Counter-Terrorism and Sentencing Bill

John Hayes Excerpts

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

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

We conduct this debate at a time when we are fighting a virus—an invisible enemy—and we are told perpetually that the virus might mutate, as viruses are inclined to do. Of course, terrorism mutates, too: terrorism is not a static thing; it metamorphosises, both in character and in method. That is precisely what has occurred as we have gone about fighting the prevailing terrorist threat in this country. It makes the challenge of counter-terrorism acute, because countering something is usually about anticipating and predicting what might happen next.

As terrorism metamorphosises and becomes less predictable, it becomes increasingly hard to counter. That is precisely what has occurred in this country and in other countries that have suffered the effects of terrorism in recent years. Terrorists have become more adaptable and more flexible. Their methodology has changed, and a key part of that has been the use of modern communications in the recruitment, indoctrination and radicalisation of terrorists, particularly using the internet.

I wish to talk about the character of that radicalisation. It is much like the kind of grooming with which we are tragically familiar in respect of children who are drawn towards paedophiles. People are groomed on the internet, and the method is disarmingly and shockingly similar. A lonely individual will be identified and told that at last they have a friend. That person will not reveal—indeed, will conceal—any connection to an extremist cause. Gradually, over time, that individual will be turned into the kind of person who will do almost anything for a cause and for their friends. That is made much easier in the modern age: the character of the way we communicate has altered, so this will happen in people’s homes, in their bedrooms, perhaps unknown to their family, certainly unknown to others and, of course, by definition therefore unknown to the security services and those who might do something about it.

Because of all that, our response has constantly to be reviewed, which is precisely what the Government are in the business of doing, and that is why over the years, including the time that I was the Minister responsible, the Government have looked again at whether they have the mechanisms in place and the resources and powers necessary to deal with the changed threat. The Bill goes about that in a number of ways, and I wish to draw out some particular aspects of it for closer consideration, if I may.

On the issue of TPIMs, they are always a contentious matter, and indeed it was a contentious matter in the days of control orders, which some of us will remember, under a previous Government of a different colour. It is vital that we use the powers that we have to restrict the activities of those who might do harm. The question becomes where we fix the bar. The Bill lowers the bar and, in my judgment, rightly so.

Perhaps I ought to admit that I was not a particularly vehement critic—in fact, I was not a critic at all, so I am understating it a bit—of control orders and the methods used by a previous Government. I do not know if it is quite polite to say that, but I am sure it will please one or two Members on the other side of the Chamber—although I am not sure it will please too many on the Front Bench. I saw the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) in her place and my remarks were half directed towards her. The right hon. Lady made the point that in changing the bar—in altering the criteria—it is right that we do so with care and that there is appropriate scrutiny.

I heard and read the remarks of the independent reviewer, but I simply add another point, which in a way mitigates the counterargument—if I can put it in those terms—and that is on the use of polygraphs, which have been used in other countries, particularly the United States. I am not making any great claim for them, and certainly no greater claim than the Government are, but it seems to me that testing the process of deradicalisation, assessing how far it has gone, and gauging whether someone has changed or simply seems to have changed, is vital as we gauge what should happen if they are not incarcerated—what should happen once they are out of prison and they are not in a secure location. The Government are right to explore that in the Bill. I suppose that one would say in truth that it is a work in progress. We, as a Parliament, as well as the Government, will have to consider how that goes. I know the Select Committee will do that in due course, as my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) mentioned. But mindful of that determination, illustrated by the provision in this legislation to look carefully at the character of the effectiveness of de-radicalisation, it is perfectly reasonable to introduce the changed measures on TPIMs.

[Mr Lammy]

rose—

[Sir John Hayes]

I will give way to the right hon. Gentleman and, in doing so, apologise for not being here for his opening remarks.

[Mr Lammy]

I am grateful to the right hon. Gentleman for giving way. On the issue of polygraphs, does he note that the independent reviewer also says that there is an absence in the Bill as to how they will be used? Are they to be used against high-risk offenders, or very high-risk offenders, or are they to be used against low-risk offenders to assess their tendency to re-offend or offend?

[Sir John Hayes]

I should reveal to the House, for those who were not here yesterday, that I had a charming exchange with the right hon. Gentleman, where I described him as a “dear friend” and he described me as a “kind of friend”. I was rather slighted actually, but he made up for it later by saying that it was offered in good humour, and I took it in the same spirit, I have to say.

The right hon. Gentleman is right. One of the things that is important about debates on terrorism in this House is that they do not follow narrow party lines. We try to build consensus, as we face common threats and shared challenges. He is right. Rather like Prevent, we do need to be scrupulous about analysing effectiveness. It is right that the Government should do that and, again, without putting words into the mouth of my hon. Friend the Member for Bromley and Chislehurst, still less provoking action on his behalf, the Select Committee will look at that, together, I imagine, with the Home Affairs Committee and others. There are all kinds of bodies in this august establishment that will play a role in ensuring that the application of what is a new development is effective. So I do not think that that is an unreasonable point, and I am more than happy, in the spirit that I have just described, to amplify it. However, I think that the Government are on the right track and I praise the Lord Chancellor for this in recognising that the bar did need to be lowered for TPIMs.

The other point that I want to make is in relation to Prevent and Channel. This is a complex area because, as I described, the character of terrorism is complex, as is our response to it. I am a pretty robust supporter of Prevent. It has critics; it has always had critics. It is certainly right that we have good oversight of Prevent—I tried to bring that about while I was the Minister and I do not think that that was always the case in the past—and that we measure its effect, too. I am not sure that that was always done as well as it could have been, and I am speaking about Governments of all colours here.

Having met Prevent co-ordinators and seen their work at first hand in various parts of the country, I know how much difference they make. It is not just about Islamist terrorism, although I suppose that is what most people will think that we are focused on today. It is much more broad than that. It is identifying problems of all kinds. I was proud, as the Minister, to introduce the Prevent duty, as some here will know, which engaged the various public bodies that are at the frontline of radicalisation—I am thinking of health professionals, schools and others—and also engaged communities and provided them not only with a responsibility, but, I hope, extra support in identifying those people, particularly young people, as it is often young people who are corrupted in this way, and in trying to act before they did something horrible, dreadful or shocking. I do support Prevent and, while I think that it should be reviewed, I also support the provision in the Bill to extend the review process. I make no comment on who should do it—that is for others to comment on—but I note that the Bill extends it and I think that is the right thing to do.

I come to the part of my speech that will perhaps be more challenging for some here—I hope not too challenging. None the less, I would rather be straight- forward, as I always try to be. It is about the issue of sentencing. Public order and faith in the rule of law depend on popular confidence in the justice system. The justice system is in part retributive. We have fallen into the trap of believing that the only purpose of criminal justice is to rehabilitate. Of course, that is a purpose—in the case of terrorism, as I have made clear, de-radicalisation is crucial—but public sympathy for all we do, and all our security and intelligence services and the police do, depends on people believing that justice is being done, and is being seen to be done. That is hard to reconcile with early release at all.

If we spoke to our constituents about early release, I suspect a very substantial number would find it pretty hard to cope with in the case of serious crime at all—or what they perceive as serious crime—and all the more so with terrorism. I think our constituents, whether they are in South Holland and The Deepings or Tottenham, or any other part of this kingdom, and regardless from which community they come, would be surprised if they knew we were releasing so many people who have committed those kinds of offences.

I am going to draw my remarks to a conclusion shortly—I can see you, with typical charm, combined with authority, moving to the edge of your chair, Madam Deputy Speaker. I particularly welcome the Government’s approach to early release. It seems to me that the various provisions in the Bill that increase minimum sentences and provide the courts with the ability to look again at the tariff, and in some cases, increase maximum sentences, are entirely in tune with popular sentiment and the threat we face.

Let me end by saying this: the Bill, in my judgment, is apposite and appropriate. We are speaking of those whose purpose is to murder and maim—let us be under no illusion and have no doubt about that—and in the struggle for civilised life, in the cause of virtue, on our side there can be no fear, no guilt and no doubt.

[Madam Deputy Speaker (Dame Eleanor Laing)]

Before we move on, we will now have to have a time limit. It will initially be 10 minutes, but I warn hon. Members that that is likely to reduce significantly in the near future.

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[Gavin Robinson (Belfast East) (DUP)]

It is a pleasure to follow the hon. Member for Stockton South (Matt Vickers) and to hear his remarks, and it is a pleasure to participate in this debate.

At the outset, I place on record my appreciation for the considerable and considered engagement from the Minister. I have appreciated the discussions that we have had and that he has taken on board the concerns that we have expressed. I appreciate that engagement. I have also appreciated the engagement I have had with the Minister for Justice in Northern Ireland, Naomi Long. In listing and highlighting the successes and good engagement, it would be wrong of me not to place on record my congratulations to the hon. Member for St Helens North (Conor McGinn) on assuming a shadow Justice role. He and I come from opposite ends of Ulster and from different perspectives within Ulster, but it is great to see him assume the role and we look forward to his contribution later on.

There has been a lot of focus in this debate on terrorism in England and terrorism coming from Islamic and far-right extremism. There have been a number of references to Northern Ireland, but it is always good to commence a contribution such as this by reminding Members that I have been in this place for a short five years, and within that five-year period I have seen three constituents of mine murdered by terrorists. Often in this Chamber, it is easy to believe that the issues that plagued our society in Northern Ireland have gone away, but they have not. The threat to our society in Northern Ireland remains substantial. It is severe.

In those three years, Kevin McGuigan was shot dead in 2015 by mainstream republicans. Adrian Ismay, a serving prison officer, was killed by an under-car booby trap bomb in 2016 by a dissident republican, Christopher Robinson. Last year, Ian Ogle was stabbed to death by loyalist terrorists at the end of his street in my constituency.

During the course of those five years, many more have been targeted. I have had serving police officers who have survived. Many others within our communities feel under the cosh of paramilitaries who have not moved on and who continue to seek control. It is on that basis and that basis alone that our party would always support the Bill. Our party will support its Second Reading, but I will raise some issues.

[Sir John Hayes]

I am extremely grateful to the hon. Gentleman for giving way. He will know, as he said, that the Bill grows the capacity of the system to deliver extended sentences and cuts early release, but will he invite the Minister to consider the greater use of whole-life sentences, where a judge makes it clear at the time of sentencing that the person should never be released, because I certainly would?

[Gavin Robinson]

I am grateful for the contribution. I will touch on sentencing in a moment. I am not sure if the clock gets adjusted for that intervention; I was happy to receive it, but I would be even happier to receive the additional time.

I say to the Minister for reference—he will know why I raise this—that I was pleased to see, in paragraph 9 of the explanatory notes, the reference to counter-terrorism legislation being a reserved matter. He will understand the importance of why I raise that and go no further.

On TPIMs, it is important to say that the Law Society has raised concerns about control orders, how they were brought to an end, how there was a difficulty in engagement with human rights legislation and how the imposition of a control order may not have been proportionate, given the risk of the individual, which is why they were changed. It has raised concerns that the changes to TPIMs will take us back to that control order phase. It is for the Minister, in summing up, to assuage those concerns and to outline how the changes can proceed properly.

On sentencing, I am delighted that Northern Ireland is now included in the provisions. When we considered the Sentencing Act 2020 in February, I was not only concerned that Northern Ireland was left out, but somewhat perplexed by the reason given that article 7 and compliance issues with human rights legislation did not apply in England and Wales, but somehow did in Northern Ireland. We do not need to pursue that, because the Government have changed their position. I still have not got a satisfactory explanation, but we do not need one; I am grateful for the conclusion. It will engage some operative issues in Northern Ireland, some of which I know the hon. Member for North Down (Stephen Farry) wants to focus on as well. I think it can be appropriately defended and it is appropriate in the circumstances that we are included.

On a wider point that the Minister will not like, I am pleased that the Government are now engaging with the notion of mandatory minimums. I know that the Minister will indicate that that is not a change in policy generally and that mandatory minimums will not become the norm, but it is an important step forward. I have always railed against the view that there cannot be a mandatory minimum for any crime because it interferes with judicial independence. It is not our role to determine what a judge will ultimately decide, but it is our role as legislators to outline what we think any given offence should attract by way of a sentence, so I am pleased to see that.

On age, concerns have been raised about the application of the legislation, particularly to minors. I will not engage in the debate about the age of criminal responsibility, which is not for today and is not going to change. There are concerns, however, that young children—I say children and teenagers; minors—who are encouraged, abused or coerced into carrying out activity on behalf of older individuals who know better and who will not get caught themselves, will be considered under terrorism legislation. I ask the Minister whether in proposed new article 13A(6) of the Criminal Justice (Northern Ireland) Order 2008, inserted by clause 7, the requirement for the Department of Justice in Northern Ireland to designate for anyone under the age of 21 at least injects a bit of flexibility where our local devolved Department will have the opportunity to decide whether it will apply.

I am grateful for the way in which the polygraph section is constructed in the legislation, in that it is permissible but not forced on us in Northern Ireland. I see no practical benefit in it and I would not encourage our justice system in Northern Ireland to engage in polygraph testing. I am concerned about how it is creeping in continually, first for sex offenders on licence, then in the Domestic Abuse Bill for those on licence at the start of this year, and now in counter-terrorism legislation. It is easy to pick those three, because very few people will say, “I want to stand up for or defend sex offenders, domestic abusers or terrorists on licence”, but I still believe in the rule of law and I still have fundamental objections about the rigidity and the validity of polygraph tests. I do not think they are safe or secure.

When I consider offenders of those three offences, they tend to be the least likely to live in the real world and understand the difference between right and wrong or truth and untruth. They are probably the least likely to be susceptible to polygraph testing. We do not need Jeremy Kyle-style show trials in this country. If there are to be real-world consequences for breach of licence, we need to at least assess them robustly and in a way in which we can defend.

My time has elapsed. I look forward to engaging further with the Minister on these considered issues. In giving support on Second Reading, I look for further progress.

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[Christine Jardine (Edinburgh West) (LD)]

It is a pleasure to follow the hon. Member for Sevenoaks (Laura Trott). I will not take up much of the House’s time.

I am sure that all of us in this place wish that this Bill was not necessary and that we could be sure that our towns and cities will never again have to fear attacks like the horrors of Fishmongers’ Hall last year, Streatham earlier this year, the Manchester Arena bombing, and the attack on Parliament, which was referred to earlier. All of us want to better protect the public and to somehow find the time and the means to rehabilitate those who want to visit that violence on our society, and to persuade them of a better way. Although I wholeheartedly agree with and support that motive and aim, I cannot agree that parts of this Bill will be effective in doing that.

As the hon. Lady said, keeping people in prison for longer will not de-radicalise them. It may, in fact, radicalise them further or give them the opportunity to radicalise others in prison. Keeping them off the streets for longer will certainly succeed in keeping them off the streets, but will that actually be effective if, in fact, they become more radicalised or radicalise others so that they are even more dangerous when they come out?

There are other flaws in that approach. If we are to prevent people from reoffending after they leave prison and encourage them back on to a lawful path away from terrorism, they need to feel the security of a home and a job. However, the release on licence, which is vital to that, will be shortened by this Bill. Similarly, probation is currently under-resourced, and it would be undermined by the Bill in its ability to de-radicalise.

[Sir John Hayes]

I do not know the answer to this, but I am extremely doubtful whether there is any reliable correlation in respect of the known terrorists that have committed such awful crimes in this country over recent years and unemployment or their family situation in terms of homes; in fact, I rather suspect the opposite. We need to be careful about making such correlations unless there is really strong evidence to suggest that they are meaningful.

[Christine Jardine]

I take the right hon. Gentleman’s point, but I was going to come on to a different correlation. Surely, we want to stop terrorism happening in the first place. Longer sentences only happen after the fact. Surely, what we want to do in this country is root out of the causes of terrorism—to make people feel secure, to give young people an alternative, to keep them away from radicalisation and, if they are in prison for another reason, to ensure that they are not radicalised by someone who is in there on a long sentence and has the ability to radicalise them.

I believe that the key is reaching young people to prevent them from going down the wrong route in the first place. That is why I believe that we have to strengthen the licensing system, strengthen probation and look at ways of ensuring that our young people, whether they get into trouble or not, have the security of a job and a way of seeing their future positively. That way, we can identify those who might go on to threaten our way of life. We should work with the education system and agencies. We should tackle inequalities. Longer sentencing will do none of that.

There is also a dangerous assumption that one size fits all. As in other areas, that cannot be the case. It is vital that we recognise in the way we proceed that there is a different dynamic in Northern Ireland. In clause 30, there may be an implication that people already serving sentences will have their terms changed retrospectively and will have grounds for challenge at the European Court of Human Rights. We have to be very careful how we proceed.

Although we all desire a way of limiting the threat of terrorism and de-radicalising our young people, simply acting with more force—longer sentences—after the fact will not be enough. We have to get to the root cause first.