Counter-Terrorism and Sentencing Bill

Lord Falconer of Thoroton Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 21st September 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, thanks to the noble Lord, Lord Parkinson of Whitley Bay, for introducing with such care and clarity this important Bill. We understand he has been thrown in at the deep end after the sudden departure from the Government of the noble and learned Lord, Lord Keen. He has acquitted himself impressively so far.

This is a significant Bill. The criminal justice response is key in the fight against terrorism but can never be the only response. While many of the recent terrorist atrocities have been associated with Islamist extremism, it is important to identify that there remain threats from others: as the UK’s top counterterrorism police officer, Neil Basu, recently confirmed, the fastest growing terrorist threat comes from far-right organisations. Of the 224 people in prison for terror-related offences, 173 are Islamist extremists and 38 are far-right ideologues; and of the 16 plots foiled by the end of 2018, four involved the far-right.

This Bill deals with four issues. The first is increasing sentences for terrorist-related offences. The second is changing the basis on which those convicted of terrorist offences can be released, and the terms thereafter on which they are on licence. The third is changing the TPIMs regime in three significant respects: reducing the burden of proof, making TPIMs last potentially indefinitely, and increasing the range of powers a TPIM can include. The fourth is removing the time limit for completion of the Prevent review, mandated by previous primary legislation.

On this side of the House, we will look carefully at the details of the increase in sentences and the proposed change to the way the system deals with early release of those convicted of terrorist offences. We will also look at when and how the Parole Board should be involved and how it should approach these issues.

While the detail matters a lot, we do not in principle oppose the first two parts of the Bill. There needs to be really tough sentencing for terrorists. Confidence in the system and justice for victims depends on it. The Deputy Mayor of Manchester, my noble friend Lady Hughes, described the gasp from the families of the victims of the Manchester Arena bombings when Mr Justice Jeremy Baker imposed a minimum term of 55 years on Hashem Abedi, who was convicted of plotting the Arena bombing with his brother. My noble friend described the gasp as a small amount of relief among their terrible anguish. It brings little comfort, but the pain of inadequate sentencing for the victims of terrorist bombings is real. The families of those who died in the bombing have themselves been sentenced to a lifetime of pain and loss. The very least they can expect is that the justice system pass sentences that reflect the gravity of what happened.

Coupled with that is the disregard with which the system is viewed when terrorists are released before their nominal sentence is concluded and commit offences again. The tragedies of Fishmongers’ Hall on 29 November 2019, and Streatham High Street on 2 February 2020, are terrible examples. At Fishmongers’ Hall, the bravery of the Polish porter, Lukasz Koczocik, helped to overpower the terrorists. Two former offenders, James Ford and Marc Conway, also became heroes when they helped tackle the attacker to the ground. Jack Merritt and Saskia Jones, who dedicated their lives to seeing the best in people, were working in offender rehabilitation, only to be killed at the rehabilitation conference at Fishmongers’ Hall. I pay a heartfelt tribute to them and extend my deepest sympathy to their families for their unimaginable loss. This terrorist attack, like the one on Streatham High Street on 2 February, was committed by an individual who was already convicted as a terrorist offender but had been released automatically halfway through their sentence. They were neither deradicalised nor deterred by their time in prison. In fact, their time at Her Majesty’s pleasure had made the position worse.

The most serious terror offences already attract what is known as extended determinate sentences, which require an offender to be referred to the Parole Board at the two-thirds stage of their custodial term, when they can be considered for release. At the end of the custodial term, the offender will be released on an extended licence. For terrorist offenders for whom the maximum penalty for their offence is life, this Bill removes the opportunity of Parole Board-directed release before the end of the custodial term, ensuring they serve a whole term in custody. This applies UK-wide and to both young and adult offenders. For this cohort of offenders, there will be no chance of parole before the end of the custodial term. This will give rise to prisoner management problems where there is no prospect of early release. However, that may well have to be faced. As the Bill goes through the House, we will need to consider whether that is appropriate for someone convicted under the age of 21. People seduced by appalling ideologies when teenagers should have some hope. There is agreement that, the younger the subject, the greater the hope for successful de-radicalising measures.

The Bill proposes that the maximum licence period for terrorists after release should be 25 years. We have concerns about the proportionality and cost of that reform, which have also been expressed by the Independent Reviewer of Terrorism Legislation. There is no explanation as to how this burden will be paid for in the context of a decimated probation service. Much of what happens on licence will depend on the effectiveness of the probation service. It is truly hopeless of the Government to blithely increase these licence periods, thereby appearing tough to the public, knowing full well that without proper additional expenditure on the probation service, these commitments and legislation will have little effect in the real world. Could the Minister provide the House with estimates of how much extra expenditure will be incurred by giving effect to these additional licence periods? How will probation afford them?

These are some of the issues in the first part of the Bill that we will wish to explore. I make it clear that, in principle, we support increasing the length of terrorist sentences and the significant tightening of the circumstances, outlined in the second part of the Bill, in which a person convicted of a terrorist offence may be released before the end of his custodial term. We consider it crucial that the criminal justice system be effective in catching and convicting terrorists, passing appropriate sentences and ensuring—consistent with the terms of their sentence—that they are not released before it is safe to do so. That does not mean that every terrorist is sentenced to an indeterminate sentence, but that the true length of the sentence passed and how it is implemented must have public confidence.

In connection with sentencing and early release, I have focused on what is in the Bill, but it is important also to focus on what is not in it. Inside and outside the criminal justice system, there must be a much more driven and focused effort on de-radicalisation measures. For many prisoners, such measures will have no impact whatsoever; moreover, many will manipulate the system to obtain early release by pretending they have had an effect. But that is not a reason to give up on those measures, both inside and outside prison. The Acheson review of 2016 dealt with de-radicalisation measures in prison. He made 69 recommendations, consolidated down to 11, eight of which were accepted. What happened to those recommendations remains a total mystery.

Mr Acheson himself said in a report published in 2019:

“Our unsafe prisons provide a fertile breeding ground in which predators, peddling extremist and violent ideologies, can prey upon the vulnerable, creating significant risks to national security and the public at large.”


He added:

“On the present trajectory, it is all too conceivable that a future terrorist will have been groomed and radicalised within our prison estate.”


Can the Minister provide details of which Acheson recommendations have been implemented, and give details of how they have been implemented?

The failure properly to address de-radicalisation measures in prison will haunt this country for generations, as we establish “academies of terrorism”. We must continue with these measures, as much for the prisoners—often young and vulnerable—imprisoned for non-terrorist offences, who end up radicalised and dangerous because of a total lack of push-back from the authorities against the vile, dominating hold of much stronger characters who are imprisoned for terrorist offences, certain of the rightness of their warped beliefs and able to seduce others into them.

In the world outside prison, it is equally important that the state ensures proper pushback against these warped ideologies. The Prevent strategy is designed to do that, but there are legitimate concerns about it and the extent to which its unintended consequences damage the fight against radicalisation. We are disappointed at the slow progress of the review; we are disappointed that there is no reviewer in place and that the Government are still in the process of selecting one. Can the Minister give the House details as to when they hope the review might report, and indicate what steps they are taking to ensure that it does so within a reasonable time? The removal of the time limit, which expired in August 2020, is plainly contrary to the wishes of Parliament when it introduced that amendment. Too often, this Government appear to make a concession in relation to legislation and then do all they can to undermine the effect of that concession. The Dubs amendment is a painful example.

The sentencing, early release and licence provisions in the first two parts of the Bill include a provision for polygraph tests, as mentioned by the Minister, which are to be used to inform licence conditions and their compliance and whether prisoners have broken those provisions. The unreliability of polygraph tests is well known. Can the Minister tell the House what view the Government take on their reliability, how—in light of that—they consider their use to be appropriate, and what studies they are relying on? Once they accept that it is not appropriate to rely on polygraph tests alone to determine whether conditions are satisfied, why rely on them at all?

Finally, the Bill makes it easier to get a TPIM, gives greater powers if a TPIM is granted, and allows it to last indefinitely without any change in circumstances. There will be cases where trial, conviction and sentence are not possible. It is right that the Government have the sort of power that a TPIM involves as part of their armoury against terrorism, but the changes are significant. Much anxiety has been expressed by non-aligned bodies about whether these powers are necessary. We will look very carefully at these powers. What is absolutely key is that the Government make a proper case for the need for these additional or changed aspects of TPIM. Can the Minister identify, in general terms, the difficulties experienced by those with the power to seek these orders, which currently arise from the balance of probabilities test? Can the Minister explain why it is thought necessary to extend them without a change in circumstances for longer than two years?

This is an important Bill. We will work constructively with the Government to deliver it, and will focus the whole time on equipping the authorities to be as effective as possible in combating terrorism. That means tougher sentencing and parole arrangements, but it also means effective measures to keep people from being radicalised or remaining radical.