Counter-Terrorism and Sentencing Bill

Debate between Joanna Cherry and Alex Cunningham

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

[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.

Counter-Terrorism and Sentencing Bill (Eighth sitting)

Debate between Joanna Cherry and Alex Cunningham

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

[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.

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[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 ---

[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 (Second sitting)

Debate between Joanna Cherry and Alex Cunningham

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

[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 ---

[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.

Counter-Terrorism and Sentencing Bill (First sitting)

Debate between Joanna Cherry and Alex Cunningham

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

[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.

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[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.

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[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?