Counter-Terrorism and Sentencing Bill

Lord McNicol of West Kilbride Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

Clause 2 agreed.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

We now come to the group consisting of Amendment 1. I remind noble Lords that anyone wishing to speak after the Minister’s reply should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in the debate.

Schedule 2: Serious Terrorism Offences: England and Wales

Amendment 1

Moved by

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[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

We now come to the group beginning with Amendment 2. I remind noble Lords that anyone wishing to speak after the Minister’s reply should email the clerk during the debate. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.

Schedule 3: Offences for the purposes of this Act: Northern Ireland

Amendment 2

Moved by

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Schedule 3, as amended, agreed.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

We now come to the group beginning with Amendment 4. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.

Clause 4: Serious terrorism sentence for adults aged under 21: England and Wales

Amendment 4

Moved by

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Amendment 11 withdrawn.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

We now come to the group consisting of Amendment 12. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in the debate.

Amendment 12

Moved by

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[Lord Anderson of Ipswich (CB) [V]]

My Lords, it was an honour to put my name to this amendment, moved by the noble Baroness, Lady Prashar, with her experience as a former executive chair of the Parole Board for England and Wales. As she said, Clause 27, which this amendment would replace, aims to remove the role of the Parole Board in the case of certain dangerous terrorist offenders who have been given a determinate sentence. Clause 27 would do this by amending Section 247A of the Criminal Justice Act 2003, itself dating from only last year, which currently requires the Secretary of State to refer terrorist offenders serving any determinate sentence to the Parole Board at the two-thirds point of the custodial term.

There are instinctive attractions—including, no doubt, electoral attractions—in providing for all dangerous terrorist offenders to serve their entire sentences in prison. But the notion that such offenders are uniquely incorrigible is not supported by the facts. I remind the Minister of a Written Answer that I received from the noble and learned Lord, Lord Keen, last February, revealing that, of the 196 terrorist offenders released from prison in England and Wales in the seven years from January 2013, only six—barely 3%—had committed another terrorist offence by the end of that period. This illustrates a pattern of surprisingly low terrorist recidivism rates around the world, expertly analysed by Andrew Silke and John Morrison in an ICCT policy brief of September 2020 aptly entitled Re-offending by Released Terrorist Prisoners: Separating Hype from Reality.

This is not an argument for complacency. It most certainly does not mean that all is well in our prisons, but it is something to consider before we dispense with the Parole Board in the circumstances that Clause 27 would effect.

My successor but one as Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, has been referred to today with wholly justified approval by at least two Ministers and numerous other noble Lords, so we should listen to the three reservations that he has voiced on Clause 27. First, it would remove the possibility of early release

“as a spur to good behaviour and reform for offenders who are going to spend the longest time in custody”.

At the same time, it would deprive the prison authorities of an important tool for prisoner management. Secondly, it would remove the opportunity to explore current and future risk at Parole Board hearings. Thirdly, it would remove the opportunity for early release of

“child terrorist offenders, whose risk may be considered most susceptible to change as they mature into adults”.

I endorse what the noble and learned Lord, Lord Falconer, said about that and the public safety implications in the last group.

Those reservations are addressed by this amendment and by the following group. I look forward to hearing what the Minister, whom I welcome warmly to his place, has to say about them.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

We have been unable to reach the noble Lord, Lord Ramsbotham, so we now move to the noble Lord, Lord Faulks.

[Lord Faulks (Non-Afl) [V]]

My Lords, the Bill has been broadly welcomed, in light of the Fishmongers’ Hall and Streatham attacks, by noble Lords across the House. One could add to that sad litany of attacks the murder of three men in Forbury Gardens, Reading. Noble Lords accepted the need for legislation such as this with something of a heavy heart. There have been anxieties expressed in Committee today and at Second Reading about some aspects of the Bill. I particularly noted the comments at Second Reading of the noble Baroness, Lady Prashar, and the noble Lord, Lord Ramsbotham, who described himself as “horrified” by the reduced role of the Parole Board.

I share, I am sure, with all noble Lords very considerable respect for what the Parole Board does. Decisions about serious offenders are particularly challenging. The boards, which have enormous experience, are given a great deal of material to make their decision, which they do with scrupulous care. I do not see that the purpose of the Bill in any way excludes or marginalises the board. The purpose, surely, is to ensure that serious terrorist offenders spend longer in prison and longer on licence, and it is that fact that removes the Parole Board from the picture, not any lack of respect for what it does.

I listened carefully to what the noble Lord, Lord Anderson, said about the statistics on reoffending by terrorist offenders who are released, and I am sure that he is absolutely right to make that point. I would add just one gentle caveat, in the sense that a terrorist who commits another offence, maybe of the most extraordinary gravity, is not comparable to, say, a burglar who breaks into a house repeatedly, serious though that can be.

The offenders who will no longer be susceptible to review by the Parole Board will have their licence condition, when they are released, set by prison governors on behalf of the Secretary of State. As I understand their position, prison governors will be informed by the probation service, the multi-agency public protection panels, and presumably by information gathered about the prisoners in the prison or prisons where they have served their sentence, which will be something of an incentive for them to behave well. Prison governors have much experience of this process.

The Bill is certainly concerned with the protection of the public. Keeping the most serious offenders in prison for longer and removing their opportunity for early release is what causes the reduced role of the Parole Board. The removal of its involvement for what I understand is likely to be a very small cohort of 50 or so—perhaps the Minister can help—seems to be justified in the public interest.

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Debate on whether Clause 27 should stand part of the Bill.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

Noble Lords should be aware that the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have withdrawn from this debate, so the speaker after the noble Lord, Lord Marks, will be the noble Baroness, Lady Prashar. I call the noble Lord, Lord Marks.

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

My Lords, as was said on the previous group, Clause 27 as it stands would mean that offenders serving serious terrorism offences sentences and those serving extended determinate sentences for an offence carrying a possible sentence of life imprisonment would be excluded from the operation of subsections (3) to (5) of Section 247A of the Criminal Justice Act 2003. Those subsections presently govern the involvement of the Parole Board in the release of offenders at the two-thirds point of their custodial term.

In answer to some who spoke about early release in the debate we have just had, the description of release at the two-thirds point, which is what is largely envisaged, is not, on our traditional understanding, early release. We have long recognised that there is a benefit in a remission system whereby release generally takes place at the two-thirds point of a custodial term before the offender’s sentence has been concluded.

As the noble Lord, Lord Anderson, pointed out, subsections (3) to (5)—the present arrangements—were themselves the result of the Terrorist Offenders (Restriction of Early Release) Act, the so-called TORER Act, which we passed last year, ending release on licence after the halfway point in an offender’s sentence. However, in the section concerned, we preserved the role of the Parole Board in cases where generally an offender had served two-thirds of his custodial term. That was emergency legislation. I invite the Minister to explain what has changed to justify removing the Parole Board’s involvement since that emergency legislation, which retained it. I venture to suggest that no further justification has arisen since we passed that Act.

Subsections (3) to (5) presently require referral by the Secretary of State to the board for consideration after the completion of two-thirds of the required custodial period, then consideration by the board as to whether it is satisfied that it is no longer necessary for the protection of the public that the prisoner be detained. Only if it is so satisfied does the board direct release on licence. The effect of Clause 27 on the offences to which it applies is that release before the conclusion of the custodial term is excluded altogether and the Parole Board is not to be involved in relevant offenders’ release. Clause 28 and Schedule 10 apply similar provisions to Scotland, and Clause 31 to Northern Ireland.

One effect of removing the prospect of early release is that the Bill removes an incentive to behave acceptably in prison, which makes offender management in prisons far more difficult. It also makes it less likely that prisoners will engage with deradicalisation programmes within prisons—partly because there will be less incentive for them to do so, but also because deradicalisation, like rehabilitation more generally, is advanced by hope and inhibited by hopelessness. It would increase, in those subject to these sentences, the sense of hopelessness, powerlessness and hostility in prison from all around; I urge those who argue that hope and some sense of power in a prisoner’s own destiny are important to the welfare of society at large to accept the weakness of that position.

One reason why I make these points is that all those subject to these sentences will be released one day, unless their sentences outlast their lives; for that reason, their rehabilitation is important. Nor should we forget that the reoffending rates for terrorist offences are in fact low, as the noble Lord, Lord Anderson, pointed out when he referred to the response to the Question he raised last February, in which the Ministry of Justice calculated a recidivism rate of 3.06% for terrorist offences, as opposed to a rate of 28% for other offences. Of course I take the point made by the noble Lord, Lord Faulks, that any reoffending by a terrorist offender is or may be disastrous, but I venture to suggest that excluding any involvement of the Parole Board, with its wealth of experience in weighing up risks to public safety, would be an unhelpful way of improving public safety; indeed, it would not improve public safety at all.

The central question that the Parole Board is directed to consider is whether continued detention is required by a continuing risk to the safety of the public. The noble Baroness, Lady Prashar, repeatedly described this as risk assessment; that was the correct description. She rightly highlighted the importance in this process of the Parole Board and its hearings. Of course I accept in all this the point made in response to her amendment by the noble Lord, Lord Wolfson, that a replacement for Clause 27 would be required if that clause were to go. Whether or not that would have been the replacement proposed in Amendment 12 by the noble Baroness and others matters not. What does matter is that the present proposal does not help public safety, and has very serious adverse ramifications.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I call the next speaker, the noble Baroness, Lady Prashar. No? We will come back to her. Let us try the noble Lord, Lord Anderson of Ipswich.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I have once again signed up to the amendments tabled by the noble Baroness, Lady Prashar. I do not want to repeat what I said on the last grouping, so I will raise just two additional points. The first is the risk of inconsistency that Clause 27 and its companions could bring into the law. They of course apply only to determinate sentences, so does this not raise what the independent reviewer has described in a recent series of tweets as the

“uncomfortable possibility that offenders may be ‘better off’ if sentenced to life imprisonment than extended sentences”?

He illustrated that observation with the case of the Anzac Day plotter—recently released on the recommendation of the Parole Board, having been convicted at the age of 15—and the decision last week of the Court of Appeal in the case of the St Paul’s suicide bomb plotter. The Minister and others might want to reflect on those cases, and on the observations of the independent reviewer before Report, when I suspect that we may need to come back to this.

Secondly, since the Minister accepts that the prisoners who would be affected by Clause 27 are not always incorrigibly violent, and since he does not take issue with what I said about the very low terrorist recidivism rates, is he not tempted to accept that there might be cases—perhaps rare—in which the Parole Board would feel able to recommend their release?

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

We still cannot reach the noble Lord, Lord Ramsbotham, so I call the noble Lord, Lord Naseby.

[Lord Naseby (Con) [V]]

My Lords, the Bill makes a welcome change to the sentencing, release and monitoring of terrorism offenders by toughening up the law. This is a time of higher risk—something that has not been referred to by our noble friends the lawyers. I am no lawyer, but I study the Middle East and south Asia in some depth, and I have lived abroad for a number of years. I have very good contacts in those parts of the world and, in my judgment, the risk of terrorism at this time is higher than we have ever experienced.

I might say as a side issue that I get concerned when organisations such as Human Rights Watch, Amnesty International and others call vociferously for the deletion of Clauses 37, 38 and 40. I am, frankly, not impressed by their objectivity. I wish I could be, but they and others I could mention, such as Freedom from Torture, do not in my experience bring objectivity to these types of cases. I contrast that with the work of the International Committee of the Red Cross, the ICRC—although it is not involved in these cases on the whole—and Médecins Sans Frontières, both of which are involved in issues relating to torture, and they are very objective in their assessments.

It is objectivity that one wants. The British public has to understand and be convinced that any change that is made will help to deal with terrorism. I think, on having looked at the Bill, that Clause 27 is right. It is all very well for noble Lords to say that the numbers who abscond or the cases where people are released early are small, but the number of people who were killed in Manchester was not small. In most places where there is terrorist activity, the numbers are not small. I see my role in the upper House as being one where I look after the British public. It is not a risk assessment. The only risk is that someone will reoffend. When facing the challenge of that situation, I do not think that we can suggest to the British public that some of these men and women who have carried out heinous crimes should be released early on an objective risk assessment.

I make one other point. As it happens, I am doing a bit of work on national service, something which older Members of your Lordships’ House may well have done in the Army, the Royal Navy or the Royal Air Force. In my case, I was a pilot in the air force. I think of myself at the age of 21. We were all 18 years old when we did our national service. We were young men who were risking our lives and we were ready to fight; many lost their lives. I wonder whether 21 is too high an age; I personally would drop it to 18, which was the age at which you had to do your national service. However, that goes rather wider than what we are considering here.

As far as I am concerned, the Government are taking absolutely the right road. We have to toughen up on sentencing and we have to toughen up on early release and the monitoring of offenders because the risks at this point in time are very real.