Terrorist Offenders (Restriction of Early Release) Bill

John Hayes Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 12th February 2020 Commons Chamber

[Robert Buckland]

My hon. Friend is right to remind the House that there is no power to strike down the primary legislation. I am afraid that I will not indulge him in a direct answer as to the nature of advice that may or may not have been tendered, and he knows the reasons why. However, I reassure him that all the proper mechanisms have been employed and engaged in the preparation of the Bill, and that on the basis of all the information received, I was able—with high certainty—to make the declaration on the frontispiece.

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

My right hon. and learned Friend will remember that we worked together on these matters when I was in the Government. He is right to speak about the metamorphosis of terrorism. Will he confirm—indeed, these provisions underpin this—that we must never let the persistent and perverse advocacy of the rights of murderous individuals compromise either the work of our security services or public faith in the rule of law?

[Robert Buckland]

My right hon. Friend speaks with considerable experience, as we worked together on the Bill that became the Regulation of Investigatory Powers Act 2000, which rightly struck the balance between the need to protect the public and the need to make sure that the rule of law was respected.

That gives me a chance to warm to a theme that I make no apology—

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[Nick Thomas-Symonds]

Where I can agree to a degree is that I certainly accept that there are people with mental health problems in prison who, frankly, should not be. The right hon. Gentleman refers, I think, to secure psychiatric units, where there is also a shortage of places. That is another issue that the Government need to accept on the basis of the past 10 years.

I heard what the Justice Secretary said about specialist officers, particularly those in de-radicalisation programmes, but we are tolerating a rise in physical attacks on our prison staff. That cannot be fair to them and it will not produce a constructive environment in our prisons. From September 2018-19, there were 33,222 assaults, including 23,592 prisoner-on-prisoner assaults and 10,059 assaults on staff. Levels of self-harm were also the highest ever recorded.

The Bill, I am sure the Justice Secretary will argue, will deal with the immediate crisis of the next few weeks, but he must plan ahead. The crisis in our criminal justice system does not end with our prisons. We also need the best possible probation services and the best possible supervision. In 2014, the Government part-privatised the probation service. I do not think it is unfair to say that it was an absolute disaster. The Government had more than 150,000 people supervised by private community rehabilitation companies and just left the high-risk offenders to be managed by the National Probation Service. The chief inspector of probation, Dame Glenys Stacey, said last year:

“The system which sees private firms monitor criminals serving community sentences is ‘irredeemably flawed’”.

She is right. No wonder the right hon. and learned Gentleman’s predecessor had to announce last year that the supervision of all offenders on probation in England and Wales was being put back into the public sector.

[Sir John Hayes]

The hon. Gentleman is making a point about capacity, and that seems to be reasonable. Early release—scores of convicted terrorists have been released early since 2013—adds to demand on capacity and he is making a case that we should address that. On that basis, I am sure he would want to support the Secretary of State in taking that pressure away, building morale and, as he described, allowing the police to exercise capacity more effectively.

[Nick Thomas-Symonds]

Well, yes. I have made absolutely clear my support for the measures before us today. My point is simply this: today we will deal with an immediate crisis. What the Bill will not do is deal with the broader and deeper problems we have that will need to be dealt with in the months and years ahead. The National Audit Office announced that the botched part-privatisation of probation cost the taxpayer nearly £500 million. Frankly, it is time for good sense and consistency in policy making at the Ministry of Justice.

The independent review of the Prevent programme, which I secured in the previous Parliament—I think I debated it with the right hon. Member for South Holland and The Deepings (Sir John Hayes)—has been announced, but there is no reviewer. We are now a year from the point at which the Bill that he and I debated received Royal Assent. Lord Carlile was appointed but resigned before Christmas, because he had already expressed views on the programme, and the Government have hardly shown urgency in appointing a replacement. It is high time that they did. I appreciate that that is not the responsibility of the Justice Secretary, but I am sure he will pass on the message to his Cabinet colleagues that the reviewer must be appointed and the review must begin, take place and make recommendations. Today really must be a day when that focus on rehabilitation comes and we turn the page away from a decade of problems in our criminal justice system.

One of the recommendations made by Mr Acheson was for an independent adviser on counter-terrorism in prisons. I would go further and press the Justice Secretary to provide external scrutiny and assessment of the deradicalisation programmes across our prison estate. In that way, this House can regularly assess the position, and we will not again be in a situation where we are taken by surprise or are responding on the hoof. We cannot tolerate our prisons becoming breeding grounds for extremism, and we need to ask searching questions.

I hope that this emergency legislation will pass without a Division. Alongside it, I hope that the Government will now invest in the very best expertise available in counter-extremism and tackle the crisis in our prisons. It is only by doing that that the Government can truly say they are doing all they can to keep our streets safe, and in that we will be holding them to account.

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[Sir Robert Neill]

I certainly agree that we need a more detailed analysis of the best approach to a threat that continues to change and develop. My hon. Friend is right about that, and it is right that this is a discrete, emergency measure to deal with a specific and urgent problem. We certainly need to look at the way in which we deal with sentencing, the treatment of such individuals and the protection of the public in that context—that is absolutely right. I happen to believe, lest it be hinted otherwise, that that is perfectly capable of being achieved within our continuing adherence to the European convention on human rights and that a series of British court decisions would tend to support that, but my hon. Friend is absolutely right on the broader thrust that there is more work to do in this field. I got the sense that the Government and the Lord Chancellor recognise that, too.

It is right that we should consider the necessity of the Bill. I would have thought that that had been well laid out now. That is one of the principles of the rule of law. Lord Bingham famously set out a number of principles. One should not act in haste unless there is a compelling reason, but the reality of blood being shed on the streets of this country seems a compelling reason to me. The fact that people have been released and then have swiftly, and frequently, seized articles and used them to catastrophic effect seems to make this legislation both necessary and proportionate, so I hope that the House will have no hesitation in supporting it.

One issue that seems to have raised some concern, particularly in legal circles, is whether there is any risk of retrospectivity. I do not seek to see retrospective legislation, and for the reasons that the Lord Chancellor set out I do not believe that that is the case. When I was in practice at the Bar, it was very clear that the prospect of whether early release might occur was not a consideration that any judge should take into account in passing sentence. The principle was, and always has been, that the sentence passed should be commensurate with the gravity and seriousness of the offence and any other legitimate mitigating or aggravating circumstances that the Crown or the defence can put forward. Whether there may or may not be early release thereafter was never regarded as a consideration affecting the penalty.

That is important for the argument that the Bill retrospectively increases the penalty, which I think is a misguided argument in these circumstances. It was often said that the prospect of early release in effect ameliorates the penalty that was passed, rather than anything else. There is a string of authority in both the UK and Strasbourg courts to the effect that the total duration of the penalty is that which is laid down by the court at the time. That is the bit that cannot be changed retrospectively and the legislation does not seek to do that.

[Sir John Hayes]

From his long experience of these things, my hon. Friend is making a cogent argument about the character of penalties. He might want to go further. The problem with the assumption about automatic early release is that it is injurious to the very principle that he set out. Early release has always been part of judicial considerations but on the basis of an assessment of risk, merit and worthiness. Automatic early release runs against those principles.

[Sir Robert Neill]

I understand that point and we can debate it in broader terms when the larger piece of sentencing legislation is introduced, as I understand it will be later in the Session. The purpose of this legislation is effectively to deal with that—as well as moving the release point from half-way to two thirds, the Bill automatically states that there must be consideration by the Parole Board. It is very important that the Parole Board has the resource and expertise to carry out the additional and heavy burden that it must take on. There have been good reforms of the Parole Board since the Worboys case, for example, and in the last Parliament the Justice Committee looked at this and urged changes to the way in which parole operated, which have been acted on. There is movement in the right direction but we must be ever vigilant in making sure that the Parole Board has the resource, which may include more specialist resource.

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[Sir William Cash]

My hon. Friend touches on a point that I raised several years ago, shortly after the infamous, terrible murder of Lee Rigby. On the question of persons returning to this country from ISIS, I told the House that, as far as I was concerned, the issue of their return should be evaluated in accordance with article 8 of the convention on the reduction of statelessness, which makes it clear that a person can be made stateless if they give allegiance to another country—the caliphate could be regarded as such in this context. I accept this is controversial, but the United States, for example, already applies article 8 in that way. If the person in question gives allegiance to another country, by definition they have moved into the zone of treason and have deliberately and voluntarily abdicated their allegiance to this country. I put that on the record because we have to take these matters extremely seriously, and I attempted to make such an amendment to the Counter-Terrorism and Security Act 2015. This is about not just external activities, but internal ones, within our domestic law, so we need to take this incredibly seriously. That is why I am appealing for this longer term assessment of all these questions, including the one my hon. Friend has raised, because it is so important and cannot just be put into a category of “rather extravagant thinking”. This is really serious.

As I said earlier, human life and public safety are much more important than the question of whether the courts may or may not interpret a particular provision in a more “fashionable” judicial interpretation than we ought to expect of our courts. I go further and say that human life is more important than any legal interpretation of human rights, which is why I have tabled my amendments. I imagine that the Committee stage will be pretty truncated, so I am not going to go into this in Committee in the detail that I will now. As this is a Second Reading issue and a matter of principle, let me say that we should include in the Bill, in clause 1, the exclusion of the Human Rights Act 1998. I have something of a history in that respect, but so do the Foreign Secretary and many others, such as the distinguished Martin Howe, QC. We were regarded as highly unfashionable some years ago, but issues of the kind that gravitate around the Bill have drawn attention to the fact that we have to take these matters really seriously. I understand that the Bingham Centre has made a number of representations on the matter, and there are clear indications that there are lawyers of some notoriety, if not distinction, who will seek to overturn the provisions of this Bill by going to the courts. I deplore the fact that they would seek to do so.

I am looking forward to the discussion in the House of Lords on this matter, because there are distinguished lawyers on all sides of the debate in that House, who, with the greatest respect to all of us here in the House of Commons, have been practising at the Bar, have been in the Supreme Court and so on. They will be able to bring to bear the right degree of analysis of the case law, which needs to be looked at carefully in this context.

[Sir John Hayes]

As ever, my hon. Friend is making a compelling case. I suggest to him that this requires a more fundamental review of the characteristic and extent of rights, and how they relate to citizenship, duty, responsibility and the public good. I wonder what he thinks of that.

[Sir William Cash]

That is an extremely important point. As my right hon. Friend knows, I have the greatest respect for his analysis when it moves from not just the law into the broader societal and philosophical questions, which ought to inform opinions made in this House; we should not just treat issues of this kind as if they are somehow matters of semantics. We are dealing with the kind of society that we want, and the impact of the terrorism, and murderous and dangerous behaviour, of the perpetrators of these crimes our own constituents. A most recent case involved somebody who travelled from Stafford down to London, and therefore was a matter of immediate concern to my constituents, because he had been living there for some time. The manner in which he was allowed to leave to come down to London and commit murder in Fishmongers’ Hall and in the vicinity is a lesson for us all.

I now want to deal with the retrospectivity elements of this Bill, which relate to my general concern to tie down this issue in the longer term. The Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), and I had an exchange about a number of cases. I am well aware that this is not the place for us to attempt to make an assumption that we are able to treat this Chamber as though it is a court of law, although we are, of course, the High Court of Parliament, but that is to miss the point; the fact is that proper analysis of the case law has to be conducted. Some of that has already been done in blogging and in some pamphlets, and I am expecting the House of Lords to home in on it effectively when the Bill gets to that House, although it will not have much time.

We know that Ministers have been warned about the likelihood of a legal battle; despite the assertions of the Government that the Bill is compatible with article 7 of the European convention on human rights—for reasons that I will explain, I am sympathetic to their view—there are those who will argue that it is not. I can see this coming, so my amendment would remove any chance that there could be that kind of legal battle on the applicability of the Human Rights Act to this Bill. My amendment would insert the words

“notwithstanding the Human Rights Act 1998”.

That is a belt-and-braces approach, and it is what I am seeking. I am not going to move this amendment in Committee with any intention of dividing the Committee of the whole House on it; I think the matter needs further consideration outside this House, and I look to the House of Lords for some indication of views.

My argument goes like this: this Bill is compatible with article 7. No one has read it out so far, so I will do so. It states:

“No one shall be held guilty of any criminal offence”—

for conduct —

“which did not constitute a criminal offence…at the time when it was committed.”

This Bill does not purport to create a new criminal offence. Rather, it seeks to prevent terrorists convicted by UK courts on the basis of offences that existed prior to the Bill from having automatic early release. I have already made my point about the length of time indicated. Furthermore, the explanatory notes state:

“The Bill does not retrospectively alter a serving offender’s sentence as imposed by the court, or alter the maximum penalties for offences.”

They state that the Bill is concerned with the “administration of a sentence”. I still believe, despite the exchanges I had with the Chairman of the Justice Committee, that the del Río Prada case could well still come into play there. I fear that it might be used effectively against the Bill. So my conclusion on the question of a textual interpretation of article 7 of the ECHR indicates that is not incompatible with this Bill. However, Parliament does have the power to legislate retrospectively—

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

Except for love infused by hope, fear is the most vivid of emotions. Love is perhaps more readily remembered, but fear is more easily envisaged, because fear in itself is the imagining of horror that might happen. That is why provoking fear has been the instrument of bullies, thugs, despots and torturers through the ages—to terrorise, hurt, harm, maim and murder is designed to intimidate each and all of us, and to undermine the certainty of order that underpins social solidarity.

Today the provisions we debate are designed to revisit the means of re-establishing order, and to reassure the virtuous that the wicked will not succeed. The Secretary of State described in his opening remarks the metamorphosis of terrorism—the fact that it is constantly changing, and so becoming harder to counter. There are obvious changes: the adaptability—the flexibility—of terrorists, and the instruments used to terrorise are altering. The spontaneity of terrorism is altering, too. The business of the security services and the police, and the legislation that underpins their business, must be just as flexible—must adapt to meet the changing character of terrorism.

The security services and the police, as I learned when I was the Security Minister, constantly refine what they do to anticipate and counter fanaticism, but early release is bound to undermine their morale, as well as to stretch their capacity. The number of subjects of interest, leaving aside those that have been released from prison early, already presents an extraordinary challenge to our security services and police, as we know from various debates that we have had and various reports on this matter, about which time prevents me from going into detail. Simultaneously, public faith in the rule of law is critical, and I suspect that most of our constituents would be amazed that we have released so many terrorist convicts early. I think they would regard that with disbelief. That we have allowed formulaic leniency to characterise the treatment of convicted terrorists is extraordinary, and in my judgment unacceptable.

It is not as if there had not been warnings, as the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) said. In 2018, signals were sent that this would have the kind of consequences that we have now met with horror. The Government are acting decisively in response, to reinforce the legislative powers necessary to allow the police and the security services to protect the public. Public safety, as has been said repeatedly, is the heart of this business.

I suspect that, as the Chair of the Justice Committee said, the enhanced role for parole boards will require greater expertise. The measurement of risk will also change, as the character of terrorism and our response to it changes. We need to be able to assess risk, as we always have, in respect of early release, for parole is about measurement of risk—it always has been—but it is also rooted in the idea that someone who is going to be released early deserves to be released, and will not create further harm and danger. I believe that the rehabilitative aspect of criminal justice is accepted across the Chamber, but the retributive aspect of justice should be accepted too. This is also about punishment—about punishing guilty people who have, through due process, been found to have done the most awful, horrendous, things, and we should not be ashamed to say that.

As you know, Madam Deputy Speaker, I was pleased and proud, as Security Minister, to guide the Investigatory Powers Bill—the 2016 Act—through the House. That Bill struck a balance between the protection of the public and the necessary safeguards that should always be applied when we are limiting people’s freedoms—maintaining the tenets of a free society and defending those freedoms from the anarchy of fear and disorder.

Since that time, many people have been released early. I shall be brief because I am anxious to allow others to contribute, but before I conclude I shall look at the numbers. I consulted the Library, as good Members of this House do, and was surprised and disappointed to find that since 2013 something like 163 convicted terrorists had been released early. By the way, I excluded from my considerations anyone who had been serving a sentence of less than a year, so those are just the people serving a sentence of somewhere between 12 months and more than four years. Therefore, leaving aside short sentences, the more serious terrorist prisoners had been released in significant numbers. Just imagine the effect on our Security Service and police of having to deal with the consequences of those releases.

Some of those released will have been rehabilitated and deradicalised, but we know that that does not always happen. I strongly support the legislation, which strikes the right balance. Ordered societies are built on the protection and promotion of shared public interest and the defence of the common good. To face down terrorism and the fear that it spawns, and to face up to our responsibility to protect the people we serve, we should support this legislation as it progresses through the House. I anticipate that it will be necessary to challenge those who seek to undermine it on the grounds of advocating the rights of certain people. We in the House of Commons must stand together to defend the common good and promote the national interest.

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[Mr Mahmood]

The right hon. Member speaks from experience of these issues. He is quite right to say that. It is very difficult for those who do not understand religion to put people into places of religious control and support. That is my clear point. We should have proper registration of people who go into these institutions. Anybody who goes into them should be required to have the proper qualifications and certifications, yet we let most people walk in, and we say that they can do this job. We have heard stories of radicalisation being perpetuated in certain prisons by some of the people who have gone into them. It is important that we look at how we move forward.

[Sir John Hayes]

I intervene partly to pay tribute to the hon. Gentleman for the good work that he has done in this field over a considerable time. He points out the difference between Islamism and Islam—a difference too rarely identified by our media, as he says. Perhaps a review of all the Prison Service’s work on the appointment of imams and their work in prisons should be part of the Government’s ongoing plans to address the issue.

[Mr Mahmood]

Again, I concur with the right hon. Member. As for the Government moving forward on this, for the past 10 years we have not paid enough attention to what has gone on. We need to look at this seriously. The two incidents we are considering, as well as others, and the potential release of other prisoners have brought the issue to our attention.

A big functional issue in prison is how we position inmates. The Acheson report looks at segregating these prisoners. How to deradicalise is a really big issue. If we put these prisoners all together, they become a group. If we put them with other prisoners, they radicalise them. We cannot keep prisoners on their own, because human rights law does not allow that. There is no magic wand of deradicalisation. We have to take the issue very seriously. We have to get the right people, with the right understanding. Good work has been done in Indonesia, the United Arab Emirates and Saudi Arabia on ways of deradicalising. We have to learn lessons from how those countries are proceeding, in order to address these issues. We have to go further in looking at those methods, whether they are relevant, and how they relate to what the community wants to do.

We have to look not just at prisons, but at external departments that deal with the issue. We have to consider education, under what licences we allow madrassahs to operate—if they have a licence at all. The only consideration for a local authority in granting permission for a madrassah is whether it would cause traffic congestion. If an applicant clears that hurdle, they can have one. No heed is given to the qualifications of the imam, there is no proper scrutiny of their past, and there are no security checks. Those are very important issues for us to look at in deciding how we move forward.

As for the people we know of, they are the tip of the iceberg. There is still significant radicalisation taking place, and we need to address that in the community. Radicalisation is progressing in prisons because there is a captive audience there. We need to move forward. We need to look at the availability of resources in prisons, because the resources that are required to deal with this problem are quite significant







While we are looking at Islamic extremism, we also need to look at far-right extremism. If this Bill is to apply to terrorists, it must also apply to far-right extremists —it is important that that is said. The contribution of my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) made a lot of sense. I pay tribute to her for the great work that she has done on these issues, including as Chair of the Home Affairs Committee. She deserves commendation for the great balance with which she has worked on these matters. It is important for that work to move forward.

It is also important to look at how we police these issues. As my right hon. Friend said, we need to look again at control orders for when people come out of prison. In the past 10 years, we have forgotten about control orders. We need to get back to that issue, look at what is valid and appropriate, and see how we can move forward. That is hugely important.

I support the Bill because it is necessary for us to move forward with the resources currently available to us, but we need to have a much deeper look at how to resolve this issue for all our communities in the long term.

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[Daisy Cooper (St Albans) (LD)]

I, too, put on record my thanks to the Under-Secretary of State for Justice, the hon. Member for Croydon South (Chris Philp), who has kept me updated in recent days.

In the wake of the two recent terrorist attacks, it is absolutely right that the Government look at the legal framework to decide whether it is adequate. Like the hon. Member for Eastleigh (Paul Holmes), I was caught up in the 7/7 bombing. I was on one of the tube trains behind the one that was blown up at Russell Square, and I remember the unbearable heat that came from the blast. I was also in this place during the Westminster lockdown. The hon. Gentleman is right that many of us have been affected by acts of terrorism, but with respect, many of us nevertheless come to this debate with slightly different views.

This Bill does three things. First, it brings about an end to automatic release and applies that retrospectively. That is overdue, but very welcome. Liberal Democrats have said before, and we say again, that this part of the law is currently wrong, and it is right that this House seeks to change it. The Government are rushing this Bill through to get to Royal Assent before the end of the month and before the scheduled release of other terrorists. However, this part of the Bill alone, on ending automatic release and applying that retrospectively, would achieve the Government’s goal—and, indeed, the priority of all of us to keep the public safe. This part of the Bill alone would stop the release of terrorists without Parole Board agreement. It would be possible to adopt just that part of the Bill for it to be a change in the administration of a sentence in a way that is compatible with the rule of law.

However, the Bill tries to do two other things that, I think it is fair to say, are problematic. The second thing it tries to do is move the point of release from the halfway point to the two-thirds point for future offences. Of course, it is the natural instinct of all of us to have bad people locked up for longer, but who would want somebody locked up for longer if there was evidence that that could in fact make them more radicalised and more dangerous at the point that they are released?

[Sir John Hayes]

That is not an argument about the length of the sentence; that is an argument about how people are dealt with when they are incarcerated.

[Daisy Cooper]

I thank the right hon. Gentleman for that point. Much of the evidence suggests that what helps the deradicalisation process is not only how people are treated when they are incarcerated, but the amount of time they have on licence in order to find a home, rebuild family connections and do all the activity outside prison. There is evidence to suggest that the time on licence can make more of a difference to reducing reoffending rates and deradicalising people.

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[Daisy Cooper]

The hon. Gentleman will recall that, in my opening remarks, I made the point that this was a very overdue change. In fact, we have had many years where we have seen the effects of increased radicalisation in prison simply because of a lack of resources both for our prisons and for our parole service, so he is right to point to that element.

That leads me very nicely to my next point: because of the speed of the passage of the Bill, there is not sufficient opportunity for pre-legislative scrutiny. I would argue that, in the absence of adequate pre-legislative scrutiny, hon. Members should all sign up to a system of post-legislative scrutiny. Others in this debate have called for a review mechanism. The Government say there is other legislation coming down the line, but we know that legislation can slip, so I will finish by asking the Government to think again about this particular point to make sure that we have sufficient post-legislative scrutiny and that this law—

[Sir John Hayes]

I waited to intervene until a point at which I agreed with the hon. Lady, because I thought that was in the spirit of this debate. She is right about the need to review these provisions, but as she said a moment ago, any number of Committees will be able to do that in the course of time. We can move ahead with rapidity to defend the public, and then look at these matters in the round through the processes she has set out.

[Daisy Cooper]

The right hon. Gentleman is right that this legislation will of course be scrutinised in due course, but it is vital and right, because we are moving on with it so quickly, that we write into law a statutory review in one year’s time.

I conclude by saying that there is a danger that Bill will become a law of unintended consequences. In summary, we welcome the end to automatic release and doing so retrospectively—that is a good move—but we have concerns about changing the release point, particularly if that ends up allowing people to be released who are more dangerous than before. There are also questions to answer about the impact on the rule of law in applying retrospectivity to the release point.