Counter-Terrorism and Sentencing Bill

Lord Wolfson of Tredegar Excerpts

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

Moved by

[Lord Wolfson of Tredegar]

1: Schedule 2, page 52, leave out lines 27 to 35
Member’s explanatory statement
This amendment removes references to offences in the Space Industry Act 2018 from Schedule 17A to the Sentencing Code (serious terrorism offences). References to those offences will instead be inserted on their commencement by Schedule 22 to the Sentencing Act 2020 (see the amendment at page 108, line 11) so that they are dealt with consistently by the Sentencing Act 2020.

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

My Lords, I hope that the Committee will allow me to take a moment to thank the noble Lords, Lord Thomas of Gresford and Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Falconer of Thoroton, for their very warm words of welcome, which I appreciate.

Amendment 1 is a minor technical amendment that removes references to offences in the Space Industry Act 2018 from Schedule 17A to the Sentencing Code, which deals with serious terrorism offences. References to those offences will instead be inserted, on their commencement, by Schedule 22 to the Sentencing Act 2020 so that they are dealt with consistently by that Act. I beg to move.

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

My Lords, I understand from the Minister that this is a minor amendment. I too welcome him to his position. He has been very helpful to me both on this Bill and on the Domestic Abuse Bill, with which we are dealing almost simultaneously. I have a couple of minor questions for him. First, what would happen if this amendment were not put in place? How would that have affected the position, and what could the consequences have been? Secondly, what level of consultation has he done externally to ensure consistency in Sentencing Codes and parliamentary Acts?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the words of the noble Lord. To answer his two questions, I say that this is essentially a tidying-up matter because of the different pace of legislation going through Parliament at the moment. The question of what would happen if this amendment were not made is an interesting one. At the very least we would be left with inelegant legislation, and I know from my previous incarnation that inelegant legislation is bad for Parliament but very good for lawyers, so let us try to make it as elegant as we can while we are at it. Much of the consultation on this matter preceded my involvement in this Bill and indeed my introduction to this House, but I am aware that there has been very significant consultation. Of course, if the noble Lord wishes to raise any particular points with me, my door is always open to him.

Amendment 1 agreed.

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Moved by

[Lord Wolfson of Tredegar]

2: Schedule 3, page 53, line 41, leave out “Articles 20A and 24A” and insert “Article 20A”
Member’s explanatory statement
This amendment and the amendments at page 53, line 44, page 95, line 4 and page 95, line 37 are consequential on the removal of Clause 34.

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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?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to noble Lords for setting out their various points. I turn first to those made by the noble Lord, Lord Thomas. On the effectiveness of polygraphs, as I said in my introductory remarks, they are used elsewhere in English law in relation to sex offenders. There is therefore a body of evidence as to their utility. On what “failing” means and the consequences of failure, it is important to remember, as I think the noble Lord appreciates, that offenders who are subject to testing cannot be recalled to custody for failing a polygraph test. They can be recalled for making disclosures during the test that reveal that they have breached other licence conditions, or that their risk has escalated to a level at which they can no longer be managed safely in the community.

On the right to silence and other Human Rights Act rights, I am sure that the noble Lord will recall that during the course of the sex offender pilot of the polygraph system, an offender challenged the imposition of testing on Article 8 grounds, but that was rejected by the courts. No further challenges have been made since then and we are therefore confident that this is compliant with the Human Rights Act and the rights contained therein.

On the remark that there is to be no pilot scheme, I will make two points. First, this is not the initial use of polygraphs in English law because they are already used in connection with sexual offences. Secondly, it is unlikely that there will be sufficient numbers of relevant offenders to carry out a pilot that would produce meaningful results.

I turn to the points made by the noble and learned Lord, Lord Falconer. It is rather odd to be accused of presiding over a shambles when we have actually listened to the Scottish Government and the Northern Ireland Assembly in our discussions with them. On whether police forces are able and ready to use polygraphs, they are of course already being used in circumstances related to sexual offenders. Therefore, this testing is not entirely new to them. The regulations that will govern polygraph testing have been set out and we do not think that it will be an ineffective tool.

I hope that I have responded to the various points raised. If noble Lords feel that I should provide further information on any of them, they know that we will of course continue to have discussions about these matters.

Amendment 2 agreed.

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Moved by

[Lord Wolfson of Tredegar]

3: Schedule 3, page 53, line 44, leave out “those Articles” and insert “Article 20A”
Member’s explanatory statement
See the explanatory statement for the amendment at page 53, line 41.

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[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?

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, this amendment seeks to amend and change the circumstances in which a sentencing court could impose less than the 14-year minimum term for a discretionary life sentence imposed in a serious terrorism case by changing the circumstances from “exceptional” to “significant”. I respectfully agree with the noble Lord that the logic of his amendment would also apply to Clause 4. However, I respectfully disagree over whether such an amendment is appropriate.

The purpose of Clause 11 is to ensure a consistency of approach when sentencing those convicted of serious terrorism offences. It would not be appropriate for a court to be able to impose a life sentence with a lower minimum term for a serious terrorism offence other than where there are exceptional circumstances. If the circumstances of the offence and offending are such that the court imposes a life sentence, and unless there are exceptional circumstances, there should be no possibility of the offender being released earlier than someone given a serious terrorism sentence. That is what Clause 11 achieves.

By contrast, the amendment would remove that consistency, so that the court could consider a wider range of circumstances when setting the minimum term in a discretionary life sentence than when doing so for a serious terrorism sentence, although all other circumstances would be the same. While I accept that there is a distinction, in that the prisoner serving a life sentence may be considered for release only after the minimum term is served, it would be unprincipled for him or her to be released earlier than a counterpart serving a serious terrorism sentence.

A number of questions were asked about “exceptional circumstances”. That is a principle already established in sentencing legislation. It is used, for example, in connection with minimum terms that can apply to certain firearm offences. I must respectfully decline the invitation of the noble Lord, Lord Ponsonby, for a Minister to gloss from the Dispatch Box what “exceptional circumstances” might or might not be. It is a phrase used elsewhere in statute and known in law. Those are straightforward English words and it would not be appropriate or even helpful for me to gloss them on my feet at the Dispatch Box.

By contrast, I respectfully point out to the noble Lord, Lord Marks, that as far as my research has indicated—I am happy to be corrected if I am wrong—there is no existing “significant circumstances” principle in sentencing legislation. Therefore, if accepted, the amendment would create an entirely new test, which in our view is unwarranted and likely to lead to litigation, which cannot be in our interests as parliamentarians in passing this Bill.

As far as the point made by the noble Lord, Lord Thomas of Gresford, is concerned on judicial discretion, we are really talking about the extent of the judicial discretion and whether the test should be “exceptional” or “significant” circumstances. The question is not to the existence but to the extent of judicial discretion. As part of the Government’s recent White Paper, A Smarter Approach to Sentencing, we have committed to changing the criteria for other minimum terms for repeat offences to reduce the occasions on which the court may depart from the minimum custodial length.

For those reasons, I do not consider the amendment to be necessary or appropriate, and I respectfully invite the noble Lord to withdraw it.

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

My Lords, I am grateful to those who have spoken, and to the Minister for his response. However, I am bound to say that I found it disappointing. He is absolutely right to state that “exceptional” has a clear meaning in law and is used elsewhere. It was to that meaning that I alluded when I said that the use of “exceptional” puts the judge in a straitjacket. It is for that reason that my noble friend Lord Thomas of Gresford is right to seek a little more latitude, because the sentence is so long and the circumstances may be very varied.

The Minister did not deal with the point that the circumstances can relate not only to the offence but to the offender. They may cover a very wide range. Therefore, it is our position that more discretion is called for. He is right that it is the ambit of the discretion with which this amendment is concerned. I invite him to reconsider it. While he does, I beg leave to withdraw the amendment.

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

My Lords, I agree with the noble and learned Lord, Lord Falconer of Thoroton, about the benefits of pre-sentence reports. They are, and always have been, when available, important in the context of sentencing generally. They are a sophisticated tool, bringing before a court matters that may not be known to the sentencing judge in the absence of a detailed report on the background and motivation of an offender, and their potential to be rehabilitated in future. In not requiring such a report, which covers all the matters mentioned in this amendment, Parliament would be taking a retrograde step and excluding elements that may be important in determining the length of any sentence or extension period.

The amendment complements Amendment 6 that I introduced earlier, by giving the judge not only increased discretion in passing sentence, but also the material on which he can correctly and sensibly exercise that discretion. I agree with the noble and learned Lord, Lord Woolf, who described such a report as a very healthy safeguard. I urge the Government to accept the amendment for that reason. It is a question of giving the sentencing court the material upon which to make an informed and sensible decision from everybody’s point of view.

Finally, I commend the words in the amendment that provide for a review of the workings of the clause, including the amendment. I fear that we are legislating in some haste in relation to the Bill, and a review of how it is working, particularly this clause, would be extremely helpful.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, for introducing this amendment, although I hope to persuade him that it is in fact misconceived.

The amendment deals with Clause 16, which relates to an increase in the extension period for terrorism offenders aged under 18. As my noble and learned friend Lord Stewart of Dirleton said a few moments ago, I am sure it is common ground across the Committee that when dealing with such young adults one has to have the greatest care and consideration. Having said that, as my noble friend Lord Robathan reminded us, this is a matter of public safety. I respectfully endorse nearly all the comments that he made; I say “nearly all” because, in a debate where so many lawyers are speaking, I understand the temptation for someone who is not a lawyer to say that they are “only a layman”, but my noble friend is not “only” anything. With that slight quibble, I respectfully take on board everything that he said.

The amendment would require the pre-sentence report to take account of the offender’s age and consider whether options other than an extension period of eight to 10 years might be more suitable than an extended sentence of detention. The amendment would also require the Secretary of State to report to Parliament each year on the effectiveness of increasing the maximum extension period of the extended sentence of detention from eight to 10 years.

The nature of an extended sentence is that it comprises a custodial term and an extension period for the purposes of public protection, as defined in Section 256 of the Sentencing Code. The effect of the amendment would be fundamentally to alter the nature of the sentence by proposing an alternative to that extension period.

The amendment is also not necessary and, I say with respect, perhaps misunderstands the provision. I assure the noble and learned Lord, Lord Falconer, that the clause simply provides for a new maximum licence period of 10 years in serious terrorism cases rather than the current eight. This is not mandatory; it is available for use at the court’s discretion, and it will remain possible to apply a licence period of any length between 12 months and 10 years.

For a youth offender to receive an extended sentence for a serious terrorism offence, the court will be required to consider a pre-sentence report. I therefore agree to that extent with the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Woolf, about the utility of such reports. In preparing the pre-sentence report, the youth offending team officer will always consider the offender’s age and circumstances in order to recommend an appropriate sentence. The Bill does not change the way in which pre-sentence reports are done.

However, time spent on licence is crucial for both monitoring and managing offenders in the community as well as giving them the opportunity to change their behaviour. Therefore, providing the courts with the option of imposing a longer period of supervision on licence for the most serious terrorist offenders is an important element and component of the Government’s efforts to protect the public from the risks that terrorist offenders pose while enabling a longer period to support rehabilitation.

In that context, I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of throwing red meat to anyone or anything, be it dangerous dogs or the tabloids. This, however, is a proper and proportionate response to the very significant danger that some offenders present. I therefore invite the noble and learned Lord, Lord Falconer of Thoroton, to withdraw the amendment.

[The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)]

I have received one request to speak after the Minister from the noble Lord, Lord Paddick, so I call him.

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[Lord Wolfson of Tredegar (Con)]

My Lords, there is a strong connection between the Domestic Abuse Bill and this Bill to the extent that both lie on my desk and I have the honour and privilege of dealing with both in your Lordships’ House. However, they present very different issues. I do not want to talk too much now about the Domestic Abuse Bill, but the structure of that Bill, which encompasses both civil and criminal consequences, is very different—indeed, I might say vastly different—from the subject matter of this Bill, which is extremely serious terrorism offences. If the noble Lord has any particular comments on the interrelationship between the two Bills, I am dealing with them both, as I say, and I am very happy to speak to him further about that. However, that is my response on the particular point that he has raised. My respectful suggestion to your Lordships’ Committee is that the analogy, while tempting, is false.

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

My Lords, I am grateful to everyone who has participated in this short debate. I am very grateful to those who have supported my position, particularly the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Jones, and the noble Lord, Lord Marks. Although he did not intend to, I think the noble Lord, Lord Robathan, also supported my position but was very keen to establish how clear-eyed he was. I do not think that people like myself—who are saying that, before a court sentences someone who is under 18, it should have the benefit of a pre-sentence report that asks the question, “Having regard to the person’s age, are there better ways to provide public protection?”—are necessarily that starry-eyed.

I was very hopeful that the Minister would persuade me that I was wrong, but I am not sure that he fully grasped the nature of the amendment. Section 255(1) of the Sentencing Code says that an extended sentence of detention for someone under 18 is available, while Section 255(2) says that the pre-sentence report requirements apply as they normally would in relation to sentencing someone under 18. My proposal is not to change the basis of the sentence; it is to say that, in that pre-sentence report, the pre-sentence reporter should have regard to the question of whether there are alternatives that could provide better public safety. If there are, the pre-sentence reporter should refer to them and the judge should take them into account.

I also agree strongly with the noble and learned Lord, Lord Woolf, that in an area like this it is useful for the Secretary of State to consider how well or badly a particular sentence is going so that they consider what should happen to it in future.

I very much hope that the Minister will consider what I have said about what the actual import of my amendment is, because he appeared to be dealing with an amendment that had a different import. I very much hope that he will reconsider his position. In the meantime, I beg leave to withdraw the amendment.

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[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, explained, Amendments 11, 13 and 14 are intended to retain the current release provisions for under-21s sentenced to an extended determinate sentence for a serious terrorism offence. As has been mentioned, the Fishmonger’s Hall and Streatham attacks revealed the devastating consequences of releasing terrorist prisoners too early. In the Bill, we are changing the release arrangements for all offenders convicted of serious terrorism offences to ensure that the most dangerous and serious terrorist offenders serve their full custodial term, essentially for two reasons—first, to reflect the severity of their crimes but, secondly and perhaps more importantly, the intention to preserve lives.

The amendment seeks to draw a distinction in release policy between those aged over 21 and those younger. However, the Bill will introduce changes to release for both adult and youth offenders sentenced for serious terrorism offences. The extended determinate sentence already operates in the same way for adults and youths in every other aspect, and because the nature of the offending and the threat posed is so severe, these changes should align with that pre-existing approach.

For those aged under 18, instances of terrorist acts occur, although, thankfully, they are rare. I shall come back to that point later. Among those under-18s are some who are capable of extremely serious offending and present a real threat to the public. They are the dangerous few youth offenders that these provisions aim to capture. This measure, therefore, is about offenders who have been deemed dangerous by the court. That also means that, when sentencing the offender to an extended determinate sentence, the judge would have already taken into account age and other relevant factors.

In that context, I turn to the points raised by the noble and learned Lord, Lord Falconer. As to the possibility of change, one has to remember that this measure is about public protection and applies only to the most serious young offenders who have committed terrorist offences that carry a maximum sentence of life and have been deemed dangerous by the court.

We are alert to the point on prisoner management and have carefully considered it. There are a number of programmes within prison to make sure that the sentences proposed here do not adversely affect prison management within the institution. Although, as the noble and learned Lord, Lord Falconer, correctly said, the prisoner is likely to end his sentence as an adult, the fact is that even when sentenced at the time, the nature of the offences mandate the sort of sentence we now propose.

As to the point made by the noble Lord, Lord Thomas of Gresford, on radicalisation in the prison system, there are, as my noble and learned friend Lord Stewart pointed out, a number of interventions in the prison system designed to prevent radicalisation. They are extensive. I will not go over the points that he made earlier but I repeat and endorse them. As I said—I said that I would come back to this point—the number of young offenders in this regard who have been radicalised in prison is extremely small. We are alive to the noble Lord’s point, but do not believe that that is a reason not to proceed in the way in which the Bill is currently drafted.

Finally, and only because I wish to reassure the noble and learned Lord, Lord Falconer of Thoroton, that I read all his amendments with extreme care, these seem to be technically defective, given that the wording is to be added after the close of quotation marks and, on the face of it, would appear to apply only to new Section (2A)(iv), and affect only the provisions related to service personnel. However, I hope that I have approached his amendments on their merits. For those substantive reasons that I have set out, I respectfully invite the noble and learned Lord to withdraw or not move his amendments.

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

I am grateful to the noble Lord, Lord Wolfson of Tredegar, for the careful way in which he dealt with my amendments. I fully accept and am guilty of the technical error he identified. He was kind to deal with the merits of the three amendments. I very much hope that the Government will reflect on what I and the noble Lord, Lord Thomas of Gresford, said because it is a considerable mistake to treat the under-21s the same as those who are 21 or over, particularly with regard to public safety. We will return to this matter at a later stage. With the leave of the Committee, I will withdraw my amendment.

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

This is a significant debate. There are two circumstances that one has to consider. First, when one is dealing with a terrorist prisoner who is over 21, should the Parole Board, in the circumstances set out in Clause 27, have the power to direct early release? As I understand it, the effect of the Bill is that in certain specified circumstances early release is not possible for over-21s. Although it is hard, we are dealing with very dangerous situations. I am not sure that we would object to that, but I would like it to be clear: are we dealing in this amendment with the possibility of early release? If we are, then apart from those who are under 21 at the date of conviction, we would not wish to change the provisions of the Bill.

The second situation is where what the Parole Board is being asked to do is to either determine or advise on what the release conditions should be for somebody who is going to be released in any event. In those circumstances it would seem sensible for the expert risk assessors to determine not whether they should be released but what the conditions should be. I would be interested in the Minister’s views on both situations I have posited: one where we are dealing with early release, the other where we are dealing with conditions only.

[Lord Wolfson of Tredegar (Con)]

My Lords, in this amendment the noble Baroness, Lady Prashar, whose experience in this area is profound, proposes replacing Clause 27 with an amended set of provisions. Certainly as I read them, their effect—and to deal immediately with the point raised by the noble and learned Lord, Lord Falconer of Thoroton—is to provide that all prisoners subject to an extended determinate sentence or a serious terrorism sentence would be eligible for relief by the Parole Board at the two-thirds point of their custodial term. In concept, therefore, this is similar to the intention tabled by the noble Lord, Lord Marks of Henley-on-Thames, which he referred to— we will come to it shortly—as he opposes Clause 27 standing part of the Bill. With this amendment, the noble Baroness goes further: to replace Clause 27 with a new provision. If I may say respectfully, the noble Baroness is correct to identify that without Clause 27 there must be some replacement provision included to provide the legislative authority to release those sentenced to the new serious terrorism sentence.

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[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.

[Lord Wolfson of Tredegar (Con)]

My Lords, the Committee will appreciate that there is a significant overlap between this and the previous group. I hope that the noble Lord, Lord Marks of Henley-on-Thames, and indeed no other participant in this debate, will regard it as discourteous if on some occasions I take as read, as it were, points that I made in the previous debate. If the Committee finds it helpful, I propose to say a few words about each of the clauses and schedules to which objection has been taken and then come back to address some of the particular points raised by participants in the debate.

Counter-Terrorism and Sentencing Bill

Lord Wolfson of Tredegar Excerpts

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

Moved by

[Lord Wolfson of Tredegar]

17: Clause 32, page 28, line 30, leave out paragraph (a)
Member’s explanatory statement
This amendment and the amendment at page 29, line 14 are consequential on the removal of Clause 35.

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

It is a pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames. He has covered much of the area with which I am concerned in these sensible probing amendments. The next amendment, Amendment 20, which talks about piloting polygraph tests in this area, deals in effect with the same concerns.

My understanding of the position that the Government are advancing is that we are now concerned only with England and Wales because they deleted the Scotland and Northern Ireland provision that was there before. In effect, they are applying the principles in the Offender Management Act 2007 on polygraph tests. Therefore, the first question is: should one put a polygraph condition into the licence conditions of a terrorist offender? As I understand it, a polygraph condition is that the offender has to agree, if asked, to a polygraph. Will it be automatic that such a condition will be imposed for terrorist offenders? What will be the basis on which such conditions will be imposed?

We on this side are very keen that the authorities should have every reasonable tool that they can to try to prevent terrorist offenders, including those who are released on licence. I am keen to probe whether this particular provision contributes to that. As I understand it from the Government’s proposal, the purpose of the polygraph sessions that will be included in the licence condition will be only to monitor the offender’s compliance with the other conditions of his licence or improve the way in which he is managed during his release on licence.

In relation to the first of those two—monitoring compliance with the other conditions of his licence—does that mean that it will be used to see whether he is in fact complying? If he fails a polygraph test, could that be a basis for recalling him to prison on the basis that he has failed to comply with the other conditions of his licence? If it is the Government’s intention not just to rely on the failure of a polygraph test before recalling an offender to prison, where is that reflected in the statute or in the Bill?

In addition to those questions, to what extent is the Minister worried that, if somebody passed a polygraph test, it would lead the authorities not to make further investigations about an offender’s possible breaches of compliance of the conditions of his licence? Additionally, in relation to the second purpose of polygraph testing—namely, to improve the way in which he is managed during his release on licence—can the Minister give us some examples of what that would mean in practice?

Can I deal with the legal use of the answers to polygraph tests? Section 30 of the Offender Management Act 2007—this has already been referred to by the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee—says that evidence of

“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”

cannot be used against that released person for any offence. In answer to my question, that of the noble Baroness, Lady Hamwee, and that of the noble Lord, Lord Marks of Henley-on-Thames, can the Minister confirm whether that means that those two things can be used in relation to proceedings against somebody else? It would appear from Section 30 of the Offender Management Act 2007 that they could be. Can they be used on their own for recall proceedings, or are recall proceedings simply an administrative act—in which case, the question of whether they can be relied on alone to justify a recall arises?

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

My Lords, in responding to the amendment and the various points put to me, I will bear in mind and seek to avoid falling into the trap of being one of those “pesky lawyers” that, as the noble Lord, Lord Thomas of Gresford, reminded us, still exist.

In that regard, let me turn to the substance of the amendments, particularly Amendment 19 put down by the noble Baroness, Lady Hamwee. This amendment seeks to amend Section 30 of the Offender Management Act, which relates to the use of polygraph evidence in criminal proceedings. I understand that the noble Baroness and others may have concerns that evidence gathered from the conduct of polygraph examinations could be used against a third party in a criminal trial. I know that we covered this yesterday in the Domestic Abuse Bill, but I want to take a moment to record my thanks to those in my department who arranged the learning session for a number of noble Lords, including the noble Lords, Lord Marks and Lord Faulks, and the noble Baroness, Lady Hamwee. I understand that they found it helpful and informative, which perhaps indicates that those sessions could be used more often. I assure the noble Baroness, Lady Hamwee, and the Committee that it is neither the intention nor the effect of the polygraph testing provisions of the Bill that they will be used in criminal proceedings against third parties.

In response to the specific point put to me by the noble Lord, Lord Thomas of Gresford, we do not harbour any desire to go further than the provisions in the Bill.

Polygraph examinations are now well established as a risk management tool in England and Wales. They have been used successfully, as the Committee has heard, with sex offenders since 2013. In the context of terrorist offenders, which I acknowledge represents a different cohort, they are—if I can put it this way—an additional tool in the toolbox. They will be used, to respond to the point made by the noble and learned Lord, Lord Falconer of Thoroton, where it is necessary and proportionate to do so as part of the assessment of the risk offenders pose in the community while on licence and how that risk can best be managed.

As I made clear to the noble Lord, Lord Marks, yesterday in the Committee sitting on the Domestic Abuse Bill, Section 30 of the Offender Management Act makes clear that

“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”

may not be used in criminal proceedings in which that person is a defendant. While that section does not expressly provide for such information to be precluded from use against others in criminal proceedings, which is what this amendment seeks to achieve, I do not believe the amendment to be necessary.

This is because, although there may be circumstances where information obtained through the polygraph test relating to a third party can be passed from probation to the police to make further investigations, the polygraph material would not be suitable for use as evidence in its own right against a third party. Any allegation against a third party would ultimately need to be tested in court. The court would have to consider, among other things, whether the polygraph evidence was admissible in such other criminal proceedings and the effect of the hearsay rule. While that would ultimately be a matter for the judge in the particular case, noble Lords will appreciate the great difficulties that would be presented by the hearsay rule.

The noble Lord, Lord Faulks, said that sex cases are different from terrorism cases. He is of course right, but he was also right to say that what is presented by terrorism cases is a difficult and challenging task. That is why, to use my earlier metaphor, this is another tool in the toolbox which we would like the services to have available to them. In that regard, I can assure Members of the Committee that polygraph testing will not replace any other risk assessment tools or measures, it is an additional source of information that would otherwise not be available. On that basis, I would invite the noble Baroness, Lady Hamwee, to withdraw the amendment as it is unnecessary.

I turn now to Amendments 19A and 19B, which are tabled in the name of the noble Lord, Lord Paddick. The amendment to Clause 35 would require regulations relating to the conduct of polygraph examinations to be subject to the affirmative procedure. Perhaps I may remind the Committee that we have already tabled our intention to remove Clause 35 from the Bill, alongside Clauses 33 and 34 dealing with the introduction of polygraph testing as a licence condition in Scotland and Northern Ireland, as part of our efforts to secure legislative consent from each Administration. We covered this in the first sitting of the Committee. It does not reflect a change in policy for England and Wales. As I have said, we firmly believe that polygraph testing is an additional and useful tool.

In that regard, polygraph examinations will be used to monitor compliance with licence conditions based on what has happened and will not ask about future behaviour. I think it was the noble Baroness, Lady Hamwee, who put to the Committee an example of the type of questions that might be asked. She was right to frame those questions in the past tense. A polygraph examiner might ask, for example, “Did you enter those premises?”, if that was something which had been prohibited by the licence conditions. The question would not be, “Are you going to enter the premises next week?” The questions look at what has happened and past behaviour rather than future intent. They are not used as a way of trying to catch offenders out, but as a measure to identify the extent to which the person on licence is complying with the conditions of the licence.

Although I accept, as the noble Lord, Lord Thomas of Gresford, reminded the Committee, that giving evidence in court can be a stressful experience, it was interesting to note that he pointed out that we have provided special measures for vulnerable witnesses in the Domestic Abuse Bill. As I understood it, he used that as an example of a case where we recognise that giving evidence can be stressful. Of course, we have also provided for the polygraph examination of the perpetrators of domestic abuse in that Bill. Just as it is in the Domestic Abuse Bill, it is also here; it is an additional tool in our toolbox.

I come to a question put to me by the noble Lord, Lord Marks, which I think was repeated by the noble and learned Lord, Lord Falconer of Thoroton: if a person who is subject to a polygraph examination “fails” a question, can they be recalled immediately? There are two parts to the answer and let me give both. First, what do we mean by “failing”? We use the term as a form of shorthand, and the Government factsheets use it because they are written in what we hope is plain English so that members of the public can understand them, but it is not the correct professional term. The correct terminology that is used by examiners in reports is whether there is a significant response or no significant response. That more nuanced term makes it clear that we are not dealing with a question of passing or failing here; rather it is about whether the examination results indicate that the response has been truthful or not.

That is why, coming to the second part of the question, we do not recall offenders to custody on a significant response in itself. In answer to the question put to me by the noble and learned Lord, Lord Falconer of Thoroton, that is not in the Bill, but it is firm policy. Therefore, “failure”, a term that the Committee will now appreciate is a form of shorthand, does not by itself or by default trigger a recall. Where it is safe to do so—for example, with the addition of new licence conditions—the offender can continue to be managed in the community. However, if a disclosure is made which indicates that the risk has escalated beyond the point where the offender can be managed safely in the community, they can be recalled to custody.

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[Lord Robathan (Con)]

My Lords, I apologise for not adding my name, which I put down to speak but not on a particular group. Yet again, I find myself as the only person taking part in the debate who is not a lawyer. I shall come back to that later.

In layman’s terms, I joined the Zoom call on polygraph testing last week, to which other noble Lords referred, and it was extremely useful. I thank Heather Sutton from the probation service, Professor Don Grubin and others for laying it on because it explained to me what polygraph testing is. They explained straightaway that a polygraph is not a lie detector but an additional tool to enhance the safe and effective risk management of offenders and could not be used as evidence.

I did, in fact, ask why sex offending was used as the only precedent for using polygraphs on terrorists. I think that I sort of understood the response, which was that it was a question of denial. That is what they sought to find out. It was a very useful teach-in session.

That is why I am slightly puzzled that we are discussing these amendments. As I said, I am not a lawyer. The noble and learned Lord, Lord Falconer, reminded us that law can be a gift that keeps on giving. We were reminded of that only at the weekend. We heard from three Liberal Democrats. I think they all said—the noble Lord, Lord Thomas of Gresford, certainly did—that you cannot use a polygraph test as evidence. If you cannot use it as evidence against the specific person against whom you have done the test, surely by implication it cannot be used as evidence against somebody else. My noble friend the Minister specifically pointed to hearsay. It seems that we are slightly arguing about angels on the head of a needle: it will not be used, so why on earth are we arguing about it? This was presented as a probing amendment, but it seems to be probing something that we do not really need to probe

The point of polygraph testing is that, as an additional tool, we would get away from the case of Usman Khan at Fishmongers’ Hall, who had convinced his mentor, Jack Merritt, that he was de-radicalised. Jack Merritt believed in him and his redemption, and Usman Khan killed him. Surely we should use these additional tools if they have any substance or credibility. From what we heard in the teach-in last week, polygraph testing has some credibility.

Let us please back the use of an additional tool until proved otherwise, because frankly we are dealing with something that I guess probably none of us in this Chamber or on this call understand. We do not understand why somebody would get into an aeroplane, train for months in the United States and then fly that aeroplane into the twin towers. We do not understand suicide bombers. We do not understand the radicalisation that takes place in these people, so surely we should give the Government every tool they can possibly have. I certainly back them on this.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the question put to me by my noble friend. As I said, that is precisely what the Government seek to do: to provide an additional tool for the management of these offenders. The point he made regarding deradicalisation is, if I may say so, very perceptive. It is a difficult part of the overall structure we are putting in place in the Bill, as we have in other legislation.

I am delighted to hear that my noble friend found the teach-in session helpful. I am particularly grateful to him for putting on record the names of the people who presented it. I know that they put a lot of work into putting it together.

The only point I would respectfully disagree with my noble friend on is one that I had cause to point out to another Member of your Lordships’ House—I think last week. One must really stop apologising for not being a lawyer. I think my noble friend did it twice. I pointed out last week that what is regarded as a cause for apology in this House is generally regarded as a badge of honour everywhere else. The question put to me by my noble friend exemplifies how this is a matter for lawyers and non-lawyers.

[Baroness Hamwee (LD) [V]]

My Lords, at the briefing by the MoJ, I was one of those who volunteered—at some point when we are able to travel again—to undergo a test, because I would like to experience what it is like. I sound a note of caution about the use of private—sometimes confidential but certainly private—sessions. They are terrific and helpful, but only so far; I do not believe that they can take the place of public debate. I could respond at some length to the noble Lord, Lord Robathan, but it would be outside the scope of the amendment. The purpose of scrutiny and its place in the development of legislation mean that it must be undertaken in public. I do not mean to sound too pompous in saying that, but it is something that I believe very profoundly.

The Minister apologised for being a pesky lawyer, but I think that being a pesky lawyer or an activist lawyer is a badge of honour. I disagreed with the comment of my noble friend Lord Thomas that people would not want to apply polygraphs in criminal proceedings. I can imagine that there are a lot of situations when people in court think that they would very much like to apply a polygraph to some witnesses—but that is by the by. I have told myself that I would not take up too much time with this response, because we have a lot of amendments to get through.

Inevitably, perhaps, this turned into a more general debate. On the specific amendment, we are told that it is unnecessary, and that what one might take—I cannot think of the right term— from a polygraph would be unsuitable for use in court, because it would be hearsay. I shall have a look at that after today, but I think that there is a little bit of circularity in all that. Certainly, in the real world, the questions that might be asked would, I am sure, provide material for the police, if not the prosecution—but that is a common-sense response. I beg leave to withdraw the amendment.

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[Lord Paddick (LD) [V]]

My Lords, I wish either that this group had been grouped with the previous group or that I had spoken in the previous group, as we seem to be going over the same ground. Can I also push my luck, at the invitation of the noble and learned Lord, as an out and proud non-lawyer and wonder out loud whether lawyers feel somewhat threatened that there might be a machine more able to tease out whether someone is telling the truth or not, or even to tease out a disclosure, than a lawyer? I do not believe lawyers need to worry. I feel this group and the previous one turned into an extension of the teach-in. But I shall press on.

Amendment 20, moved by the noble and learned Lord, Lord Falconer of Thoroton, to which my noble friend has added her name, calls for a review of polygraph testing on terrorist offenders based on a pilot scheme. I take a slightly different view to my noble friends Lady Hamwee and Lord Marks, probably because they are pure Liberal Democrats, unlike me, who am contaminated by 30 years’ experience as a police officer.

Yesterday, in discussion on the use of polygraph testing in the Domestic Abuse Bill, the Minister talked about how polygraph tests were used. I join other noble Lords in saying how helpful the teach-in on polygraph testing provided by the Ministry of Justice was, and I thank the ministry for it. In that presentation, if I recall correctly, we were told that the tests are 80% to 90% accurate, on the basis of tests carried out on sex offenders. The tests measure physiological changes that occur if someone is trying to think of a wrong answer about an experience they have had in the past. People usually instinctively think of the truthful answer before they offer a dishonest alternative, and this produces physiological changes that the tests pick up. The evidence suggests a dishonest response cannot be used in court, and it is not used to recall someone to prison, but it might prompt further investigation by the police. Failing the test is not a replacement for any other form of risk assessment.

From the notes I made at the time, which take me back to giving evidence in court as a police officer, polygraph tests also prompt disclosures that might not otherwise occur. If such a disclosure indicates the subject has breached their licence conditions or is a threat to the public, this can result in prison recall. In short, disclosures can result in immediate sanction, but failing the test can only lead to further investigation.

Although polygraph tests have been used on a large number of sex offenders and have, therefore, been thoroughly evaluated, it will be more difficult, even with a pilot, to evaluate use with terrorists, as there are far fewer of them. My noble friend Lord Thomas of Gresford mentioned the right to silence, recalling what we were told in the teach-in. The difference here is that these are convicted offenders on licence, who have no right to silence. However, the science is the same whether we are dealing with sex offenders or terrorists, and polygraph tests are useful where there is a pattern of behaviour rather than a single act. It is, therefore, anticipated that their use in terrorism cases will be similarly effective. There has already been considerable experience of using polygraph tests and evaluating the results, somewhat at odds with the comments of the noble and learned Lord, Lord Woolf. But in agreeing with the noble and learned Lord, I think that it is true to say there has been very limited, if any, experience of using polygraph tests in connection with terrorism offences.

I feel sure that the Government will use polygraph testing with terrorists and, as we will hear in a later group, those subject to TPIMs, on a trial basis, as they intend to do in relation to domestic abuse. But the opportunities to evaluate their effectiveness with terrorists will be more limited, because, as I said, the numbers are considerably smaller. I am sure the Minister will say whether I got that right.

[Lord Wolfson of Tredegar (Con)]

My Lords, on the face of it the purpose of this amendment, tabled by the noble and learned Lord, Lord Falconer of Thoroton, is to provide for a pilot of polygraph testing for terrorist offenders in the UK and for a report to be prepared and laid with a recommendation on commencement before the provisions are commenced. I appreciate, however, that the debate has gone a little broader than that, and I will try to respond in my remarks to all the points put to me. I should say at the outset that I am impressed by the note-taking ability of the noble Lord, Lord Paddick, which has obviously not diminished with time. I hope that the notes which he took are consistent with not only what he was told at the meeting, as I am sure they are, but with what I said on the previous group and what I am going to say on this group as well.

Polygraph examinations have been used successfully in the management of sexual offenders by the National Probation Service since 2013, following an initial pilot. Offenders involved in the pilot stated that, although they did not like being tested, for many it helped them modify their behaviour and comply with other licence conditions. While I therefore respectfully agree with the comments of the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon, that we are on a learning curve, we are in fact someway up the curve, if I may put it in those terms. The noble and learned Lord, Lord Woolf, was right to remind us of Clause 35(1), which provides for regulations in this context. The breathalyser is a good example, as put before the Committee by the noble and learned Lord, Lord Morris of Aberavon, of how we must always in the criminal justice field avoid being shy of using technology where it is available. The question is how it is to be used; it is in that context that I come to the questions put to me by the Members of the Committee.

Having put that provision in place for sexual offenders, the independent evaluation of mandatory testing on sexual offenders carried out by the University of Kent produced extremely positive results. As the Committee is aware, we have since rolled out polygraph testing in that context. We must therefore be wary of two things. First, we must be wary of the trap of saying that because something might or might not be used in “The Jeremy Kyle Show”, it should form no part of the criminal justice system. “The Jeremy Kyle Show”, which I think has now stopped, can look out for itself. My concern is to ensure that we have proper provisions for polygraph testing in the criminal justice system.

The second thing we must be careful of, if I may respectfully say so, is not to fall into the trap of thinking that anything which comes from the United States of America is inherently suspect in the criminal justice field. I would gently point out to the noble Baroness, Lady Hamwee, that the American Polygraph Association’s standards are those of an international professional association for polygraph examiners. That association carries out research and provides accredited training for examiners. It also provides mandatory professional development training, which all examiners must complete every two years to maintain their accreditation. Its standards are used by examiners across the world, and the Government want to ensure that those standards are maintained for examinations conducted on terrorist offenders.

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Moved by

[Lord Wolfson of Tredegar]

21: Schedule 11, page 93, leave out lines 28 to 32
Member’s explanatory statement
This amendment, and the amendments at page 94, line 15, page 94, line 29 and page 94, line 41 are consequential on the removal of Clause 33.

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Moved by

[Lord Wolfson of Tredegar]

41: Schedule 13, page 102, line 13, at end insert —
“(b) in paragraph (a), for “that Act” substitute “the Counter-Terrorism Act 2008.””Member’s explanatory statement
This amendment makes a further consequential amendment to section 23A of the Terrorism Act 2000 needed as a result of Clause 1 of the Bill.

[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 Falconer of Thoroton (Lab) [V]]

The only amendment I would like to mention is Amendment 60, which amends Section 250 of the Criminal Justice Act 2003 so that, according to the explanatory statement,

“the Parole Board will set the licence conditions for all prisoners to whom section 247A of that Act applies (restricted eligibility for early release) whose release is directed by the Board.”

Is this dealing with licence conditions where there is no right to early release or with licence conditions where there is a right to early release? If so, what is the effect of the amendment? It is the only amendment in this group that looked as if it might be doing something substantive. If the Minister would like to write to me, I will quite understand.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the comments of the noble Lords, Lord Thomas of Gresford and Lord Paddick. In response to the specific point put to me by the noble and learned Lord, Lord Falconer of Thoroton, in one sentence, the change is needed to ensure that there was clarity over the authority for setting licence conditions for terrorist offenders, whether serving standard, determinate, extended or other sentences. I shall include an explanation of the amendment in my letter. I hope that satisfies him; if he wants any further information, I would of course be happy to provide it.

Amendment 41 agreed.

Moved by

[Lord Wolfson of Tredegar]

42: Schedule 13, page 102, line 34, at end insert—
“Counter-Terrorism and Security Act 2015 (c. 6)
2A_ In section 44(2)(e) of the Counter-Terrorism and Security Act 2015 (provisions subject to review by the independent reviewer of terrorism legislation), for “Schedule 1” substitute “Schedules A1 and 1”.”Member’s explanatory statement
This amends the list of terrorism legislation which is subject to review by the independent reviewer to include the new Schedule A1 inserted into the Sentencing Code by Schedule 1 to the Bill.

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Moved by

[Lord Wolfson of Tredegar]

71: Clause 52, page 43, line 1, leave out sub-paragraph (i) and insert—
“(i) Part 3 of that Schedule, except as mentioned in subsection (3)(hb);(ia) Part 4 of that Schedule;”Member’s explanatory statement
This is consequential on the amendment at page 44, line 11.

Counter-Terrorism and Sentencing Bill

Lord Wolfson of Tredegar Excerpts

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

I am therefore sympathetic to this amendment, though I heard the noble Lord, Lord Carlile, say that he would not press it to a vote. However, the part of the argument that I have not heard from the Minister is why the alternative provisions would do a better job than the Parole Board, which is well understood by the wider judicial community as well as prisoners themselves. The outcomes of those existing processes would be justiciable and perceived as fairer, but I will listen with interest to what the Minister has to say.

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

My Lords, I understand that the intent of this amendment, tabled by the noble Lord, Lord Carlile of Berriew, is to do two things: first, to introduce a role for the Parole Board where, otherwise, the changes in the Bill would make its role superfluous; and, secondly and at the same time, not to reintroduce eligibility for early discretionary release for this cohort.

I will begin by outlining briefly the effect of the amendment in a little more detail. It would replace Clause 27, which restricts early release for offenders convicted of a serious terrorism offence—that is, those listed in Schedule 2 to the Bill—who receive an extended determinate sentence, or EDS, or a new serious terrorism sentence so that they instead serve the full custodial term of their sentence. In its place, the amendment would insert a provision that would change the release provision for all terrorist offenders sentenced to an EDS. Further, and while I understand that this may not be the noble Lord’s intent, this amendment would also apply to those currently serving an EDS for a terrorist offence.

The replacement release provision in the noble Lord’s amendment would continue to restrict early release, but there is an important difference. At the end of the custodial term, the scheme set out in the amendment would instead refer the offender to the Parole Board. The Parole Board would then determine whether the offender represents a grave risk to the public and whether it is necessary for the protection of the public that the offender continues to be imprisoned. Under the scheme in the amendment, this consideration would continue annually until release was granted, or to the end of the extended licence period, when the offender would then be released, unconditionally, into the community. The effect would therefore be that, if release were not granted until the end of the extended licence period, there would be a cliff edge and the offender would at that point be released unconditionally into the community. There would be no period of supervision and reintegration. For the reasons set out by the noble Lord, Lord Marks of Henley-on-Thames, that is a matter of concern.

I have carefully considered the proposed changes, especially as they arise from an amendment from the noble Lord, Lord Carlile. I hope I may be permitted to say that contributions from him on this subject always merit the most careful consideration, and I can assure both him and the House that I have done so in this case. None the less, having undertaken that careful consideration, I must set out the Government’s view that the changes to the release provisions for the EDS, as set out in the amendment, would be contrary to safeguards set out in the European Convention on Human Rights and its case law governing sentencing and release. That case law is usefully summarised in a recent decision of the Supreme Court of this country in Brown v Parole Board for Scotland—we seem to be referring to Scottish cases everywhere today. It is reported at [2017] UKSC 69, in particular the discussions between paragraphs 49 and 55. While every decision of the Supreme Court is obviously a decision of a strong court, that court, for which the noble and learned Lord, Lord Reed, spoke, contained three former and current Presidents of the Supreme Court.

The reason the proposal would be contrary to the case law is that the EDS comprises two distinct parts. The first is a punitive component—namely, the custodial term—imposed for the length a judge considers commensurate with the seriousness of the offending. The second is a separate preventive element—namely, the extended licence—imposed to protect the public from the danger posed by other, future, yet to be determined serious offending. To that extent, we agree with the noble Lord, Lord Carlile, who was right to draw attention to the question of serious risk to the public. That is what the second part of the EDS does.

If the Government were to detain EDS prisoners into their extended licence period for reasons related to their initial offending, that detention would be contrary to the nature and intended purpose of the community supervision component of the sentence, and contrary to the court’s order imposing the EDS. As the noble and learned Lord, Lord Reed, for the Supreme Court, put it in the Brown case,

“the purpose of detention during the extension period is materially different from that of a determinate sentence.”

The noble Lord, Lord Carlile, acknowledged that this amendment would require further development, either in the form of a new sentence or by further alteration to the existing EDS regime. I am grateful for that acceptance. However, I must state that the Government would not support such a proposal, because there is no need for such a new sentence. The EDS and the new serious terrorism sentence are deliberately structured to do two things: to provide punishment and, separately, to aid public protection and reintegration through the licence period. We have no desire to change this overall approach or, to use the metaphor of the noble Lord, Lord Carlile, to change the architecture.

For those who are not dangerous, the sentence for offenders of particular concern sufficiently caters for release with a role for the Parole Board and yet without the risk of an unsupervised cliff edge, which the amendment would introduce. I understand, as the noble Lord, Lord Carlile, noted, that the amendment is born of a desire to introduce a role for the Parole Board. But there is no role for the Parole Board here because it is not necessary. There is no early release and no parole so, accordingly, there is no role for the Parole Board. That is, therefore, my answer to the question put to me by the noble Lord, Lord Marks, who asked why there is no role for the Parole Board. It is for the reasons I have just given. While I suspect that my answer may not leave him persuaded, I hope it means that he is no longer perplexed.

The noble Lord, Lord Ponsonby, asked me whether we are saying that the alternative can do a better job than the Parole Board. I accept that, as the premise behind that question would admit, some Peers consider the Parole Board the only qualified body to deal with the specialised nature of setting licence conditions for terrorist offenders. But in answer to the noble Lord, Lord Ponsonby, I must respectfully reject that approach. The reason the Parole Board is responsible for setting licence conditions when it directs the prisoner’s release is that that is part and parcel of the Parole Board’s decision that the offender can be safely released and managed in the community. The Parole Board decides that the offender can be released and, as part of that, decides the licence conditions that will govern such release.

However, with an EDS for a serious terrorism offence and the serious terrorism sentence, there is no provision for early release before the end of the custodial period. The corollary of that proposition is that release at the end of the custodial period is automatic. Where release is automatic, there is no reason why the Parole Board specifically should consider licence conditions.

Furthermore, offenders will be subject to management under MAPPA—Multi Agency Public Protection Arrangements—through which the police and the probation and prison services work with other agencies to manage the risks posed by offenders living in the community in order to protect the public. In cases under the Terrorism Act 2000—TACT—and TACT-connected cases, that involves the probation service, the releasing prison, counterterrorism police, security services, the Joint Extremism Unit of HMPPS, and social services.

With the creation of the national security division of the National Probation Service, we will see even greater specialism in making such recommendations. That ensures that professionals with a detailed knowledge of the offender are involved in identifying the licence conditions which are necessary and appropriate. The key point is that that happens regardless of whether the final decision-maker on setting the licence is the Parole Board or HMPPS—the governor. While ultimately the board or the governor makes the decision, that decision is always directly informed by those with intelligence of and expertise in managing the offender. I therefore assure the noble Lord, Lord Carlile, that the process is no less rigorous and the outcomes are no different.

The noble Lord, Lord Carlile, asked a specific question about our discussions with the Parole Board. We have shared the Bill with the Parole Board and discussed its implications with it, but there has not been a formal consultation, if that is what the noble Lord was driving at in his question.

For those reasons, which I hope I have explained clearly and fairly, I remain of the view that there is no role for the Parole Board where there is no consideration of early release. That point, combined with the issues I have explained around the legality of this amendment from an ECHR standpoint, leads me to consider this amendment unnecessary. I therefore respectfully urge the noble Lord, Lord Carlile, to withdraw it. Of course, I am happy to continue our conversations with him about this matter, as I am sure we will continue to benefit from an exchange of views about other matters in the Bill also.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I am grateful to all who have spoken in this debate, to the noble Lords, Lord Marks and Lord Ponsonby, for their broad support for what I have suggested, and to the noble Lord, Lord Wolfson of Tredegar, for his detailed response.

When I was at school, I had a teacher who taught us about different forms of argument, one of which is entitled “argumentum ad maiorem”—argument using a greater authority. In those days, I suppose it was something like “Because Sir Winston Churchill said something, it must be right.” The Minister’s argumentum ad maiorem was about the case of Brown v the Parole Board for Scotland, which, it will not surprise your Lordships to know, I have read.

I do not propose to embark on and bore your Lordships with a legal moot about that case. I say simply that I respectfully do not agree with the noble Lord, Lord Wolfson, despite his eminence as a lawyer, about the effect of that case on my proposal. I believe that my proposal, because of the change of the architecture that I suggested, including the fact that the sentencing judge would clearly refer to the potential extension provisions at the time of sentence, would come within the judgment of Brown v the Parole Board for Scotland.

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Moved by

[Lord Wolfson of Tredegar]

26: Clause 48, page 37, line 13, at end insert—
“(4A) Nothing in subsections (1) to (4) limits the extent within the United Kingdom of any provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006. (4B) Subsections (1) and (2) of section 384 of the Armed Forces Act 2006 (extent outside the United Kingdom) apply to the armed forces provisions as those subsections apply to the provisions of that Act.(4C) The following are “armed forces provisions”—(a) a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006;(b) an amendment, modification or repeal made by or under this Act of—(i) a provision of or made under the Armed Forces Act 2006,(ii) a provision that amends, modifies or repeals a provision of, or made under, that Act, or(iii) any other provision, so far as the provision is applied (by whatever words) by or under that Act.”Member’s explanatory statement
This amendment clarifies that provisions of the Bill which have a limited extent within the United Kingdom (such as amendments of the Sentencing Code) have UK-wide extent so far as they are applied by the Armed Forces Act 2006. It also provides for the provisions of the Bill that relate to the armed forces to extend, or be extended, outside the United Kingdom in the same way as the Armed Forces Act 2006.

[Lord Wolfson of Tredegar]

My Lords, I apologise for the short break in proceedings while I came back to my place. I am afraid that the convention of not moving while the Chair is standing, and social distancing, do not go too well together.

This rather technical amendment to Clause 48 clarifies that the provisions of the Bill have UK-wide extent in so far as they are applied by the Armed Forces Act 2006. That is the burden of proposed new subsection (4A). The amendment also rectifies an oversight in the original drafting of the Bill, to make Section 384 of the Armed Forces Act 2006 apply to provisions in the Bill if they amend or modify the Act, and when they are applied by that Act. This means that they will extend to the Isle of Man and the British Overseas Territories, except Gibraltar, and can be extended to the Crown dependencies. That is the burden of proposed new subsection (4B). That ensures that the same version of the Armed Forces Act 2006 will be in force in all the jurisdictions to which that Act extends.

I apologise for the fact that this amendment has not been brought forward until now. That was an oversight, but I hope that noble Lords will accept that it was an understandable one, given the number of issues that the Bill deals with, and their frequent complexity. The interrelationship between sentencing provisions and armed services issues adds a further element of complexity. The amendment itself, as I have said, does those two things, in proposed new subsections (4A) and (4B). I beg to move.

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

My Lords, Clause 48 deals with the extent of the Bill. It provides that

“A provision of this Act which amends, repeals or revokes an enactment has the same extent within the United Kingdom as the enactment amended, repealed or revoked.”


Under subsection (2), provisions that do not amend, repeal or revoke an existing enactment extend to all four nations—England, Wales, Scotland and Northern Ireland—save for two limited exceptions, in that Clauses 21(2) and 44(2) are of a limited nature, referring to retrospectivity.

It is not easy to extract the purpose of Amendment 26. Someone in the Ministry of Justice has concluded that there are problems under the Armed Forces Act 2006. Proposed new subsection (4A) suggests that, in the context of jurisdiction under the Armed Forces Act 2006, all the provisions of the Bill extend to all four countries. This is so even if an amendment repeals or revokes a provision of an existing Act that does not have that extent.

Under proposed new subsection (4B), the provisions of the Act extend outside the United Kingdom to the extent set out in Section 384(1) and (2) of the Armed Forces Act. That section applies to the Channel Islands, the Isle of Man and overseas territories excluding Gibraltar. British Overseas Territories do not include Cyprus, Belize or Gibraltar itself, which is specifically excluded. Those are all venues where I, as chairman of the Association of Military Court Advocates, know that courts martial take place.

Those are three places, and I am sure there are more, where courts martial take place—not to mention Germany, where the facilities have ceased. Courts martial can, of course, take place anywhere in the world, if properly constituted, and if charges for service offences are brought against anyone who is subject to the Armed Forces Act.

Terrorism exists outside the overseas territories. I would very much welcome clarification as to what happens if a court martial is held outside the United Kingdom, but not within those overseas territories to which the Armed Forces Act applies. I cannot help feeling that I am missing something, but the statement attached to the amendment is not at all clear—even though it states that the purpose of the amendment is to clarify the position. I look forward to the Minister doing so.

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

I endorse the question so clearly put by the noble Lord, Lord Thomas of Gresford. Despite the clear explanation given by the noble Lord, Lord Wolfson of Tredegar, I am still struggling with this amendment. Can he tell us the sort of problem that proposed new subsection (4A), which Amendment 26 seeks to insert into the Bill, tries to deal with? What is the lack of clarity with which he was concerned? Can he also indicate whether there are any implied provisions put into the Armed Forces Act by this Bill?

Proposed new subsection (4C)(a) specifies:

“a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006”.

Can he indicate what sort of provision that is aimed at? I would find it really helpful, in relation to proposed new subsections (4A) and (4B), to have an example of a problem that these two provisions would solve.

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Falconer of Thoroton, for their contributions and questions. The position, so far as I can assist the House now, is that the amendment ensures that the provisions of the Bill which amend, modify or are applied by the Armed Forces Act 2006 have the same extent as that Act. That Act extends to the UK, Isle of Man, and British Overseas Territories, excluding Gibraltar, and can be extended to the Crown dependencies.

The Armed Forces Act 2006 is the main piece of primary legislation that establishes a service justice system. It uses a modified form of sentencing law of England and Wales for sentences imposed by the court martial, as the noble Lord, Lord Thomas, stated. The burden of the amendment is to ensure that the Armed Forces provisions in the Bill have the same extent as the Armed Forces Act 2006. This would ensure, therefore, that there is a correlation of the area over which the provisions apply.

On the specific question from the noble Lord, Lord Thomas, on what would happen outside the territories covered by the Armed Forces Act, I am conscious that I would probably be straying into MoD territory rather than MoJ territory. I hope that the noble Lord, Lord Thomas, will allow me to write to him on that so he gets an accurate and complete answer.

As to the point raised by the noble and learned Lord, Lord Falconer of Thoroton, on whether there is an implication in the Bill that is caught by proposed new subsection (4C), perhaps I can send him a letter on that, rather than risk getting the answer wrong, I am tempted to say that these are standard words used in Acts of Parliament about what is implied, but I understand the burden of his question and, if he will permit me, will send him a written response. I hope that I have responded to the points put to me and I commend this amendment to the House.

Amendment 26 agreed.

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Moved by

[Lord Wolfson of Tredegar]

27: Schedule 13, page 121, line 4, leave out from “section” to “for” in line 5 and insert “1 (release of short-term, long-term and life prisoners)—
(a) in subsection (3A),”Member’s explanatory statement
This is consequential on the amendment at page 121, line 5.

Counter-Terrorism and Sentencing Bill

Lord Wolfson of Tredegar Excerpts

3rd reading
Thursday 11th March 2021 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the Bill be now read a third time.

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

My Lords, as the UK Government have made clear throughout all stages of the Bill, we are committed to working closely with the devolved Administrations on this legislation to ensure that the important changes made by the Bill will make the UK as safe as possible from the threats posed by terrorism.

While terrorism and national security are reserved matters, some of the provisions of this legislation engage the Sewel convention, both in Scotland and in Northern Ireland. I am pleased to confirm to the House that the Scottish Parliament, on the advice of the Scottish Government, has passed a legislative consent Motion in support of the Bill. However, despite lengthy and continued engagement with the Northern Ireland Executive, it has decided not to proceed with recommending that legislative consent be given for the Bill by the Northern Ireland Assembly.

I am grateful for the collaborative engagement from officials in both the Scottish Government and the Northern Ireland Executive’s Department of Justice, which has provided essential support in the development of this legislation. While on this occasion legislative consent has not been secured from the Northern Ireland Assembly, I reassure noble Lords that the UK Government will continue, as they always have done, to engage with the Northern Ireland Executive and seek legislative consent support for all future Bills which engage the LCM process in the Northern Ireland Assembly. On behalf of my noble and learned friend Lord Stewart of Dirleton, I beg to move that the Bill be read a third time.

Bill read a third time.

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Moved by

[Lord Wolfson of Tredegar]

That the Bill do now pass.

[Lord Wolfson of Tredegar (Con)]

I would like to take a brief opportunity to thank noble Lords. We have limited time, but I want to give some thanks for their interest and contributions thus far to the progress of the Bill. I am grateful to noble Lords across the House who have contributed eloquently to the debates on Second Reading, in Committee and on Report.

Some strong and differing opinions have been expressed on certain provisions in this legislation. I am grateful for the scrutiny that that has brought, and especially for the co-operative and constructive spirit in which the debates have taken place. I am equally grateful for the broad support that most of the measures in the Bill have received so far.

I particularly thank, at this point, noble Lords from the Labour and Liberal Democrat Front Benches, who contributed a number of important interventions to debates on measures in the Bill, particularly on polygraph examinations and the work to deradicalise and rehabilitate terrorist offenders in the prison estate. I am especially pleased that so many noble Lords found the discussion in the House, and the complementary briefing sessions on these subjects, both thought-provoking and helpful. I hope that the House is now confident of the intention behind these measures and is reassured that the Government keep this important work under continuous review.

Noble Lords have contributed to a rich discussion on the changes being made to terrorism prevention and investigation measures—TPIMs, as we usually call them. The Government remain clear on the importance of strengthening this vital risk management tool, and we are grateful to all Peers who have spoken on the issue, especially those on the Liberal Democrat and Labour Front Benches, and also the noble Lord, Lord Anderson of Ipswich, for their thoughtful contributions to debate.

The amendments made in this House to the TPIMs provisions, tabled by the Government and by the noble Lord, Lord Anderson of Ipswich, will now be considered by the other place, and I look forward to returning to this matter when the Bill comes back to this House. Members of this House have recognised its importance, and we have discussed openly the complexity and challenges that dealing with terrorism poses.

The Government are confident that the Bill will strengthen the approach taken to the sentencing and release of terrorist offenders, by ensuring that serious and dangerous terrorist offenders will spend longer in custody, properly reflecting the seriousness of the offences they have committed. Crucially, it will improve the Government’s ability to manage and monitor terrorist offenders when they are released. This will ultimately provide better protection for the public and keep our country safe. For all these reasons, I hope that the Bill will progress quickly through the other place, and I look forward to discussing it further on its return to this House.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful for the words expressed by all the speakers. First, I in particular thank the noble and learned Lord, Lord Falconer of Thoroton. He is right that I am something of a neophyte when it comes to the work of this House, so thanks from him, with his extensive experience, is especially well received. He was also correct to draw attention and pay tribute to the other two members of the ministerial team and the officials who worked on the Bill. My noble friend Lord Parkinson of Whitley Bay did a lot of the heavy lifting, and my noble and learned friend Lord Stewart of Dirleton was, as I think the noble Lord, Lord Carlile of Berriew put it once in Committee, the other half of the Government’s twin strike force. I am very grateful to both my colleagues for everything they have done.

As I mentioned the noble Lord, Lord Carlile of Berriew, I benefited personally—I know we all did—from his experience, both in this Chamber and in our discussions outside, and I am confident that they will continue on other legislative matters.

Finally, I also thank the noble Lord, Lord Paddick, for his comments. Of course, we had some differences on certain issues in the Bill, but they were differences of principle; both sides were, I hope, well and fairly argued; and I am sure that those discussions and debates also led to a better Bill in the end. The noble Lord was part of a triple strike force, and he was right to mention his colleagues, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks of Henley-on-Thames, who also did a lot of work in this regard. I see the time, and therefore conclude my remarks there.

Bill passed and returned to the Commons with amendments.