Terrorist Offenders (Restriction of Early Release) Bill

Viscount Hailsham Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the purpose of this Bill is to end the automatic early release of terrorist offenders, moving the earliest point at which they can be released and making their release contingent on approval by the Parole Board. Noble Lords will be all too aware that twice in the last few months we have seen appalling attacks on members of the public by terrorist offenders. In each case, these known terrorists were released automatically at the halfway point of their sentence without any oversight by the Parole Board.

It is clear that we must put a stop to the current arrangements, whereby a dangerous terrorist can be released from prison by automatic process of law before the end of their sentence. It is clear that automatic halfway release is simply not right in all cases. We must now respond as quickly as possible. Further releases of prisoners serving relevant sentences are due by the end of February, and if the Bill is to achieve its desired effect then emergency legislative procedure and early commencement is required.

The Bill sets out new release arrangements for prisoners serving a sentence for a terrorist offence or an offence with a terrorist connection. There are two main elements to this: first, to standardise the earliest point at which they may be considered for release, at two-thirds of the sentence imposed; secondly, to require that the Parole Board assess whether they are safe to be released between that point and the end of their sentence. This will apply to all terrorist and terrorist-related offences where the maximum penalty is above two years, including those offences for which the Streatham attacker, Sudesh Amman, was sentenced. Only a very small number of low-level offences, such as failure to comply with a police cordon, are excluded by this threshold, and prosecution and conviction for these offences are rare. The changes affect those serving sentences for a specified offence, whether the sentence was imposed before or after the new section comes into force.

The emergency provisions will extend parole release to those serving standard determinate sentences and other transitional cases subject to automatic release before the end of the custodial term. In line with the normal arrangements for prisoners released by the Parole Board, for this cohort of offenders the board will set the conditions of an offender’s licence when they are released before the end of their sentence. The Parole Board has the necessary powers and expertise to make risk-based release decisions for terrorist offenders. The board currently deals with terrorists serving indeterminate sentences, extended sentences and sentences for offenders of particular concern.

[Viscount Hailsham (Con)]

Will my noble and learned friend remind the House whether the Parole Board has to consider any burden or standard of proof? Is there any provision, statutory or otherwise, for the Parole Board to obtain a letter or opinion from the trial judge as to the dangerousness of the prisoner concerned?

[Lord Keen of Elie]

I am not aware of any statutory provision whereby the Parole Board can secure a letter from the trial judge. Regarding release, the Parole Board has to be satisfied that the prisoner does not represent a threat of harm if released under licence.

There is a cohort of specialist Parole Board members trained specifically to deal with terrorist and extremist offenders. This is, in effect, the specialised branch of the Parole Board that will be used to handle the additional cases. This cohort includes retired High Court judges, retired police officers and other experts in the field, all with extensive experience of dealing with the most sensitive terrorist cases.

We acknowledge that applying these measures retrospectively is an unusual step. However, this reflects the unprecedented gravity of the situation we face, and the danger posed to the public. The Bill simply will not achieve its intended effect unless it operates with retrospective effect, necessarily operating on both serving and future prisoners. The provisions do not, however, alter the length of the sentence, and therefore the penalty already imposed by the court. The Government are confident that the Bill is compatible with Article 7 of the European Convention on Human Rights, as both European and domestic case law have held that release provisions relate to the administration of a pre-existing sentence and do not form part of the penalty.

Due to the nature of this emergency legislation, the Government are proposing that the provisions in the Bill apply only to England, Wales and Scotland. The justification for emergency, retrospective legislation is to prevent the automatic release of terrorist offenders in the coming weeks and months, and such immediate measures are not currently required in Northern Ireland. However, we intend to make provision as appropriate for Northern Ireland via the upcoming counterterrorism Bill, which will deal with sentencing and release.

It is of course crucial that we continue to do our utmost to rehabilitate terrorist offenders when they are in custody. In prison and on probation, all terrorist offenders are closely managed by specialist counterterrorism personnel, and we have a range of capabilities to manage the risk posed by terrorist offenders, and to support their disengagement and rehabilitation, including tailored interventions. The time an offender spends in prison is an opportunity for us to do our best to rehabilitate them, while recognising that this is no simple challenge. Psychological, theological and mental health interventions are all used, and Her Majesty’s Prison and Probation Service has psychologists and specialists to supply formal counter-radicalisation programmes, both in custody and in the community.

The desistance and disengagement programme provides a range of intensive tailored interventions and practical support for terrorist offenders to tackle the drivers of extremism. This can include mentoring, psychological support, and theological and ideological advice. The programme draws on the expertise of academics both from the United Kingdom and internationally through its academic advisory group, ensuring that it is under- pinned by the latest research on desistance, disengagement and deradicalisation to provide constructive challenge and evidence on good practice in an innovative field.

--- Later in debate ---

[Lord Cormack (Con)]

My Lords, I am delighted to follow the noble Lord, Lord Ramsbotham, who was an outstanding inspector of prisons. I very much hope that my noble and learned friend who will reply to the debate will reflect on what he has said and try to give full answers to the questions that he very reasonably asked.

I support this Bill. I believe that it is necessary, but this is not the answer to the problems that we have been discussing this afternoon. The elephant in the Chamber is the Bill that is yet to come. It is crucially important that we get it right.

There are two things that we have not taken sufficiently carefully into account when we look at modern terrorism. I first entered the other place almost 50 years ago. The first 30 or more years of my time there were punctuated by terrorist acts, perpetrated for the most part for political reasons by people who wanted to kill others but did not want to kill themselves. We are now dealing with a wholly new dimension. I could not help reflecting on this at the weekend, when I read the disturbing case of the woman who had become radicalised and a convert, and decided that her mission in life was to blow up St Paul’s Cathedral, and as many people as possible, in an explosion. There is somebody who will have to be looked at for a very long time.

I suggest that we need a radical approach to dealing with terrorism. I believe that there should be a special court devoted to terrorism and a special parole board devoted to dealing with terrorists. In our prisons, it is crucially important that there are those who can deradicalise because they know what the authentic Muslim religion is all about. We have not fulfilled what we should have, by allowing these prisoners to continually refresh and re-radicalise themselves.

While the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was entirely right when he talked about the unsatisfactory nature of indeterminate sentences, I believe that in this particular instance all terrorist-related offences ought to be subject to indefinite sentences. These would of course be reviewed regularly, with a benchmark for the number of years at which they should be reviewed.

[Viscount Hailsham]

Will my noble friend consider the possibility that control orders, which are less confining, are an alternative to indefinite sentences?

[Lord Cormack]

They may be; that is certainly worth discussing. However, I still believe that when we are dealing with these people—bent on mayhem and murder of an indiscriminate nature, the most dangerous of whom believe that they are fulfilling a religious purpose —there is a need to monitor them constantly and do everything possible to deradicalise them, but to have sentences that do not present a danger to the general public. The first and overriding purpose of the Government and Parliament is to defend the realm and all those who live loyally within it. My noble friend Lady Buscombe was entirely right when she referred to treason.

We need a Bill that will really look deeply into these matters. This one cannot. It is necessary and expedient, but it is not the answer. I very much hope that there will be a Bill, subject to pre-legislative scrutiny, where my noble friend Lord Hailsham can pitch his case. We need to take time over that Bill. The one we are dealing with is addressing the emergency, but terrorism is here to stay for the foreseeable future, probably well beyond all our lifetimes and those of our children. If we are truly to protect society—bearing in mind, as other Peers have said, that there will be not hundreds but thousands coming back from Syria in the coming two or three years—we have to have a system that is as watertight as we can make it.

We owe an enormous amount to our police forces. St Paul’s might well have been blown up without the brave action of an undercover officer. We owe a great deal to those who serve in our prisons, but they have to work to an agreed strategy—one mistake is too many. In a previous incarnation, I had the great pleasure of having the noble Lord, Lord Blair of Boughton, as a pupil. He was right when he talked about Mr Bumble and the law being an ass. Those officers who shot down that man in Streatham High Road should never have been in that position. Let us haste this Bill through tonight and then have a long and determined look at how we tackle the problem in the future.

Terrorist Offenders (Restriction of Early Release) Bill

Viscount Hailsham Excerpts

Committee stage & Report stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, my name is the fourth name on these amendments, and I am not going to add anything, save to say this: I wish it had not been necessary to table these amendments. They represent what I would have considered a reasonable Bill to tackle the difficult problems we are dealing with tonight. I support strongly my noble friend Lord Anderson and others who have signed these amendments.

[Viscount Hailsham (Con)]

My Lords, I rise only briefly. First, I apologise for not participating in the Second Reading debate. I had a professional engagement that I thought would go on all day, so I did not put my name down to speak, but I have been present throughout almost all the debate, so I am familiar with the arguments that have been articulated.

Turning directly to the comments and the amendment of the noble Lord, Lord Anderson, like other noble Lords I do not like changing goalposts. I entirely take the point made by the noble Lord, Lord Beith, the noble and learned Lord, Lord Falconer, and of course the noble Lord, Lord Anderson, himself. In principle, it is an unsatisfactory business. I am not competent to form a view as to whether this is an infringement of Article 7 of the European Convention, but I am bound to say that I took a great deal of reassurance on that point from the speeches of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, both of whom addressed the matter most directly.

My arguments are of a more pragmatic nature. Firstly, the Bill introduces two elements of retrospectivity. The first is the introduction of the Parole Board filter—a point made by the Minister. The second, and different, element is the introduction of raising the minimum custodial period from one-half to two-thirds. Almost everybody who has spoken in this House, and everybody who I heard, welcomed the introduction of the Parole Board filter and thought it was a jolly good idea—but it is retrospective. Once one has decided that one can as a matter of principle accept that retrospective change, I find it quite difficult to see why as a matter of principle one should not accept the other change: namely, raising the minimum period from one-half to two-thirds.

--- Later in debate ---

[Lord Anderson of Ipswich]

My Lords, I want to pick up on the point just made by the noble Lord, Lord Marks, about the independent reviewer. As a former independent reviewer myself, I am temperamentally rather inclined to the merits of independent review. However, in his note of 19 February on this Bill, Jonathan Hall said:

“I consider that the effect of sentences passed under the Terrorism Acts falls within my remit as Independent Reviewer of Terrorism Legislation, and therefore I would propose to report on the impact of these changes (and of the changes likely to be made by the more sizeable Counter-Terrorism Sentencing Bill later in the year) in one of my forthcoming annual reports, most likely my report on the Terrorism Acts in 2020.”


Perhaps I may ask the Minister, when he responds, to confirm whether it is his impression, as it is mine, that reviews of that nature fall within the existing remit of the independent reviewer. Perhaps I may also ask the noble Lord, Lord Marks, to comment on whether, in the light of that fact, his amendment will really add anything at all.

[Viscount Hailsham]

My Lords, I rise very briefly to express my views on this amendment. I have a lot of sympathy in general with the proposition that we need a review. However, I cannot support it on this occasion for two reasons.

The first is, I admit, wholly pragmatic; this is going to go nowhere. This matter was discussed in the House of Commons. The noble Lord, Lord Marks, will know that there were two amendments, creating a new Clause 1 and a new Clause 3. The latter in the House of Commons was in exactly the same terms as the noble Lord’s amendment and was barely discussed. I think that new Clause 1, which was a Labour Party amendment, also received no effective discussion. So it will not go anywhere, and I personally am not in favour of parliamentary ping-pong on this matter, rather for the reasons advanced by my noble friend Lord Cormack.

The second reason is rather longer: this does not go nearly far enough. Indeed, such a review could stand in the way of the kind of review that I would hope to persuade your Lordships is desirable. We have a counterterrorism and sentencing Bill coming forward. For that purpose, it is absolutely essential that there is very wide consultation prior to the consideration by Parliament of that Bill. That could be called a review but is essentially a consultation, and it has to address at least four substantive matters.

First, there is the complexity of the existing sentencing and sentence arrangements. These were described very eloquently by the noble and learned Lord, Lord Judge. It is a hugely complex area. There is huge scope for consolidation and simplification. That should be addressed in a pre-Bill consultation process.

Secondly, we need to know much more about how terrorism prisoners are being managed in the prison estate, and in particular the degree to which Mr Acheson’s actual recommendations are being implemented. To the extent that they are not, we need to know the reasons why.

Thirdly, almost everybody who has spoken in these three debates has welcomed the Parole Board filter that is being introduced. But the Parole Board can only act on information that it receives. It is absolutely essential that there is provision within the prison system for making suitable information available. That means a whole range of things, such as having experienced probation officers; having experienced prison officers —which is very important, because too many are retiring and being replaced by very young ones; appropriate courses; meaningful out-of-cell activity; and not churning prisoners from prison to prison within the estate. We have to know about all of this. The noble Lord, Lord Ramsbotham, has made this point on many occasions. Provision of all of these things in prisons is lamentable. We are going to see really large sums of money being dedicated to the Prison Service. But if the Government are serious about increasing the number of prisons, the money will actually go on buildings, not to the provision of the courses and information that will be absolutely essential to enable the Parole Board to make an effective decision.

My last point is that, down the track, the Parole Board will release prisoners who go on to commit very serious offences—probably multiple murder. It will almost certainly happen and will be a tragedy. At that point, there will be immense public opinion calling for prisoners to be kept in prison indeterminately. If I may say so, that is the point that my noble friend Lord Cormack was addressing. My point is that that pressure will arise. I personally believe that it may be necessary to introduce some form of post-sentence control-order process, as mentioned by the noble Lord, Lord Macdonald. That may be necessary, but I think it should take the form more of the old control-order regime, rather than indeterminate sentences of the kind identified by my noble friend Lord Cormack.

Whatever the case, we need to consider it now, not in the context of emergency legislation. If there is emergency legislation, there will be immense pressure for indeterminate sentences, and I have a very strong feeling that that is profoundly wrong and that we should not do it. The consultation that will precede the introduction of the counterterrorism and sentencing Bill should address what happens if the Parole Board does release offenders who go on to commit multiple murder. It is much better to do this over a slightly longer period, without the urgency of emergency legislation, than to do it in the latter context.

Therefore, I say to the noble Lord, Lord Marks, that I am not against reviews, but I think his review is far too narrow and could stand in the way of the much bigger review that I think is essential.