Counter-Terrorism and Sentencing Bill

Lord Stewart of Dirleton Excerpts

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

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

My Lords, the noble Lord, Lord Thomas of Gresford, concluded his remarks by saying that the amendment was “testing the rationale” of these sentences, and that is indeed clearly the case. The first amendment reduces the minimum term in custody and the second increases the period on licence. Both the noble Lords, Lord Thomas and Lord Marks, referred to these as “no-hope sentences”. I understand the sentiment they expressed on these extremely long and very serious sentences being given to children—but they are not really no-hope sentences, are they? YOT and, more likely, probation and the Prison Service will have been working with these people for many years to give them hope that, when they get out of prison and are on licence and, eventually, off licence, they can go on to lead a constructive life.

Now this is a very tall hurdle. I understand that; we are dealing with the most serious sentences that one can imagine. Nevertheless, that is the role of probation and it is very important, I would say, for the young person to see that there is hope at the end of the period, because it is far more likely that, if they see that hope, they will engage constructively with people in prison and carry on that constructive intervention when they leave on licence. So I have some questions for the Minister. What assessment has been done of the likelihood of reform of offenders—is there any data on that? Also, what is the number of young offenders now in custody who are likely to be in custody as a result of this legislation? Are there any examples of where longer custodial sentences have helped young people to go on to lead lives in which they no longer offend?

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, it is a privilege to stand and answer points made by the noble Lords who have spoken. I first acknowledge their great experience and wisdom in the field, and the evident compassion that underpinned their observations to the Committee. I know that at least two of them have had the experience that I have of acting for a very young person charged with a crime of the greatest magnitude and severity. I can tell from the way in which their questions were framed that they are aware of the extreme sadness at the loss of potential that the advocate finds when acting for a person in such a position. I hope that noble Lords appreciate that I am fully aware, from the perspective of legislation, of the awkwardness and difficulties attendant upon arriving at an appropriate sentence for these most serious of crimes.

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[Baroness Hamwee (LD) [V]]

The noble and learned Lord very briefly answered the questions on consultation from my noble friend Lord Thomas. I hope he has in his brief the answer to the headline question of whether consultation was undertaken with probation and what its views were on the balance between custody and licence.

[Lord Stewart of Dirleton (Con)]

Will the noble Baroness confirm that she is referring to the probation service?

[Baroness Hamwee (LD) [V]]

I appreciate that there are levels and areas of probation. The question extends to all parts of those who provide probation services, but the central probation service, offender management, is probably more relevant to this than local probation services.

[Lord Stewart of Dirleton (Con)]

If I may, I will respond to the noble Baroness’s question in writing.

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

My Lords, again I thank all who have spoken on these amendments, in particular the noble and learned Lord, Lord Stewart of Dirleton. His response was sympathetic, in that he fully recognises the position of young offenders exposed to these extremely long sentences. In return, as he recognised, we accept the seriousness of the offences that are to be visited by these serious terrorist sentences. It is right that they merit an extremely serious response. But even for the most serious offences there ought to be room in a scheme of punishment for rehabilitation, particularly of young offenders who commit these offences in their youth but are serving sentences for many years to come.

My noble friend Lord Thomas of Gresford spoke of, and asked about, the arbitrariness of the choice of the 14-year term. Of course, he has had a lifetime of practising in the criminal courts. He has many years of experience of judges exercising their discretion, and those years have left him with a favourable view of judicial discretion—a view which I share.

The noble Lord, Lord Ponsonby, questioned the formulation that my noble friend Lord Thomas of Gresford and I put that a sentence of 14 years of immediate custody offers no hope, because, he said, of the availability of help within a custodial setting. I regret that I do not agree with his optimism. Very long periods in custody allow offenders in custody no hope, or very little hope indeed. It is otherwise with time spent on licence, when a great deal of help in rebuilding their lives is available to offenders, from the probation service and other services and, we would hope, also from services to help deradicalise young offenders.

The question of rebalancing, which the Minister also accepted that these amendments were about, was explored and will be explored further between the Minister and my noble friend Lady Hamwee. I invite the Minister and the Government to consider whether more discretion could be left to the sentencing judge to permit that judge to impose a minimum term in custody of less than 14 years—we suggest 10—and to recognise that there is scope for a longer period on licence to enable young, or young middle-aged lives at that stage, to be rebuilt. In urging the Government to take that position, I beg leave to withdraw the amendment.

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Moved by

[Lord Stewart of Dirleton]

8: Clause 23, page 20, line 24, at end insert “(or a sentence of detention without limit of time so imposed)”
Member’s explanatory statement
This amendment clarifies that new section 205ZC of the Criminal Procedure (Scotland) Act 1995 does not apply where an offender aged under 18 is sentenced to detention without limit of time for a terrorism offence.

[Lord Stewart of Dirleton (Con)]

My Lords, I shall speak also to Amendment 9 in this group. Both are minor technical amendments to Clause 23. Amendment 8 would make a minor amendment to Clause 23, which introduces the terrorism sentence with fixed licence period in Scotland. The amendment would add the sentence of detention without time limit to the “waterfall” list of sentences of imprisonment and detention that a court can impose in relation to an offence. This would ensure that the new terrorism sentence was available only where a court did not impose a sentence in this list, which includes the indeterminate sentence of detention under Section 208, making the order of sentencing options clear.

Amendment 9 would simply remove a now redundant reference to new Section 205ZC(6) in subsection (4) relating to the new terrorism sentence introduced in Clause 23 due to an amendment to that provision on Report in the Commons. Subsection (4) defines the meaning of the aggregate term in relation to a sentence of detention in respect of the new terrorism sentence in Scotland, as it applies to offenders of at least 16 years of age but under 21. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the Minister’s words brought to mind many waterfalls that I know and love in Scotland, but I will forgo the opportunity to comment on Scottish criminal law. I am sure that both these minor and technical amendments are perfectly justified and I have no more to say about them.

[Lord Falconer of Thoroton (Lab) [V]]

I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for the clarity with which he introduced these two technical amendments. Perhaps I may ask two questions. First, on Amendment 8, what would the implications have been had this amendment not been made? I was not clear from what he said whether it would change any position. Secondly, in relation to Amendment 9, how many further convictions would have been included without the decision to limit the availability of the new sentence to cases of conviction on indictment?

[Lord Stewart of Dirleton (Con)]

My Lords, the purpose of the amendment was to reflect the approach adopted across England and Wales, and Northern Ireland. The “waterfall” approach means that courts can impose the new sentence only where they do not impose, for example, a life sentence or an extended sentence. Within the Scottish sentencing framework, this waterfall includes the sentence of detention without time limit, which was unintentionally omitted during initial drafting of the clause. As I said earlier, subsection (6) in the previous version of the Bill was amended during the Commons debate. The amendment would simply remove a reference to a provision that no longer exists.

Just as the noble Lord, Lord Thomas of Gresford, is aware of attractive waterfalls in Scotland, I am aware of attractive waterfalls in Wales. I hope that some day soon we will be permitted to discuss them in a friendly fashion together.

Amendment 8 agreed.

Moved by

[Lord Stewart of Dirleton]

9: Clause 23, page 21, line 2, leave out “or (6)”
Member’s explanatory statement
This is a consequential amendment required as a result of the amendments already made to the Bill to limit the availability of the new terrorism sentence introduced by Clause 23 to cases of conviction on indictment.

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

My Lords, my Amendment 35 is in this group. I agreed with everything my noble friend Lord Hunt said when he introduced his amendment. My amendment is different in detail, but the overall approach is the same—that is, to have a realistic and timed review of the various approaches to the Prevent programme which the Government is embarking upon.

I got an interesting briefing on this debate from the probation officers’ trade union, Napo. It made a couple of points, which I will repeat. It said that in the offender management and custody model, it indicates that a high-risk offender should get one hour of individual contact per month with a probation officer. A probation office’s staff have a minimum of 70 clients, so it is impossible for them to meet that requirement. The central point that Napo made in the briefing was that, when one reviews approaches and puts down procedures, the reviews need to result in practical change on the ground, otherwise they are destined to be repeated without effective change.

I was very interested to hear the contribution of the noble Lord, Lord Faulks, who was a very effective Minister. He talked about his experience in that role. He also, interestingly, talked about the status of prisoners when they are in prison. I occasionally visit prisons, and I have visited Belmarsh on a couple of occasions. Belmarsh is a prison within a prison and there is undoubtedly status for the people on the inside prison; you can tell it from the tone of voice of the prison officers when they talk about the facility they are involved in managing. There is status to be gained through the way you are treated while in prison. I unfortunately know that to be true through friends of friends whose children have ended up in prison. There is a status to be gained within prison, which sometimes young men cannot have when they are outside prison.

I welcome the review of terrorism legislation by Mr Hall. I also note that it is Mr William Shawcross who has been appointed to review the Prevent programme, and I know he has extensive experience on this matter. The purpose of both these amendments is to tease out the progress and practical changes which the Government hope to make through reviewing the Prevent programme.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to both noble Lords for their amendments, which bring us to a very important set of issues. I discern that the Committee is united in believing that data is necessary in order that we might, as much as possible, develop and devise schemes by which deradicalisation can be accomplished. The Government do not think that a new strategy for rehabilitation and disengagement nor a review of the current delivery is beneficial at this time. However, to reassure noble Lords, I want to briefly set out the important work being done in prisons and probation to turn terrorist offenders away from extremism so that they can be released safely. The Government have a clear strategy for rehabilitation programmes for terrorist offenders. The important work in prison and probation here delivers against the Contest strategy, which was recently refreshed and published. Since then, significant work has been done to strengthen our approach to rehabilitation and disengagement of terrorism offenders. This strategy applies to all terrorism offenders, not only those who will receive the new serious terrorism sentence or be subject to the changes made by Part 1 of the Bill.

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[Lord Paddick (LD) [V]]

My Lords, I apologise for any inconvenience caused by my noble friend Lady Hamwee and me not speaking in the last group, where our names were included in the speakers’ list in error.

The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, addresses the serious question of the impact on prisoners who have no prospect of being released early or of being released at all, something that the noble Baroness, Lady Prashar, spoke about in an earlier group, as did my noble friend Lord Marks of Henley-on-Thames.

Some indication of the potential impact comes from a report in the Times, dated 20 January 2021, on inmates at the only remaining isolation unit for extremist prisoners in Her Majesty’s Prison Frankland. These isolation units were designed to keep the most dangerous ideological prisoners away from the general prison population so that they could not radicalise vulnerable inmates, as other noble Lords have mentioned in today’s debate. One of those units was mothballed before it was opened, another is empty, and the one at Frankland houses five prisoners out of a capacity of eight. There are currently about 200 terrorist prisoners in the UK.

According to the Times, a report by the independent monitoring board at the prison says that inmates in the unit have become more entrenched in their views, that they are refusing to co-operate or to engage in activities and programmes—except for the gym—and that they are distinguished from other prisoners by a lack of progression. They display antagonism and hostility to staff, with one of the prisoners responsible for a serious assault on a prison officer in the centre.

Locking people up with no incentive to behave or co-operate is likely to be counterproductive, and the Times report supports that assertion. We support the amendment.

[Lord Stewart of Dirleton (Con)]

My Lords, this amendment would require the Government to report on whether the removal of Parole Board consideration of certain prisoners’ release impacts their behaviour in prison. We return once again to the quite proper desire of the Committee for objective data to allow proper evaluation of the usefulness of measures. The point is an important one, but the Government do not think that a review and a report such as the amendment proposes would be practical or beneficial at this time. I will set out why in brief terms.

To carry out such an exercise would require there to be clearly defined factors influencing prisoner behaviour in custody, against which one could evaluate the distinct impact of the prospect of Parole Board consideration in a sentence. Such an evaluation method is simply not feasible. It would be impossible to measure the behavioural effect of a prisoner sentenced under provisions in this Bill expecting a future Parole Board hearing, compared to a counterfactual in which the Parole Board would consider the case. The amendment goes further, implying that the removal of Parole Board referral for some cases could impact on prisoner behaviour more widely. This would be even more impracticable to assess.

The policy intent across these measures is clear; the sentences available to the courts for terrorism offences should be proportionate to the gravity of these crimes and provide confidence for victims and the public. In some cases, this will mean that terrorist offenders spend longer in custody before release. To provide some reassurance further to what we have given from the Dispatch Box this afternoon about what will be done in that additional time in custody, I will make two remarks.

First, there is the hard work of prison staff with prisoners in their care, whatever their sentence or release arrangements. As your Lordships will have gathered, we deploy specialist counterterrorism staff to work with terrorist offenders, and we are recruiting more of these officers than ever before through the counterterrorism step up programme.

Secondly, the new counterterrorism assessment and rehabilitation centre, which your Lordships have heard about from the Dispatch Box, will drive the development, innovation and evidence-based delivery of our rehabilitative interventions. The centre will transform our capability to intervene effectively with terrorist offenders, including those sentenced under this Bill and those who will be released automatically. The Bill will be scrutinised in the usual way, including a statutory review after three years.

I now turn to contributions from Members in this short, but hopefully valuable, debate. I congratulate the noble Baroness, Lady Jones of Moulsecoomb; she succeeded in doing from her Benches what I was unable to do from the Dispatch Box earlier in answer to a direct request, by identifying Mr Shawcross in his new post. I hope the noble Baroness will accept my further assurances as to the seriousness with which the Government take the points she raised.

The noble Lord, Lord Carlile of Berriew, in an elegant allusion to the values of the town clock at Tredegar, drew our attention to the important work of the Parole Board. We on this side share the noble Lord’s high estimation of the Parole Board. I promise, on behalf of myself and my noble friend and colleague, that we will reflect carefully on the observations made by the noble Lord and by others in the course of debate.

Counter-Terrorism and Sentencing Bill

Lord Stewart of Dirleton Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 9th February 2021 Lords Chamber

I have spoken to my amendments in detail but the scene-setting—if I may put it like that—by the noble Lord, Lord Marks, is most appropriate. We are having some very radical reviews, including Jonathan Hall’s review of terrorism and its effect on other prisoners in the prison system and, as he put it in a quote that I picked up as well, the “drumbeat of links” between terrorism and the prison service. I hope that the Government will look favourably on those individual aspects, which need review.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, Amendment 16 would introduce a new clause requiring the Secretary of State to arrange for an independent review of the impact of Clauses 1 to 31 in the first year of the Act coming into force. I must respectfully disagree that this amendment is necessary. As the House has heard in Committee, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and his remit covers the Bill. Indeed, as the noble Lord, Lord Marks, referred to, he has announced his intention to conduct a review in prisons, which we welcome. He has already shown his expertise and engagement with the Bill in its entirety by providing detailed comments on its provisions—contributions that I know this House and those in the other place valued highly. We have every confidence that he will continue to provide valuable and important scrutiny following its enactment and through the prisons review which he will be undertaking. I therefore disagree that there is any need to appoint another reviewer to focus on just some of the Bill’s provisions.

That said, I recognise that the noble Lord, Lord Marks, and others indicated particular concerns by specifying the areas which such a review ought to consider. I shall take these points in turn, which I hope will assuage noble Lords’ concerns. First, there is the question of the impact of longer sentences—or a longer proportion of the sentence spent in custody—on prisoners’ rehabilitation as a result of the Bill. I start by reflecting that within a year of the Bill’s commencement, the impact of longer sentences will not yet be available for us to analyse. Importantly, however, the rationale behind longer custodial sentences for the most serious and dangerous terrorist offenders is one of public protection, which is this Government’s primary concern. Ensuring that these offenders are incapacitated for longer meets this ambition. The noble Lord, Lord Marks, spoke of the crucial importance of the hope of reform and rehabilitation, and we on this side share that hope. It is not that we consider that rehabilitation is unimportant; it will remain central to the work that is undertaken with terrorist offenders in custody.

Second is the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate and the use of separation centres to this end. These issues are raised in reference to the Acheson review recommendations. I assure the noble Lord that most extremist prisoners are and should be managed in the mainstream prison population, with appropriate conditions and controls.

Across the entire prison estate, we have, and seek to maintain, robust case-management processes to manage the risks posed by extremists and to prevent them radicalising others, including co-located offenders. The Government, however, have designed separation centres to hold the most subversive extremist prisoners, preventing them spreading their malicious ideology to other prisoners. These centres were never intended for use with significant numbers of terrorist offenders, as this would undermine their main purpose: to separate the most dangerous from those most vulnerable to radicalisation. The Government use these centres only when it is necessary and, for reasons of national security, the Government do not confirm the numbers of prisoners in individual separation centres.

Finally, I note that the Bill will be subject to the usual practice of post-legislative scrutiny three years after the Bill receives Royal Assent, as is the case for all legislation. In light of this, and the existing position of the Independent Reviewer of Terrorism Legislation, who already has authority to review this legislation, I do not believe this amendment to be necessary.

Amendment 34, spoken to by the noble Lord, Lord Ponsonby of Shulbrede, and in the name of the noble and learned Lord, Lord Falconer of Thoroton, would insert a new clause requiring the Secretary of State to lay a report within three years on the financial impact of the provisions of the Bill, specifically detailing the effects of extended sentences and extended licence periods; the expansion of the sentence for offenders of particular concern regime; the use of polygraph testing as a licence condition; and, as a result of these measures, any increased staffing resources required in Her Majesty’s Prison and Probation Service. I appreciate from the terms of the amendment that there is a concern to examine the cost of these measures when set against the impact assessment already published by the Government.

I make the point that numbers of terrorism offences are so low, comparatively speaking, that the impact of the measures the Bill puts in place is minimal. The impact of licence periods will depend on judicial discretion in setting them and, if the impact assessment carried out and published by the Government was inaccurate, that would be shown up by the process of post-legislative scrutiny. I cite to the Committee a number of figures to inform what I have just said. On 31 December 2020, there were 78,180 in the prison population. The impact assessment estimates the impact of the measures will be around 50 additional cases at any one time. On 30 September 2020, there were 222,657 cases on the probation caseload. The Bill’s impact assessment estimates that the impact of the measures will be around 50 additional case at any one time. The additional polygraph testing as a licence condition is estimated to affect fewer than 150 offenders at any one time, at a cost of about £400,000 annually in steady state.

Therefore, our impact assessment and the figures that support it estimate that the measures in the Bill will have a minimal impact on the prison population and the probation caseload of fewer than 50 additional cases at any one time. This impact, though small, will build up gradually over time and so will not be felt immediately. We are therefore confident that these changes will not have a substantial financial impact on Her Majesty’s Prison and Probation Service. I assure the noble Lord, Lord Ponsonby of Shulbrede, that the Government are already providing funding to support our legislative changes: an increase of £90 million in funding for counterterrorism policing this year; an increase in the resources dedicated to training front-line prison and probation staff through the counterterrorism step-up programme; and an immediate £500,000 package for the Victims of Terrorism Unit. The Government will continue to publish data on prison population and probation caseloads, and we will carry out an internal review on polygraph testing. I do not believe that a legislative commitment is required or necessary to review the financial impact of these measures.

The noble Lord, Lord Ponsonby of Shulbrede, spoke also to Amendment 36, which would insert a new clause requiring the Secretary of State to lay a report on the potential impact of the Bill’s provisions on prison capacity. Again, I respectfully draw his attention to the impact assessment the Government published alongside the Bill, which has already made that assessment. The estimates I have already spoken of are based on recent trends in overall numbers of terrorist offenders being convicted. As the cohort of offenders affected by the Bill is small, these changes will have only a minor impact on prison capacity. We will always provide places, of course, for those sentenced to custody.

In addition to the impact assessment, as I have said, the Government routinely publish data on prison population statistics. I do not believe that a legislative commitment will provide any greater opportunity for scrutiny in this respect. It is worth underlining that the Government’s ambitious programme of improvement in this area—the counterterrorism step-up programme—will put more specialist staff in prisons, working directly with prisoners on rehabilitation, as well as providing intelligence and monitoring of such prisoners. This will make our prisons, and ultimately our streets, safer, an ambition that I am sure noble Lords will support. I know that that is a matter of agreement across the Committee. This programme will be important to ensure that prisons can manage any increased demand from terrorists serving longer in prisons in the near future. Therefore, it is not necessary for us to legislate for a further assessment of the potential impact of these measures.

The noble Lord spoke also to Amendment 38, which would insert a new clause placing a statutory requirement on the Government to review all measures in the Bill that relate to Northern Ireland, in consultation with the Northern Ireland Minister for Justice and the Northern Ireland Executive. This review would be required annually and to be published as a report and laid before Parliament. First, I assure him that in developing the Bill, despite the fact that terrorism is a reserved matter, we have carefully considered Northern Ireland’s unique history with terrorism and taken great care not to tamper with provisions enshrined in the Belfast agreement and, particularly, the Northern Ireland (Sentences) Act 1998. Furthermore, when we have found concessions viable, we have made them, as we demonstrated through our removal of clauses providing for polygraph testing in licensed conditions, following assurances from the Northern Ireland Executive that they are satisfied that the legislative power to use such measures exists already. That said, I remain of the view that we need to take a robust approach to terrorist offending wherever it occurs in the United Kingdom and whatever ideology it aligns itself to. We must avoid a two-tier approach to the sentencing and release of terrorists across the United Kingdom.

The most recent data shows that in 2019-20, there were just 14 convictions for terrorism-related offending in Northern Ireland, and just six in the previous year. With numbers at that level, I submit that there will be too little information on which to base an annual review. The same amendment was raised in the other place, and I respectfully remind the noble Lord that the opportunity already exists for the House to review the Bill’s impact in the relevant committee three years after it receives Royal Assent, through the post-legislative scrutiny process. A review clause of this nature is therefore not required. Reviewing the impact of a Bill after three years will provide a more meaningful opportunity for review. For these reasons, I am not persuaded of the benefit of an annual review of the Bill’s measures in Northern Ireland.

Amendment 39 would insert a new clause placing a statutory requirement on the Government to report on the impact of the provisions in the Act on the National Probation Service 18 months after its enactment. I assure the noble Lord, Lord Ponsonby of Shulbrede, that we have considered fully the impact on the National Probation Service of the measures in this Bill, which we consider to be low. We set out the impact in full in the published impact assessment.

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Moved by

[Lord Stewart of Dirleton]

66: Schedule 13, page 122, line 21, at end insert—
“(1A) In section 1(3A) (release of short-term, long-term and life prisoners serving concurrent sentences), for “section 1A” substitute “sections 1A and 1B”.”Member’s explanatory statement
This amendment is consequential on the insertion of new section 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 made by the amendment at page 123, line 6.

[Lord Stewart of Dirleton (Con)]

In moving the amendment in the name of my noble friend Lord Wolfson of Tredegar, I shall speak also to Amendments 67 and 70, also in his name. These amendments are intended to modify Scottish provisions on sentencing with the intention of providing that, throughout the United Kingdom, terrorist offenders serve the appropriate custodial period of sentences for terrorism offences. They are made necessary by an aspect of Scottish sentencing practice that does not appear elsewhere in the United Kingdom.

The three amendments, taken together, make provision for technical sentence calculation adjustment. They clarify how terrorism sentences will operate when served consecutively with non-terrorism sentences. The amendments come at the end of a positive engagement with the devolved Government; as a result of that engagement, the Scottish Government have now tabled a legislative consent Motion in respect of this Bill.

As I said in the course of these brief remarks, the amendments are technical in nature and I shall be happy to place detail of them and their implications in a letter in the Library of this House. I beg to move.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I am most grateful to the noble and learned Lord, Lord Stewart, for moving these amendments and for pronouncing “Tredegar” correctly. I am sure that the noble Lord who hails from, or has a connection with, Tredegar, will be happy with his pronunciation as well. I have looked at these Scottish provisions. I agree that they are technical, and I really have nothing to add.

[Lord Falconer of Thoroton (Lab) [V]]

Like the noble Lord, Lord Paddick, I too am grateful to the four Ministers for the care and good humour with which they have dealt with it all. Of the three amendments, Amendment 66 looks entirely technical. As the noble and learned Lord, Lord Stewart of Dirleton, says, Amendment 67 deals with a situation where you have a non-terrorist sentence and then, consecutively, before or after, a terrorist sentence. I cannot work out how you deal with that situation for the purposes of licences as a result of this amendment. Hopefully, that will be explained to us—for reasons that may be entirely my fault, it is not entirely clear to me from the wording of the amendment. As I understand it, Amendment 70 again deals with the position of consecutive sentences; and again, the effect of that is not entirely clear to me. It might be significant, because what we are dealing with are very long sentences. So I hope that the noble and learned Lord will explain this when he comes to write his letter to us. I am very much obliged.

[Lord Stewart of Dirleton (Con)]

My Lords, I will undertake to provide that explanation on what are, as all the speakers who have kindly commented on the provisions have remarked, matters of a technical nature.

Amendment 66 agreed.

Moved by

[Lord Stewart of Dirleton]

67: Schedule 13, page 123, line 6, leave out sub-paragraph (3) and insert—
“(3) In the heading of section 1A, after “to” insert “certain”.(3A) After section 1A insert— “1B Prisoners serving consecutive sentences including at least one terrorism sentence(1) This section applies where—(a) a prisoner has been sentenced to two or more terms of imprisonment which are to be served consecutively on each other,(b) one or more of the sentences (the “terrorism sentence”) was imposed in respect of an offence within section 1AB(2), and(c) the sentences were imposed on the same occasion or, where they were imposed on different occasions, the prisoner has not been released under this Part at any time during the period beginning with the first and ending with the last of those occasions.(2) If the prisoner is serving a terrorism sentence and a sentence imposed in respect of an offence that is not within section 1AB(2) (a “non-terrorism sentence”), the terrorism sentence is to be served (or, where subsection (7) applies, treated as being served) after the non-terrorism sentence irrespective of when the sentences were imposed.(3) Where subsection (2) applies, the prisoner is to be taken to begin serving the custodial part of the terrorism sentence (or first such sentence) as soon as the prisoner has served the custodial part of the non-terrorism sentence.(4) If (but for this section) the prisoner would have been released on licence under this Part in respect of a non-terrorism sentence, the period during which the prisoner would have been on licence under this Part is to be served concurrently with the custodial part of the terrorism sentence.(5) The prisoner may not be released under this Part in respect of the terrorism sentence unless and until the prisoner has served the aggregate of—(a) if the prisoner is serving a non-terrorism sentence, the custodial part of the sentence, and(b) the custodial part of each terrorism sentence that the prisoner is serving.(6) Subsection (7) applies where—(a) a non-terrorism sentence is imposed on the prisoner (the “new sentence”), and(b) the prisoner has already served part of the custodial part of a terrorism sentence (the “served part”).(7) The prisoner is to be treated as having served—(a) where the served part is less than the custodial part of the new sentence, such part of the custodial part of the new sentence as is equal to the served part,(b) where the served part is equal to the custodial part of the new sentence, the custodial part of the new sentence,(c) where the served part exceeds the custodial part of the new sentence—(i) the custodial part of the new sentence, and(ii) so much of the custodial part of the terrorism sentence as is equal to the amount by which the served part exceeds the custodial part of the new sentence.(8) Nothing in this Part requires—(a) the Scottish Ministers to release the prisoner in respect of any of the terms of imprisonment unless and until they are required to release the prisoner in respect of each of the other terms of imprisonment,(b) the Scottish Ministers or the Parole Board to consider the prisoner’s release in respect of any of the terms of imprisonment unless and until the Ministers are or the Board is required to consider the prisoner’s release, or the Ministers are required to release the prisoner, in respect of each of the other terms. (9) If the prisoner is released on licence under this Part the prisoner is to be on licence, on and after the release, until the prisoner would, but for the release, have served a term equal in length to the aggregate length of the term of imprisonment of any non-terrorism sentence and the term or, as the case may be, terms of imprisonment for the terrorism sentence or sentences less the period mentioned in subsection (10).(10) The period is—(a) any period served concurrently in accordance with subsection (4), and(b) if (but for this section) the prisoner would have been released unconditionally under section 1(1) in respect of a non-terrorism sentence, the period equal to one-half of the term of that sentence.(11) Where a prisoner to which this section applies is released on licence under this Part (other than a licence under section 3AA), the release is to be on a single licence which is to be subject to such conditions as may be specified or required by this Part in relation to all the sentences in respect of which the prisoner has been so released.(12) In this section “custodial part”, in relation to a term of imprisonment means a period equal to the part of the term that (but for this section) the prisoner would be required to serve before—(a) the Scottish Ministers are required to release the prisoner under this Part, or(b) the Parole Board is first entitled under this Part to make a recommendation that the prisoner be released on licence under this Part.(13) In this section—(a) references to a non-terrorism sentence include references to two or more such sentences that are treated as a single term by virtue of section 27(5) (whether imposed before, after or both before and after a terrorism sentence), and(b) where subsection (7) applies, the references in that subsection to the “custodial part of the new sentence” include references to the custodial part of the single term.””Member’s explanatory statement
This amendment inserts new section 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993. New section 1B makes provision where a prisoner is serving consecutive sentences including at least one terrorism sentence to which section 1AB of the 1993 Act applies, including provision consequential on the amendment of section 27 of the 1993 Act made by the amendment at page 125, line 15.

Counter-Terrorism and Sentencing Bill

Lord Stewart of Dirleton Excerpts

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

Moved by

[Lord Stewart of Dirleton]

3: Clause 29, page 25, line 6, leave out from “is” to end of line 9 and insert—
“(a) a sentence of imprisonment imposed under section 205ZA of the 1995 Act (serious terrorism sentence),(b) a sentence of imprisonment imposed under section 205ZC of that Act (terrorism sentence with fixed licence period), or(c) an extended sentence imposed under section 210A of that Act in respect of a terrorism offence.”Member’s explanatory statement
This amendment expands the scope of new section 26ZA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 by making it applicable also in relation to a person who is serving an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 in respect of a terrorism offence.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, in order to ensure that terrorist offenders in Scotland serve the appropriate custodial period of sentences for terrorism offences when they are imposed consecutively to other sentences, we introduced several amendments in Committee. Following these changes, we are now making a series of minor, technical amendments to provide further clarification and to ensure that the legislation will operate as intended.

The amendments have a variety of complementary effects but, taken together, they ensure that new Section 1B, which was introduced in Committee, operates effectively within the Scottish jurisdiction. Given the complexity of the amendments, we have continued to consider their effect with the Scottish Government, resulting in these final amendments, which have been agreed by all parties.

Many of the amendments simply insert the relevant terminology into the new clauses and deliver consequential changes to ensure the smooth operation of Section 1B. The overall effect is to ensure that terrorist offenders in Scotland serve the appropriate custodial period when they are serving multiple sentences, including for non-terrorism offences, and that offenders who receive multiple sentences for terrorist offences—and therefore multiple licences—will serve only one, aggregated licence period.

I draw your Lordships’ attention specifically to Amendment 31, which ensures that the sentence calculation provided for in Section 1B will apply retrospectively. This will provide clarity in calculating release dates where sentences for both terrorism and non-terrorism offences are imposed, ensuring the effective application of the Terrorist Offenders (Restriction of Early Release) Act 2020 in all cases.

Should noble Lords wish to see an individual breakdown of these amendments and their effect, I would be happy to place in the Library a letter in terms similar to the one I issued following Committee to explain the purpose of each one. I beg to move.

[Lord Paddick (LD) [V]]

My Lords, as the noble and learned Lord has explained, most of these amendments are technical in nature. The first group relates to a person who is serving an extended sentence in respect of a terrorist offence.

Amendments 27 to the end of the group amend Schedule 13. As the noble and learned Lord has explained, in Scotland—unlike in the rest of the UK—multiple sentences being served concurrently or consecutively are amalgamated into one sentence with one release date. This is known as “single terming”. Part 7 of Schedule 13 disapplies single terming for individuals where one of the offences is a terrorism offence, to ensure that the provisions of the Bill apply correctly. The noble and learned Lord did not exactly say that, but that is what he meant.

I had two questions for the Minister. The noble and learned Lord has already answered the first—on Amendment 31. The second is about Amendment 43, which makes changes to Section 24 of the International Criminal Court (Scotland Act) 2001. Can the noble and learned Lord give the House some idea of the extent of this change? How many prisoners serving sentences in Scotland have been sentenced by the international court, and what is the effect of these changes on them?

I gratefully acknowledge the support of the noble Lord, Lord Thomas of Gresford, in advising me on these matters.

[Lord Falconer of Thoroton (Lab) [V]]

My Lords, I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, for explaining these measures. It would probably be helpful for a similar letter to that provided in Committee to be placed in the Library of the House so that we can have a clear view about it.

We do not object to any of these amendments. They have a quite significant effect on a very small number of cases, because the consequence for people convicted of a serious offence and a serious terrorist offence is that they may stay in prison for years longer. But that is the policy decision and the consequence of the Bill, and I accept that.

I am slightly anxious that this has happened so late in the process and that what the Bill contains depends on when the music stops. The Bill was introduced in the Commons in May 2020. Ten months have gone by. There has been this quite massive change of effect on a few cases. Can the noble and learned Lord explain how that has happened? I was struck by the noble Lord, Lord Wolfson, saying to the noble Lord, Lord Carlile, that he was happy to continue discussions on the issues. This is good and nice, but the Bill has a cliff edge. I worry that it is very late in the day to make these sorts of changes but, as I said, we do not object to them.

[Lord Stewart of Dirleton (Con)]

My Lords, I am grateful to both noble Lords for their contributions to this very short debate. The noble Lord, Lord Paddick, asked about the number of prisoners affected by this in relation to the International Criminal Court. I do not have that information to hand, but I undertake to supply it to the noble Lord.

The noble and learned Lord, Lord Falconer of Thoroton, raised the lateness in the stage of proceedings at which this amendment has been tabled. I acknowledge the complexity of the statutes involved and the alertness of those in my office, the Advocate General’s office, and in the Scottish Government who are monitoring the position. There has been useful and effective collaboration between them. I will look into the matter raised by the noble and learned Lord and see whether I can provide any further detail as to why these points were identified only at this stage. If I can identify anything specific, beyond my general answer relating to the complexity of the relevant provisions, I will provide it to the noble and learned Lord in writing.

Amendment 3 agreed.

Moved by

[Lord Stewart of Dirleton]

4: Clause 29, page 25, line 10, after “Part” insert “, except sections 1AB, 1A and 1B,”
Member’s explanatory statement
This amendment excludes sections 1AB, 1A and 1B of the Prisoners and Criminal Proceedings (Scotland) Act 1993 from the scope of new section 26ZA(3) of that Act.

--- Later in debate ---

My final point relates to polygraph testing. I take the point the Government make that there is a very small cohort of terrorist offenders on which to base a statistical approach to the effectiveness of polygraph testing. I accept the point that they made in their recent letter that the comparison with the Domestic Abuse Bill is not appropriate because there are of course so many more domestic abuse offenders. Nevertheless, having said that, and having accepted the Government’s point, it may well be that polygraph testing can be calibrated and used and can have an impact on the way in which these types of offenders are treated. I would be interested to hear from the Minister about the way that the Government see polygraph testing being introduced to part of the process of reviewing this group of offenders. I will not be pressing my amendment to a vote.

[Lord Stewart of Dirleton (Con)]

My Lords, the amendments in this group would all require the Secretary of State to commission independent reviews into various aspects of the operation of the Bill and to lay the resulting reports before both Houses of Parliament. I welcome the considerable appetite for scrutiny of these measures and for the accumulation of data—the facts and statistics that the noble Baroness, Lady Jones of Moulsecoomb, sought. I acknowledge the appetite for review, to which the noble Lord, Lord Ponsonby of Shulbrede, referred. However, while I welcome these things, I must respectfully disagree that the amendments are necessary.

First, as acknowledged within the amendment of the noble Lord, Lord Marks of Henley-on-Thames, the Government already have an Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, whose remit covers this Bill. Indeed, he has announced his intention to conduct a review of matters within prisons, which we welcome. The benefit of an independent reviewer is that he will not be constrained by the specifications of government and can decide what is most appropriate for his consideration. We have every confidence that he will continue to provide valuable and independent scrutiny following the Bill’s enactment and through the prisons review that he will be undertaking. I remain of the view that there is no need to appoint another reviewer to focus on just some of the provisions of the Bill.

The amendments indicate some areas of particular concern, which I shall seek to address with greater specification. On Amendment 12, the noble Lord, Lord Marks of Henley-on-Thames, has noted a particular interest in the rehabilitation of terrorist offenders while in custody. As he told your Lordships’ House in relation to an earlier group of amendments, he and others, including the noble Lords, Lord Ponsonby of Shulbrede and Lord Carlile, attended the briefing held by officials in the Joint Extremism Unit. I have heard that at least some noble Lords found that a helpful exercise, and I hope others did as well. I understand from engagement, and from the contributions made from the Floor today, albeit electronically, that there was a healthy discussion and a recognition that there is no simple cure or metric for this matter; indeed, that was acknowledged in a contribution by the noble Lord, Lord Carlile of Berriew, on an earlier group of amendments.

It is very difficult to measure the effectiveness of intervention programmes in changing behaviour for any offenders but especially within such a small cohort. Efforts in our prison system to deradicalise and rehabilitate offenders in custody are ongoing, and techniques are developing constantly. However, while rehabilitation will remain central to the work undertaken with terrorist offenders in custody, that goes hand in hand with risk management.

The noble Lord, Lord Marks of Henley-on-Thames, has again raised the question of the Government’s ability to protect other prisoners from radicalisation within the prison estate, and the use of separation centres to this end. The risk was identified that such persons might otherwise become kingpins, looked up to by other persons in the prison estate. We have a set of specialist operational controls for managing counterterrorism risk in custody, as well as a number of population-management controls available for use across the entire prison estate.

I assure the noble Lord and the House that most extremist prisoners can, and should, be managed in the mainstream prison population with appropriate conditions and controls. That having been said, we take the risk of radicalisation within the prison estate seriously and, where deemed necessary, we have used, and will use, the separation centres available to us to prevent persons spreading malicious ideology to other prisoners.

In bringing to a close my submissions on this amendment, I acknowledge on behalf of the Government the anxious and thoughtful concern expressed by the noble Lord and others, following a very constructive series of engagements.

Amendment 13 would require the Government to commission an independent review and publish a report into the use and operation of polygraph testing in the licence conditions of terrorist offenders. Today and, more importantly, in Committee, we discussed in some detail the matter of polygraph testing. As I am sure noble Lords now understand, it is not intended to be used as a stand-alone measure but as part of a package to provide a further source of information to test offenders’ compliance with their conditions of licence. It is not to be used as something to catch an offender out in breach.

That said, I recognise that the use of polygraph testing as a licence condition is a novel matter for the House, which is why the Government have committed to conducting and publishing a review of polygraph testing on terrorist offenders after a two-year period, which will provide more meaningful results and report on most of the criteria outlined by the terms of the amendment. I hope that that will satisfy the noble Baroness, Lady Hamwee, who dwelt specifically on this material in the course of her submission.

I will make one further point on this amendment. The terms have specified that the review may make recommendations on

“regulations, rules and codes of practice”.

Clear rules governing the use of polygraph examinations in a licence condition will be laid by statutory instrument. We currently anticipate that these will be those already in place for the use of polygraph testing in licence conditions for sex offenders, as set out in the Polygraph Rules 2009, which specify the qualifications expected for polygraph examiners, how a polygraph examination should be recorded and how those examinations will be reviewed.

Our review will of course inform whether these require amendment or tailoring in light of factors presented by the specific cohort, so I assure the noble Lord, Lord Paddick, who moved the amendment, and those noble Lords who spoke on it that our plans for the introduction of polygraph testing already account for this concern.

Amendment 24, in the name of the noble and learned Lord, Lord Falconer of Thoroton, would introduce a new clause requiring the Secretary of State to

“commission a review and publish a report”

into a number of measures, most of which are not directly addressed by provisions in the Bill, in the first year of it coming into force. While I recognise the desire to test for unintended consequences of the Bill, I politely disagree that a review on these terms and within this timeframe would be either necessary or add to what is already under way.

I want to set out briefly why, taking each part in turn. Proposed subsection (1)(a) would require a review into

“the effectiveness of current strategies to deal with lone terrorists”.

There is a great deal of work under way to target the terrorist threat, including that of lone terrorists. I point the noble and learned Lord to the Security Minister’s speech at the Royal United Services Institute in November 2020.

The Government’s response to the recent terrorist attacks has been comprehensive and informed by the Independent Reviewer of Terrorism Legislation’s analysis. The Government will shortly bring forward policing and crime legislation to implement a number of recommendations from Jonathan Hall QC’s independent review of the effectiveness of the Multi Agency Public Protection Arrangements—MAPPA—when it comes to the management of terrorism, matters connected with terrorism and offenders of terrorism concern within the community.

The Government recognise that independent analysis can be useful in terms of challenging existing practices and processes. That is why the noble Lord, Lord Anderson, QC, was asked to oversee the operational improvement reviews following the attacks in 2017. I submit that now is not the time for another review.

As part of the constant, ongoing review and improvement of our counterterrorism systems and processes, the CONTEST unit, based in the Home Office, undertook an internal review of lone-actor terrorism last summer, working with operational partners and departments from across government. The review’s findings are sensitive and will not be published, but they have been shared with Parliament’s Intelligence and Security Committee.

Proposed subsection (1)(b) refers to

“the effectiveness and availability of deradicalisation programmes in prisons”.

As I have said, it is difficult to measure their effectiveness, but the primary intervention, the Healthy Identity Intervention—HII—has been accredited by a panel of experts and is informed by the best available evidence. We have also conducted an evaluation of the HII pilot study to assess implementation and delivery. This is publicly available on GOV.UK, and a short-term outcome evaluation of the HII is under way. Although this has been delayed due to the impact of Covid-19, we are committed to publishing it once it has concluded.

We remain committed to keeping our interventions under review and developing the evidence base, which is what so many of your Lordships who have spoken on this matter have sought. As I have said, we will establish a new counterterrorism assessment and rehabilitation centre, which will not only help us to develop knowledge and evidence but will bolster our capacity to deliver interventions by recruiting more specialist psychologists and trained chaplains.

The Government plan to make an oral Statement that will explain more fully the important work to rehabilitate terrorist offenders in prison, including an overview of the new centre’s strategy and programme of work. I hope that noble Lords will agree that these demonstrate this Government’s commitment to transparency and sharing as much as we can.

On proposed new subsection (1)(c) in the amendment, in relation to the polygraph, as I mentioned earlier in this group, we will be conducting an evaluation of its use after two years. This will add to our evidence of its effectiveness and value, which has already been established through independent evaluation, and I submit that a further review is not needed.

--- Later in debate ---

[Baroness Hamwee (LD) [V]]

My Lords, on that last point, I take it that the post-legislative scrutiny referred to is separate from the review of polygraph testing after three years, to which the Minister referred. On that, while I take his point about parliamentary scrutiny of regulations, codes of practice may not be statutory and therefore not subject to that sort of scrutiny. Might the Minister take back the suggestion that, following the very helpful sessions that the MoJ arranged during the course of the Bill on a number of matters, for which we were very grateful, Ministers might consider communicating with—and possibly even consulting—noble Lords in framing the review in three or so years’ time? I do not expect him to make a commitment now, but I would like to put that idea in his and his colleagues’ heads.

[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.