Counter-Terrorism and Sentencing Bill

Julian Lewis Excerpts

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

[Robert Buckland]

The hon. Gentleman can be reassured that the whole purpose of this UK-wide legislation is not to discriminate between different types of terrorists. It would be wholly wrong for this legislation, for example, to focus on so-called Islamic terrorism, as opposed to far-right terrorism, the Provisional IRA and irregular republican, or indeed, irregular terrorism of a general nature within Northern Ireland or any other part of the United Kingdom. This is not discriminatory legislation. It is designed to deal with terrorism in all its forms, and I believe that this legislation is also agile when it comes to dealing with and anticipating the enduring challenge of how to manage terrorists in whatever form they might come. As we know, terrorism is evolving and taking different forms all the time.

[Dr Julian Lewis (New Forest East) (Con)]

My right hon. and learned Friend mentions a couple of cases, including Fishmongers’ Hall. Does that not illustrate the great range of problems that have to be addressed? In recent times, was there not a case where someone had to be released even though people were sure he would reoffend at the first opportunity—he did so, and had to be trailed and stopped by an MI5 team—whereas at Fishmongers’ Hall, was the problem not that the person had claimed to be reformed and that there was no reason, apparently, not to release him? It will have to be a very comprehensive piece of legislation to cope with such a wide range of problems.

[Robert Buckland]

I am very grateful to my right hon. Friend, who speaks with experience of these matters. He helps me to outline the point I was about to make about the complex and evolving nature of the threat. He is right to talk about different types of threat: superficial compliance, which we saw, sadly, with regard to Fishmongers’ Hall; and known threat, but with an inability of the authorities, due to the current regime, to manage that within custodial settings, and the paraphernalia, cost and sheer planning that has then to be undertaken to try to deal with and manage the threat in the community.

I must pay tribute to the teams who worked so hard at Streatham to minimise what could have been an even more horrific incident on that Sunday afternoon on Streatham High Road. I well remember looking at the detail of what the teams did that day and being lost in sheer admiration for their bravery and professionalism in dealing with a terrible incident that could have involved very serious loss of life. The work of looking at the detailed facts will go on by way of an independent inquest. We will, of course, look precisely at the outcome of that, and at the serious further offence reviews, which are ongoing but will conclude very shortly. They will help to supplement the excellent work done by Jonathan Hall in his review of MAPPA—multi-agency public protection arrangements.

I was explaining that the announcements we made some months ago were but the first stage of our response. The step-up response to counter-terrorism is very much at the heart of what I and the Government are about. The legislation we are now introducing will ensure that the process for how we at each stage deal with both convicted terrorist offenders and those who pose a concern of becoming terrorist offenders will be strengthened. We are determined to ensure that those who commit serious acts of terror and put members of the public at risk serve sentences that properly reflect the harm they cause.

The Bill will reform the sentences which can be handed down to terror offenders by introducing a new category of sentence. The serious terrorism sentence, for the most serious and dangerous terrorist offenders, will carry a minimum period of 14 years of custody, with an extended licence period of up to 25 years. That sentence will apply to only the most serious and dangerous terrorist offenders who would otherwise receive a life sentence: those who have been found guilty of an offence where there was a high likelihood of causing multiple deaths.

The Bill also introduces further provisions for terrorist offenders who have been assessed to be dangerous, and who have committed a sufficiently serious offence, to spend the entirety of their sentence in custody without the prospect of early release. In addition to spending that full term in prison, the courts will be able to apply longer extended licence periods of up to 10 years for those offenders, so we can continue to supervise them once they are allowed back into the community. Any breach would put them straight back into prison.

In February, I announced that the Government would review sentencing for terrorist offenders, including whether current maximum penalties for terrorist offences were sufficient. Following that review, the Bill proposes to increase the maximum penalty for three specific terrorism offences: first, membership of a proscribed organisation; secondly, supporting a proscribed organisation; and thirdly, attending a place used for terrorist training. The maximum term is currently 10 years, but will be increased to 14, which sends a clear message about how serious the Government consider that type of offending and is consistent with existing penalties for similarly serious terrorist offences.

Another outcome of the review included in the Bill is an amendment to the Counter-Terrorism Act 2008, which will enable the courts to find any offence with a maximum penalty of more than two years to have a terrorist connection. The Independent Reviewer of Terrorism Legislation noted that that would be a useful change. It will give the courts more flexibility to reflect the facts of each case fully in the sentence that they may wish to pass.

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[Mr Lammy]

I am very grateful to my hon. Friend for the interest that he takes in these issues and the seriousness and expertise with which he brings them to the House. He is absolutely right. This is incredibly serious and, unfortunately for us, here in the UK we have a number of groups that are globally connected to very dangerous far-right movements. He will know also that sadly, as has already been indicated by the Chair of the Defence Committee, when we come out of the coronavirus period, partly because of the recession and the tough economic times that are likely to follow, there will be individuals who seek to exploit increased hardship and poverty with very extreme rhetoric. Indeed, sadly, in our own country we can see one particular individual taking to social media to whip up a storm in relation to the Black Lives Matter campaigns that we are seeing at the moment.

It is our job in the Labour party to fulfil our role of scrutinising every line of this legislation. First, we want to ensure that the changes balance the threat of terrorist offenders with the rights and freedoms on which our society is built. Secondly, we seek to square the importance of punishment with the necessity to rehabilitate. Some Members may be sceptical about whether it is possible to deradicalise terrorist offenders, but we in the Opposition believe that we have a duty to try—if not for the sake of the offenders, for the sake of the public we must protect.

Even with the extensions to sentences that the Bill proposes, terrorist offenders will be released at some point from our prisons. There is little use increasing sentences for terrorists if we are to release them just a few years later, still committed to their hateful ideology, still determined to wreak havoc. If we are to honour the lives of the young people killed at Fishmongers’ Hall, we cannot give up on rehabilitation. We must not lose faith in the power of redemption—the ability of people to renounce the darkest chapters of their lives and move towards the light.

Let me start by outlining the most significant measures proposed in the Bill that the Opposition support. Next I will explain those areas that we have concerns with. Finally, I will explain the Opposition’s greatest problem with the Bill: not what is in it, but what is not.

The elephant in the room this afternoon is the Government’s failure to announce a coherent deradicalisation strategy to go alongside the Bill. We accept the creation of a new serious terrorism sentence which ends loopholes in the current laws. We support increasing the maximum penalty from 10 to 14 years for certain terror offences, to better reflect their gravity, although we think that further pause must be taken to consider the warning in the impact assessment that

“Longer periods in custody could disrupt family relationships which are often critical to reducing the risk of reoffending.”

We also believe that it is wholly right to make it possible for any offence with a maximum penalty of two years or more to have terrorism as an aggravating factor. Although not all the details of those specific reforms are perfectly drafted, in spirit they are proportionate and fair.

Amid changes that are fair and reasonable, there are others that will need serious scrutiny. As the independent reviewer of terrorism legislation, Jonathan Hall QC, has pointed out, the removal of the Parole Board for serious terrorism offenders is a “profound” and, we would argue, problematic change. No one on either side of the House wants to see terrorists getting out before they have served their time, but we must not allow our anger to distort the lessons from Fishmongers’ Hall and Streatham.

This House expressed dismay that both those terrorists were released without ever coming into contact with the Parole Board. The laws in place failed to use the expertise of the Parole Board to understand the risks of their early release and to make the necessary assessments. The Parole Board is, of course, sceptical when these individuals come before it, and its record of release is very low indeed in these sorts of cases. So why are the Government planning to remove the Parole Board for serious terrorism offenders now? Surely we want terrorists to be assessed by the Parole Board more often, not less.

Removing the Parole Board for serious terrorism offenders is not only a problem in terms of monitoring the threat level of convicted offenders and the ability to use the intelligence gleaned; it could also actively undermine these offenders’ incentives to abandon their ideologies. When prisoners know that they have to behave well in order to get out earlier, this engagement can have a transformative effect. Without the extra incentive, we reduce the chances of engagement in rehabilitation. That is particularly concerning when we consider young people under the age of 21 who have been convicted of terrorist offences. Whatever they have done wrong, those seduced by dangerous ideologies in their teenage years must be given every opportunity to change.

[Dr Julian Lewis]

I strongly endorse what the right hon. Gentleman has just said about the distinction between young people and people of mature years who embrace extremist totalitarian ideologies. Looking back to the time of Marxist-Leninist totalitarianism, we see that very few people who embraced it as adults ever gave it up or could have been de-radicalised, but that there are countless examples of young people who went through a phase of addiction to it and then rejected it completely. So he is absolutely right to focus on this age distinction.

[Mr Lammy]

I am grateful to the right hon. Gentleman for his careful and considered observations. Of course he is right in what he says, because when we are talking about this category of offender we are often talking about gross immaturity, and with appropriate intervention and the appropriate assessment it is possible to effect de-radicalisation. The removal of the Parole Board in this means that that assessment is not made at all. I think that behind the Secretary of State’s words and this Bill is the understanding that we will put this cohort automatically on licence, but of course that comes at a cost. Notwithstanding that, we want the intensive scrutiny of the Parole Board, with it looking once, twice, three times at this cohort of this offender. Removing that is a profound decision, as the Independent Reviewer of Terrorism Legislation suggested. For those reasons, I hope that the scrutiny that is required of that decision is undertaken carefully in Committee.

The Independent Reviewer of Terrorism legislation also rightly raises concerns about extending the maximum licence period for serious terrorism offenders to 25 years. We have concerns about both the proportionality and the cost of this reform. Even indeterminate sentences for public protection prisoners have the prospect of their licence period being terminated when they are no longer considered a risk. Importantly, the Government have not gone into sufficient detail about how they will pay for the heavy administrative burden this will place on probation services, coming after a decade of austerity and cuts, where we have seen changes that the Government are now determined to change once again. As we plunge into the deepest recession of our lifetimes, how does the Secretary of State propose to pay for this massive growth in the number of those under licence?

In addition, there are specific circumstances in relation to Northern Ireland that of course require scrutiny and discussion as we move forward. In terms of sentencing, these are the Opposition’s major concerns that we plan to address in Committee, but we also share the concerns raised by the Independent Reviewer of Terrorism Legislation when it comes to the changes of monitoring tools available to the security services and counter-terrorism police.

As the Secretary of State will know, he puts me in a strange position with his proposals relating to TPIMs. He will remember that it was a Labour Government, in 2005, which I served in, that first introduced control orders. Back then, in order to impose a control order, a Secretary of State needed only “reasonable grounds for suspecting” that the individual was or had been involved in terrorism-related activity. In 2011, the coalition Government raised the standard of proof, by replacing Labour’s control orders with TPIMs. The Secretaries of State could impose these controls only if they “reasonably believed” that the individual was or had been involved in terrorism-related activity. In 2015, the Conservatives raised the standard of proof even higher to require the Secretary of State to have evidence that on the balance of probabilities an individual was or had been involved in terrorist offences, but in the proposed changes we are debating today, the Government propose lowering the standard of proof from the balance of probabilities back to reasonable grounds for suspecting. The Conservative Government seem to have taken nine years to move away from Labour policy and then to return full circle back to it.

Whether or not it can be justified, lowering the standard of proof inevitably increases the chances of innocent individuals being subjected to serious constraints on their freedom. Given that the courts found no problems with the current threshold, as the Independent Reviewer of Terrorism Legislation notes, what are the reasons for this U-turn? As has been suggested by the Chair of the Select Committee and the spokesman for the SNP, the hon. and learned Member for Edinburgh South West (Joanna Cherry), I do not think the House has yet heard the reason for this U-turn, given that it was not indicated in February, and given that the independent reviewer does not support it and the last one certainly did not support it. Were the Conservative Government wrong when they raised the standard of proof in 2011 and then again in 2015, or are they wrong today when they propose lowering it?

An additional and significant issue about which the reviewer has raised concerns is the removal of the two-year limit on TPIMs, allowing them to be renewed indefinitely. Let me remind the House what a TPIM can involve: overnight residence requirements; relocation to another part of the country; police reporting; an electronic monitoring tag; exclusion from specific places; limits on association; limits on the use of financial services; limits on the use of telephones and computers; and a ban on holding travel documents. This would mark an unprecedented restriction of rights for individuals who, we must remember, have not been convicted of any crime. It raises significant issues, and for that reason I suspect that it will occupy the Bill Committee. It is entirely right when the Secretary of State says that we must be strong on dealing with terrorism—of course, that unites the House—but because we believe in the rule of law and the democratic traditions that we inherit in this House, it is also right that we have the right safeguards, and it is those safeguards that we will very definitely want to scrutinise.

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[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

It is a pleasure to follow the right hon. Member for South Holland and The Deepings (Sir John Hayes) , and he is right: this has been a thoughtful debate, often in a cross-party spirit.

Terrorists want to destroy our way of life, divide our communities and undermine our democracy and our values, and we can never let them succeed. We rightly pay tribute across the House to those on the frontline, fighting terrorism, preventing and tackling attacks, in our police forces and security services, those in local government and communities who work so hard on prevention, and those in faith groups and our prisons. We remember, too, those who have lost their lives or who have lost loved ones to appalling terror attacks.

We face threats not just from Islamist extremism and terrorism, but from far-right extremism and terrorism, where the threats have grown in recent years. We have to always be vigilant, to ensure that those extremists and terrorists can never succeed in dividing our communities and undermining the democratic values for which we have fought for so long.

Many of the challenges relating to this legislation are the same ones that we have addressed and dealt with for many years—how to deal with people who have such warped ideology that they are determined to wreak huge destruction, including killing children; how to deal with people who have become so dangerously radicalised that they may be hard to address through traditional criminal justice system measures; and how to ensure that while we protect our national security, we also protect our democratic values and our freedoms and sustain justice, the rule of law and community cohesion. To do so, we need strong powers to tackle terrorism but also strong safeguards and strong checks and balances.

I want to talk specifically about some of the Home Office measures in the Bill, particularly around TPIMs and the Prevent programme. TPIMs came in after control orders, which were introduced to deal with difficult situations where perhaps the evidence relating to dangerous terrorist suspects depended on intelligence that could not be dealt with in the same way through the courts. There were similar approaches in cases where someone had become so dangerous and still proved dangerous even after their sentence had been served. Those were very difficult circumstances that only applied to a minority of cases.

Control orders were not perfect, and they were applied in those limited circumstances. Long-standing Members will know that I have spent almost a decade arguing with the right hon. Member for Maidenhead (Mrs May) about the decision made in 2011 to end control orders and replace them with TPIMs, rather than simply amending control orders to deal with some of the areas that needed improving. I thought it was wrong to make the decision to downgrade some of the powers in the TPIMs that were introduced. It is worth briefly addressing why, because it has an impact on the decisions that Ministers are making today.

First, I thought it was wrong to remove the ability to relocate dangerous terror suspects and to remove any possibility of doing so, to remove them from dangerous networks. The consequence was that two people who were on TPIMs managed to abscond—something that had not happened in relocated cases. The Government’s independent reviewer, Lord Anderson, recommended that relocation be reintroduced, which eventually happened in 2015.

My second concern was about preventing the ability to constrain some communications for dangerous terror suspects. Again, many of those measures have been changed since, because the Government have recognised that some restrictions need to be in place for online or phone communications where there is significant evidence that someone poses a danger to the public.

My third concern was about the two-year limit set for TPIMs. Control orders were set for a year but could be renewed. TPIMs were fixed at two years. I raised questions in 2011 about what that would mean for the small number of people who might still be extremely dangerous after two years and what provisions would be in place to ensure that the public were protected. Again, Ministers have now recognised that issue and are changing it back.

In many ways, we have had an unnecessary 10 years of administrative going round in circles and changing the burdens on the Security Service and police forces, when we could have made more sensible amendments at the beginning to address those issues. It would be interesting to know whether Ministers now recognise that those changes were wrong and that we should not have made them in the first place.

[Dr Lewis]

May I say from the Government Back Benches that some of us are convinced that the right hon. Lady has been proven right, but will she acknowledge the motives of former Governments being cautious in these very delicate areas?

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[Chris Philp]

As the Lord Chancellor said, we will not comment on individual cases. As the right hon. Lady knows, the number of TPIMs in force is very low—it is only five currently. We are not just talking about what may have happened historically; we are looking prospectively at what measures we may need to take to protect our fellow citizens.

Members have asked what the safeguards are. The first safeguard is that the Home Secretary—who I see is now in the Chamber, and who is a doughty defender of public safety and public protection—does not act without fetter, because when a TPIM order is made by the Home Secretary, it is reviewed by the High Court under section 6 of the Terrorism Prevention and Investigation Measures Act 2011. The High Court has to give permission before that TPIM can come into force, and if the High Court finds that it is “obviously flawed”, permission is not granted, so there is a judicial safeguard inherent in the structure of TPIMs. If the subject of the TPIM feels that they have been unfairly treated, they may go to the Court for a judicial review. There are significant safeguards inherent in the structure of TPIMs.

As I said a moment ago, the Government use these measures extremely sparingly. Our preference, of course, is prosecution, as it should be. We only use TPIMs where absolutely necessary to protect the public, and we make no apology for doing so. Only five are in force at the moment, which is evidence of how carefully the Government apply these measures. Since 2011, despite the judicial mechanisms I have described, not a single TPIM has been overturned. I hope that that gives Members confidence that there are safeguards and that these measures are being used in a thoughtful way.

Reference has been made to the opinion of the Independent Reviewer of Terrorism Legislation. Of course, we listen carefully to what Jonathan Hall QC has to say. We study his advice carefully, and we often follow his advice. It is for this House and for us as Members of Parliament to reach our own decision, which may in many cases accord with the independent reviewer, but in some cases it may not. Where our judgment differs, we should exercise our independent judgment, as we are doing in this case.

[Dr Lewis]

In the Minister’s references to TPIMs, he may have answered a question that I was hoping to ask him a little later: what do we do about that category of people who have gone abroad to fight for terrorist-backing organisations and return to this country, where there is not enough evidence to prosecute? I think that the Bill does not say a lot about that. If I am wrong, will he correct me? If I am right, surely that is an area where TPIMs might be relevant.

[Chris Philp]

Indeed. In relation to people who go overseas to assist terrorist organisations, we deprive them of their citizenship where we can, if it is lawful— if they are, for example, dual nationals—to prevent their return here in the first place. It is right that we do that. Secondly, on their return, it is our strong preference, if there is sufficient evidence, to prosecute them under the criminal law, as we very often do. However, if there are evidential difficulties and we cannot meet the burden of proof required by a criminal court—beyond reasonable doubt—but we do have a reasonable suspicion, we can use TPIMs to protect the public, should the Bill be passed in this form. The excellent example from my right hon. Friend the Member for New Forest East (Dr Lewis) illustrates exactly why TPIMs could help us in those cases where we cannot achieve prosecution. Evidence from Syria, for example, is very hard to gather, but in cases where we have a reasonable suspicion, we must act to protect the public.