Counter-Terrorism and Sentencing Bill

Joanna Cherry Excerpts

2nd reading & 2nd reading: House of Commons
Tuesday 9th June 2020 Commons Chamber

[Robert Buckland]

I absolutely accept and understand the motivation behind my hon. Friend’s intervention, and he makes such a recommendation not just as Chair of the Select Committee, but as a guardian of the principles of the rule of law, which, after all, is what we, as a nation, are trying to defend against those who would kill, shoot and bomb their way into power and influence. He can be reassured that this—if you like—reversion to the previous standard of proof is all about making sure that we have as agile a tool as possible, bearing in mind the rapidly changing nature of the terrorist threat that we face. It is vital that we make sure that, when applications for TPIMs are made, they can be done not only in such a way that there is clearly an evidential basis and those grounds exist, but in a way that means they can be effective and as rapidly implemented as possible. The focus of the TPIM and the number of people on it will change, adapt and evolve according to the constant and the changing nature of the threats.

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

I thank the right hon. and learned Gentleman for giving way. The point made by the Chair of the Justice Committee is very well made. Not only has the current independent reviewer of terrorism, Jonathan Hall QC, not recommended the change, but he has specifically questioned the basis for the change. So again, is the Lord Chancellor able to clearly articulate for us why this change in the burden of proof is necessary?

[Robert Buckland]

I am grateful to the hon. and learned Lady for her question. Indeed, in the lengthy answers that I am giving, I am trying to do just that. What I am trying to explain is—I know that she knows this—that the TPIM mechanism is not something that is entered upon lightly. It involves a high degree of resource and a high intensity of resource management. It is a self-evident truth that the resources of the state, however large they may be, are not infinite and therefore choices and priorities have to be allocated. What I can assure the House of is that of course every time we assess that the grounds are met and that there is a risk, we will act. That is what our security services do, day in, day out, for us. What I am saying is that the change in the threshold creates that greater agility. I accept that it will be a lower standard, yes, but the reason for that is to allow for greater flexibility when our operational partners come to apply them.    



I was talking about the importance of TPIMs’ use being proportionate. I believe that the annual review of TPIMs, which is going to be part of this process to qualify the question about their indefinite duration, strikes the right balance between the need for vigilance and control against the need for those basic civil liberties that we all guard jealously to be maintained. Let us not forget that where it is no longer necessary or proportionate to extend a particular TPIM for the purposes of public protection, that TPIM will be revoked. That check and balance is very much at the heart of the regimen that we are proposing in the Bill.

The Bill also amends legislation governing serious crime prevention orders. Those are civil orders imposed by the courts that protect the public by preventing, restricting or disrupting an individual’s involvement in serious crime, which of course includes terrorism. The Bill supports the use of these orders in terrorist-related cases by allowing counter-terrorism policing to make a direct application to the High Court for a serious crime prevention order. We are therefore streamlining that process. The independent reviewer of terrorism legislation has noted that these mechanisms are at the moment an under-utilised tool in terrorism cases, and I believe that by streamlining the process we will see a greater reliance upon them.

We are also adding the offences of breaching a TPIM notice and breaching a temporary exclusion order to the list of relevant terrorism offences that can trigger the registered terrorist offender notification requirements. Again, the independent reviewer has publicly confirmed his support for that change. The regime requires individuals aged 16 or over who have been sentenced to 12 months or more in custody for a relevant terrorism offence to provide certain information about changes in their circumstances, such as their address, to the police and to notify them of any foreign travel plans. Together, these changes strengthen our ability to manage the risk posed by those of terrorism concern in our community, including those who have been released from prison without a period on licence.

The Bill also reforms how we deal with terrorist offenders under the age of 18. We recognise, of course, that there is a separate sentencing framework for that category of offenders, and that it has distinct purposes and aims that differ from those relating to adult offenders. We have carefully considered which measures it would be appropriate to apply to under 18-year-olds in developing this proposed legislation. Although we remain firm in our aim to ensure that custody should be used only where absolutely necessary, it is a sad and inescapable fact that some young people are susceptible to radicalisation or to the adoption of extremist views, and that among those, there are a few who pose a very serious threat to the public.

The Bill will therefore ensure that the courts have the right range of tools at their disposal to deal with those under the age of 18 who commit serious terrorist or terrorist-related offences. We will do that by introducing a youth equivalent to the special sentence for offenders of particular concern. This will mean that, if convicted of terrorist offences serious enough to warrant custody, these offenders will serve a fixed period on licence once they have been released into the community. This will ensure that they receive an appropriate level of supervision. We are also replicating the changes to the extended determinate sentence to ensure better public protection from young terrorist offenders who have been assessed as dangerous. This removes Parole Board consideration of the two-thirds point for the most serious terrorism offences, and in the interests of public protection, it gives the courts the option to apply an extension period of up to 10 years on licence. I accept that this is an exceptional series of measures, but we are dealing with an exceptional type of offending.

--- Later in debate ---

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

We in the Scottish National party take our duty to protect the public from all serious crime, including terrorism, very seriously, as our record in government in Scotland shows. We have a number of reservations about the Bill, which I shall outline, but like the official Opposition we do not intend to divide the House. We intend to take a constructive but critical approach. To that end, we will play a full part in the Bill Committee.

I thank the Lord Chancellor and his colleagues for the engagement that we have had to date on the Bill. I look forward to further discussions about the Scottish National party’s and the Scottish Government’s concerns. I also thank the right hon. Member for Tottenham (Mr Lammy) and the hon. Member for Torfaen (Nick Thomas-Symonds) for the constructive discussions that we have had prior to Second Reading. It is fair to say that the Scottish National party shares many of the official Opposition’s concerns about the Bill. We note that those concerns relate to matters about which the Independent Reviewer of Terrorism Legislation has also expressed reservations. That is to say, they are responsible concerns.

No discussion about terrorist legislation in this House should take place without parliamentarians taking the opportunity to extend their deepest sympathies to all those who have suffered bereavement or injury as a result of terrorist acts. I look back to the past, particularly in Northern Ireland and indeed the whole island of Ireland in that respect. On behalf of the SNP, I also pay tribute to the brave members of our police and security services, first responders, those in the Prison Service, probation officers and those who work in rehabilitation. All those people have to deal with the consequences of terrorism. We have heard some moving tributes to them. I also pay tribute to the brave bystanders who have intervened to help others in the immediate aftermath of terrorist attacks.

Many of the provisions in the Bill relate to sentencing, which is of course a devolved matter. Discussions are ongoing between my colleague Humza Yousaf, Scotland’s Justice Secretary, and the Lord Chancellor. Of course, there will need to be a legislative consent motion. I will outline the concerns that I share with the Scottish Government and my colleagues in the Scottish Government about the sentencing aspects of the Bill, as well as the use of polygraphs, the changes to TPIMs and the provisions regarding the review of the Prevent strategy. I want to make it clear that I do so from this viewpoint: it is the Scottish National party’s aim that our communities in Scotland are inclusive, empowered and resilient, so they can resist those sowing the seeds of division that can lead to radicalisation and terrorism.

The Bill has some far-reaching changes in it, with implications for human rights as well as policy, and the Scottish Government have already expressed their concerns directly with the Lord Chancellor, as I have done with his junior colleagues. I know that the UK Government, in relation to this Bill at least, realise that they need to work closely with Members of all parties and with the devolved Administrations, because that is what is necessary to ensure effective counter-terrorism measures across the United Kingdom and in Northern Ireland. I hope that this consideration will be at the forefront of the Minister’s mind as the Bill pilots its way through the House.

On the issue of sentencing, I am pleased that the UK Government are following the Scottish Government’s lead in ending automatic early release for the most serious offenders. Some time has now passed since the Scottish Government introduced a change to the effect that no long-term prisoner—four years or over—would be eligible for automatic early release after two thirds of their sentence. However, I am far from convinced—as I know others are far from convinced—that simply locking up terrorists for longer and then providing longer supervision on release is going to do much to deradicalise terrorist offenders.

The Bill will require the courts to ensure that certain terrorist offenders receive a custodial sentence of a certain minimum length and that a minimum length of supervision applies on release. In that respect it is a form of minimum mandatory sentencing, which is against the general approach in Scotland. However, it is not completely new to the justice system in Scotland, and that is why discussions are ongoing with my colleague, the Scottish Justice Secretary.

Sentencing is only a small part of the answer to terrorism, however. What happens during the sentence also matters, and, to date, deradicalisation and disengagement programmes have been largely underfunded and poorly executed. That is not my view; that is the view of Nazir Afzal, the former chief Crown prosecutor for the north-west of England. He is an experienced lawyer and a prosecutor worth listening to. He says that this has happened as a direct consequence of the decision by successive Conservative Governments to cut funding to probation and other rehabilitation programmes. The costs of extensive post-release surveillance far outweigh the costs of adequate funding for preventive measures and deradicalisation. I wonder whether the Lord Chancellor agrees with me and Mr Afzal on that point, and whether he is in a position to assure the House that sufficient funds and resources will be made available to deal with preventive and deradicalisation programmes in prison.

Can the Lord Chancellor also assure me that the Bill will not turn out to be counterproductive by leading to less parole, less offender management and less incentive to behave well during a sentence and to attempt deradicalisation? In this respect it will be interesting to hear what the professionals who work in the area of offender management and parole have to say about the Bill, and I look forward to the Bill Committee’s evidence sessions. I am pleased that will there be more than one of those—

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

Three.

[Joanna Cherry]

Three? Excellent.

The hon. Member for Bromley and Chislehurst (Sir Robert Neill) raised the issue of polygraphs. He will be aware that in Scotland’s justice system, polygraph testing is not used as a mechanism to monitor compliance with licence conditions or any kind of orders. Indeed, it is not used at all. The reason we have chosen not to use it is the lack of evidence of its effectiveness. If the provisions of the Bill were to apply in Scotland, that would require a significant shift in policy and practice and could also have significant implications for investment in infrastructure. In Scotland, we already have mechanisms in place to monitor compliance with licence conditions and conditions associated with statutory justice orders. These include supervision by justice social workers and the use of electronic monitoring for high-risk offenders. There is a multi-agency public protection arrangement—MAPPA. Under that procedure, those assessed as high or very high risk and who require multi-agency management are subject to a regular review. In Scotland, individuals convicted of terrorism-related offences can be managed under that MAPPA approach, and there are indeed a small number of cases that have been managed in this

More generally on the issue of polygraph testing, I note, as has already been said, that the independent reviewer of terrorism legislation expressed some concerns about the lack of pilots and emphasised that there would therefore be a very strong case for very thorough post-legislative scrutiny of the measures. I look forward to hearing what the Minister summing up has to say in response to that point.

On TPIMs, much of what I have to say has already been canvassed. Clearly, the amendments would: reverse the changes to the burden of proof, lowering the burden of proof; reverse changes to the curfew provisions to allow for what is effectively home detention; and allow us to make the orders potentially indefinite. I am not convinced that the changes are necessary and nor are my colleagues in the Scottish Government. We are fortified in that view by the views of the independent reviewer of terrorism legislation, who is also unconvinced of the necessity of the changes. To be frank, I have heard nothing so far this afternoon to convince me that our reservations are wrong. Those reservations are really important because of the human rights implications, the lack of safeguards built into the Bill, and the lack of any review mechanism.

I am not going to go through what Jonathan Hall, QC said in his two very detailed notes, but he has tackled, in some detail, both the reduction of the standard of proof and making the orders potentially indefinite. He has been very clear that he is not convinced of the case for change, so my questions for the Minister are these. Can we hear more clearly why? Can we see an example of what justifies both the reduction in the burden of proof and the need for the orders to be without time limit? Can we hear why, in the face of such potentially draconian powers, there are no safeguards in the Bill? Would the Government be prepared to consider an oversight mechanism or a review mechanism?

Finally, on Prevent, it is important to remember that the delivery of the Prevent strategy in Scotland is devolved and that while national security is referred to the UK Government, the way the Scottish Government deliver the Prevent strategy in Scotland reflects Scottish differences and is unique to the challenge faced by Scottish communities. I think it is fair to say that the delivery of the Prevent strategy in Scotland has not encountered the same community resistance and community impacts as it has south of the border. Because of the problems encountered in England, the Scottish National party supported the call for a review of the Prevent strategy, but we also shared the very widespread concerns about the Government’s initial choice of reviewer. We believe now that it is very important that a new reviewer is found quickly, and that lessons about impartiality and the important appearance of impartiality are learned from the debacle over the previous putative appointments, so that the review can be seen as genuine and robust. We are a little concerned that the time limit for the review has been removed. I heard what the Lord Chancellor had to say about that, but it is very important that the removal of the time limit does not simply become an excuse to kick this into the long grass. That is the final point on which I seek reassurance from the Minister in his summing up.