Terrorist Offenders (Restriction of Early Release) Bill

John Hayes Excerpts

Committee stage & 3rd reading: House of Commons & Committee: 1st sitting: House of Commons & 3rd reading & Committee: 1st sitting
Wednesday 12th February 2020 Commons Chamber

[Daisy Cooper (St Albans) (LD)]

I am not seeking to press new clause 3, but I am seeking reassurances from the Minister relating to the purpose behind it and a commitment to post-legislative scrutiny.

In my earlier remarks, I made the point that fast law can be bad law. In the absence of an opportunity for thorough pre-legislative scrutiny, we absolutely must have post-legislative scrutiny. There are relevant examples of where this has happened: the Immigration Act 2014 was controversial, so it contained the same requirement as exists in new clause 3; and the Data Retention and Investigatory Powers Act 2014, which was rushed in in response to a court ruling, included a sunset clause of 18 months. I am not asking for a sunset clause, but new clause 3 sets out clearly that we would like the opportunity for a statutory review after one year. The person conducting that review should be appointed after consultation with the independent reviewer of terrorism legislation and they should have professional experience relating to imprisonment for offences of terrorism.

New clause 3 does not seek to outline the scope of such a statutory review, but I would like to give the Committee some examples of the kind of matters that could be covered by it. Such a statutory review could ask whether the extra time the terrorists spend in prison is being used to de-radicalise them. Are they actually receiving an effective de-radicalisation programme or, on the contrary, are they potentially becoming more dangerous? It could look at whether the Parole Board has the resources to cope with the extra demands put on it. It could look at whether terrorist prisoners are being failed by the Parole Board and whether they are being released at the end of their sentence without any supervision on licence. It could look at whether the probation service has the staff and resources it needs to ensure effective supervision during the shorter period that offenders spend on licence. It could also perhaps look at whether the change in the release point affects the sentencing decisions made by judges.

As I said earlier, there is a risk that because of the lack of opportunity for pre-legislative scrutiny there is the possibility that this becomes a law of unintended consequences. I know there are proposals for legislation down the line, but we also know that legislation can get delayed. It would be absolutely right for the House to insist on post-legislative scrutiny by virtue of a one-year statutory review. Who knows, the review might even identify things that could be included in future legislation.

[Sir John Hayes (South Holland and The Deepings) (Con)]

I speak in sympathy with all the amendments for the reasons I shall give. In respect of the amendment tabled by my hon. Friend the Member for Stone (Sir William Cash), it is important that we anticipate the likely counters to this proposed legislation that will perhaps come from malign forces in the other place and outside it. There are people who will seek to frustrate the Government in their attempt to the right thing.

[Daisy Cooper]

I note that the right hon. Gentleman says there are malign forces. I ask him to recognise that there are those of us who hold public and national security front and centre in our roles in the House, and that some people may be looking not to frustrate but improve the Bill by ensuring it complies with human rights law.

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[Sir John Hayes]

We do not have time, and you would not permit us, Dame Eleanor, to have a broader debate about the character of rights and human rights law, but I welcome the opportunity to do so with the hon. Lady at a place and time of her choosing. I have profound doubts about that law and the root of it, which is, essentially, the acceptance of natural rights that I do not believe in. I believe in the lawful entitlements that we call rights, of course. How they should be dealt with legally is an entirely different matter and not one pertinent to these considerations, but I look forward happily to that broader debate. Given that there will be challenges to the Government, malign and otherwise, given what she said, it seems that there is a good case for a belt-and-braces approach, as my hon. Friend the Member for Stone described it.

[Sir William Cash]

In the context of what is developing into a very interesting speech, I refer to Edmund Burke’s famous attack on Thomas Paine in respect of what he really thought about human rights. It was a brilliantly expressed metaphor—that we would not be “trussed” like chickens, or something of that kind, by the human rights proposals of Thomas Paine.

[Sir John Hayes]

Now I might really test your patience, Dame Eleanor, because my hon. Friend invites me to articulate a Burkean case against natural rights, which I will be happy to do, but perhaps on another occasion. Given that I offered the hon. Member for St Albans (Daisy Cooper) the opportunity to have a debate about this, that might be the very occasion. Perhaps my hon. Friend will agree to be my seconder in such a debate—what a humbling experience that would be for me and an elevating one for him. I hope we will do that on another occasion and we can indeed explore why so many people take for granted the existence of natural rights, as though they spring from the ether. As a Christian, of course I could not possibly take that view, but now is not the time to get into that discussion.

On the specifics of the amendment, my hon. Friend makes a belt-and-braces case, as I said, for a notwithstanding clause. The shadow Minister made the point that that was fundamentally disagreeable and made a constitutional argument against the notwithstanding clause per se. However, he also went on to say that he believed the Government were right, or were likely to be right, in asserting that they were clear that, in any case, this legislation did not contradict any existing rights legislation. We heard that today from the Secretary of State and again subsequently in the debate: the Government do not feel that the proposed legislation is likely to be successfully challenged, as my hon. Friend suggested it might. We have to assume that the Government have taken legal advice to make that claim.

[Nick Thomas-Symonds]

I should make one thing clear: obviously, I have not seen the legal advice the Government are relying on, which I am sure they have sought, quite appropriately. I merely point out that that is the Government’s view and that is what the Secretary of State has put in the Bill. On that basis, article 7 was not engaged—I want to make that point clear to the right hon. Member for South Holland and The Deepings (Sir John Hayes).

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[Sir John Hayes]

I would not have wanted to suggest anything other than that. The hon. Gentleman was very clear that he had heard what the Government said about having taken that advice and their confidence that a legal challenge would not succeed on that basis. My hon. Friend the Member for Stone may be more sceptical than others about that, but it is important to point out that the Government have made it clear that further legislation on counter-terrorism will be forthcoming. That legislation might in itself, on a primary basis, revisit the issue of how counter-terrorism measures interface with and may be contradicted by existing legislation. That would be a very fundamental debate, because of course it will oblige the consideration of exactly the kinds of points that he made. On that basis, I am happy to go with the Minister. Notwithstanding my temptation to follow the example of my esteemed hon. Friend the Member for Stone, I am happy, like the shadow Minister, to err on the side of the Government and to say that if they have taken legal advice, with the further opportunity to revisit these matters in the primary legislation that we hear will be speeding its way to the House, I am prepared to concede the argument about rights.

[Sir William Cash]

Will my right hon. Friend give way?

[Sir John Hayes]

My hon. Friend is going to try to persuade me not to.

[Sir William Cash]

My right hon. Friend will accept that this is primary legislation and furthermore that I have already said I am looking forward to a proper discussion about this in the future, with a view to getting it right, because the object of the Bill is to prevent people from being killed on the streets of this country.

[Sir John Hayes]

I am talking about the murderous intent of people I described earlier as wicked. I use that word advisedly: not all these people are mentally disturbed. Some may be, and we know from evidence that some are, but not all. Crime is not an illness to be treated; it is a malevolent choice, an act of wickedness, and wickedness is entirely different from mental illness. I know it is difficult for some to grasp that, but it is important to emphasise it.

[Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)]

The right hon. Gentleman is making a very good point. Of course, if an individual were mentally disordered, the pathway for their rehabilitation and punishment would be through a secure hospital, rather than prison, which would deal with that matter.

[Sir John Hayes]

There are well-established ways of differentiating people in those terms, different ways of dealing with them in law, different ways of dealing with them once convicted, and different ways of dealing with them in the community. The psychologists and psychiatrists associated with the probation service and the Prison Service are well-accustomed to that differentiation, but in the public debate we need to be bold and brave enough to say that there are some very wicked people who want to do wicked things, and it is our job not only to deal with those things by anticipating, deterring and punishing them, but to reinforce public faith in the rule of law by saying so. This is an opportunity to do so as the Bill gives that life.

The second amendment is the one proposed by the shadow Minister. Again, I have great sympathy with it. All legislation relating to such matters benefits from pre and post-legislative scrutiny, both because we need to get it right, for the obvious reasons we have debated—its salience, its significance, its importance—and because, in order to build the consensus necessary across the House to proceed in a way that maintains public faith, pre and post-legislative scrutiny is important. As recognised by all the contributors to this debate, the emergency we face is such that that has not been possible on this occasion. I would resist the shadow Minister’s amendment, not because I do not believe in the principle or the sentiments behind it but because there is a very good case for the Select Committees—notably the Home Affairs Select Committee and the Intelligence and Security Committee—to look at this matter once the Bill has become an Act. I would be surprised if they did not. I know the Minister in his winding-up speech will—I will not say “invite that kind of scrutiny”, as I am not sure it is appropriate for a Minister to ask a Select Committee to investigate or scrutinise the Government—want to say that he would be surprised if they did not. That kind of reassurance would give great comfort to the House in measuring the effect of this important legislation.

[Wera Hobhouse (Bath) (LD)]

We are having a very interesting and mature debate about getting this right, and of course it is paramount that we make sure the public are safe, but I do not understand what speaks against a review to make sure we get it right. Even if other legislation comes further down the line, why not have that double security?

[Sir John Hayes]

We have well-established mechanisms, of the kind I have just described, for doing exactly that. Sometimes the Government build a review mechanism into legislation, but much more often the Committees of this House designed for that purpose consider the effectiveness of what the Government do and how legislation is working. Our Select Committee structure is now long established in the House—even longer established than my hon. Friend the Member for Stone—and fulfils that function well. Particularly in respect of legislation relating to terrorism, the Intelligence and Security Committee has, time and again, played an important role in considering these matters, reflecting, reporting, and influencing Government policy, as I know from my time in the Home Office. So I think that there is well-established practice. If it ain’t broke, why fix it?

[Daisy Cooper]

The issue is not just that there should be a review, but who should conduct that review. The right hon. Gentleman has talked about various Select Committees, which, as we know, have a very broad workload. Does he agree that it is important to ensure that there is an independent review, conducted on our behalf by someone who is independent of the House and has experience in relation to the sentencing of terrorists?

[Sir John Hayes]

We do, in fact, have an independent reviewer of terrorism legislation. In that context, I was privileged to work with Lord Carlile—a former Liberal Democrat Member of this House, by the way. So that role exists, but I do not want to underestimate the significance or value of the Committees of this House in doing their job. The ISC in particular is a well-respected Committee of the House, which has a very strong track record of looking at these matters empirically and advising accordingly. My argument is not that we should not have that kind of scrutiny; ideally, it would have been a precursor to this legislation, but we should indeed consider allowing it through the mechanisms that I have described. I invite the Minister to embrace the spirit in which I have advanced my argument.

The third and final amendment that we have heard ably articulated during our considerations this afternoon is the one in the name of my right hon. Friend the Member for New Forest West (Sir Desmond Swayne). Again, I am extremely sympathetic to the purpose of the amendment. Indeed, I might even go further, and say that “nine-tenths” is too modest. However, while my right hon. Friend’s amendment is welcome and adds pressure, if I might put it that way—he said “prodding” rather than “probing”, and I have added a third “p”, “pressure”, because I know that alliteration is dear to his heart—given that the Government have made crystal clear that in forthcoming legislation they will look at three matters, minimum sentences, maximum sentences and mandatory sentences, much of what he desires should form part of that further Government policy and practice. I hope that we can increase minimum sentences, that we can increase maximum sentences, and that we can tie to that—as the Government have said they will, as I note from comments made in the statement by the Secretary of State following the recent terrorist outrage—

[Sir Greg Knight]

Will my right hon. Friend give way?

[Sir John Hayes]

I will just finish my sentence, and then I will give way happily to my right hon. and distinguished Friend.

The Government have said, and the Secretary of State was clear about it in the statement a few days ago, that tied to those three provisions will be the end of early release for certain kinds of prisoner. I now happily give way to my right hon. Friend before I move to my exciting peroration.

[Sir Greg Knight]

I am grateful to my right hon. Friend. Does he not think that whatever scheme is ultimately settled upon, there needs to remain some incentive for someone who is in prison to behave him or herself?

[Sir John Hayes]

I note that my right hon. Friend was preoccupied with urgent meetings when I spoke earlier, but if he reads the Hansard report of my earlier contribution, he will see that I am on exactly the same page as him, not for the first time. He is absolutely right that parole has historically always been considered on the basis of an assessment of both risk and worthiness. “Good behaviour” is the term that was once routinely used in respect of parole. When people have proved, through how they behave in prison, that they no longer pose a risk to the public and that they deserve to be released early, they should be. The problem with the current arrangement is the automatic nature of early release, and I resist that per se, not just in respect of terrorist prisoners but more widely. The public would be outraged if they knew just how many people have been released early, including terrorists. Enough is enough; now the time to put an end to that. This is the beginning of it, and I happily support this legislation.

[Mr Deputy Speaker (Mr Nigel Evans)]

I call Nick Thomas- Symonds.

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[Chris Philp]

We will consider all terrorist offenders as part of the review. Of course, the sentencing provisions I just described would not be appropriate for all terror offenders—just the most serious—but I assure my hon. Friend that we will be considering the totality of terror offending. Of course, the Streatham offender had committed one of the offences that my hon. Friend just described—possession of terrorist material—so we must be mindful that even when someone commits an offence that, on the face of it, is at the less serious end of the offending spectrum, they can none the less go on to do quite serious things. The Government are extremely mindful of that.

[Sir John Hayes]

There are two points to be made in respect of what the Minister has just said. First, the vast majority of people convicted under terrorism legislation are sentenced to between one and 20 years. Now, he is talking about “the most serious”. What does he mean by “the most serious”? Secondly, a large number of people are convicted for terrorism-related offences under non-terrorism legislation—hundreds, actually, over the years. Will they be included in these considerations?

[Chris Philp]

I thank my right hon. Friend for his question. In relation to the second part of it, terrorist-related offences do form part of this Bill. Part 2 of proposed new schedule 19ZA to the Criminal Justice Act 2003, which is found in schedule 1 to this Bill, covers terrorist-related offences under the Counter-Terrorism Act 2008 and lists the various direct offences, including manslaughter, culpable homicide and kidnapping, that are terrorist-related offences. Such offences are, therefore, in the scope of this Bill, and we will carefully consider the implications for the counter-terrorism Bill that we will bring forward in due course.

Turning to the level of the severity of offending, as I said to my hon. Friend the Member for Cheltenham (Alex Chalk), we will review all types of offending, so the whole spectrum will be in scope. As for how we define that “most serious” cohort, the Government are currently thinking quite carefully about the definition. I do not want to give my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) a definition today, because that will be a matter for the counter-terrorism Bill, but we are thinking about question extremely carefully, and the House will be able to debate it fully in due course.

The shadow Minister, the hon. Member for Torfaen (Nick Thomas-Symonds), asked about a review of the effectiveness of the deradicalisation agenda. I agree that the review is critical, and several Members raised it on Second Reading. We are setting up a new counter-terrorism programmes and interventions centre within the prisons and probation service that will look specifically at the de-radicalisation problem. We intend to publish further research and reports in the usual way, and I expect full scrutiny from Members. As my right hon. Friend the Member for South Holland and The Deepings said in his speech, we will fully embrace scrutiny of that description, and I would be surprised—my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) is not in his place—if the Justice Committee did not look at this area in due course. I accept the point made by my right hon. Friend the Member for South Holland and The Deepings that proper and deep scrutiny of this area is needed, because the de-radicalisation question is so important.