

The shadow Minister asked about financial impact. I confirm, once again, that the cumulative impact on the total prison population will be less than 50 prison places, and the cumulative impact on the probation service will never be more than 50 places. To put that in context, there are about 80,000 people in prison and about a quarter of a million people on probation. On the financial impact, which the hon. Gentleman mentioned, the figure he had in mind may not have been quite accurate. The financial impact, according to the impact assessment, is a one-off cost of £4.2 million at the outset, followed by £900,000 a year thereafter, because these numbers, thankfully, are so small.

--- Later in debate ---

On that note, I will conclude. Public protection is our first duty. I believe that the Bill advances that case, and I am delighted that we have done so in such a spirit of cross-party unity. In the words of Jo Cox, whose shield stands on the wall of the Chamber, this House has shown today once again that there is more that unites us than divides us. When it comes to fighting terrorism, let that be more true than ever before.

[Alex Cunningham]

I am grateful to the Minister for his introductory remarks, particularly about how we can best work together as a Parliament, and I join him in paying tribute to the hon. Members across the House who shared personal experiences and testimonies—particularly the hon. Members for Hertford and Stortford (Julie Marson) and for Rutland and Melton (Alicia Kearns). If we had had to be convinced to support the Bill, perhaps those experiences—in particular the experience of the friend of the hon. Member for Hertford and Stortford—would have been sufficient to convince us.

The Minister’s ambition to have a sentencing regime in place for serious terrorism and terrorism-related offences has our support—no delay and no watering down—but he needs to ensure that the service is properly equipped and provides the services needed. I was therefore rather surprised—“stunned” is the word I wrote on my bit of paper—that the impact of introducing this new legislation will be less than £5 million for new prison places, an extended probation service and additional workers in the system. I cannot quite understand where that number comes from.

However, I am sure the Minister will be relieved to know that all I ask now is that he and his Home Office colleagues reflect on the challenges that we have made. I will withdraw new clause 1, but we will return to amendment 30 later. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 8

Lone terrorists: Review of strategy

“(1) The Secretary of State must commission a review and publish a report on the effectiveness of current strategies to deal with lone terrorists.

(2) A review under subsection (1) must be conducted by a person who meets the criteria for qualification for appointment to the Supreme Court, as set out in section 25 of the Constitutional Reform Act 2005.

(3) A review under subsection (1) must consider—

(a) counter-terrorism policy;

(b) sentencing policy as it applies to terrorist offenders;

(c) he interaction and effectiveness of public services with respect to incidents of lone terrorist attacks.

(4) For the purposes of subsection (3)(c), “public services” includes but is not limited to—

(a) probation;

(b) the prison system;

(c) mental health services;

(d) local authorities; and

(e) housing providers.

(5) The Secretary of State must lay a copy of the report before Parliament.

(6) A Minister of the Crown must, not later than 3 months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.”—(Conor McGinn.)

This new clause ensures that the Government orders a judge-led review into the effectiveness of current strategies to deal with lone terrorists including, but not exclusively, current counterterrorism and sentencing policy.

Brought up, and read the First time.

[Conor McGinn (St Helens North) (Lab)]

I beg to move, That the clause be read a Second time.