Counter-Terrorism and Sentencing Bill (Sixth sitting)

Chris Philp Excerpts

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

[The Chair]

I will make a few preliminary points. As usual, please switch electronic devices to silent, and teas and coffees are not allowed in the room. I remind the Committee of social distancing rules. The Hansard reporters would be grateful if Members sent any copies of their speaking notes to [e-mail].

Clause 27

Removal of early release for dangerous terrorist prisoners: England and Wales

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

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

It is a great pleasure to serve once again under your chairmanship, Mr Robertson. The clause is the first clause in part 2 of the Bill, and is one of the most important sections. It removes the prospect of early release for the most dangerous terrorist offenders in England and Wales. The provision is central to the core aims of the Bill—namely, ensuring that the most dangerous offenders serve their full sentence, to reflect the serious nature of their crimes and to protect the public from them. Some of the recent terrible terrorist atrocities have powerfully demonstrated the awful consequences that can follow the early release of a terrorist offender who goes on to reoffend, sometimes with tragic and fatal effect.

The clause amends section 247A of the Criminal Justice Act 2003, under which relevant terrorist offenders are currently referred to the Parole Board at the two-thirds point of their custodial term, to be considered for discretionary early release. The clause would exclude a particular class of the most dangerous offenders from discretionary early release if they receive an extended determinate sentence; if that sentence is for a terrorist or terrorist-related offence; and if that offence carries a maximum penalty of life imprisonment. Only if those three conditions apply is the prospect of discretionary early released removed, and those offenders instead serve their full custodial terms.

This is an important measure to protect the public. The only way to be certain that someone will not reoffend is if they are in prison. Of course, after release, offenders who have served their full custodial term under the provisions of the clause will then be subject to the extended licence period that we discussed this morning, which can now be as long as 10 years. During the extended licence period, work on rehabilitation can continue and public protection can be maintained. It is not as if offenders are simply let out and we forget about them; the licence conditions and monitoring will be extremely important. On that basis, I commend the clause to the Committee.

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[Ruth Cadbury]

The Bar Council is a very authoritative body that needs to be listened to when we are introducing legislation that affects issues such as sentencing.

On the POA point, Peter Dawson pointed out clearly, in relation to violence against prison officers, that when hope is lost and the atmosphere and the management of prisoners gets much more difficult, we have nowhere to move terrorist prisoners who are already in specialist separation centres. He said that removing hope of early release increases that risk. I would like the Government to commit to a review if the proposal is implemented in this way. Obviously, we support the motivation behind it.

I have one more question for the Minister. Might the option for this sentence, with the loss of early release, lead to unintended consequences in charging and sentencing? Would sentencers avoid it and impose a lesser sentence? I am sure that the Government do not intend that.

[Chris Philp]

Let me briefly respond to one or two of the points that the hon. Member for Brentford and Isleworth made. She referred to the fact that if the sentence is served in full, there obviously will not be a Parole Board assessment prior to release. She asked about the risk assessment that would take place. I asked Mr Fairhurst from the Prison Officers Association about that in our evidence session on Tuesday morning. Even where there is no Parole Board involvement because release is automatic, there are a whole load of other review and evaluation mechanisms that can be used—for example, multi-agency public protection arrangements, careful monitoring by the prison staff and prison governor, and involvement by the National Probation Service in preparation for the release point. With the example of the Streatham offender, those kinds of risk-assessment measures led to a security services team monitoring him, which obviously had the result that it did. That is an example, as Mr Fairhurst said in evidence, of the risk assessment process working very effectively. That is what we would expect to happen in cases in which release is automatic.

The hon. Lady also asked: what happens when hope is lost? What if a prisoner is in prison and there is no prospect of early release? Does that not mean that it will be hard to get them to behave well? I want to make some points in response. First, the vast majority of prisoners, who have committed a range of offences, way beyond terrorist ones, are serving standard determinate sentences and are released automatically—typically at the halfway point—without any Parole Board intervention. The vast majority are subject to automatic release at a particular point. The second risk, particularly in relation to terrorist offenders, is that of false compliance, if they think that by pretending to comply with the deradicalisation programme, they might get released early. That is not necessarily an entirely healthy incentive and we should be mindful of that possibility.

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

[Chris Philp]

The operative provisions of clause 28 are very similar—in fact, they are identical—to those in clause 27, except that they apply to Scotland. Practically, that is given effect by amending section 1AB of the Prisoners and Criminal Proceedings (Scotland) Act 1993. The substantive effect of this provision is exactly the same as that for clause 27, which we have just debated.

Question put and agreed to.

Clause 28 accordingly ordered to stand part of the Bill.

Schedule 10 agreed to.

Clause 29

Further provision about release of terrorist prisoners: Scotland

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

[Chris Philp]

This is another consequential provision, which makes sure that the measure in clause 28 that we have just approved operates consistently in relation to the administration of licence periods for serious terrorism sentences and terrorism sentences for fixed licence periods in Scotland.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

Clause 30

Restricted eligibility for early release of terrorist prisoners: Northern Ireland

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

[The Chair]

With this, it will be convenient to discuss Government amendments 33 and 34.

[Chris Philp]

Clause 30 and the amendments to it essentially apply to Northern Ireland. Some months ago in Parliament, we debated the provisions to end the automatic early release of terrorist prisoners. Committee members will recall that at the time we did not apply those provisions to Northern Ireland. But having carefully considered, in particular, the European convention on human rights and common law retrospectivity provisions, we are now comfortable that those principles are not infringed by applying the Terrorist Offenders (Restriction of Early Release) Act 2020 provisions to Northern Ireland, and this clause does so.

Amendments 33 and 34 are consequential on those changes. Amendment 33 ensures that terrorist prisoners who will serve longer in custody as a result of the Bill are not released early for the purposes of deportation under the early removal scheme in Northern Ireland. That is a consequential point. Amendment 34 ensures, for offenders who will be newly eligible for parole commissioner-considered release through the provisions of this Bill in Northern Ireland, that that is done in accordance with the parole commissioners’ existing rules. That brings Northern Ireland fully into conformity with the rest of the United Kingdom.

[Conor McGinn (St Helens North) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Robertson. The main focus of my contribution to the Committee as the shadow Security Minister will be on part 3 of the Bill, but for reasons obvious even to the untrained ear, I have been asked to speak on some of the Northern Ireland aspects of the Bill.

May I crave your indulgence for a moment, Mr Robertson? While the Committee has been sitting, it has been announced that the largest ever law enforcement operation in the UK took place today. Operation Venetic has seen 746 arrests, with £54 million of criminal cash seized, along with 77 firearms and 2 tonnes of drugs. The whole Committee will want to pay tribute to Lynne Owens and the National Crime Agency and all the police forces involved in that fantastic operation. [Hon. Members: “Hear, hear.”]

I am always concerned when I hear Ministers talk about Northern Ireland being brought into “conformity” with the rest of the United Kingdom, because although it is an integral part of the Union, and that is indisputable under the terms of the various agreements that have been reached, it is not the same as other parts of the United Kingdom, particularly when it comes to measures relating to tackling terrorism, because there is a long history there that has evolved over how to address that, particularly when it comes to sentencing, rehabilitation and the particular licensing arrangements that there are.

I have had, as I know the Minister has had, extensive discussions with the Justice Minister in the Northern Ireland Executive on this clause in particular. We have tabled a new clause to ask for all the provisions to be reviewed, so I do not intend to speak on all the Northern Ireland measures contained herein until that is debated, but I did think it important to draw attention to this matter, particularly after discussions with Naomi Long on behalf of the Northern Ireland Executive.

There is real concern about the retrospective removal of the automatic right to release. The Justice Minister in the Department is very clear that that will require amendments to sentence-calculation processes and, critically, the power of the Department to refer cases to the parole commissioners and the powers of the commissioner to direct early release for offenders subject to determinate custodial sentences. The concerns can be condensed down to some key points.

The first is about—I was interested to hear what the Minister said about this—attracting legal challenge on ECHR-compatibility grounds. There is a belief in the Department of Justice in Northern Ireland that these measures will attract that. In addition, there is concern that the Department of Justice in Northern Ireland will be a respondent to any challenge that is made in the Northern Ireland High Court or subsequent proceedings in the Northern Ireland Court of Appeal, which could be a significant drain on its resources.

There is concern about the risk of destabilising the separated regime. The Committee might not be aware that paramilitary prisoners or those convicted of terrorist offences in Northern Ireland are separated. They are held in specific circumstances and subjected to specific programmes, on the basis of their perceived paramilitary affiliation.

Another worrying element is the potential increased risk to the safety of prison staff as a result of the reaction to these measures. In recent years we have seen David Black and Adrian Ismay, two prison officers in Northern Ireland, murdered by dissident republicans. That is something that we need to be very cognisant of: in making laws here, we have a direct impact on the people who we are asking to carry them out. They have to live in the community in Northern Ireland and face the threat that they, along with our brave police officers and the Police Service of Northern Ireland, do every day.

There is also a concern—shared by colleagues from the Democratic Unionist party as well as by the Justice Minister—that this has the potential to lead to currently serving terrorist offenders being released without licence supervision. It undermines the public protection arrangements currently in place and goes against the ethos and principles of the Northern Ireland sentencing framework. In taking these measures to avoid a cliff edge in England and Wales, we may inadvertently introduce a cliff edge to Northern Ireland that is mitigated by arrangements that are already in place there.

There was a more general concern about the erosion of the principle of judicial discretion to set appropriate custodial and licence periods. I thought it important that the Committee heard those concerns, because we, as the official Opposition, share some of them and want to work, as we always have done, in a bipartisan manner—not just on issues of national security, but on matters pertaining to Northern Ireland. It was important from that perspective and because we do not have Northern Ireland Members here to make those arguments. We do have, after years of painstaking effort by Governments of all hues, the restoration of the Executive, so it was important that the Minister of Justice for Northern Ireland—in addition to the influence she is bringing to bear in discussions with the Minister—had those concerns publicly recorded with the Committee.

[Chris Philp]

Let me briefly reply. I echo the hon. Member’s comments about the operations today. Our police and security services do fantastic work, and the huge operation today is an example of that work at its very best, so I join him in thanking them and congratulating them on the tremendous work they have done.

On Northern Ireland, the hon. Member is quite right: we are currently having detailed conversations with Naomi Long, the Justice Minister in Northern Ireland. As he says, it is very good news that the functioning Executive has been restored—it is good for Northern Ireland and good for us in Westminster to have a body that we can have dialogue with. Let me assure him that the dialogue is ongoing; it touches on many of the issues that he raised.

On the risk of legal challenge, the hon. Member will know that there has already been a legal challenge to the TORER Act that we passed back in February, and that is subject to a judgment that we await; I will therefore not comment on that any further. What I will say—in fact, I have said this to Naomi Long—is that we will certainly support the Northern Ireland Department of Justice in any litigation that it gets involved in. We have obviously done a great deal of work in preparing for that case; we would be happy to make that available and to support the Department in every way. We would not want it to be, as the hon. Member has suggested, burdened by having to defend cases. We will certainly stand with it and help practically with preparing for those cases, so that they do not unduly drain what I know are quite limited resources. I can give him a direct assurance on that. More generally, we are involved in detailed discussions, which are continuing.

Question put and agreed to.

Clause 30 accordingly ordered to stand part of the Bill.

Clause 31

Removal of early release for dangerous terrorist prisoners: Northern Ireland

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

[Chris Philp]

Clause 31 simply makes the same provisions that we discussed in clause 27 for England and in clause 28 for Scotland, applicable also to Northern Ireland. I do not propose to go over those provisions again; they are in substance the same.

Question put and agreed to.

Clause 31 accordingly ordered to stand part of the Bill.

Clause 32

Polygraph licence conditions for terrorist offenders:

England and Wales

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[The Chair]

I think we are getting into matters of debate. The point was well made.

[Chris Philp]

As we discussed in evidence last week, the Government—and the Committee—fully recognise that polygraph testing does not provide definitive information that meets a burden of proof that a court of law would expect to be met.

We did hear, however, compelling evidence from Professor Grubin that polygraphs provide a great deal of utility in two areas—first, in causing offenders being questioned while a polygraph is being applied to disclose more information than they otherwise would. He gave some compelling statistics, showing that a high proportion—from memory, something like two thirds—of offenders questioned with a polygraph being applied made a disclosure of information, which is a far higher figure than would ordinarily be the case. It is helpful to get people on licence to disclose information that is useful in working out whether their licence conditions are being adhered to.

Secondly, if a negative polygraph result follows in answer to particular questions, the principal consequence is further investigation by the probation service or, if appropriate, the police. Only if those further investigations yielded new evidence or new facts would further action follow. Polygraph evidence would never be admissible in a court of law, and there is no intention of that, because we heard clearly that although it is helpful, it is not definitive in a way that we would wish evidence submitted to a court of law to be definitive.

That approach is already enshrined in section 30 of the Offender Management Act 2007, expressly disallowing the admissibility of polygraph evidence in court, but it is also covered in the equivalent provisions made for the devolved Administrations in this Bill, particularly clause 33 in relation to Scotland and clause 34 in relation to Northern Ireland. The Bill and the law in general are clear about how polygraph evidence should be used.

On amendments 49 and 50, and the use of “may not” as opposed to “must not”, I think that the phrases have the same meaning. “We may not do something” means the same as “we must not do something”—it is an express prohibition. I am sure it is helpful to put my view of that on the record, and I hope that the Committee concurs. It is categoric that something that may not be used cannot be used, and must not be used in any circumstances.

In support of clause 32 standing part, this is a useful additional tool in the hands of the probation service. It is used already with sex offenders in England and Wales. Professor Grubin provided very informative evidence—certainly the most entertaining evidence that we heard during our earlier proceedings. He made a powerful case for the way in which polygraphs, used properly, carefully, with the right training and with acknowledgment of their limitations, add something to the monitoring process. Therefore I think it is appropriate to include the measures.

[Kenny MacAskill]

I am grateful for the Minister’s response. I am not going to debate “may” or “must”, which seems to be becoming a tautological argument. I am happy to accept the Minister’s assurance, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

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[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.

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[Chris Philp]

We recognise that, as the hon. Gentleman has said, there is no operation of polygraph currently in Scotland. In considering the commencement provisions, it is the clear intention of the UK Government to work extremely closely with the Scottish Government to determine when they are operationally ready to introduce polygraph testing into the toolkit that probation services have. We would not want to trigger implementation too early.

Over the past week or so, we have heard evidence showing the benefits that polygraph testing can bring. However, we are aware that time is needed to prepare operationally for those benefits to come into effect. Although we recognise that some elements of the implementation of this are devolved—as I say, we are going to work extremely closely with the Scottish Government on those—ultimately, provision for dealing with terrorism matters remains a reserved power of the UK Government, so it is appropriate that the commencement provision remains one that is exercised by the UK Government. However, I repeat my assurance to the hon. Member for East Lothian that we will work extremely closely with his colleagues in the Scottish Government—in particular those in the Justice Directorate, his old Department—to make sure nothing is done prematurely, or without being ready for it.

Question put and agreed to.

Clause 33 accordingly ordered to stand part of the Bill.

Clause 34

Polygraph licence conditions for terrorist offenders: Northern Ireland

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

[Chris Philp]

Clause 34 essentially has the same operative effect as the clauses we have already discussed in relation to polygraphs, except in relation to Northern Ireland. For the benefit of anyone listening in Northern Ireland and that of the hon. Member for St Helens North, we will work very closely with Naomi Long and the Northern Ireland Government on this, in the same way that we will work very closely with the Scottish Government. We recognise that they are not doing this already, and before we commence the provisions, we will need to make sure that the Northern Ireland Government are operationally able and ready to use them.

Question put and agreed to.

Clause 34 accordingly ordered to stand part of the Bill.

Clause 35

Polygraph licence conditions in terrorism cases: supplementary provision

[Kenny MacAskill]

I beg to move amendment 51, in clause 35, page 33, line 8, after “State” insert

“after consulting with Scottish Ministers and the Department of Justice”.

This amendment requires the Secretary of State to consult with the Scottish Ministers and Northern Ireland Department of Justice when making regulations under clause 35(1).

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[Chris Philp]

I thank the hon. Member for East Lothian for his comments. I wholly concur with what he said about the importance of training and carefully managing who conducts these tests and how they conduct them. In evidence, we heard from Professor Grubin in some detail of the critical importance of training. Without the proper training, method and the right questions, the entire process is essentially worthless and could potentially lead to false results. I accept the spirit of the hon. Gentleman’s comments.

To reassure the hon. Gentleman, in clause 35(3)(a) there is a reference to “other matters”. I explicitly assure him that that includes things such as training. The Secretary of State will address those matters in detail in the regulations, as they are addressed in the current regulations made under the existing legislation that applies to sex offenders. Identical or similar measures relating to training will be included in those regulations.

In relation to the question of confidentiality, which I have previously touched on, disclosure of any information obtained by polygraph testing will be shared only with governmental partners, particularly law enforcement agencies. It will not be disseminated or disclosed any more widely. I hope that assures the hon. Gentleman about the detail that the regulations made under clause 35 will go into. They will most certainly address the issues that he is properly raising.

[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.

[Chris Philp]

Clause 36 covers the release on licence of terrorist prisoners repatriated to the United Kingdom. The clause refers to schedule 11, which, as we shall discuss in a moment, sets out arrangements for the release on licence of terrorist prisoners repatriated to the United Kingdom, so that their release provisions are consistent with those sentenced in the United Kingdom. In essence, it extends the provisions that we have debated already to ensure that people who are repatriated to the UK are affected by those provisions just as much as people who were here when convicted and when serving their sentence. I am sure that everybody would agree that that kind of consistency is extremely welcome and extremely important.

Question put and agreed to.

Clause 36 accordingly ordered to stand part of the Bill.

Schedule 11

Release on licence of repatriated terrorist prisoners

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

[Chris Philp]

Schedule 11 gives effect to the clause 36 in a number of technical ways, which I do not propose to go through in detail. It ensures that the clause has practical effect in law.

Question put and agreed to.

Schedule 11 accordingly agreed to.

Ordered, That further consideration be now adjourned. —(Tom Pursglove.)