Non-fatal Strangulation and Suffocation

Lord Thomas of Gresford Excerpts

Thursday 8th July 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, of course we need all agencies to be aware of their responsibilities. I have already spoken about the police. To pick another example, judicial training in domestic abuse is included in family law and criminal courses run by the Judicial College; it is prioritised for induction and continuation training. All judges get that training before they hear family cases and are therefore on top of domestic abuse issues.

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

My Lords, may I underline the point made by the noble Lord at the beginning of this session? My daughter-in-law did a thesis on the connection between violence, domestic abuse and sporting events. It is clearly a considerable problem. He is right to remind us of that.

The New Zealand Law Commission advised that the offence should require proof of strangulation but not proof of injury, on the basis that so many of these strangulation incidents do not cause visible physical injury. Is that the approach that the noble Lord is taking? Where does consent come into the new offence?

[Lord Wolfson of Tredegar (Con)]

My Lords, I will take the point about visible signs of injury first. A visible sign of injury is not needed: the offence requires the Crown to show beyond reasonable doubt that the person strangled or otherwise did something to affect another person’s breathing. You do not necessarily need visible signs of injury. The consent point raised by the noble Lord is a huge legal point. I summarise it by saying that it effectively follows the decision of the House of Lords in R v Brown that you cannot consent to serious harm. To say any more would, I am afraid, exceed the time allowance.

Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021

Lord Thomas of Gresford Excerpts

Wednesday 30th June 2021 Grand Committee

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

My Lords, I thank the noble Lord, Lord Wolfson of Tredegar, for his introduction. The Explanatory Memorandum could have done with illustrative examples to clarify the new position following the implementation of these regulations. I support the committee in insisting that this instrument had a hearing.

As I understand it, the e-commerce directive applied to companies engaged in internet trading, search tools, social media platforms and the like. A trader based in this country trading online in the EEA could be criminally liable under the laws of this country only, and would not have to comply with the criminal law of any EEA state in which he was trading. The strength of the country of origin principle, “the CoOP”, was that it was reciprocal; other countries dealt with traders operating within their jurisdiction similarly.

However, since the end of the transition, UK internet traders or social media platforms have had to adhere to the laws of each EEA country in which they operate. Equally, EEA traders can be prosecuted if they do not comply, when operating in the UK, with our criminal law. Perhaps the Minister can confirm that a UK trader now must have regard to the criminal law in each EEA country in which he operates, but will not be liable in this country for offences committed abroad, because the courts of this country will have no extraterritorial jurisdiction to prosecute here for such offences. If, therefore, a trader wishes to advertise his wares on the internet in, say, Belgium, Denmark or Germany, he will have to ensure that his advertisements or the products he is selling comply with the criminal laws of each country.

Take pornographic material, for example. If a trader in London publishes obscene material in EEA countries, he can be prosecuted there but no longer in the UK. He can be prosecuted by the appropriate prosecuting authorities in those countries but, unless the material is published in the UK as well, no prosecution is possible here.

Does it then follow that such a trader can sit in London and purvey his material in EU or EEA countries, safe in the knowledge that, in the absence of the European arrest warrant, it would be extremely difficult to extradite him to Belgium, Denmark or Germany, where the offence is committed? The converse is that, if a European trader publishes obscene material in this country, he can be prosecuted in UK courts if we can get hold of him. Absent the European arrest warrant, that is likely to be difficult.

The Explanatory Memorandum says:

“Removal of the CoOp”—


the reciprocal arrangements—

“will only bring regulation of UK ISS operating in the EEA in line with their operation in other foreign countries, and does not affect our ability to prosecute UK nationals or residents who commit offences outside the UK”—

this final section is underlined—

“where our courts have jurisdiction to do so.”

The Minister will know how limited extraterritorial jurisdiction is in this country: for murder, manslaughter in certain circumstances, sexual offences against persons under the age of 18, forced marriage and female genital mutilation—a short list. We are about to consider legislation which implements the Istanbul convention—ironically, the convention promoted by more Europeans than the Council of Europe—on preventing and combating violence against women and domestic violence. The fact sheet published by the Home Office last month indicates the extent of the proposed extension of extraterritorial jurisdiction. It does not include publicly publishing obscene materials or fraud.

Personally, I am sick to death of scams from abroad, sometimes from west African countries, which force every one of us to set up barriers on the internet, email and telephones. I hate the idea that persons could set up in this country to defraud people on the continent or flood their markets with pornography. Would it not be simpler if, rather than drawing up our skirts to avoid contamination by the EU or the EEA on every occasion, we now negotiated to enter into a new reciprocal agreement? As I see it, these regulations are a necessary consequence of Brexit, but creating a platform for criminals to defraud European citizens is in no way desirable. I await to see whether I have misunderstood the whole purpose of these regulations.

End-to-end Rape Review

Lord Thomas of Gresford Excerpts

Tuesday 22nd June 2021 Lords Chamber

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

The issue about the extent to which rape is properly prosecuted in this country is now a real one. The Lord Chancellor rightly apologised for the lack of prosecutions, yet did nothing to deal with the problem properly. He announced a sum of money, in the region of £150 million, most of which went to refuges. Refuges are very worth while but will not deal with the problem of the lamentably low rate of convictions for rape. The average amount of extra expenditure on rape cases, if one applies it to the number of rape cases the Government estimated last year, is £15 a case.

Why have the Government not made more resources available, if their apology is serious? Why have they not rolled out Section 28, which allows for victims of rape to give evidence as soon as possible after the crime has been committed and for their evidence to be recorded?

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

I congratulate the authors, researchers and statisticians who have contributed so much to this comprehensive and excellent review. I trust that the Government will fully resource its recommendations, but agree with the noble and learned Lord, Lord Falconer, that there is no sign of it so far.

I focus on one of the review’s findings—namely that, in 57% of all adult rape cases, the victim feels unable to pursue their complaint. Given that in 90% of cases the victim knows the perpetrator—as a member or friend of the family, fellow student or worker, friend or acquaintance—that may not be too surprising. I strongly suspect that very few of those withdrawals concern the small minority of cases where the perpetrator is unknown. I am interested to know whether the Minister has a figure for the percentage of withdrawals in cases of stranger rape.

So, what are the reasons for disengagement by the victim? First, there is delay. Giving evidence is always a stressful experience, as I know well. Standing exposed in a witness box with one’s honesty, accuracy of recollection and motives challenged is not pleasant. Giving evidence about intimate sexual encounters must be agonising and overwhelmingly stressful. Only those with a high degree of courage and persistence can be expected to stay the course without considerable support. I very much welcome the pilot schemes for the recording of evidence and cross-examination early, well before trial. How soon can those pilots be evaluated and rolled out? Months, if not years, of waiting for a trial must disincentivise victims pursuing their case.

Secondly, there is the intrusion into privacy. In January 2018, the noble and learned Lord, Lord Morris of Aberavon, introduced a debate on this topic. I suggested an algorithm which would require the defence to co-operate by setting out their case in a defence statement and, at that point, indicating keywords for the search of mobile phones. The revised Attorney General’s Guidelines on Disclosure, published in 2020, set out such a system and it is now operational. The review recognises the importance of privacy by its requirement that mobile phones be returned within 24 hours. If that is done, I hope this disincentive to reporting rape will be removed.

Thirdly, we come to sentencing. I am not convinced that longer and longer sentences have any benefit. The review points out that the minimum sentence guideline is now six years and that the average term served for rape is nine years. This increase in sentencing coincides with a decrease in convictions. So many cases depend upon consent, without these days, in England and Wales, any need for corroboration. The lack of consent by the victim must be proved beyond reasonable doubt, and that is the highest degree of proof.

A victim, already oppressed by delay in bringing a case to court, must generally also contemplate the destruction of the life of an offender whom she knows and may even love. That may also be a potent reason for her to disengage from the case. That there should be a substantial and significant sentence of imprisonment for rape is not in doubt, but excessive increases year on year may have unexpected consequences to the detriment of justice.

Ultimately, the jurors are the judges. Acquittals reflect societal attitudes. At the moment, judges seek hard to dispel the myths and prejudices of the past, with lengthy exhortations and directions to the jury—but attitudes begin in the classroom, and we must train teachers to inculcate respect for others and, above all, the meaning and parameters of consent.

In the last few years, we have developed teams of specialised investigators and prosecutors, special measures for court hearings and victim support services. All these are steps in the right direction but have manifestly had no impact on the rate of convictions. We must try harder. We will support the Government further in implementing the policies that are set out in this review.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I turn first to the points raised by the noble and learned Lord, Lord Falconer of Thoroton. First, I should repeat the apology that the Lord Chancellor gave in the other place yesterday, setting out by reference the reasons why he gave it, given the time.

As the noble and learned Lord, Lord Falconer of Thoroton, said, it is not right to criticise the Government’s response to the rape review for lacking in ambition. On the contrary, we have set out clear ambitions for rape cases with the police and the CPS, and we have set out actions against which they, and we, can be held to account. We want to return the volume of trials for rape to pre-2016 levels, with corresponding expectations for police referrals and cases charged. We want to ensure that no victim is left without a phone—noble Lords will appreciate how important the data found on phones these days can be in these prosecutions—for more than 24 hours. We should not underestimate how difficult it can be for a victim to hand over her—it is invariably her—phone and to know that it will be looked at. We will also publish updates every six months, detailing our progress against our expectations, with scorecards monitoring progress against key metrics, including timeliness and victim engagement in each part of the system. That will enable us to provide information on a regional and local level, to see where things are working well and where there is room for improvement.

I turn to the other substantive point that the noble and learned Lord made, about Section 28 of the Youth Justice and Criminal Evidence Act, which enables people to have their cross-examination recorded in advance. The pilots of this provision have focused on complainants for sexual and modern slavery offences. We are extending them from three to six Crown Courts. I want to increase the availability of Section 28, but we need to do this properly. This is a radical departure from the normal court process, where evidence is given at the same time, in front of the jury. The pilots enable us to understand the impacts of this way of giving evidence—not only the impact on the evidence itself but the operational impacts on the courts, because they have to set out, and set up, a bespoke hearing for such evidence to be given.

Although we have some experience of this working for vulnerable victims, primarily children, victims who can be intimidated or are subject to distress, such as victims of rape and sexual violence, are in a different category. That is why we need to look at the pilots and see how it works in practice before we roll it out nationally, if that is what we do.

I turn to the points made by the noble Lord, Lord Thomas of Gresford. The reasons for complainants’ withdrawals are complex, regardless of whether the victim knows the perpetrator. I do not have specific data for withdrawal in stranger-rape cases, but what we do know is that in all cases, good-quality support is a key factor in maintaining victim engagement with the process. That is why we are funding more ISVAs, and we will consider putting that on a statutory basis. As for delay and prerecording cross-examination, I think I have dealt with that point already.

As I said earlier, we recognise that a lack of privacy can be a deterrent and that having your phone gone through can be a very distressing process. We want to ensure that the focus is on the alleged perpetrator and investigating them, rather than on investigating the alleged victim. That is why we do not want to see victims without their phones for long periods of time, and only information that is necessary for an investigation will be asked for. In addition to new guidance for police and information for the public, the Police, Crime, Sentencing and Courts Bill will clarify the power used to extract information from victims’ devices and will include privacy safeguards.

As to sentencing, I must disagree with the point made by the noble Lord. Rape is a very serious offence and merits a significant sentence. I take issue with his proposition that there have been excessive increases. On the contrary, I suggest that the sentences for rape, which ultimately are a matter for the judiciary, are entirely appropriate for the very serious nature of that crime.

However, I agree with the noble Lord’s point about the importance of education. A tackling violence against women and girls strategy is forthcoming. It will focus on prevention, recognising the importance of education for preventing violence against women and girls. If I may say so, from my own knowledge of what is being taught to my children in secondary school today, the education given to children today in areas such as consent and sexual relationships is far improved and much better than it was years ago. That is a very important part of the process, and I agree with the noble Lord that education is a key component in this debate.

On that note, I echo another point that the Lord Chancellor made yesterday in the other place: we will work across party lines when it comes to this issue. I therefore welcome the noble Lord’s concluding remarks, in which he indicated that he too would be prepared to work on that basis.

Queen’s Speech

Lord Thomas of Gresford Excerpts

Tuesday 18th May 2021 Lords Chamber

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

My Lords, the noble and learned Lords, Lord Woolf and Lord Hope, quoted the Government’s expressed desire to

“restore the balance … between the executive, legislature and the courts.”

It is also a pleasure to follow the noble Lord, Lord Faulks, with whom I largely agree on this topic. It is misleading to talk in terms of balance rather than of function. In our constitution, the legislature makes the laws, the courts interpret and apply them in specific situations and, in theory, the Government obey them. The problem arises when the Government do not wish to obey the laws that Parliament or the common law have created and seek to reject courts’ interpretation of them.

It is not a question of balance. In a judicial review, the scales of justice do not weigh the interests of the Executive against the strictures of the law. The concept of the scales of justice in a court setting is that, where an individual or organisation seeks judicial review of a government decision, the judge’s duty is to apply the law without favour to either side. If the Government’s purpose in introducing a judicial review Bill is to carry out the recommendations of the committee of the noble Lord, Lord Faulks, it will be unexceptional. No doubt we can argue about the details of the two main areas he recommends. If, on the other hand, the Government pursue the aims outlined in the Lord Chancellor’s statement setting out the further consultation to make areas of policy non-judiciable, that is an entirely different matter. The noble Lord’s committee would not support it, as he has made abundantly clear.

Ouster clauses are not effective because the courts assume that Parliament does not intend to give licence to a Government or to a Minister to break the law. Mr Brandon Lewis, the Secretary of State for Northern Ireland, attempted to introduce clauses that expressly involved the Government in illegality by breaking the Northern Ireland protocol. This episode demonstrated that Parliament will not stand for it. The attempt was defeated overwhelmingly by all parties, including former Prime Minister Theresa May and responsible and experienced Members on the Government Benches in this House.

I suppose it would be possible for the Government to introduce into a Bill or statutory instrument a clause that reads, “On questions of policy, a Minister can do what he likes”—or, to put it rather more formally, “A decision by a Minister under this Act shall not be set aside or voided by reason of illegality”. I very much doubt whether such a clause in its naked simplicity would get past a competent Attorney-General, never mind Parliament itself.

The Government can huff and puff when they lose a case, but that does not change the reality that they function within the rule of law as interpreted by the courts. As for the courts themselves, their decision in a particular case may have implications for the policy that the Executive wish to implement, but it is well understood that the system of judicial review does not permit a judge to substitute his own views or his own decision on the issue. All he or she can do is quash the decision that has been made and invite the decision-maker to think again. As for ousting the jurisdiction of the court, you can sum it up in seven words: “If it is illegal, it is justiciable.”

Civil Proceedings Fees (Amendment) Order 2021

Lord Thomas of Gresford Excerpts

Monday 19th April 2021 Grand Committee

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

My Lords, this is the sort of instrument to slip under the radar at the end of a Session. The proposal is to increase the fees for bringing money and possession claims, for the benefit of the Treasury.

It was a benefit to individuals, and to businesses both small and large, to commence proceedings by way of an online application. I can remember my days as an articled clerk when I made out the paperwork, physically took it to the registry of the High Court or the county court, handed it over the counter and payed the fees. Obviously, it is infinitely preferable to do all this online, not only for the poor old solicitor’s clerk but for the court staff in the registries up and down the country.

There must be an enormous saving in efficiency and time. It is not surprising that, as the Explanatory Notes made clear, 90% of claims are now launched online. To incentivise this increase in efficiency, fees were reduced for online applications, presumably still covering the reduced costs of filing. So there were, and are, two levels of fees: those for online applications, which are efficient and take less time, and those for paper applications in the old way, which obviously consume more time and resources.

One might have thought that in order to help, in particular, individuals and small businesses, who are the people most often chasing money from larger clients such as government departments, the Government would have equalled the fees by choosing the lower figure, but not at all; the watchword is “levelling up”. So this instrument is brought forward to make sure that individuals and small businesses pay more in order to pursue their claims. At a time when small businesses in particular are suffering greatly, many unlikely to survive the pandemic crisis, the Government are loading more expense upon them to the tune of up to an expected £25 million next year.

To add insult to injury, the note accompanying this instrument and the impact assessment proceed upon the curious premise that there is no impact at all on businesses and individuals because this is not an inevitable business expense. You can choose to pursue the money that you are owed—or recover the premises, if it is that sort of application—or, on the other hand, you can decide to do nothing. If you decide to do nothing then you do not have to pay any fees. That is the incredible argument for saying that there is no impact.

The noble Lord, Lord Blunkett, asked a very pertinent question: what is the actual cost of the filing of these proceedings? I have other questions. What percentage of the stakeholders on the consultation that took place responded to say that they were in favour? How many said they were willing for the fees for the more efficient online commencement of proceedings to be raised to match the fees for the less efficient paper service? I hope the Minister will answer those questions.

Prisons (Substance Testing) Bill

Lord Thomas of Gresford Excerpts

2nd reading
Friday 16th April 2021 Lords Chamber

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

My Lords, I add my own tribute to those already given to Dame Cheryl Gillan both for her commitment to the work and success of the choir—I have been a member for many years—and for her commitment to Wales as Secretary of State. The noble Lord, Lord Cormack, pointed out only a moment ago that she was a person who put country, constituency and party in that order, and she demonstrated that as Secretary of State. I also congratulate the noble Baroness, Lady Pidding, on her clear exposition of this Bill.

However, I have some concerns. In short, the main thrust of this Bill is compulsorily to take samples from prisoners for the purpose of scientific research. If prisoners refuse to co-operate, they commit an offence against the Prison Rules for refusing to obey a lawful order. Article 8 of the European Convention on Human Rights says that:

“Everyone has the right to respect for his private … life … There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”


This Bill is concerned not with the detection of crime but with the gathering of information on an anonymised basis. It is not a criminal offence under this Bill to have substances in the blood, but it would be a crime simply to refuse to give the sample.

This Bill will be tested to determine whether it is in breach of Article 8. Because it is a Private Member’s Bill, it does not require certification by the Minister. The taking of a blood and saliva sample against the subject’s will constitutes a compulsory medical procedure which, even if it is of minor importance, must consequently be considered as an interference with his right to privacy; that is the case of Jalloh v Germany in the European Court of Human Rights. In Caruana v Malta, the court considered that the taking of a buccal swab was not a priori prohibited in order to obtain evidence relating to the commission of a crime in which the subject of the test was not the offender but a relevant witness. Taking a sample to prove a criminal offence is one thing; to take a sample for research is another.

I must make it clear that, like the noble Lord, Lord Farmer, I am very concerned about the existence of substances circulating in prisons. I join with the noble Baroness, Lady Pidding, in condemning the scourge of drugs in prison. A prisoner from Blaenau Ffestiniog died from smoking spice in Berwyn prison in March 2018; I have spoken of this before—it is Britain’s largest prison and the second largest in Europe. The coroner said that he was concerned about the continuing accessibility of drugs to inmates at that institution and that there was a sense of dread in his office over the number of deaths they would have to deal with. There is recent anecdotal evidence that all sorts of substances circulate through there. Visitors to the prison have been convicted: there was one case in November 2018 for bringing in a book soaked in spice, and another in October 2020 for bringing in letters similarly treated—a practice to which the right reverend Prelate the Bishop of Gloucester has referred. Every effort should be made to prevent the smuggling of drugs and other substances into prisons.

However, there is a solution in hand. A trial scheme was announced in February, to be operated in 12 prisons in north-east England, Yorkshire and Humberside, whose findings will help the Prison Service to target anti-drugs measures. The monitoring of wastewater for traces of drugs has been pioneered in Australia. Sewage monitoring is regularly carried out in Britain to monitor the spread of viruses, including Covid-19. I am sure that the noble Lord, Lord Ramsbotham, would approve of this approach. The Prisons Minister, Lucy Frazer QC, told the Daily Telegraph in February:

“Right across the estate, we’re increasingly using technology to help rehabilitate offenders and to prevent drugs and phones from entering prisons. This pilot will help monitor drug prevalence in prisons, detect new and emerging psychoactive substances and ultimately contribute to reducing crime behind bars.”


Perhaps the Minister can tell us how this trial is proceeding. Clearly, it is intended to answer the main purpose of this Bill—prevalence testing—without any breach of Article 8.

I have other questions about the Bill. Are random tests proposed, as opposed to targeted tests? At what point are the tests anonymised? The Explanatory Notes say that a purpose is to ensure the prisoner can have medical treatment, which does not suggest anonymity. The Bill says that any substances can be tested for; how is that limited? Finally, as my noble friend Lord German asked, what is the purpose of the tests? Is it to criminalise other substances if found? It does not seem to me that the suggestion that the Bill is proposed in order to prevent delays in criminalising is a very good one.

Independent Review of Administrative Law Update

Lord Thomas of Gresford Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, on the first point, I respectfully disagree with the comments of Sir Jonathan, whom I respect very much. In conclusion 7, particularly the first two sentences of that paragraph, it seems to me that the panel is clear that there are cases where the courts have gone beyond a supervisory approach.

On the question of potential injustice for those who have suffered, if one is going to have a suspended quashing order or a prospective remedy, as I have made clear, that is something that we are interested in consulting on. Indeed, I would welcome the noble Lord’s involvement in that consultation.

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

My Lords, the Statement says that

“the Government would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process.”

First, is the political entanglement referred to the Prorogation of Parliament, and is referring an unlawful abuse of the royal prerogative to the court unwarranted? Secondly, who has lost trust in the judicial review process? Is it unsuccessful applicants whose applications have been refused, or is it the Government whose actions have been found so often to be unlawful? Thirdly, what does a presumptive decision mean? If it is that an appellant who is successful has no remedy or that the decision applies only to future decisions and not to him, why would anybody bother with a JR at all? So the Government want to go further; the review obviously has not gone far enough for them—oh, what a shame.

[Lord Wolfson of Tredegar (Con)]

My Lords, on the first point, the words used by the Lord Chancellor are straightforward; I do not think they need any glossing from me. On the second point and as to trust in the judicial review process, it is important that the process does two things. It enables Governments to govern; equally, it enables them to govern well. Judicial review is important for Governments because it makes sure that they govern well, and within the law. That is why we are particularly focused not only on the recommendations of the panel; we want to go to consultation on other matters as well.

On the last point, as to prospective remedies, with great respect, the noble Lord is simplifying what is a more complex matter. It is far from the case that a prospective remedy gives no remedy to the particular litigant in that case. It all depends on how the prospective remedy is furnished and how people affected by the decision can be compensated or otherwise dealt with during the intervening period. That is precisely why we want to go out to consultation: because the current cliff edge of either no remedy or a remedy ab initio, and a quashing from the moment of the decision, leads to unfortunate consequences. That is as the panel has said, as the Government have responded, and indeed, as the noble and learned Lord, Lord Hope of Craighead, explained in his minority judgment in Ahmed.

Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2021

Lord Thomas of Gresford Excerpts

Tuesday 23rd February 2021 Lords Chamber

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

My Lords, I read these papers with considerable interest yesterday and realised for the first time, like the noble and learned Lord, Lord Morris of Aberavon, that I might already be entitled to a government pension. I therefore declare an inchoate interest.

I was appointed a recorder in 1975 and took the judicial oath. I sat as a recorder in Wales and Chester and, later, in the Old Bailey. There were two motivations: that it might be the first step to possible judicial preferment, as well as from a sense of public duty. It was not well paid and there were no thoughts of a pension. I should say that I later served on the Criminal Injuries Compensation Board.

There was a difference between appearing in the Old Bailey and sitting on the bench there. If you appeared as an advocate, you went in through the front door, in a queue of defendants and witnesses; your pockets were turned out, you were personally scanned and your bags were searched. If you went to the judges’ entrance round the back, the court usher seized your bags, led you to your room and produced a cup of coffee in fine china. You were then ushered into court by a sheriff of the City of London, in a blue gown with an enormous fur collar, surely provided by the Baltic Exchange. I would hold a nosegay, a posey with an 800-year history; it was necessary to keep from the nostrils the stench of the 12th-century Newgate gaol, which was originally attached to the Old Bailey. Of course, the gaol was demolished 120 years ago, but you have to support the tourist industry.

As a recorder, you were closely monitored by the Lord Chancellor’s Department, and I recall receiving a ticking off from its top civil servant for expressing some view mildly supportive of the civil rights movements in Northern Ireland in the 1970s led by Bernadette Devlin—not of course expressed in court but in a speech at a meeting of Welsh Liberals in Colwyn Bay, which was reported in the North Wales Weekly News. Newspaper cuttings were collected in the department on each person serving as a recorder, and I later discovered that my cuttings of Liberal insurrection had appeared in a colleague’s file, and it positively held him back. When I reached what would have been retirement age, I received not a pension but a one-liner from an official in the Lord Chancellor’s Department: “Dear Thomas, thank you for your services as recorder—you have reached retirement age. Yours faithfully”. I have resented it ever since.

I pay tribute to Mr Dermod O’Brien QC and Mr Miller for their 17-year fight to obtain a pension for part-time judges. They had to go via the Employment Tribunal, the Court of Appeal and the Supreme Court to the European Court of Justice, and they won on the provisions of a European directive on part-time workers. What a font of justice that court is. I gather that the Government’s argument was that the part-time workers directive was intended not for part-time judges but for apple pickers—and I am rather glad that they lost.

There are many who toil in this capacity of a part-time judge out of a sense of public duty. I recall a colleague who was offered an appointment as a circuit judge, which he accepted; he failed the medical. He sat for the rest of his career, until he retired, as a recorder, doing exactly the same work and attending the same courses as he would have done with a full appointment, but his remuneration was much lower and without a pension. I hope that the direction of decisions of the Supreme Court and Court of Justice in Europe have been a relief to him and to others.

I am sure that this measure went through the Treasury without enthusiasm—indeed, they probably had their teeth gritted. I welcome it, and I am sure that it will encourage many lawyers to come forward in the public service.

Counter-Terrorism and Sentencing Bill

Lord Thomas of Gresford Excerpts

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

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

My Lords, may I say how much I agree with the noble Lord, Lord Faulks, in his warning against equating too closely the use of polygraphs in monitoring sexual offenders with their use on terrorist offenders, who obviously pose a very different problem? The Minister should consider that.

Sixty years ago, in 1961, I was proudly driving my red and black little Austin A40—new car, brand new wife—along the twisting road from Mold to Denbigh in north Wales. It was a snowy day, just like today—that is what reminded me of the incident. We were not in a hurry. I approached a bend well on my own side of the road at a reasonable speed. There was a car parked on the bend; a large lorry coming from the opposite direction at speed saw it late, swerved out to overtake it on my side of the road and, as he pulled back, his rear end hit my car.

I gave evidence in the Denbigh Magistrates’ Court and found it very stressful. A police sketch of the accident was produced which purported to show where my car had ended up, with a 30-foot, perfectly straight skid mark. I told the chairman of the Bench I thought my car had finished some 20 yards short of where it was shown on the plan. He said, “Don’t you appreciate this is a carefully prepared police plan of your accident?” I said, “Well, it is entitled ‘rough sketch plan’.” Everybody laughed—except the chairman. The defendant was acquitted of careless driving, with the chairman commenting that the wrong person had been prosecuted —it should have been me. However, the lorry driver’s insurers paid me and my wife damages for personal injury without any questions.

The point of this lengthy reminiscence is that witnesses are giving evidence up and down the country in Crown Courts and magistrates’ courts every day, but nobody has ever thought to put a polygraph test on them as they are questioned. Your pulse may be racing, your blood pressure through the roof; you may be sweating, wishing you were anywhere other than perched in a witness box above the well of the court with myriad sceptical eyes looking you up and down—not because you are lying, but you may be afraid that someone, like the chairman of the Denbigh Bench, may not believe you. There are also those pesky lawyers paid to make you out to be a liar with their ridiculous version of the event. That is why the present Domestic Abuse Bill calls for special measures for victims and their witnesses and the present overseas operations Bill has a presumption against prosecution altogether, to save old soldiers the stress of recalling bad times.

The purpose of polygraph testing, as I said at our last meeting on 26 January, is to measure the physiological response of a person to questioning. It depends on the proposition that a person who lies will demonstrate it by changes in his blood pressure, perspiration, heartbeat and so on. I pointed out last time that these conditions are explicable by the stress of being questioned, by being thought to be lying, even by the state of your stomach-turning digestion, or by fear.

Because these physiological changes do not demonstrate that a person is lying, at least to the degree of certainty required for a conviction, evidence of the result of a polygraph test is excluded in court. It is therefore very good policy that, so far, the courts of this country have refused to accept polygraph results as admissible evidence.

We have already discussed whether such evidence should be used where terrorists are released from prison to monitor their continuing behaviour in the community. The purpose of this amendment is to probe whether the Government harbour any desire to go any further: whether this restraint will be maintained if the results of such a test appear to be relevant to a future terrorist trial in a court. That is when principle is put to the test—when there appears to be an indiscriminate danger to the public.

I support this amendment and I look forward to hearing the Minister’s comments on the proposal.

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

My Lords, as my noble friend Lady Hamwee and others have explained, Clause 32 puts the imposition of polygraph conditions on serious terrorist offenders released on licence on the same footing as applies in the case of serious sexual offences. I say at the outset that I agree with the noble Lord, Lord Faulks, and my noble friend Lord Thomas that different considerations apply with terrorist offenders and sexual offenders.

Yesterday, in Committee on the Domestic Abuse Bill, we discussed the use of polygraph testing for domestic abuse offenders released on licence—and again, different considerations apply. Nevertheless, I said then that my outright opposition to the use of polygraph testing anywhere in our criminal justice system had become more nuanced when the proposed use was for the limited purpose of monitoring compliance with licence conditions on release from custody. My outright opposition hitherto stemmed from the lack of proven reliability of polygraph testing and from the perception at least that it is directed to providing binary answers, true or false, to complex evidential questions—hence the use of statements such as “He failed a polygraph test”. Lawyers naturally prefer a system which depends on the careful and balanced evaluation of evidence, often conflicting or inconsistent, rather than certainty.

In part, as I said yesterday, I have become more sympathetic to the use of polygraph testing with the help of the comprehensive and very helpful learning session organised by the MoJ last Thursday, which was attended by a number of Peers, including the noble Lord, Lord Faulks, and my noble friend Lady Hamwee, as they have said. In addition, I accept that there are legitimate reasons for the use of polygraph testing to provide information to the police and others investigating serious offences and, in the case of terrorism, often potential offences that threaten multiple lives. However, accepting polygraph testing for those limited purposes does not mean that we can accept polygraph testing in criminal cases, and that will remain our position unless and until the reliability of polygraph testing is far more conclusively established than it is now. I agreed completely with the observations of my noble friend Lord Thomas of Gresford on how stress can affect evidence given in a court and on how falsely polygraph testing may skew such evidence.

Our Amendment 19 would amend Section 30 of the Offender Management Act to ensure that evidence of any statement made by a released defender in a polygraph session, and any of his physiological reactions while being so examined, could not be used in a criminal prosecution of any person, not just the released offender. It is right that this amendment is billed as a probing amendment, but that is plainly right. However, at the moment, Section 30 does not say that. As the noble and learned Lord, Lord Wolfson, said yesterday in answer to me on the domestic abuse provisions:

“Section 30 of that Act provides unequivocally that any statement or any physiological reaction made by an offender during the polygraph session may not be used in criminal proceedings in which that person is a defendant.”—[Official Report, 8/2/21; col. 41.]


Therefore, the Government accept the principle that evidence obtained as a result of polygraph testing, or flowing from physiological reactions under such testing, cannot be used as evidence in a prosecution brought against the person being tested. It must be right that it should not be possible to use such evidence in the prosecution of anybody else, and the reasons mentioned by my noble friend Lord Thomas apply equally to that situation.

It therefore seems that, while this is a probing amendment, it is an amendment that the Government can and should plainly accept without compromising their position or anything that the Bill is trying to achieve, and that it is simply consistent with the position taken by the Government that polygraph-testing evidence cannot be used to secure a criminal conviction.

I stress, in the context of the danger posed by terrorism, that I take the point made by the noble Lord, Lord Faulks, that deradicalisation is difficult to achieve. He described it as a holy grail. I emphasise that nothing we say would prevent those administering polygraph testing to released offenders from passing on to the police for the purpose of preventing terrorism information revealed to them. Nor should the police be inhibited from using such information passed on to them in investigating and avoiding terrorist offences.

Amendments 19A and 19B would have the effect of insisting on the affirmative resolution procedure for regulations making provision relating to the conduct of polygraph sessions further to a terrorism-related offence. I suggest that the need for the affirmative resolution procedure is obvious. I would be grateful, however, if the Minister could confirm a number of other points about the regulations proposed, not just for the conduct of polygraph sessions but for using information obtained in the course of such sessions in relation to recall from licence.

My understanding is that, as with sexual offences, and as we were assured yesterday with domestic abuse offences, no decisions on recall from licence can be taken as a result of a test indicating deception. If the result of a test implies that an offender is lying about breach of a licence condition or about further offences, for example, I understand that investigators may ask the police to investigate further before taking any positive action. There is therefore to be no recall on the basis of a failed test, which will lead to recall only if the police find other evidence establishing that a breach has occurred. I hope that will be confirmed in a terrorist context as well.

I also have some concerns about cases where an offender makes a disclosure in a polygraph test, confessing to behaviour that is a breach, and who might therefore be recalled. I asked yesterday about this and was told by the noble and learned Lord, Lord Wolfson, that recall in domestic abuse cases may follow if

“disclosures made voluntarily by the offender during the polygraph examination … reveal that they can no longer be safely managed in the community. Those circumstances would also lead to a return to custody. The important point to bear in mind in that regard is that that is no different from a situation in which an offender makes such disclosures without the polygraph licence condition.”—[Official Report, 8/2/21; col. 41.]

I take that point, but I regard it as important that, before a disclosure in a polygraph test can lead to recall, there should be a hearing where the disclosure is either admitted by the offender to be true or can be tested so as to ensure that it is voluntary, genuine and true before a recall based on it is affected.

Yesterday I posed a number of questions to the Minister in relation to domestic abuse polygraph conditions. They are reported in Hansard, but the same questions are pertinent today in connection with this Bill. They concerned in particular: first, a guarantee that the results of polygraph testing carried out under the clause could not be used to secure convictions of a criminal offence; secondly, that recall from licence on the basis of a disclosure in a polygraph test of a breach of a licence condition will not be possible without a further hearing—the point I just mentioned; and, finally, whether evidence of a breach of a polygraph licensing condition could ever be itself based on evidence from a failed polygraph test. It would be helpful to have those answers in the context of this Bill relating to terrorist offences as well.

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[Lord Woolf (CB) [V]]

My Lords, it has been a privilege to listen to the speeches this afternoon. I have benefited very much from what has been said by all noble Lords and I make these submissions bearing that in mind.

At the moment, I see Clause 35(1) as the most important provision dealing with polygraph licence conditions. What we have heard this afternoon indicates just how clearly we are engaged on a learning curve at present. As I read it, subsection (1) provides that the power to use polygraph licence conditions will be limited by the regulations made in that subsection. Therefore, it seems that the whole of this debate should be conditioned by that provision, and that is why I thought it right to intervene in this almost private party that is dealing with these issues.

It seems to me that we are on a learning curve not only with regard to the provisions of this Bill but generally on the use of polygraphs in this country. It is obviously very useful to have as much material as we can so that, before we give the Government such powers as we consider appropriate, we know what the limitations will be.

I of course recognise that the Ministers we have heard address the House today would have given the assurances they did only if they were confident that they would in fact be applicable. But the provisions will be in their final form only after the regulations have already been drafted and the limitations expressed. That is why I think the whole concept in the amendment proposed by the noble and learned Lord, Lord Falconer, should be treated as being very appropriate, because this is the mechanism by which those limitations are going to be defined.

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

My Lords, I was very happy with the Minister’s reply when he said that a significant response—not a failure—does not lead to a recall and to the loss of liberty of the person who is being examined by polygraph. That seemed to be a very clear statement. But the noble and learned Lord, Lord Falconer, has raised some interesting questions and I would like to pursue them a little further.

He asked how it works in practice; I ask how it works in principle. For example, on 26 January I raised the point of the right to silence. The person who is obeying the conditions of his licence by taking part in a polygraph test is asked a series of questions. Nobody has suggested that he is warned that he need not say anything unless he wishes to do so. He does not have a caution, and he does not apparently have a right to silence, because if he refuses to obey the condition of his licence—regardless of anything he may or not say about his position—he is presumably open to be recalled to prison and to lose his liberty. That is a very important point that we should consider and address.

The noble and learned Lord, Lord Falconer, also introduced an interesting concept in relation to the third person—namely, can the transcript of a polygraph test be used as evidence of a conspiracy? We would like a straightforward response to that from the Minister.

Finally, my noble friend Lady Hamwee revealed something that I had not appreciated: the recall to prison—the loss of liberty—is determined not by the court but by a probation officer. A probation officer takes the decision. “Well, he’s refusing to answer the polygraph test, he’s breached his conditions and I’m going to send him back to prison.” That, to my mind, introduces an important point of principle.

I wholly support the proposal in the amendment that there should be a pilot to investigate these practical and principled questions that have been raised.

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

My Lords, my Amendment 32 would put into legislation a deadline for the Prevent review to be published. The Government commissioned the independent review in January 2019; it has been repeatedly delayed and postponed. The initial statutory deadline of 12 August 2020 will now be missed. The Government say that they intend to have the report by the summer of this year, but they will not commit to putting a date in the Bill. We have long campaigned for a wide-ranging and robust review, which we believe is the right approach. This amendment would reinstate a statutory deadline for the independent Prevent review.

Amendment 33 takes a slightly different approach, which is to put in place a timetable. It would ensure that the Prevent review and any recommendations were laid within 12 months rather than 18 months, as the Bill currently states. This issue has been mentioned a number of times in Committee, and I think I can guess what the Minister is going to say in response to these amendments. Nevertheless, we need to be as confident as we can be that we can get this deadline and have a reasonable timetable, because it is important that we get these things right and that people can consider the effectiveness of the Prevent programme. I beg to move.

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

My Lords, I pay personal tribute to the stamina and persistence of my noble friends Lady Hamwee and Lord Paddick. I pay tribute also to the Ministers. The noble Lord, Lord Parkinson, came off the bench half way through the second half, and my noble friend Lord Paddick put up a high one, which unfortunately he dropped: the clash between the presumption of innocence and the requirement to answer a question in a polygraph, which I raised earlier. I was not satisfied with the answer that I got—that it is appropriate to question somebody after conviction, when they face a further term of imprisonment, without any form of caution. I do not think that our law is that they have to answer.

The Prevent strategy, with its statutory duty for schools, NHS trusts, prisons and local authorities to report concerns, has received much criticism. It is clear that it has not been thought fit for purpose in the Muslim community, which regards it, rightly or wrongly, as discriminatory. A lack of trust leads to a lack of co-operation. Consequently, the Government should accept the burden of completing at the earliest opportunity the review that they have announced. Deadlines have already been passed. I have no wish to go into the appointments that have been made save to wonder to what extent those who are immediately affected by the strategy have been involved.

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

My Lords, Amendments 37 and 40 concern “lone terrorists” and the review of the strategy concerning them. Amendment 37 ensures that the Government will order a judge-led review into the effectiveness of current strategies to deal with lone terrorists, including, but not limited to, current “counter-terrorism policy” and “sentencing policy”. My right honourable friend Nick Thomas-Symonds has called for such a review, following the shocking and tragic incident in Reading on Saturday 20 June 2020, which was the third time in seven months that such devastation caused by a lone attacker has been seen on UK streets.

The review would undertake an assessment of the systemic response needed to address this threat, building on prior research and expertise. It would include an analysis of various public services: probation services, prisons, mental health services, housing providers and local authorities. Professor Ian Acheson, who completed a report for a Conservative Government, said last year:

“Our unsafe prisons provide a fertile breeding ground in which predators, peddling extremist and violent ideologies, can prey upon the vulnerable, creating significant risks to national security and the public at large.”


What steps are the Government taking to put forward a deradicalisation strategy in the prisons?

Amendment 40 looks at MAPPA—multiagency public protection arrangements—and its purpose is to encourage the Government to define which agencies are included within them. I have received a short briefing on this from Napo, and the point that the probation officers make is that the input into the MAPPA arrangements varies according to the individuals one is dealing with: it may be local faith-based groups, housing providers, social services, education providers or substance misuse agencies—a multitude of organisations could be called on to work within the MAPPA system. In this example—and, I have to say, in all examples that I have come across—the system is all about integrated working, and it would be helpful if the Government could offer some perspective on the agencies that they think should be working within the MAPPA system. I beg to move.

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

My Lords, the lone terrorist poses a particular danger. “We do not understand them,” said the noble Lord, Lord Robathan, earlier this afternoon. By definition, the lone terrorist is not engaged in communications of any nature that could lead to his apprehension through ordinary surveillance methods and techniques. His motivation may be obscure and entirely personal to himself.

Nevertheless, he can cause huge and unexpected damage, as we saw in the London Bridge episode in Fishmongers’ Hall. In that case, the attacker had been released in the belief that he was no longer a danger to the public—yet, without any obvious motivation, he launched himself against those who were trying to help him.

I support Amendment 37, on the basis that public safety demands that we burrow down into the causes and motivations of the lone actor. The threat to public safety is such that the appointment of a judge, with all the powers that a Supreme Court judge has, is very appropriate.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I shall speak also to Amendments 42 to 65 inclusive and to Amendments 69, 71, 72, 74 and 76. I make four very short points. First, the hour is late and getting later. Secondly, these are all technical and consequential amendments. Thirdly, we have placed an explanatory note for each of them, which I am sure Members of the Committee will have looked at. Fourthly, I propose to set out in a letter, which I shall place in the Library, a more detailed analysis of the admittedly somewhat arcane and, in many cases, technical and consequential nature of these amendments. I hope that in those circumstances, I can draw my remarks to a close there. Obviously, if noble Lords have specific questions, I will attempt to answer them now, but otherwise, I beg to move.

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

My Lords, since requests to speak after the Minister are delivered to the Deputy Chairman of Committees by forked stick, perhaps I might comment on the earlier group concerning the review. Mr William Shawcross’s report on compensation for Libyan-backed terrorist atrocities in Northern Ireland was discussed on Monday. It was received by the Government last May but not published, as we have discussed. I hope that any review or report in the field that we have been discussing will not similarly be kept clutched to the Government’s bosom.

I have considered the government amendments to this schedule, and I am satisfied that they are consequential to amendments to legislation made necessary by this Bill and do not contain in themselves any questions of principle. I would not be surprised, given the complexity of the Bill, if other amendments emerged in the course of time.

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[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 Paddick (LD) [V]]

My Lords, I am minded to say, “Like the last lot”—but I am very grateful to my noble friend Lord Thomas of Gresford, and to the noble and learned Lord, Lord Stewart, for his offer to write with details. I would just say that I think it is rather cruel and inhumane to expect three government Ministers to be forced to remain to the end of the evening; perhaps they can come to some better arrangement on a future occasion.

Counter-Terrorism and Sentencing Bill

Lord Thomas of Gresford Excerpts

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

[Lord Naseby (Con) [V]]

My Lords, I have a very different view from the opponent of the clause standing part. The UK Government, regardless of who is in power, obviously recognise at this point in time that the fundamental dimensions of this Bill are about the safety of the United Kingdom against terrorism. Our problem is that we are still a very open nation.

Whether it is in Afghanistan, the Middle East or Asia, in all those parts of the world we take an active role in promoting democracy. We see it occasionally with refugees who come to this country. Genuine refugees are welcome, but hidden within the alleged genuine refugees are, too often, terrorists or quasi-terrorists. It is against that background that my noble friend on the Front Bench is rightly introducing this Bill in Committee. If people think I am exaggerating, I have had personal death threats from the IRA. I happened to represent Northampton South, which had an IRA cell in the early 70s. Colleagues may know that I have been deeply involved in Sri Lanka for 50 years, and I am sorry to report that some number of illegal entrants to our country were active members of the LTTE Tamil Tigers. So the challenge is there, and we need to recognise it.

I praise those in our party who have decided the time has come to look again at the sentencing of terrorism. The problem is made worse by the misunderstanding—whether it be genuine or otherwise—of the difference between human rights and the original European Convention on Human Rights, which, of course, was the basis of our Human Rights Act. That is fine, but it should not cover elements where a war took place. Again, I cite Sri Lanka, because that was a ghastly war between a democratically elected Government and a terrorist movement, proscribed by the United Kingdom Government in in its last few months in 2001. The law that looks after the rights in that context is international humanitarian law.

It may surprise colleagues to know that under the generosity of previous Governments, we in the UK allowed the number two man running the Tamil Tigers to have an office in Camden. Okay, he was a British citizen, but he was in charge throughout the period when I was involved, and his wife—an Australian lady, now, obviously, with joint British citizenship—was involved in recruiting child soldiers. We had these people living in our midst. I say to my noble friend on the Front Bench: well done in bringing the Bill forward. Clause 1, to me, is absolutely fundamental to it, and I wish it a safe and swift passage.

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

My Lords, it is a privilege, as always, to follow the noble Lord. I respect his point of view and the experiences he has had. I am sure he will appreciate we are concerned with the rule of law and preserving the reputation this country has for justice done in the proper way.

Terrorist activity is an aggravating factor in sentencing. Section 30 of the Counter-Terrorism Act 2008 enables courts to increase the sentence if it is established that the offence has a terrorist element. But the 2008 Act limited the use of this provision to the specific offences in Schedule 2, which were those most commonly connected with terrorist attacks or ancillary to them. The primary offences listed involved murder, manslaughter, violence to the person and explosives, nuclear, biological material and hijacking offences. The proposal in Clause 1 extends the offences that can be aggravated by a terrorist element to include any offence in the whole criminal calendar punishable with imprisonment for more than two years. This is an enormous widening of the provisions of the 2008 Act. The main feature of these provisions is that the issue of whether there is a terrorist element in an offence is not determined by a jury, notwithstanding the fact that these cases will inevitably be heard on indictment in the Crown Court.

The decision that there is a terrorist connection becomes part of the sentencing process, to be determined by the trial judge alone after conviction. Could the Minister explain the process the Government envisage? Would it be the equivalent of a Newton hearing, with a separate trial of the issue in which evidence is called and arguments heard on which the judge’s decision is based, or would the judge be entitled to come to a conclusion based on the evidence he has heard in the trial before the jury? It is an important decision. It is not just that his finding will add years of imprisonment to the individual defendant but, as my noble friend Lord Marks said a moment ago, it will trigger the terrorism notification requirements and the restrictions on early release contained in the Terrorist Offenders (Restriction of Early Release) Act 2020.

Surely, in the traditions of the criminal law of this country, a suspect believed to be involved in terrorist offences should be charged with those offences. It should be for the jury to decide whether there is sufficient evidence to sustain such charges. It cannot be right to charge the suspect with lesser offences and allow the judge to add the icing to the cake. There is no way in which this clause can be satisfactorily amended; consequently, the only thing to do is throw it out.

Let me give a pertinent example which everybody will understand after the events of last year. Suppose a jury finds a Whitehall protestor guilty of occasioning actual bodily harm to a rival protestor outside the gates of Downing Street, by punching him on the nose and stealing his flag. Under this clause, the judge could find proved, after the jury’s verdict, that the use of force to influence the UK Government and intimidate the public was for the purpose of advancing an ideological cause and therefore well within the definition of terrorism in the pursuit of, shall we say, exiting the European Union. Does the Minister—whom I welcome to his seat in the House of Lords—agree?

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

I join noble Lords in welcoming the noble Lord, Lord Wolfson of Tredegar, to his place in the House of Lords. I am sure he will make an enormous series of contributions to our debates on justice issues—not just criminal justice, but civil justice. He is very welcome.

This is a very important Bill. I think everyone in the House, certainly on this side, is very keen that the Government be given legitimate tools to fight terrorism as hard as possible. One legitimate tool must be the use of greater sentences, where appropriate, for people who commit terrorist offences. In principle, we on this side are not against the idea of expanding the circumstances in which an offence can be regarded as aggravated because of a terrorist connection, which is what Clause 1 does.

Also, in principle, I do not think it necessarily wrong for the judge to be given very substantial powers to make judgments on what the appropriate sentence may be. The most obvious example of this relates to murder, where the judge in effect has the power to determine whether the offender should be given a whole life sentence, which will obviously have huge ramifications for what happens to that defendant. Indeed, such a decision had to be made quite recently on the conspirator convicted in relation to the Manchester Arena bombings —he was given a whole-life sentence by Mr Justice Baker. That was a very significant occasion.

I am very keen to discover precisely what process the Government have in mind for how a decision will be made on what are more or less serious offences than the normal ones. What process is envisaged in which a judge can decide whether an offence is aggravated by terrorism in the sense envisaged by Clause 1? In principle, I think a fair process can be envisaged and it may not be wrong for the judge to decide that rather than the jury. However, I am very interested to hear what the Government have to say about it.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I will also speak to Amendments 3, 17, 18, 21, 22, 23, 24, 25, 26, 73, 74 and 75. I will also signal my intention to propose the removal of Clauses 33, 34 and 35.

Clause 33 was intended to provide explicit provision so that Scottish Ministers might impose a polygraph condition as a licence condition for specified released terrorist offenders. Clause 34 was intended to provide explicit provision so that the Northern Ireland Department of Justice might impose a polygraph condition as a licence condition for specified released terrorist offenders. Scotland does not currently have express provision for polygraph testing, but Scottish Ministers have broad powers to set licence conditions under Section 12(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Northern Ireland does not currently have express provision for polygraph testing, but the Department of Justice has broad powers to set licence conditions under Article 24 of the Criminal Justice (Northern Ireland) Order 2008 and Rule 3(2)(e) of the Criminal Justice (Sentencing) (Licence Conditions) (Northern Ireland) Rules 2009.

Through discussions on the legislative consent of the Scottish Parliament and the Northern Ireland Assembly on the provisions of the Bill, it became apparent that while this clause would enable a fully comparable UK-wide approach to polygraph testing on licence, pursuit of this provision in Scotland and Northern Ireland was not strictly necessary and could result in Scottish and Northern Irish Ministers withholding their consent for the Bill. The Government remain of the view that polygraph examinations are a useful additional tool in supporting the effective management of terrorist offenders, and we hope that the Scottish Parliament and the Northern Ireland Assembly will see the demonstrable benefits of its introduction in England and Wales.

This Government will continue to legislate on reserved matters but, as an expression of our respect for the existing powers of the Scottish Government and the Northern Ireland Assembly in relation to the setting of licence conditions, and as a demonstration of this Government’s reasonable approach to those discussions, we have now agreed to remove the provision on the clear understanding that, should this Scottish Parliament or Northern Ireland Assembly or a future one change its view on polygraph testing, it will be able to implement the measure without additional legislation being required.

Clause 35 was intended primarily to provide supplementary provisions to Clauses 33 and 34 that would restrict the circumstances in which the devolved Administrations could impose mandatory polygraph examinations as a licence condition for certain terrorist offenders. As a result of the removal of Clauses 33 and 34 from the Bill, Clause 35 is no longer needed. The clause was intended to ensure that regulations could be made to ensure that polygraph conditions were confined only to those offenders’ licences where it was necessary and proportionate to do so, to ensure standards for the examinations and that appropriate records and reports kept in relation to testing were consistent across the UK. Polygraph examinations are already carried out on sexual offenders in England and Wales. The conduct of those polygraph examinations is governed by rules made under Section 29(6) of the Offender Management Act 2007. Amendments 2, 3, 17, 18, 21 to 26 and 75 are consequential on the removal of Clauses 33 to 35.

Amendment 73 is necessary to ensure that the measures that permit introduction of polygraph testing in a licence condition for terrorist offenders in England and Wales are commenced two months after the Bill receives Royal Assent. Previously, when explicit provision was sought and set out for Scotland and Northern Ireland as well as for England and Wales, we had agreed that the provision should be commenced via regulation to allow sufficient time to develop the relevant infrastructure in those jurisdictions. As explicit provision is no longer made for those jurisdictions through this Bill, and polygraph testing is already used by the probation service for sex offenders in England and Wales, the same delay is not now required. As such, the usual commencement of two months after Royal Assent is appropriate. I beg to move.

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

My Lords, I have many reservations about the value of polygraph tests. They rely on measuring several physiological processes—pulse rate, blood pressure, perspiration and so on, the changes that may take place in the course of questioning. However, the emotional and physiological responses recorded may arise from such factors as simple anxiety about being tested or fear of being judged deceptive, or a host of things—perhaps the state of one’s digestion after food. There is an inherent ambiguity in the physiological responses. The reluctance to use polygraph evidence is precisely because the response may mimic the response expected of a person seeking to deceive.

What is meant by “failing” the polygraph test? Failing the test means exhibiting a certain physiological response to a question. What is truth? The examiner cannot know whether that response means that the answer is a lie. However, there is no punishment for failing the test—whatever that means—or for exhibiting that response. That does not breach the terms of the offender’s licence. The individual will not be returned to prison. Alterations may, however, take place in the conditions of his licence, and those could be onerous.

The irony is that, in the course of questioning, the person being questioned may provide information truthfully that will have an adverse effect on him. He has not failed the test because his body does not react to his telling the truth, but he has provided information that may lead to his punishment. He has of course lost his right to silence, a right first developed in the late 17th century as a check to arbitrary rule. It has been regarded over centuries as fundamental to the fairness of the criminal law in this country and in the common-law countries all over the world.

Faced with the terrorist atrocities that we have seen in this country, the loss of the right to silence may seem a worthwhile price. Obviously that is not the immediate view in Scotland, nor in Northern Ireland. Let us face the dilemma: the proposals for England and Wales do not involve imprisonment for a lie but possible imprisonment for telling the truth or, since it is mandatory to answer the questions, even for remaining silent. Faced with legal and moral issues such as this, the drafters of the Domestic Abuse Bill, which is proceeding this week here also, as the Minister will know, decided that it was appropriate to proceed with a three-year pilot before finally rolling out the use of polygraphs generally in that field. Why is a different approach taken in this concurrent Bill?

It is interesting to note that the case studies in the MoJ memorandum on these proposals indicate that the information provided led to warrants being issued and physical evidence obtained in the offenders’ respective homes to contradict what they had said. However, there is no indication how often that has occurred or how many times such activity has proved nothing, and nothing has come of it. Will the Minister deal with that in his reply?

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

Like the noble Lord, Lord Thomas of Gresford, I too have considerable doubts about the reliability of polygraph material. This series of government amendments tabled by the noble Lord, Lord Wolfson of Tredegar, indicate some degree of shambles on the part of the Government. They are withdrawing the polygraph provisions for Scotland and Northern Ireland. Had they consulted the Scottish Government and the Northern Ireland Executive prior to the initial publication of the Bill, they would have seen what the Scottish Government and the Northern Ireland Executive had to say about them.

In the light of what was said by those two Governments, why did the UK Government introduce these provisions? It is plain from what the noble Lord, Lord Wolfson, is saying that the Scottish and Northern Irish Administrations do not want them. There is a reference to the various provisions that might allow them to introduce them as licence conditions. However, neither of the Administrations have indicated that they want these powers, so why on earth were they introduced in the first place and when was it that the UK Government decided to respect those views? If they did not consult those two Administrations before, why not?

Separate to that, on the use of polygraphs, what advice have the Government sought from police forces in England and Wales? To what extent would those police forces be confident about using polygraph testing?

Moving on, the effect of Amendment 73 would be that Clause 32, which sets out the conditions for polygraph testing for terrorist offenders in England and Wales, would come into force two months after Royal Assent rather than by regulations. Why have the Government reduced the degree of scrutiny available to the introduction of polygraphs by removing the need for regulations? Separately, what provisions are available in the Bill to stop the use of polygraphs if they prove to be ineffective?

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

My Lords, Clause 4 and my Amendments 4 and 5 concern the imposition of serious terrorism sentences of detention in a young offender institution for offenders aged 18 or over when the offence was committed and under 21 when convicted. A serious terrorism offence is defined in Clause 2 and that definition is carried into the Sentencing Code through new Schedule 17A. Part 1 of the new schedule lists a number of very serious terrorism offences, while Part 2 lists other broadly serious offences where the judge determines that there is a terrorism connection. On Part 2, I repeat the points I made earlier on Clause 1, although here they are applied with less force because the offences are, by and large, much more serious so the aggravation of the sentence is likely to be less severe.

The structure of the sentence for a serious terrorism offence for young offenders is defined, as it is for adults aged over 21, as the aggregate of a custodial term and an extension period during which the offender is to be subject to a licence. A serious terrorism sentence is to be imposed where there is a significant risk to the public of serious harm caused by the offender in future terrorism offences where the court does not impose a life sentence and where the multiple deaths condition as defined in the Bill is met, so these are indeed very serious offences. The term of the sentence is defined as a minimum custodial period of 14 years and an extension period of between seven and 25 years. There is a very limited exception to the requirement to impose a serious terrorism sentence on detention where there are exceptional circumstances that relate to the offence or to the offender which justify not imposing the sentence.

I accept entirely that these are very serious offences so the sentences are very serious indeed, but for young offenders aged 18 they are what might be called “no hope” sentences. A period of 14 years in prison in a young offender institution would take the young offender to the age of 32.

There may be many cases where such a sentence is justified, but there are—or may be—others where it is simply too great. Our Amendment 4 would provide for a minimum term of 10 years instead of 14 years, without affecting the judge’s discretion in an appropriate case to impose a custodial term of longer than 10 years if that would be the appropriate sentence for the offence under the general provision of the Sentencing Code. Amendment 4 is balanced by Amendment 5, which adjusts the minimum term on licence upwards from seven years to 10 years.

The rationale behind these amendments is that there is a wealth of evidence for a number of propositions. For younger people in particular, the effect of very long custodial terms is particularly destructive, depriving them of their chances of education and building productive lives. For young people in particular, even those convicted of terrorist offences, there is hope of rehabilitation, deradicalisation and using educational opportunities to help turn their lives around and give them chances to make worthwhile lives for themselves even at the end of a long custodial sentence. Young people in particular benefit from the help and support to be offered by the probation service and others to offenders released on licence, and may benefit to a greater extent than older offenders from both deradicalisation programmes and education—vocational and general—which they might undertake on licence to help them come to terms with the real world on their release after what is anyway a very long sentence.

I therefore suggest that it would be of advantage to society, and to us all, to rebalance the division of a serious terrorism sentence, so as to have a greater period on licence to follow a minimum period in custody, which, while still very long, would be somewhat less draconian than presently proposed, and would not affect the right of the judge to impose a longer sentence in an appropriate case. I beg to move.

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

My Lords, I am always intrigued by the thought processes that must be brought into play in fixing a minimum sentence in a Bill. I would like the Minister to outline what consultation there has been concerning the minimum sentence of 14 years for a young offender between the ages of 18 and 21—a “no-hope sentence”, as my noble friend Lord Marks described it a moment ago, and I completely concur with everything that he said. I cannot imagine that it is a Minister who initially chooses the minimum number of years for imprisonment. Somebody in the Ministry of Justice must have drunk his cup of coffee and plumped for a figure to put in for the Minister to sign off on. I do not suppose he will ever have met a young offender—“Let’s just say 14 years sounds good.”

I want to contrast this with the role of a sentencing judge whose sentencing discretion is not bound by statute. The judge sitting in a serious case of terrorism would not be there if he had not had a lifetime of experience in the criminal courts, developing his instinct and his trained capacity to weigh the seriousness of one case against another. Other experienced practitioners and academics who have studied criminology have provided the judge with sentencing guidelines. They give him a guide to the accepted range and indicate what aggravating or mitigating factors he should have in mind. In addition, the judge will have the benefit of counsel’s submissions and a probation report from an experienced officer that will give him an insight into the background of the defendant. There may also be medical reports and, sometimes, witnesses prepared to speak up on the young man’s behalf.

This clause introduces an arbitrary minimum sentence as the guideline unless there are “exceptional circumstances”. There are no guidelines as to what those exceptional circumstances are: if the past is any guide, we will have to wait for the Court of Appeal to lay them down. The minimum sentence is chosen by a civil servant who, in all probability, has never been inside a court. So we get an arbitrary 14-year minimum sentence and an arbitrary seven years on licence. What is the evidence that this is the correct balance? Who said that? Why cannot a judge be left to do his job?

It seems to me that the only purpose of a minimum sentence is to make a single day’s headlines to the effect that the Government are being tough on crime, and specifically on terrorism. There is no question of looking at the individual who is before the court, and considering his future, his welfare, his rehabilitation or whatever. In putting forward this amendment, my noble friend is testing the rationale for the balance in the Bill, and I look forward to a full exposition from the Minister in due course.

[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?

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We believe in judicial discretion, for all the reasons mentioned by my noble friend Lord Thomas of Gresford in relation to the previous group, and for all the reasons which we discussed in the previous short debate. We do not believe that Parliament or any Minister can foresee what circumstances might persuade a judge to exercise less severity in these very serious offences. However, I suggest that the use of the word “exceptional” introduces a straitjacket, and I make that suggestion on the authorities because the use of the word “exceptional” places the judge in the position of having to make a finding that the circumstances are exceptional: that is, that they are so far away from the norm as to justify a finding, effectively, of fact that they are an exception. Without such a finding, he cannot use any discretion. The lack of discretion, I suggest, can be inimical to the interests of justice, and for that reason I invite the Committee to agree ultimately to a different formulation and invite the Government to consider a formulation that allows just a bit more flexibility than the Bill as drafted permits. I beg to move.

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

[Inaudible]—is in relation to the necessity for the judge at trial to have full discretion in passing sentence. I do not wish to repeat that, but I will add a particular comment. When a judge is faced with a provision such as this, he has to define those circumstances which influence him. He has to set out in his sentencing remarks precisely what factors influence him. Things have moved very considerably over the decades away from the swift disposal of a defendant by a judge with very little comment. What he says is important not just for the defendant to understand why he is being sentenced in that way but of course, if there should be any appeal on sentence, for the Court of Appeal to understand precisely what it was at the time that the judge had in mind. “Exceptional” circumstances is too great an imposition on the judge’s discretion and I believe that my noble friend’s proposal that it should be “significant” is right.

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

My Lords, the noble Lords, Lord Marks and Lord Thomas, have explained their thinking behind the amendment to replace “exceptional” with “significant” to give more discretion to the judge. As the noble Lord, Lord Thomas, said, in any event a judge will explain the reason for finding exceptional or significant reasons for reducing a sentence.

My questions are for the Minister. What does he believe are exceptional circumstances, and what exceptional circumstances would justify a lesser sentence? In what circumstances would such lesser sentences be appropriate?

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[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?

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

These are three simple amendments dealing with the sentencing framework for England, Scotland and Northern Ireland. The Bill as drafted removes the chance of parole for anybody, irrespective of their age, if they have committed a dangerous terrorist offence. As I have made clear, we on this side of the House are keen that there be strong penalties, because the aim is to prevent terrorism. However, we do not think it right that the possibility of parole be removed altogether for those people convicted when they are under the age of 21.

There are three reasons for that. First, the possibility of change must be higher when you are under 21. We are not starry-eyed about this, but that possibility should be there. Secondly, it will make prisoner management easier, as all prison governors attest. Thirdly, you avoid the possibility of the detention of someone over a very long period of time, and the sense that that person has served his sentence will create a recruiting sergeant in certain communities.

Each case has to be looked at on its merits; release would occur only when the Parole Board was satisfied. Occasions when mistakes have been made are all too well known and, indeed, have inspired this Bill. But if the aim is to provide as much security as possible for the community as a whole, then removing the chance of parole for anybody under 21—and it is only a chance of parole—is a mistake. I beg to move.

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

The law has always distinguished between the adult and the young offender in many ways. Policy has always been to make every effort to rehabilitate the young before they become hardened criminals. It is even more important not to turn them into hardened terrorists.

“What works?” asked the noble and learned Lord, Lord Stewart of Dirleton—the Scottish wing of the strike force. A large incentive when persuading offenders to amend their ways is the fact that they have their chance, before the Parole Board, to have release if it is appropriate and safe.

The outcome of prison is the person who walks out of the gate at the end of the sentence. What has happened to him inside? Has he been radicalised or rehabilitated? Some go in with no particular ideology and are radicalised. Others go in radicalised and must be given the opportunity to change their lives. They should be managed with the personnel and tools described by the noble and learned Lord, Lord Stewart.

Young people can rehabilitate if they are given the courses and programmes that exist to enable them to gain skills to support themselves outside the prison environment. The longer the sentence, the more difficult that is. Prisoners convicted of terrorist offences provide a further problem. Have they retained the beliefs that got them into trouble in the first place? Or are they still radicalised? I was pleased to hear of the theological and ideological interventions that are promised to deal with problems such as those.

I support these amendments, because I believe we should continue that long-held view that young people should be treated differently and given a chance to turn their lives in a different direction.

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[Lord Naseby (Con) [V]]

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

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

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

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

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

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

My Lords, by coincidence I am once again following the noble Lord, Lord Naseby. I would remind him that there have been high-risk periods before. His words reminded me of the Brighton bomb case, in which I took a part. The person I represented had been involved in a bombing campaign that covered some 28 seaside resorts, and the Brighton bomb case was the final one. When I look at Clause 31, I reflect on that case, because that clause, like the other clauses we are dealing with, is the one which says that there should be no parole for terrorism offences committed in Northern Ireland. In the Brighton bomb case, those who were convicted and sent to prison within weeks of the Belfast agreement were returned to Northern Ireland to serve out their sentences there—and within a very short time they were released. We have faced problems like this before.

The benefits of a two-thirds release system have been outlined by previous speakers: they encourage people to behave while in prison and to engage in deradicalisation and rehabilitation courses. That is done to persuade the Parole Board that the individual is safe to be released—to advance by hope and decrease hopelessness, as my noble friend Lord Marks put it. The Parole Board ought to have a role in this, and I was impressed by the views expressed by the noble and learned Lord, Lord Falconer, that perhaps the Parole Board should at least have a role in advising on the conditions of release as opposed to the governor taking on the role, as is being proposed.

There are dangers in automatic release at the end of a sentence. No doubt the full sentence has been completed, but the automatic release at the end of that time without any Parole Board involvement is a danger, as my noble friend Lord Marks and the noble Baroness, Lady Prashar, have argued. I do not think that the solutions that have been developed and put into the Bill are necessarily the right ones, so I support my noble friend in his attempt to have these clauses removed.

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

My Lords, we have had interesting debates on both this and the previous group. In closing the previous group, the Minister said that the proposed lack of involvement of the probation service in this particular group of prisoners was a consequence of the sentencing structure and was not a reflection on the Parole Board itself. I understand the point he has made, but what has been said repeatedly on both groups is that there is expertise in the Parole Board. My noble and learned friend Lord Falconer asked whether there were two elements here. One is the possibility of early release, while the second is a point raised again just now by the noble Lord, Lord Thomas, about the conditions of release for a prisoner who has served their whole term. I do not understand why that level of expertise should not be accessed when considering these types of prisoners.

I shall make a couple of other brief points which are different from those which have been made by other noble Lords. They arise from briefings that I have had from the trade unions. The Prison Officers’ Association believes that removing hope from prisoners puts its staff at risk. It is a point that the association makes repeatedly and is an important one to feed into this debate. The second point has been made by the National Association of Probation Officers—that is that the workload of probation staff working on the ground in prisons is so high that they are not managing to deliver to their required standards. They are being allocated around 70 prisoners each. I understand that the Minister has talked about these various programmes, and I know that we are talking about a very extreme group of prisoners. Nevertheless there is the practical working position of prison officers, probation staff and others in prisons to consider in trying to make these institutions work and to reduce recidivism when prisoners are released.

Even so, both the group of amendments we are speaking to now and the previous group illustrate the potential for changing the Bill to bring the Parole Board back in. That would reduce the potential risk to the public.