Terrorist Offenders (Restriction of Early Release) Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

3: After Clause 2, insert the following new Clause—
“Review of sections 1 and 2
(1) The Secretary of State must arrange for an independent review of the impact of sections 1 and 2 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 must be completed as soon as practicable after the end of the initial one-year period.(4) 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.(5) The Secretary of State must lay before each House of Parliament a copy of the report sent under subsection (4)(b) within one month of receiving the report.(6) The Secretary of State may—(a) make such payments as the Secretary of State thinks appropriate in connection with the carrying out of the review, and(b) make such other arrangements as the Secretary of State thinks appropriate in connection with the carrying out of the review (including arrangements for the provision of staff, other resources and facilities).(7) In this section, “initial one-year period” means the period of one year beginning with the day when this Act comes into force.”

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

My Lords, my Amendments 3 and 5 seek a review of the working of this legislation one year after the Bill comes into force. Amendment 3 is concerned with Clauses 1 and 2, relating to England and Wales, while Amendment 5 is concerned with Clauses 3 and 4, relating to Scotland.

I suggest it is always sensible to review the working of legislation after it has come into force. That usually occurs in the case of non-urgent legislation after a period of years. However, review is even more important and urgent in the case of emergency legislation. This Bill cries out for a specific review of how its provisions are working, precisely because it is being put through Parliament as emergency legislation. We have had no time for consultation or proper scrutiny—one day in the other place and one day here. The result has been that a number of questions that have arisen today have been inadequately considered, so that the Government have no answers to them. That is not a criticism of the noble and learned Lord, nor of the Government in general. It is the inevitable consequence of the haste with which we are passing this Bill.

We have heard today from noble Lords around the House about the risks posed by the lack of measures to improve deradicalisation and rehabilitation in prisons, and of the risks of radicalisation in prison of non-terrorists. We have also heard of the dangers of legislation that in practice, even if not in law—as to which there has been much argument—has retrospective effect. I agree with the noble Lord, Lord Pannick—which I have not always done today—in his point that this Bill involves keeping in custody terrorist prisoners who have served half their sentences and who would have been released had they had a safety assessment by the Parole Board at that point.

I have discerned no indication from the Government that the point made by the noble Lord, Lord Pannick, has been considered by them. The noble Lord made his point in the context of serving prisoners, whose time in custody is to be increased by the enactment of this legislation. However, this is presented, rightly, as a public safety Bill, and the point might also be relevant in relation to some terrorist offenders, not yet sentenced and probably at the lower end of the scale, who would plainly have a better chance of rehabilitation if released following the halfway point on a favourable Parole Board safety assessment.

Then there was the argument put forward by the noble Baroness, Lady Meacher, that a breathing space could be secured by interposing a Parole Board safety assessment, when it can be prepared, but before a release following the halfway point and such an assessment, and before the two-thirds point. That, again, was an argument that the Government could not meet.

Those are all concerns that cry out for review because the emergency treatment of this Bill has cut its consideration to the bone; yet, far from accepting the need for an urgent review, the Government’s position is unclear, inconsistent and, bluntly, all over the place. At paragraph 58 of their impact assessment the Government wrote:

“In the normal way, the … Bill will be subject to a post-legislative review to determine whether this legislation is working in practice as intended. This will take place between three and five years following Royal Assent.”


Therefore, there will be a review but very late. In contradiction to that position, in the Explanatory Notes, the Government say the following at paragraph 16, in question-and-answer form, on issues raised by fast-track legislation. The question is:

“Are mechanisms for effective post-legislative scrutiny and review in place? If not, why does the Government judge that their inclusion is not appropriate?”


The Government’s answer is:

“No post-legislative scrutiny is planned. However, the Government intends to introduce a Counter-Terrorism (Sentencing and Release) Bill later in this Session.”


However, we do not know what will be in that Bill, and it does not seem to answer the need for a specific review of the working of this Bill.

Today I have been told by the Government that they are not prepared to agree to a review because the independent reviewer is already engaged upon his review of the Multi Agency Public Protection Arrangements —the so-called MAPPA—and the release and supervision arrangements will inevitably be included in that. Also, it is to be expected—and the independent reviewer, Jonathan Hall QC, has confirmed—that he will scrutinise this legislation in his regular annual review. I am sure that that is so, and it is indeed very welcome, but neither of the independent reviewer’s reviews will be specifically directed to the efficacy or merit of the provisions of this legislation. They cannot therefore take the place of proper parliamentary scrutiny, which we have been denied. It is an inappropriate treatment of Parliament to attempt to piggyback post-legislative scrutiny of this Bill on reviews conducted for a separate and different purpose, however good those reviews might be expected to be.

Our amendments would require the Government to commission a review by an independent professional, whose appointment would be made in consultation with the Independent Reviewer of Terrorism Legislation. No one has seriously challenged the mechanism of our proposed review. I beg to move.

[Lord Anderson of Ipswich]

My Lords, I want to pick up on the point just made by the noble Lord, Lord Marks, about the independent reviewer. As a former independent reviewer myself, I am temperamentally rather inclined to the merits of independent review. However, in his note of 19 February on this Bill, Jonathan Hall said:

“I consider that the effect of sentences passed under the Terrorism Acts falls within my remit as Independent Reviewer of Terrorism Legislation, and therefore I would propose to report on the impact of these changes (and of the changes likely to be made by the more sizeable Counter-Terrorism Sentencing Bill later in the year) in one of my forthcoming annual reports, most likely my report on the Terrorism Acts in 2020.”


Perhaps I may ask the Minister, when he responds, to confirm whether it is his impression, as it is mine, that reviews of that nature fall within the existing remit of the independent reviewer. Perhaps I may also ask the noble Lord, Lord Marks, to comment on whether, in the light of that fact, his amendment will really add anything at all.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, this Bill is only one element in a much broader response to terrorism, which includes both legislative and non-legislative measures. The Government’s view is that it would be inappropriate to consider just one element of those measures in isolation. We have announced our intention to introduce a counterterrorism (sentencing and release) Bill, which has been referred to. That will make wider changes to the release arrangements governing terrorist prisoners, as well as the penalties available to the courts. The provisions of this Bill—hopefully by then enacted—and the questions surrounding discretionary release for terrorist offenders will no doubt form part of that ongoing debate.

Last month, the Government launched an independent review of the multiagency public protection arrangements. This review is being led by the Independent Reviewer of Terrorism Legislation, Jonathan Hall, Queen’s Counsel. The release and supervision arrangements for many of the prisoners to whom the Bill applies will inevitably be included in that review. A report following the MAPPA review will be provided to the Home Secretary and Justice Secretary for publication as soon as is practicable.

Taking up the point made by the noble Lord, Lord Anderson of Ipswich, we anticipate that, in the course of his routine duties as the Independent Reviewer of Terrorism Legislation, Jonathan Hall will scrutinise the new release legislation for terrorist offenders in his annual report; that is a statutory commitment. Indeed, as the noble Lord, Lord Anderson, observed, the Independent Reviewer has already said in his comments on the Bill that he envisages doing just that in a future report. I would certainly accept that that falls well within the boundaries of his responsibilities, and it is in these circumstances that we say that a further review is unnecessary.

The Government are clear that we want to see an end to the automatic early release of terrorist prisoners. In the forthcoming counterterrorism Bill, we will make further changes to the law surrounding the release of these offenders. In addition, later in this Session we intend to introduce a sentencing Bill that will cover wider areas of sentencing and release policy. Again, that will provide an opportunity to discuss sentencing and release arrangements. In these circumstances, we consider that there is no requirement for the further review proposed by the noble Lord, Lord Marks, and I urge him to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I turn first to the point made by the noble Lord, Lord Anderson, and the question that he asked me. I accept, of course, that the independent reviewer Jonathan Hall, QC will be looking at the way this Bill is working; but he will do so in a much wider context—that of his annual review and his MAPPA review. An issue of serious principle is involved. What is needed here is a precise review of how the provisions of this emergency legislation, passed with inadequate scrutiny, are working.

I turn now to the observations of the noble Viscount, Lord Hailsham. I am afraid that if this House always took the view that the House of Commons might kick back amendments we make, we would lose a great deal of our usefulness. The points that we make and the amendments we pass are often very influential to a much wider audience. I am not deterred by the fact that my colleagues in the House of Commons, who are slightly less numerous than my colleagues here, failed to get their amendment through that House, or by the fact that the Labour Party’s amendment did not succeed. I suggest that it is for us to form a view of this amendment.

When the noble Viscount went on to explain the kind of review that he foresaw as necessary and should take place, and indeed when the Minister responded to these amendments, they were both considering a much wider, more comprehensive, fuller review of the treatment and punishment of terrorists, including the Acheson recommendations on how to secure rehabilitation and the whole issue of deradicalisation. Those issues are crucial, and my regret Motion was concerned with the lack of those provisions. The very fact that the reviews that the noble Viscount and the Minister have in mind are so general and broad-reaching deprives them of the specific accent that a review of this legislation ought to have.

We should not forget the emergency nature of this legislation: it is just over three weeks since the awful atrocity in Streatham High Road. We will have passed this legislation tonight—as I am sure we will—in response to a promise made by the Lord Chancellor, the Secretary of State for Justice, the very next day. We have done it in double-quick time. Question after question was raised in today’s Second Reading—a very good debate—by noble Lords who know a lot about the subject but have had insufficient time to consider the provisions of this Bill and their consequences. As a matter of principle, it is important that post-legislative scrutiny is directed urgently at Bills that are passed as an emergency, and with this Bill, where the liberty of the subject—however undeserving many of the subjects may be—is at stake, that principle is of great importance. I have not heard anything said today that addresses the requirement for a review of emergency legislation of that kind, and I therefore wish to test the opinion of the House.