Terrorist Offenders (Restriction of Early Release) Bill

Baroness Chakrabarti Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, the Opposition support the logic that terrorist offenders—even minor terrorist offenders—should not be released from prison on an automatic early-release basis; they should be subject to assessment by the Parole Board. That said, it is a daunting burden and a grave duty of any legislator to be faced with emergency legislation, let alone emergency legislation affecting both public safety on the one hand and the rule of law on the other. Inevitably, the Executive present us with an emergency, and such is the nature of sensitive intelligence—reports relating to specific offenders and their potential associates—that we lack equivalent information. Therefore, to some extent, we have to trust in the emergency, but it would be better if we could be granted a little more trust as well.

I have seen a letter sent by Peter Dawson, director of the Prison Reform Trust, to the Lord Chancellor and Justice Secretary. It is a letter to which I do not think there has yet been a reply, and no doubt there cannot be a reply this evening. However, it highlights one point that needs to be considered before any further legislation in this area. Peter Dawson is an experienced former prison governor and a distinguished former Home Office civil servant; I hold Home Office civil servants in quite a lot of regard. Following the debate on the Bill in the other place, he wrote:

“I noticed your response to the general issue raised by Kate Green MP about recall arrangements during the second reading debate. You mentioned that either arrest or charge on suspicion of a further offence might trigger recall, but of course recall can and very often is triggered at a much lower threshold. In the specific case of Sudesh Amman, in the days following his release, there was sufficient concern about an imminent risk to public safety for the police to mount a covert surveillance operation by armed officers. Why was that concern considered insufficient to justify a decision by the National Probation Service to protect the public by recalling Mr Amman immediately to prison, as the law currently allows?”


It might be that the Minister will not be in a position to respond to that in his remarks, but that kind of scrupulous detail in relation to the law as it currently stands needs to be considered before the deep dive that we are promised later in the year, after this specific measure, which broadly we support.

We also heard from the noble Baroness, Lady Jones, about rumours and suggestions that some of those serving offenders on whom this legislation will bite are not of the jihadi persuasion but might be minor “terrorist” offenders who have been convicted of criminality in connection with other kinds of activism; she mentioned an animal rights activist. No doubt the Minister can give us some answers in relation to the scope of this legislation and the particular offenders who will be affected.

It is also right that I echo concerns raised by the noble Lord, Lord Pannick, and others about the lack of an Intelligence and Security Committee at a time when we are looking at one version of emergency terror legislation, and why we do not yet have a Hall report. These other mechanisms are there to assist your Lordships’ House and the public in grave times such as these. There cannot just be emergency legislation in a vacuum without the supporting mechanisms that have been provided.

That said, I am prepared to accept the emergency, and have no choice in doing so. But if there is an emergency that requires this legislation—I do not mean this rhetorically; this is really the central thrust of my concern—it is, for the most part, an emergency of the Government’s own making. It is an emergency made by all those who failed for at least a decade to protect the Ministry of Justice from 40% cuts—some of the most savage cuts in Whitehall. That has a direct bearing on the nature of capacity, regime and intervention in the prison and probation systems. It is an emergency of overstuffed, understaffed prisons; some parts of prisons are almost controlled by dangerous offenders. As was eloquently put in the other place by no less than the former Prime Minister, prisoners—most of whom will leave at some time—are highly likely to be far more dangerous when they leave than when they entered; that includes prisoners suffering from mental health and substance-abuse problems who were convicted of minor non-terrorist offences, who have gone into the estate and been radicalised there.

With respect to the comments made by the noble Lord, Lord Blencathra, it is all very well to talk about minimum mandatory sentences or longer sentences for terrorists, but what about the other prisoners who are going into the estate? They would never be sentenced to life in prison, but they are being radicalised. I have even heard serving prison officers speak of their own vulnerability in this kind of regime—vulnerability to radicalisation as well as to physical harm. Such are the dangers of this crumbling criminal justice system on its knees, the cuts to the Prison and Probation Service, and a system too much run for private profit and not for public safety. I noted the remarks from the other side of the Chamber on the failure of privatisation in relation to accountability and public trust in the system.

I support the basic principle of this Bill: discretionary release in the hands of the Parole Board, rather than early automatic release for terrorist offenders. I am glad that that was the limited measure proposed in the light of this emergency, but of course there were many alternative briefings to which we were all subjected suggesting other things that the Government might have been considering and might yet consider. I have heard talk of derogations from the European Convention on Human Rights, of leaving it altogether, and of further experiments in executive punishment without charge or trial—all those have been mooted and briefed on. I am grateful to the Lord Chancellor, at least at the time being, for adopting this more limited measure, and indeed for taking the trouble to consider its compatibility with human rights and to make the Section 19 statement, as mentioned by the noble Lord, Lord Faulks, and others.

On the point of legality and the desperately interesting forensic debate that has gone on in your Lordships’ Chamber on Article 7 of the convention and common law traditions on retrospection—between a positively fantasy football league of eminent lawyers—I will say this. It is quite something to be faced with the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown, on the one hand, and my noble and learned friend Lord Falconer and no fewer than three Independent Reviewers of Terrorism Legislation—the two former ones, and Jonathan Hall with his report—on the other. This suggests a grey area. I have always been completely forthcoming when I have believed that a measure is patently unlawful and will fall foul of the courts: this is not one of those cases. It is of course for the Government to investigate and ultimately defend the legality of their policy and legislation in the courts.

Your Lordships heard the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown, eloquently explain the case law that supports the idea that to retrospectively change release arrangements within the envelope of a sentence does not offend the principle against retrospective punishment. However, your Lordships also heard from my noble and learned friend Lord Falconer, the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Garnier—another fantasy football team—about the danger that, whether or not this offends Article 7, it would certainly offend the sense of basic fairness of a lot of people and prisoners, which is quite important when trying to establish and promote the rule of law in our communities.

I therefore humbly submit to your Lordships that, in the light of that genuine grey area, and given that, whatever we would like, these provisions will almost certainly at some point be tested in the courts, it would be sensible for any Government to listen carefully to the amendment in the name of the noble Lord, Lord Anderson, and to adopt it if it presents no challenge to the basic public policy ambition of this legislation: that is, to prevent dangerous offenders being released automatically into the community while they still pose a risk. As your Lordships have heard from the noble Lord, Lord Anderson, my noble and learned friend Lord Falconer, and others, this amendment does no harm to that central ambition of the Bill: that in future, those convicted and sentenced of the relevant offences will not be eligible for release until the two-thirds point in their sentence, and not without the permission of the Parole Board. If the amendment were accepted by the Government, those already convicted, sentenced and serving in prison would not be released automatically as now, as they understood when they were sentenced. They will have to persuade the Parole Board, but at least they will be able to go to the board at the halfway point. It is to some extent a compromise: it does not offend the public protection ambition of the Bill but goes some way towards that sense of fairness and instinct against retrospection, whether it would ultimately fail in court or not. I will be particularly interested in what the Minister says about that amendment, which can only improve the legal defence ability of this legislation in the domestic court and the Strasbourg court.

However, even with that exquisitely drafted amendment and the wonderful seminar that some noble Lords enjoyed earlier today, this legislation will be vulnerable to challenge if adequate resources are not pumped into the prison and probation system so that offenders have a realistic prospect of engaging with programmes and of an early hearing before a properly resourced Parole Board. If those resources are not provided, the right to engage in programmes and to appear before the Parole Board will be completely illusory. Therefore, resources go not just to the practicality of trying to keep people safe but to the legality and efficacy of protecting prisoners’ rights as well. Resources are the central problem in all this.

Of course, there is no risk-free society, and this is an incredibly difficult area of public policy and legislation, as all noble Lords have acknowledged. However, it is so much harder because of the environment of savage cuts that has been created over the past decade. Even beyond that decade, our politics have not served this area of policy well; there has been a lack of resources, combined too often with overblown rhetoric, and even attacks on the rule of law itself. The rule of law binds not just citizens but Governments too, and if we undermine it by blaming judges and human rights instruments, and by treating it as an irritant, that message will go home to the public and to those who feel that they have just cause for disfranchisement. The rule of law is surely the one thing that binds us all together, not just in your Lordships’ House but in this country, even in polarised and difficult times. I hope that, when the Government and those on the Benches opposite engage with the deep dive that is yet to come after tonight, they will remember that and restrain the more carnivorous instincts in No. 10.

[Baroness Buscombe]

Does the noble Baroness believe that sharia councils do not interfere with our rule of law? Do they fully respect our rule of law?

[Baroness Chakrabarti]

There is one law of the land and it binds everyone. Sharia councils do not provide an alternative legal regime; there is one law of the land, which is what I am talking about. If people seek to argue otherwise—I take the noble Baroness’s point—they need to be disabused of that. There is one law of the land which binds us all, in this House, in government and in opposition; it binds the citizenry, the suspects and the victims. I think we can agree about that.

[Baroness Deech (CB)]

Can the noble Baroness reassure us on the efficacy of the programmes for stopping radicalisation? I have read—I do not have the evidence—that at least one of the terrorists had successfully completed such a programme, and that other convicted terrorists are encouraged by their hierarchy to go neatly through the programme to secure release and be seen to have been deradicalised. In other words, there may be nothing we can do, no matter how much money is thrown at these programmes.

[Baroness Chakrabarti]

As always, the noble Baroness, Lady Deech, points out genuine challenges in this area. We have to try, and to put in sufficient resources to make the best attempt. We certainly cannot have a situation whereby those going into prison, not for terrorist offences, are being radicalised there and coming out more dangerous than when they went in. They will not be touched by this legislation. If and when they offend, people will not say, “That was a convicted terrorist”; they will just think that they were yet another person who has done the rounds, been in and out of prison for whatever offence, and come out more dangerous than when they entered.

We will have to break shortly, and then we will have the opportunity to consider amendments. So many noble Lords talked of their ambitions for the future, and I hope that when considering this Bill, and in future debates, they will remember not just the legalities but the practicalities of trying to ensure that this emergency is not a permanent one that takes us into the seventh circle of hell, debating more emergency legislation, to little effect, well into the future.