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.