Police, Crime, Sentencing and Courts Bill

Lord Stewart of Dirleton Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, my first interest in criminal justice came about 20 years ago, before I became a magistrate, when I was a trustee of the Wandsworth Prison visitors’ centre. Like all those centres, it was set up on the recommendation of Judge Stephen Tumim, and we dealt with the needs of the families of prisoners. It was then that I first came across this problem—it is not new—and the fact that it is very much the management of small issues that is of central importance for the prisoners and their families.

We owe a debt of thanks to the noble Lord, Lord Hodgson. He has indeed gone into the detail of this problem and come up with a highly practical way of resolving it—tonight, potentially. This House should take advantage of that opportunity. In one sense, I will be intrigued to hear what reasons the noble and learned Lord the Advocate-General for Scotland might give for not pursuing this, but this really is an opportunity. The noble Lord, Lord Hodgson, has addressed the three original points made in Committee in his new amendment, and I really encourage the noble and learned Lord to take advantage of this opportunity.

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

My Lords, this amendment seeks to reduce releases on a Friday, or on days before bank holidays, including releases of persons whose release falls on a non-working day, by creating a power for the Minister to establish a pilot scheme via secondary legislation that would grant prison governors the discretion to release earlier in the week, where that would be helpful for the prisoner’s reintegration into society.

I thank all noble Lords who have participated, particularly my noble friend Lord Hodgson of Astley Abbotts and the noble Baroness, Lady Lister, for their constructive and entirely commendable approach to this. As my noble friend put it, rather than simply rehearsing the arguments made at an earlier stage, they have gone away, considered the matter and sought to refine them in answer to the points made by my noble friend Lord Wolfson of Tredegar.

The question posed ultimately by the noble Lord, Lord German, rehearsing the one posed by my noble friend, was: what is not to like? Regrettably, I cannot answer that with “Nothing”, which I suspect was the answer being fished for. I will endeavour to explain why.

The noble Baroness, Lady Lister, highlighted the existence of a discretionary scheme in Scotland, in terms of the Prisoners (Control of Release) (Scotland) Act 2015. We have engaged with the Scottish Government and looked at research carried out by the Scottish Prison Service, and we have seen that the uptake of this discretionary scheme since 2015 is extremely low: only 20 prisoners in that period have been granted early release. I submit that that gives us some indication of the complexities attendant upon the point. It is not as though we have in the neighbouring jurisdiction a solution to this matter which could be taken from the shelf and applied in England and Wales. We plan further engagement with the Scottish Government to look at the matter in more detail, and we will share the results of that engagement with the noble Baroness.

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt, but the Minister seems to be using this as an argument for not accepting the amendment. I have two points. First, there is no reason why the pilot should follow the example of the Scottish procedures, which, to me, seemed very bureaucratic when I read the helpful letter sent by the noble Lord, Lord Wolfson. Surely the whole point of pilots is to think about other ways of doing something before the Government actually legislate.

Secondly, yes, a very small number has been helped. We do not know why that is. Certainly, the letter I was sent tells us the what but not the why. But even a small number being helped is better than no one being helped in the period until such legislation can be passed.

[Earl Attlee (Con)]

My Lords, if the Scottish experience shows that it is no good, why on earth was it put in the White Paper?

[Lord Stewart of Dirleton (Con)]

The point is not simply to equiparate the example of Scotland; the point is to emphasise the complexities which underlie the matter. I will expand upon that in the rest of my answer.

We recognise that a high number of releases take place on a Friday. We accept that this can create challenges in some cases when it comes to prisoners accessing services, support in the community and finding accommodation, especially if they have multiple complex needs or a long way to travel to their home address.

I echo the observations from my noble friend Lord Hodgson of Astley Abbotts. As the House now appreciates, our recently published Prisons Strategy White Paper is allowing us to consult on the issue of Friday release from prison. In the course of that consultation, we will invite views on allowing prisoners who are at risk of reoffending to be discharged one or two days earlier, at the discretion of the governor of the relevant institution, where a Friday release can be demonstrated to be detrimental to an individual’s resettlement.

However, it is important that we allow time to understand the views of stakeholders, including operational colleagues, prison staff and the third sector. We submit that it would be premature to provide in statute for the pilot of a new release scheme, regardless of whether a sunset clause is attached—as the promulgators of the amendment have proposed—because, as mentioned, we are in the process of consulting on whether a legislative approach is necessary and, if so, what form such a scheme should take and how it should operate. We want to see the outcome of this consultation before we bring forward proposals. We will issue a response to the White Paper consultation in April 2022, and we will set out our plans on Friday releases moving forward from there.

I would call into question the appropriateness of using a sunset clause in relation to a pilot scheme. Sunset clauses are used only for temporary situations where the provision is needed only for a specific period of time and is not designed to remain on the statute books—for example, in the recent coronavirus legislation. This, I submit, is not appropriate for a pilot, as its purpose is to test out a policy with a view to fully enacting that policy if the pilot is found to work. A sunset clause would not allow this, so that, if we decided the right approach was to pilot and it was effective, we would still be required to wait for the next legislative opportunity to be able to rule it out fully. Therefore, tying our hands to a pilot scheme would likely extend the timescales required to enact full rollout of a new release scheme, if that was decided to be the most appropriate approach.

[Baroness Lister of Burtersett (Lab)]

Is the noble and learned Lord in effect saying it will be at least two years until there can be legislation, because this only runs for two years?

[Lord Stewart of Dirleton (Con)]

More than once, even today, this House has emphasised the importance of moving forward on the basis of evidence. The Government’s view is that it is appropriate to complete the consultation proceedings, interrogate them and decide how best to move forward.

[Baroness Lister of Burtersett (Lab)]

My suggestion was to wait until the end of the consultation, which we are told will be next April, review the evidence, which surely should not take that long, and then run the pilot on the basis of what is found out in the consultation.

[Earl Attlee (Con)]

Surely the Minister could introduce at Third Reading an order-making power that would last indefinitely.

[Lord Stewart of Dirleton (Con)]

My Lords, notwithstanding the fact that we are in the season of Advent, approaching Christmas, I am not prepared to argue on the basis of what is naughty and what is nice, or what is nasty and what is nice.

[Baroness Jones of Moulsecoomb (GP)]

I am sorry, but I do not understand what the Minister means.

[Lord Stewart of Dirleton (Con)]

What I mean simply is that the noble Baroness, doubtless with the best possible intention, is using simplistic language to categorise the Government’s legislative approach, which language I do not accept.

On the subject of the holistic approach—if I may put it like that—which was urged upon us by the noble Lord, Lord German, and the noble Baroness, Lady Hamwee, it is indeed important that we acknowledge the funding the Government are making available to provide just such an approach. Our December Prisons Strategy White Paper set out plans to reduce reoffending and protect the public. We will spend £200 million a year by 2024-25 to improve prison leavers’ access to accommodation, employment support and substance misuse treatment, and for further measures for early intervention to tackle youth offending. We will make permanent the additional £155 million per year provided in the years 2019-20 for a new unified probation service to support rehabilitation and improve public protection, which will be a 15% increase on 2019-20 funding. This expands upon our Beating Crime Plan, which was published in July, setting out how we will cut crime and seek to bring criminals more swiftly to justice, reduce reoffending and protect the public. That included new commitments to recruit 1,000 prison leavers into the Civil Service by 2023, to expand our use of electronic monitoring and to trial the use of alcohol tags on prison leavers.

In addition, in January, a £50 million investment was made by the Ministry of Justice to enhance the department’s approved premises to provide temporary basic accommodation for prison leavers to keep them off the streets, and to test innovative new approaches to improve resettlement outcomes for prisoners before and after they were released. Then there is £20 million for a prison leavers’ project to test new ways to prepare offenders for life on the outside and ensure that they do not resume criminal lifestyles, and £80 million for the Department of Health and Social Care to expand drug treatment services in England to support prison leavers with substance misuse issues, divert offenders, make effective community sentences and reduce drug-related crime and deaths.

For the reasons I have outlined, including the overwhelming notion that these questions are not simplistic and we cannot simply move forward without the necessary evidence, as well as the assertion that an appropriate consultation is under way, I invite the noble Lord to withdraw his amendment.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, we have had an interesting debate. I thank all those who contributed to it. The noble Baroness, Lady Lister, is always sharp on these matters; she has been well up to her reputation tonight. As the noble Baroness, Lady Jones of Moulsecoomb, said, this is a small fix. As the noble Lord, Lord German, pointed out, it is not an expensive fix either; in fact, it may result in a net gain to the Government because, if we can stop some people reoffending, we will save more money than any cost—there is probably no cost here, or at least very little—and we could be better off as a result. I am grateful to those noble Lords and to the noble Baronesses, Lady Bakewell and Lady Hamwee. My noble friend Lord Attlee asked who is against the idea. I have not yet heard much about people who oppose it. I am grateful to the noble Lord, Lord Ponsonby, for his remarks and the fact that we are better than we were last night.

On my noble and learned friend the Minister’s comments, I do not think that the House buys the Scottish experiment as an example here. It is just not relevant. Nor do I buy the argument about the sunset clause being inappropriate; I think that is just the officials reaching for some reason to try to rubbish this amendment. I accept my noble friend’s point that we need time to understand and his commitment to a consultation finishing by April 2022. Most interesting is the possibility that legislation might not be needed and there might be other ways of achieving what we all wish.

So we have a sort of balance here. On the one hand, an immediate opportunity is being missed and progress seems glacial, to put it no more roughly than that; on the other, we have an encouraging set of statements in paragraph 139 of the White Paper. My judgment as to whether to divide the House on this amendment and possibly damage the concept is that we would really be dividing the House on whether we want to try to create a bridge and find a way to start some work on this project immediately. On balance, the Government have offered us half a loaf. I think we should probably take that half a loaf tonight; I therefore seek leave to withdraw the amendment.

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.

--- Later in debate ---

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

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.

--- Later in debate ---

[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.