Terrorist Offenders (Restriction of Early Release) Bill

Nick Thomas-Symonds Excerpts

Committee stage & 3rd reading: House of Commons & Committee: 1st sitting: House of Commons & 3rd reading & Committee: 1st sitting
Wednesday 12th February 2020 Commons Chamber

[Sir William Cash]

Indeed. As usual, my hon. Friend is very perceptive. This is really the main purpose of my words on the subject, because there is no downside at all in this context. I can think of circumstances where it might be arguable that there could be, because somehow or other one might be infringing some genuine human right. However, given that we are dealing with this issue for the sole purpose of preventing people from being murdered in the circumstances and in the manner of these heinous acts, and for the purposes for which people indulge in them, there can be no downside in making this absolutely crystal clear, subject to comments that may be made by other lawyers as a result of what I am saying now and, for that matter, what is said in the House of Lords.

I am not pretending that I have all the answers to every question in matters of this kind, but I do think it is our duty, in the context of what we are seeking to prevent, to ensure that we are as crystal clear as we can be in our direction to the courts that they should not and must not allow human rights considerations to allow murder to take place. That is the problem and that is why I am so emphatic about it. I have noted from the Minister’s remarks and from other conversations I have had with senior Ministers that they are perhaps more interested in questions of interpretation than I am. I do not want any interpretation in this context.

The sole purpose of this Bill is to deal with people who are going to commit murder. Let us be under no misapprehension: this Bill has not been brought forward to deal with some questions relating to the whole generality of human rights law; it is specifically emergency legislation to deal specifically with preventing people who, for a variety of reasons or without reasons, intend to perpetrate murder from doing so. Human life is at risk. That is why this is such a good move on the part of the Government. There is nothing negative in my approach; it is entirely belt and braces. If the opportunity is to be given to Parliament to make sure that we have both the belt and the braces, then for heaven’s sake let us take it and not leave it to the vagaries and the uncertainties of judicial interpretation.

I have already referred to the Hogben case. I am not going to go through the analysis, because this is not something that depends on compiling a judgment about the interpretation of law based on precedents. I do not think that any case we put forward, coming back to what my hon. Friend the Member for Windsor (Adam Afriyie) said, could generate an upside or a downside. I just want clarity; that is the whole point. The words that I have used adopt the “notwithstanding” formula in section 38 of the European Union (Withdrawal Agreement) Act 2020, relating to the sovereignty of Parliament. I argued this in No. 10, and the Prime Minister, to his enormous credit, completely backed me. I said, “You have to include the words ‘notwithstanding the European Communities Act 1972’.” By doing this in a certain manner, one ensures that one achieves one’s objective, without the uncertainty that can arise in the circumstances that I have described.

We need to bear in mind that the Del Rio Prada case was a decision by the European Court of Human Rights. The Minister referred to the other cases. In the case of Uttley, there was an appeal on which the House of Lords concluded that article 7 would be infringed only if a sentence was imposed on a defendant that constituted a heavier penalty than that which would have been imposed at the time the offence was committed. The ECHR then declared that his application was inadmissible. The Del Rio Prada case was to do with Spanish policy, but there is no doubt that part of the argument put forward by the Government today has depended on administration, rather than the object of the Bill. That is another area that needs to be carefully considered, because the question of administration should not be the basis on which we make these decisions.

There we are—I have made my case. The Government could review the situation when the Bill goes to the House of Lords, and I will be interested to see how people develop this argument from now on.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I rise to speak to new clause 1, in my name and that of my hon. and right hon. Friends, but before I do I want to commend my hon. Friend the Member for Streatham (Bell Ribeiro-Addy), who has had to deal with the awful incident that happened on the high street in Streatham shortly after coming into the House. On her intervention on the Minister on Second Reading, the issue of various sentencing decisions over the last 10 years was touched on in a new clause that was not selected, but more broadly I commend the idea of strategically reviewing the sentencing regime, and I hope that the Ministry of Justice will consider that.

I made clear to the Minister previously that it is not my intention to divide the Committee on new clause 1, but scrutiny of the de-radicalisation programme and giving Parliament confidence that the programme is being monitored is very important, and I hope he will address that when he responds.

The new clause specifically requires the appointment of an independent reviewer of the prison de-radicalisation programme. On Second Reading, the Minister mentioned some figures with regard to resources, including £90 million on counter-terror policing and an uplift in the prison budget from £2.55 billion to £2.9 billion, but that does not tell us specifically how much is being spent on the de-radicalisation programme. That is the sort of information that an independent reviewer would be able to discover and then put in a format that the House could consider.

We have already discussed Mr Ian Acheson’s review of Islamist extremism in prisons, probation and youth justice. One of his recommendations was to have an independent adviser on counter-terrorism in prisons who is accountable to the Secretary of State. My new clause goes slightly further than that recommendation. It would require the Secretary of State for Justice to appoint a person to review the operation of the prison de-radicalisation programme, with the power to enter prison premises both to gather evidence and provide scrutiny. There would be a statutory requirement for a report to be laid before Parliament every three months on the programme. That could be regarded as too often, but the general point stands—this House would be in a position to properly judge the effectiveness of rehabilitation work in our prisons.

Subsection (5) of the new clause gives the independent reviewer the power to look into the resources available to the programme, including for probation and rehabilitation work. That proposal of an independent reviewer would give the opportunity for proper scrutiny of this very important programme. The Minister will be aware of the healthy identity intervention and other such programmes that currently exist. Through new clause 1, we seek to build on that and give real confidence in the Government’s work in the rehabilitation and de-radicalisation space. I am not absolutely clear of the extent to which those who have perpetrated these awful atrocities in recent months took part in de-radicalisation programmes, but I hope that will be considered and that the Minister will learn the lessons from that. It is vital that we use the time in prison of whatever length—I had a debate about that earlier with the right hon. Member for New Forest West (Sir Desmond Swayne)—in a constructive way to protect the public.

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[Sir William Cash]

Before the shadow Minister sits down, may I ask him a question? I am engaged in a probing exercise—I am not going to push amendment 3 to a vote—and I would like to know what the Opposition think about excluding the Human Rights Act 1998 and what reason he would give for saying that it was unnecessary.

[Nick Thomas-Symonds]

I am delighted to have a chance to respond. I will do so in a moment, but the first thing I would say is that I remember the criticism of me and my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) in the last Parliament when we were seeking disclosure of legal advice—not from the hon. Gentleman, but perhaps from others. It strikes me that Members are now discussing case law across the Floor of the House and Ministers are referring to legal advice, which perhaps shows that there is a change.

I do not support the hon. Gentleman’s amendment. First, the point made by the Minister is correct, and even if we put this into the legislation, the right to go to Strasbourg would still exist. The second reason why I am uncomfortable with what the hon. Gentleman is saying—I am quite happy to give way to him again if I am wrong in my interpretation—is that he, as I understand it, wants the House to pass legislation and then somehow prevent courts from being able to adjudicate on it, which surely is not what is meant by having a sovereign Parliament that is accountable to judges.

[Sir William Cash]

I can respond to that very simply by referring the hon. Gentleman to the speeches made on the introduction of the Human Rights Act 1998. I was in the House at the time, and it was made absolutely clear that this Act would not in itself impinge on the sovereignty of Parliament. That was made clear, and therefore as far as I am concerned—I understand where he is coming from, but I am afraid that his point is erroneous—it is implicit in the passing of the 1998 Act that we are able, if we wish to do so, to take the legislation that we pass in this House as the final word, and the courts are obliged to obey that.

With respect to the European convention on human rights, I would simply make the point that I made just now, which is that I could have included such words—yet again, that is another part of my probing amendment—and they could have been “notwithstanding the charter of fundamental rights” as a matter of fact, but that would have been destroyed by the existence at that time of the European Communities Act 1972, which was binding on us by Act of Parliament.

[Nick Thomas-Symonds]

With the greatest of respect to the hon. Gentleman, it is not an erroneous point. I taught the Human Rights Act for the best part of 11 or 12 years, but I will resist the temptation to give his contribution a grade. Yes, the Human Rights Act contains the power to make a declaration of incompatibility, thus preserving the concept of parliamentary sovereignty —it is absolutely right that Parliament does not have a strike-down power as, for example, the US Supreme Court does—but I have two fundamental problems with his amendment. The first problem is the one I have set out: this House passing legislation that essentially tells the courts, “Well, you can move aside: this is absolutely what we say”, without any scrutiny.

[Sir William Cash]

indicated assent.

[Nick Thomas-Symonds]

I know the hon. Gentleman nods his head, but I am not comfortable with that position.

The second point is that I firmly believe we can tackle this issue of terrorism and remain signatories to the European convention on human rights. That is essentially the Government’s position here today, and I really do not think that we need to get into this debate because the Government have clearly stated that the Act—or the Bill, as it currently is—is compliant with article 7. If people wish to challenge that in the courts, that is a matter for them, but the Government must be confident in their legal position.

Under the Human Rights Act, each Bill that comes before the House contains a sentence on its front page to show that Ministers have considered whether it is compatible with that Act. If they had wished, the Government could have stated in the Bill that they did not think it compatible with the Human Rights Act, but they wanted us to proceed regardless. They did not do that, however, and they clearly state on the Bill their belief that it is compatible with the Act. We have heard a case law of history from the hon. Member for Stone (Sir William Cash), and others, but that is the Government’s position, and for those reasons I cannot support the amendment. I understand that he will not push it to a vote, and the debate will continue in the other place, but this is not an amendment that would have found favour on the Labour Benches.

Let me return to new clause 1. I will not push the idea of an independent reviewer to the vote—I will not frustrate the passage of the Bill in that way. However, it would assist the Committee if the Minister set out how Members will be able to scrutinise the programme of de-radicalisation over the next few years, and how we can have the information before us—whether from the Ministry of Justice directly or in another way—to assess how it is working.

The former Prime Minister, the right hon. Member for Maidenhead (Mrs May), intervened on the Justice Secretary during his opening speech, and said that she felt there had been a lack of success in the de-radicalisation programmes. She is right, and we need to see some success in the years ahead. I will not push new clause 1 to the vote, but I hope the Minister will provide some assurances about how such scrutiny could take place.

[Sir Desmond Swayne (New Forest West) (Con)]

I do not intend to detain the Committee long, Dame Eleanor, and the Minister should consider this not so much a probing amendment as a prodding amendment—it is my intention to prod the Minister.

The purpose of my amendments is stunningly obvious. At lines 34 and 37 I wish to remove “two-thirds”, and insert the words “nine-tenths”. In reality, many sentences, even for acts of terrorism such as the possession of terrorist promotional material with intent, give rise to a surprisingly short sentence, such as four years. In such a case, the difference between half the sentence, as currently served, and two-thirds, is a mere six months. Admittedly, extending that to nine-tenths of the sentence does not address the nature of the problem—that is why this is a prodding amendment—but the fact is that sentences are too short.

There is a general problem of honesty in sentencing. When a judge hands down a sentence in court, all those in the know work out on the back of a fag packet what it means in terms of imprisonment, but the public, who are generally not in the know, do not understand that the sentence is not that at all. They would be scandalised if they knew.

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[Sir John Hayes]

Now I might really test your patience, Dame Eleanor, because my hon. Friend invites me to articulate a Burkean case against natural rights, which I will be happy to do, but perhaps on another occasion. Given that I offered the hon. Member for St Albans (Daisy Cooper) the opportunity to have a debate about this, that might be the very occasion. Perhaps my hon. Friend will agree to be my seconder in such a debate—what a humbling experience that would be for me and an elevating one for him. I hope we will do that on another occasion and we can indeed explore why so many people take for granted the existence of natural rights, as though they spring from the ether. As a Christian, of course I could not possibly take that view, but now is not the time to get into that discussion.

On the specifics of the amendment, my hon. Friend makes a belt-and-braces case, as I said, for a notwithstanding clause. The shadow Minister made the point that that was fundamentally disagreeable and made a constitutional argument against the notwithstanding clause per se. However, he also went on to say that he believed the Government were right, or were likely to be right, in asserting that they were clear that, in any case, this legislation did not contradict any existing rights legislation. We heard that today from the Secretary of State and again subsequently in the debate: the Government do not feel that the proposed legislation is likely to be successfully challenged, as my hon. Friend suggested it might. We have to assume that the Government have taken legal advice to make that claim.

[Nick Thomas-Symonds]

I should make one thing clear: obviously, I have not seen the legal advice the Government are relying on, which I am sure they have sought, quite appropriately. I merely point out that that is the Government’s view and that is what the Secretary of State has put in the Bill. On that basis, article 7 was not engaged—I want to make that point clear to the right hon. Member for South Holland and The Deepings (Sir John Hayes).

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[Mr Deputy Speaker (Mr Nigel Evans)]

I call Nick Thomas- Symonds.

[Nick Thomas-Symonds]

I am grateful, Mr Deputy Speaker, but I have already spoken in favour of my amendment. I have said that I do not wish to press it to a Division, but I would like to hear the Minister’s response to my suggestion about external scrutiny of the deradicalisation programme in our prisons.

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[Nick Thomas-Symonds]

I agree with the Secretary of State that we have had a constructive debate in the Chamber on this Bill. As I indicated at the outset, the Opposition support the idea of Parole Board involvement and, indeed, risk assessment for terrorist prisoners across the board.

Clearly, we will need to address an issue of investment in deradicalisation programmes and proper mechanisms to be able to assess how effective they are. We will be holding the Government to account on those issues in the months and years ahead. There is also a wider issue to address on sentencing. As I indicated in my earlier remarks, this of course became an emergency because of the incidents we have seen in recent months, but there does need to be greater long-term planning, which I hope the Secretary of State will be able to provide to the Department in the years ahead.

I also echo what the Secretary of State said about the officials, who obviously had to produce this Bill very quickly. I would like to thank him for his work with me on this over the past week. I also thank the Under-Secretary of State for Justice, the hon. Member for Croydon South (Chris Philp), and all those right hon. and hon. Members who have contributed to the debate today.

I should also put on record in Hansard my thanks to Robert Keenan in my office: he has had very quickly to turn around work on the Bill on a very short-term basis since it was first published.

On that basis, I hope that the Bill will pass its Third Reading without a Division.