Counter-Terrorism and Sentencing Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

1: Clause 1, page 1, line 8, at end insert—
“(aa) after subsection (1) insert—“(1A) The court may not assume that an offence has a terrorist connection for the purpose of this section unless—(a) the defendant has admitted in person and in open court that the offence has such a terrorist connection, or(b) where the defendant does not make such an admission, the court is satisfied beyond reasonable doubt upon a trial of the issue that the offence has a terrorist connection.(1B) A trial held pursuant to subsection (1A)(b) above must be determined by a jury unless the court determines that the interests of justice would be better served by a trial by a judge alone upon evidence admissible in a criminal court.””Member’s explanatory statement
This amendment would require a trial of the issue as to whether or not there is a terrorist connection in relation to an aggravated offence.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I argued in Committee that Clause 1 should not stand part of the Bill because it would create a whole raft of new aggravated offences, for which offenders would be sentenced on the basis that the offences had a terrorist connection without the question of whether they had such a connection ever having been tried by a jury or a judge or even tried on the basis of admissible evidence.

For the purpose of Section 69 of the Sentencing Act, which is to be amended by this clause, an offence has a terrorist connection if it is, or takes place in the course of, an act of terrorism or is committed for the purposes of terrorism. The principal point I made in Committee was that the decision that the offence had a terrorist connection was not made by the jury before the offender was convicted but was reserved to the judge at the sentencing stage. A defendant might be convicted by a jury of the basic offence, for which the appropriate penalty might be a short term of imprisonment, but sentenced on the basis of a decision taken by a judge alone, without hearing any evidence, that the offence had a terrorist connection and merited a sentence of a long term of imprisonment. I said then and repeat now that that feature would cut across the principle of our criminal law that no one should be convicted of an offence except upon admissible evidence, open to challenge in a trial and, if in the Crown Court, heard by a jury.

Prior to this Bill, offences with a terrorist connection that would act as an aggravating factor in sentencing comprised a relatively limited range of very serious offences which might often be expected to have a terrorist connection, such as murder, a number of explosives offences, hijacking, hostage-taking and serious aviation offences. They were listed in Schedule 2 to the Counter-Terrorism Act 2008 and would all normally merit long terms of imprisonment.

For that reason, the effect of aggravating the sentence was less objectionable than it is to be as a result of Clause 1 of this Bill. That is because this Bill broadens the range of offences that may be treated as aggravated by a terrorist connection to include any offence that carries a sentence of imprisonment of more than two years. An offence of assault occasioning actual bodily harm, for example, carries a maximum sentence of seven years’ imprisonment, even though the violence involved can be relatively minor and the harm caused can be restricted to bruising or pulled muscles. The basic offence might merit a fine or a short term of imprisonment, but the offence committed with a terrorist connection might attract the maximum sentence. While the offender’s guilt of the basic offence would be determined by a jury, the terrorist connection would be a matter for the judge alone at the sentencing stage.

The finding that an offence has a terrorist connection does not simply increase the likely sentence; it also has the effect of activating the notification requirements for terrorist offences, thus classing the offender as a terrorist, with lifelong consequences, and the further effect of activating a number of forfeiture provisions. In addition, the increased sentence is subject to the restriction on early release under the so-called TORA Act, the Terrorist Offenders (Restriction of Early Release) Act 2020 that we passed as emergency legislation last year. Not only would the sentence be longer, but the proportion served in custody would be greater. In short, the consequences of a finding of a terrorist connection are devastating for the offender.

It was the fact that those consequences could be imposed without a trial of the fact of the terrorist connection that led us in Committee to oppose Clause 1 standing part of the Bill, despite our complete acceptance of the central proposition of this Bill that terrorist offences call to be treated with the greatest severity, for the protection of the public as well as the punishment of the offenders.

Amendment 1 is far more targeted than the opposition to the clause standing part. I am extremely grateful to the noble Lord, Lord Wolfson, and the noble and learned Lord the Advocate-General for discussing this amendment with me at a meeting yesterday. Importantly, the noble and learned Lord, Lord Stewart, reminded us that in Scotland the different charging arrangements and arrangements for jury verdicts would enable verdicts to be given making it clear whether a terrorist connection was proved or not.

Not being a Scottish or Northern Irish lawyer, I had not attempted to formulate amendments that would apply in Scotland and Northern Ireland. At the suggestion of the Public Bill Office, I have confined my amendment to England and Wales in the hope that, if it is agreed, the Government will draft and bring back suitable amendments for Scotland and Northern Ireland. However, it is to be noted that Section 31 of the Counter-Terrorism Act 2008, which applies to Scotland and is also to be amended by this Bill—although not materially for this purpose—requires that, before an offender in Scotland can be sentenced for the aggravated offence,

“(a) it is libelled in an indictment, and


(b) proved”.


Only then does the court take into account the aggravation of the offence. This was, no doubt, what the noble and learned Lord had in mind, proving once again to this Englishman how often Scotland is more enlightened than England and Wales on justice issues.

In the short debate in Committee on 26 January, my noble friend Lord Thomas of Gresford raised the possibility of a Newton hearing—a hearing to determine a question of fact relevant to sentence—as a way of determining whether an offence had the necessary terrorist connection to justify treating it as aggravated. That point was also hinted at by the noble and learned Lord, Lord Falconer of Thoroton.

The applicable legislation does not provide for such a hearing. Section 30 of the Counter-Terrorism Act 2008 provides only that the court must determine whether the offence has or may have a terrorist connection. Under subsection (3):

“For that purpose the court may hear evidence, and must take account of any representations made by the prosecution and the defence, as in the case of any other matter relevant for the purposes of sentence.”


That provision is entirely unsatisfactory for the wide range of aggravated offences now proposed, many of them not of the greatest seriousness in the absence of the aggravating factor.

Our amendment would require that before an offence is taken to have a terrorist connection, either the defendant must admit

“in person and in open court that the offence has such a … connection”

—in much the same way as a plea of guilty would entitle the court to pass sentence—or there must be a trial of the issue. That trial would be by a jury

“unless the court determines that the interests of justice would be better served by a trial by a judge alone”.

At the trial of the issue, evidence admissible in a criminal court would be adduced and the court could proceed on the basis that the offence had a terrorist connection only if satisfied of that fact beyond reasonable doubt.

I suggest that this amendment strikes a proper and important balance between the public interest in securing severe punishment for offences with a proved terrorist connection and the public interest—also of great significance—in ensuring that sentences are imposed for offences that are properly proved before the court upon admissible evidence. That is the way our criminal law has generally proceeded, and that is the way it should proceed. I will wish to test the opinion of the House if the Government do not accept the amendment. I also wish to record the fact that I would like my voice to be heard when the voices are counted. I beg to move.

[Lord McCrea of Magherafelt and Cookstown (DUP) [V]]

My Lords, I strongly support the Bill, and welcome its extension to Northern Ireland. It is absolutely right that we have a unified approach to the sentencing and release of offenders across our United Kingdom. Although I share the desire expressed by the noble Lord, Lord Marks, to uphold the principles of our criminal justice system and defend everyone’s right to a fair trial, I believe that the concerns underlying Amendment 1 have been overstated.

At present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing, for a defined list of non-terrorism offences. Clause 1 would extend that requirement to all non-terrorism offences with a maximum penalty of more than two years. Importantly, for the aggravating factor to be applied, the offence would have to be committed in the course of an act of terrorism or for the purposes of terrorism. I see no compelling argument that consideration of those issues at the point of sentencing represents a disproportionate burden on a defendant or restricts their rights. Judges already have discretion in many cases, including for the offence of murder, to increase or reduce a sentence in accordance with their view of the evidence.

The key factor in this case, therefore, is the need for effective guidance relating to the threshold for an aggravated offence, and its fair application. Only if there is enough evidence to satisfy the criminal standard of proof that there is a terrorism connection should the judge apply an aggravation. We have to remember, especially in an ever more digital and connected world, that terrorist offending can take many forms, so it is appropriate that the range of routine offences that can come under the scope of counterterrorism legislation is being extended. Ultimately, this process will help identify offenders who might otherwise have fallen through the cracks, and will ensure that they are registered, monitored and subject to notification requirements.

I make these points not because I am not committed to due process, or to respecting the fundamental rights of defendants, but because I believe that we must take a strong but balanced approach to enhanced sentencing and release provisions in such hearings.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to all noble Lords who spoke in this short debate. The amendment would require a trial of the issue as to whether there is a terrorist connection to an aggravated offence. I am grateful to the noble Lord, Lord Marks, for the way in which he set out his amendment, but I am afraid we feel that it would represent a fundamental departure from existing processes—a significant divergence from practice within the wider criminal justice system—and it is therefore not an amendment that the Government consider necessary or appropriate.

It may be helpful if I first briefly recapitulate why the Government are making the changes that we propose in the Bill. The noble Lord, Lord McCrea, gave a good summary. Clause 1 will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism, or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. At present only specified offences can be so considered. Closing this loophole will make for more effective and flexible legislation, reflecting the fact that terrorist offending takes a wide variety of forms.

The noble Lord, Lord Marks, gave some examples of offences that are and are not covered. It might be helpful to include further examples. Various offences under the Firearms Act 1968 are not currently covered, including possessing a firearm with an intent to endanger life; as are offences under the Criminal Damage Act 1971, including destroying or damaging property with an intent to endanger life, and arson. There are many more, but I hope that provides an illustration of some of the offences that we think ought to be considered, if needed.

These changes will also ensure that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact, as the noble Lord noted. It must be treated as an aggravating factor when sentencing, helping to ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk that they pose to public safety. It will also result in offenders being subject to the registered terrorist offender notification requirements following their release from prison, which supports the police to manage their risk more effectively.

Finally, under the Bill, these offenders will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk. I emphasise that both the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and the Crown Prosecution Service expressed their strong support for this change. In fact, Mr Hall stated in his oral evidence to the Public Bill Committee in another place that this change, out of all the measures in the Bill, would make the most substantial difference to public safety.

Having set out the background, I will address the substance of the noble Lord’s amendment, which proposes a significant change to the process by which the courts in England and Wales, and in Northern Ireland, determine a terrorist connection at the point of sentencing. This process is well-established, having been in successful operation for more than a decade since the provisions of the Criminal Damage Act 1971 came into force. It is also consistent with the wider criminal justice system.

Under the existing process, courts are required to apply the criminal standard of proof—beyond reasonable doubt—when determining whether an offence has a terrorist connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing—that is, the trial evidence or evidence heard at a Newton hearing, if necessary, following a guilty plea—and take into account any representations by the prosecution or defence, as well as any evidence heard.

Furthermore, in England and Wales, and in Northern Ireland, it is the standard approach for the judge, rather than the jury, to determine the presence of aggravating factors as part of the sentencing function. To provide one example, Section 66 of the Sentencing Act 2020 requires the court to aggravate a sentence for an offence if it was motivated by hostility based on certain protected characteristics, such as race or sexual orientation. The judge will determine such a finding as part of the sentencing. The terrorist connection provision works in exactly the same way. This very issue was debated by your Lordships’ House in 2008, when the terrorist connection provisions were first enacted. It was concluded then that the existing process is appropriate and the reasons that I will now outline still stand.

During the passage of the Counter-Terrorism Act 2008, the then Government set out that, as part of their consultation on that Bill, they considered whether the determination of a terrorist connection should be made by the jury, rather than the judge at sentencing. That included discussing the option with experienced prosecutors in this area. It was concluded, however, that there were significant practical issues in taking that approach. For example, having to prove the terrorist connection as part of the trial would lead to lengthy diversions, were the defence to argue that the action of the suspect did not fall within the definition of terrorism. Such an approach would divert the prosecution from its primary aim to secure swift justice for the substantive offence—that is to say, securing a conviction or freeing the individual on trial—and would unnecessarily create significantly longer terrorism trials.

Alternatively, if the jury were to be responsible for determining whether there was a terrorist connection as part of a sentencing exercise after the trial, it would have to be summoned to make such a determination following a guilty plea. This would be entirely novel and run counter to well-established sentencing procedure. We therefore strongly believe that it would not be right to put it in the Bill. It was concluded then, as we maintain now, that sentencing is properly a function for the judge.

That is why the Government cannot accept the amendment of the noble Lord, Lord Marks: it would impose unusual requirements on the finding of a terrorist connection, deviate significantly from well-established practice and, in doing so, put that process out of kilter with the courts’ considerations of other similar aggravating factors. The current system provides adequate safeguards against the erroneous finding of a terrorist connection. A judge who has determined that the offence was committed with a terrorist connection is required to state in open court that that is the case. That determination is capable of being appealed to the Court of Appeal. For the reasons outlined, despite the noble Lord being minded to do otherwise, I hope that he will see fit to withdraw his amendment.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I heard what the noble Lord, Lord McCrea, said, and he seemed to accept that the aggravating factor should be proved to a court, on admissible evidence, to the criminal standard of proof. He did not answer the point that there ought to be a trial of the issue.

The noble Lord, Lord Ponsonby, had sympathy for the principles behind our amendment. He preferred the idea of a Newton hearing before a judge to the possibility of jury trial to determine a terrorist connection. That is a compromise position that is allowed for in my amendment, where the interests of justice require that there should not be a jury trial. The important thing is that this issue should be tried on evidence, not simply permission for there to be evidence, if the judge deciding the issue decides to have evidence; or, otherwise, that the court must listen to representations—that is submissions, which are necessarily partial.

The reason our amendment is framed in the way it is is that we believe in trial by jury. Since the aggravation of having a terrorist connection changes the whole nature of the offence, to have that issue tried by jury is, we say, consonant with our way of doing criminal justice and consonant with the way we have always conducted criminal trials.

The Minister suggested that this amendment represented a significant divergence from the criminal justice system. Most of his speech was, with respect, devoted to establishing that point. However, the Bill and much of the counterterrorist legislation of the last few years have involved such divergence. What is unique about the Bill is that the aggravating factor can raise a pretty commonplace offence into an offence of terrorism, with very severe consequences. I have heard nothing to answer the point that establishing that terrorist connection in a trial, on admissible evidence, before a jury or, in suitable cases, a judge, should be the way to proceed.

Nothing that I have heard from the Minister or the noble Lord, Lord McCrea, allowed for the possibility that an offender guilty of only the basic offence, but not guilty of committing an offence with a terrorist connection, would nevertheless be sentenced following a judge who heard only representations on the basis of the aggravated offence, with all the consequences that that would have. That is what runs counter to our criminal justice system.

Our point is limited and principled. The Government have made no concession to our principle at all. We say that there has to be a trial of the issue, not at the same time as the trial of the basic offence, but afterwards. To establish that principle, I wish to test the opinion of the House and have my voice heard when the voices are counted.

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[Lord Carlile of Berriew (CB) [V]]

My Lords, I should like at the outset to acknowledge the assistance that I have received from the Bingham Centre in preparing the amendment and the courtesy of Ministers in this House and their staff in discussing it. I will briefly give my reasons for the amendment.

First, I am clear in my belief, which is shared by many others, that some men and women imprisoned for terrorist offences—I repeat, some—represent a threat to public safety and national security beyond the length of their sentences, and that the consequences of that risk may be the death of innocent citizens. Some examples of such people can easily be identified and are well known, but it is clear that others who present such a risk are much more difficult to identify.

It is to be noted that the recidivism rate for terrorist offences is extremely low compared with that for most other offences—under 3%, on the most recent figure that I have seen—and that a fraction of the recidivism rate therefore applies to terrorist offences. Their recidivism rate is a fraction of that for other offences, including serious offences such as armed robbery. So far, at least, projects in prisons to achieve deradicalisation or even recognition of the wrongness of the acts taken as radicals have been difficult to assess. It is extremely difficult to know whether prisoners are deradicalised and such efforts to assess prisoners have suffered significant failures. The room for erroneous judgments is high. I shall give only one of several examples, that of Usman Khan, the Fishmongers’ Hall terrorist.

As part of the effort to identify whether prisoners remain a serious risk to the public, I support the use of polygraphs but only as one instrument of assessment—one component only in such determinations. It has been proved in other areas—for example, in relation to sexual offences and in the context of some immigration matters—that polygraphs can provide useful corroboration, though one should be careful not to use them as primary evidence.

A great deal of work has been done to enable terrorist prisoners to be assessed because it is known that, to date, the evidential analysis of such prisoners has proved fragile. It has been extremely difficult to assess the threat that they may present on release. Where has most of the work been done in relation to making judgments about such prisoners? I emphasise that we are talking about judgments. It has been done by the Parole Board and it is about its potential role that I am mainly speaking.

The Parole Board in its ordinary duties deals at present with people who have been sentenced for terrorist offences and, indeed, with prisoners who have become radicalised in prison, though not sentenced for terrorist offences. To deal with that, the Parole Board embarked on an extensive and detailed training programme so that its members—chairs and lay members—could fulfil empirically their existing role with that cohort of prisoners. The board is recognised as offering a fair procedure that is legal and justiciable in a way that is familiar to prisoners and their legal advisers, and is understandable to commentators and us parliamentarians.

I have met the argument that it would be a mistake to extend the role of the Parole Board beyond its present functions. However, given what I have said about the training that it has given to its members in relation to terrorism offences, and looking at what the board does in a more rounded way, I suggest that it is entirely fitted to have its range of responsibilities broadened to deal with wider issues. They could properly include a possible extension of sentences within appropriate statutory limits. Those decisions may not be made by the Parole Board if the Government or others do not find that acceptable, although, in my view, the board is well suited to making such decisions about the possible extension of sentences. For example, it could refer certain cases to the Court of Appeal Criminal Division or the Senior Presiding Judge for England and Wales, so that if a sentence was to be extended beyond its temporal determination, that could be done by a senior judge or judges.

Given the very serious risk posed by a small percentage of terrorist prisoners, there is a danger that the majority who have been reformed may become the victims of the 3% or so who are unreformed. That should be avoided if at all possible, for I am sure that we would agree that what may seem like a failure to recognise that a prisoner truly is reformed and remorseful may create the very opposite effect and leave them to become reradicalised.

The aim of my amendment is to attempt to persuade Her Majesty’s Government to change the architecture of the process of extended sentences in relation to terrorism offences. I accept that the amendment does not complete the task, which is why I will not press it to a Division. However, I hope that it will be possible to discuss this matter further with Ministers before we reach the end of the procedures of the Bill.

I suggest that the changed architecture, as I have called it, should allow, first, the sentencing judge to inform and warn a defendant at the time of sentence—no ifs, no buts—that at the time when otherwise they may or should be released, they will be subject to assessment by the Parole Board and that that assessment will be based on whether they represent a serious and continuing risk to the public. It should be clearly said by the judge at the time of sentencing in accordance with the discretion of judges, who as has been said earlier, not least by the noble Lord, Lord Parkinson of Whitley Bay, are used to dealing with sentencing scenarios.

Further, I suggest that the changed architecture should allow the following: if a prisoner presents a serious and continuing risk to the public, the ensuing procedure, founded on comprehensive evidence from both sides, as happens at Parole Board hearings, could result in the sentence being extended further, and possibly on more than one occasion. In my view, such an architecture would provide for a fair process that is clearly understood by a prisoner at the time he or she is sentenced. I suggest, therefore, that such a procedure would be fairer and certainly more capable of review before the courts, and safer for the small cohort of very dangerous prisoners envisaged by this Bill.

I also invite the Minister to confirm in his reply that the Parole Board has been consulted about any additional roles it might take, either along the lines that I have described or in the general context of this Bill. I would, as I have said, welcome further discussions with Ministers.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, it is a great privilege to follow the noble Lord, Lord Carlile of Berriew, particularly given his deep and long experience in counterterrorism and the legislation in this area, along with his wide experience of the workings of the Parole Board.

Clause 27 was the subject of considerable controversy in Committee because as it stands, it would remove the role of the Parole Board from the determination of whether, and at what stage, a terrorist offender should be released from custody. Without wishing to repeat the arguments that were canvassed in the debate on the clause at that stage, many of us felt then and continue to feel strongly that the Parole Board has had, and should continue to have, an important part to play in determining whether and at what stage even dangerous terrorist offenders should be released on licence.

The amendment of the noble Lord, Lord Carlile, refers to prisoners who are serving extended sentences and applies after they have completed their custodial term, thus changing the architecture of extended sentences, as he has put it. Such prisoners’ release would be contemplated only after the custodial term, at which stage their cases would be referred to the Parole Board for consideration, as they then would on every further anniversary of the completion of that custodial term.

As the noble Lord, Lord Carlile, has explained, before the board could direct release, it would have to be satisfied that two important conditions had been met: first, the prisoner did not represent a grave risk to the public, and secondly, it was no longer necessary for the protection of the public that the prisoner should be confined. We would have preferred that the amendment went further and applied more widely for the reasons that we expressed in Committee, but we regard the work of the Parole Board, whose members are specialists in the field, as extremely valuable. We are firmly of the view that a full hearing before the Parole Board is the best way to determine whether a prisoner should be released after a suitable minimum custodial term, having regard to the elimination of the threat that the prisoner posed to public safety and to such progress as might have been made in the prisoner’s deradicalisation, rehabilitation and reform.

I should emphasise that throughout our approach to this Bill, we have maintained the position that hope of rehabilitation should always be part of the process of punishment, even in severe terrorist cases, and that sentences which offer no hope are counterproductive. We recognise that all prisoners are likely to be released one day and that rehabilitation is more achievable in the context of a release on licence than it is in the context of continued incarceration. That is a position that was rightly taken and recognised by the experts who briefed a number of Peers at the Joint Extremism Unit drop-in session that was arranged for us by the Ministry of Justice. Those who attended found it to be interesting and informative, and we are all very grateful. For my part, however, I confess to remaining perplexed that the Government have decided to cut the role of the Parole Board in the way set out in Clause 27. This amendment would reduce the impact of that particular cutting axe, and I therefore support it.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, Amendment 2 in the name of the noble Lord, Lord Carlile, sets out an alternative possible architecture for assessing terrorists and the possibility of extending sentences. In speaking to the amendment, the noble Lord and the noble Lord, Lord Marks, expressed their faith in the Parole Board and the view that it should play a much fuller role in assessing terrorist prisoners who are coming towards the end of their sentences. I too joined in the very useful expert panel held last week with presentations from Home Office experts as well as senior psychologists who have an overview of this work.

The probation service itself employs around 350 psychologists, some of whom are specialists in this work. The message I got from that meeting last week is that it is very complicated work and there is no guarantee of success. However, that does not mean that there should not be efforts—indeed, very strenuous efforts—made to try to rehabilitate these offenders.

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Moved by

[Lord Marks of Henley-on-Thames]

12: After Clause 31, insert the following new Clause—
“Review of sections 1 to 31
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 to 31 of this Act to be carried out in relation to the initial one-year period.(2) The Secretary of State must, after consultation with the Independent Reviewer of Terrorism Legislation, appoint a person with professional experience relating to imprisonment for offences of terrorism to conduct the review.(3) The review under subsection (1) must consider but is not limited to considering any evidence as to any effects of this Act—(a) by the imposition of longer prison sentences upon the reform or rehabilitation of those offenders on whom they are imposed;(b) upon the reform or rehabilitation of those offenders required to serve a greater proportion of their sentences in prison and a correspondingly smaller proportion on licence; (c) upon the radicalisation of prisoners other than those upon whom longer prison sentences are imposed or who are required to serve a greater proportion of their sentences in prison;(d) on the degree to which those prisoners upon whom a serious terrorist sentence is imposed are segregated from other prisoners.(4) The review must be completed as soon as practicable after the end of the initial one-year period.(5) As soon as practicable after a person has carried out the review in relation to a particular period, the person must—(a) produce a report of the outcome of the review, and(b) send a copy of the report to the Secretary of State.(6) The Secretary of State must lay before each House of Parliament a copy of the report under subsection (5)(b) within one month of receiving the report.(7) In this section, “initial one-year period” means the period of one year beginning with the day on which this Act is passed.”Member’s explanatory statement
This Clause would require an independent review of the impact of sections 1 to 31 of the Act after one year, with particular attention to radicalisation in prisons and the effects of longer periods of imprisonment on reform and rehabilitation and radicalisation in prisons and of segregating serious terrorist offenders.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, Amendment 12 echoes the amendment calling for a review which we proposed in Committee. The purpose of the amendment is to enable the noble and learned Lord—or another Minister—to update the House on the Government’s proposals for reviewing the impact of the first 31 sections of this Act, as it will then be. During my speech in Committee, I spent some time setting out in detail why we contend that the review called for by our amendment is necessary. I will not trespass for long on the House’s time this afternoon.

My noble friend Lady Hamwee will speak to Amendment 13, in the name of my noble friend Lord Paddick, about polygraphs. We broadly support Amendment 24 in the name of the noble and learned Lord, Lord Falconer, and the noble Baroness, Lady Jones of Moulsecoomb and Amendment 25 in the name of the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Jones of Moulsecoomb.

We are concerned, first, to ensure that the Government keep under review and report on the impact on prisoners of longer terms of imprisonment and consequently proportionately shorter periods on licence. To answer a point made in Committee on behalf of the Government, in our view it is not premature to ask for such a review at an early stage. It is not necessary to await the release of such prisoners in many years to come before reviewing the working of this part of the Bill. The impact of very long sentences on, for example, prisoners’ behaviour in prison—a point raised by the noble Lord, Lord Ponsonby of Shulbrede—their prospects of rehabilitation and their continued contact with their families and friends outside prison can be assessed from an early stage.

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[Lord Stewart of Dirleton (Con)]

My Lords, I assure the noble Baroness that that suggestion has lodged in my skull and will have been noted by others, and we will come back to it in due course. On her specific question on whether the post-legislative scrutiny of the Bill is distinct from the review of polygraph testing, I am happy to confirm that that is the case.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, this has been a helpful debate as it has moved forward the process of keeping these new provisions under parliamentary scrutiny. I am very grateful, as I expect all noble Lords are, to the noble and learned Lord, Lord Stewart, for the comprehensive and careful way in which he set out the work of evaluation and research into the evidence concerning the treatment and punishment of terrorist offenders, and the arrangements for them within the prison estate.

The noble Baroness, Lady Jones of Moulsecoomb, expressed the need for constant review. She warned us of the possible dangers of long-term imprisonment and the risk of radicalisation. As well as making a number of points and raising questions about polygraphs, my noble friend Lady Hamwee stressed the distinction between the “talk tough” language of the Government and the more considered, balanced and careful language of officials and Ministers that we hear in private. My noble friend called it “nuanced”. I add that the careful and cautious language she spoke of is also the language of nearly all the professionals in the system to whom we speak, be they in the Prison Service, probation service, inspectorates or elsewhere.

The important point is that longer sentences, while they may be necessary, are neither the only answer nor a complete answer. The “talk tougher” approach, leapt upon with enthusiasm by the press, has struck many of us as having had too little consideration. In his response, the Minister demonstrated that he certainly is determined to take an evidence-based and cautious approach to the issues raised by the Bill, including polygraph testing.

I accept the Minister’s point that the inclusion of these amendments in the Bill is not essential to provide that the work, which he described to us in some detail, is consistently explained to parliamentarians in both Houses. The important point about reviews, which I invite him and others to bear in mind—though not to lodge in their skulls—is that reviews which report to Parliament enable noble Lords here and MPs in the other place to consider and weigh up the evidence as it becomes available.

The Minister was completely right that there is no simple cure, but it is an important part of the role of Parliament to consider the evidence as it develops. The Bill puts before us a set of new and radical measures of particular severity. They need to be kept under constant attention. On the basis that they will get that attention because of work done by the Government and promulgated to Parliament, I beg leave to withdraw my amendment.

Amendment 12 withdrawn.